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MortSci 2012

Oregon Funeral Law

Disclaimer: While every effort was made to ensure the accuracy and completeness of the Funeral Laws and regulations available on the State’s website, the documents are not official, and the state agencies preparing this website and the Compiler are not responsible for any errors or omissions which may occur in these files. Only the current published volumes of the States Laws are considered valid

Oregon

The Oregon Administrative Rules contain OARs filed through May 13, 2011

MORTUARY AND CEMETERY BOARD

DIVISION 1 PROCEDURAL RULES 830-001-0000 Model Rules of Procedure and Notice of Proposed Rulemaking (1) The Attorney General's Uniform Model Rules of Procedure under the Administrative Procedures Act, which became effective January 1, 2008 are by this reference adopted as rules of administrative procedure of the Board and shall be controlling except as otherwise required by statute or rule.

(2) Prior to the adoption, amendment or repeal of any rule, the Mortuary and Cemetery Board shall give notice of the intended action: (a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 15 days before the effective date of the intended action; (b) By mailing a copy of the notice to persons on the Mortuary and Cemetery Board's mailing list established pursuant to ORS 183.335(8); (c) By mailing or furnishing a copy of the notice to the United Press International and Associated Press; and (d) To licensees, certificate holders of the Board, State Medical Examiner, the Center for Health Statistics of the State Health Division, District Attorneys within the state, the Oregon Funeral Directors Association and the Cemetery Association of Oregon.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or Mortuary Board.]

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 183.335 & 183.360 Hist.: FDB 15, f. & ef. 10-15-76; FDB 2-1979, f. & ef. 2-21-79; FDB 1-1980, f. & ef. 3-28-80; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 10-21-86; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09

DIVISION 11 GENERAL INFORMATION 830-011-0000 Definitions (1) “At Need” As used in this chapter, means arrangements entered into after a death has occurred, “at the time of need”.

(2) “Authorizing Agent(s)” The authorizing agent(s) is (are) the person(s) legally entitled to order the disposition of human remains and cremated remains.

(3) “Burial Vault” A burial vault is a receptacle designed to protect the casket from the intrusion of outside elements, the weight of the surrounding earth, and the weight of maintenance equipment.

(4) “Certificate of Authority” A Certificate of Authority is a certificate issued to an individual or corporation who is responsible for the operation of either a cemetery or crematory. If the crematory or cemetery is a corporation, the Certificate of Authority shall be issued to the corporation.

(5) “Cremated Remains” Cremated remains are the remaining ash and bone fragments after the act of cremation is completed.

(6) “Cremated Remains Container” As used in this chapter, a cremated remains container means any container in which processed cremated remains can be placed and closed to prevent leakage. At a minimum, this would be a plastic-lined cardboard container.

(7) “Cremation” Cremation is the technical heating process that reduces human remains to ash and bone fragments.

(8) “Cremation Chamber” A cremation chamber is the enclosed space in which the cremation process takes place.

(9) “Cremation Container” A cremation container is the container in which the human remains are placed in the cremation chamber for a cremation. The container shall meet all the requirements of the crematorium.

(10) “Crematory Authority” The crematory authority is the legal entity or the authorized representative of the legal entity who conducts the cremation.

(11) “Crematory or Crematorium” A crematory or crematorium is any person, partnership, or corporation with a Certificate of Authority to operate a cremation chamber.

(12) “Death Care Consultant” As used in this chapter, a “death care consultant” means an individual who provides consultations related to funeral or final disposition arrangements, for payment, to the person or persons who are acting as a funeral service practitioner under ORS Chapter 432. For purposes of this definition, the consultations include any conference, information, guidance or advice either at the time of death or when the death is soon to occur.

(13) “Death Care Industry” As used in this chapter death care industry means the funeral service and final disposition practitioners and facilities.

(14) “Disinfectant Solution” A disinfectant solution is a chemical agent capable of destroying pathogens or their product when applied with sufficient time and concentration.

(15) “Disposition” Disposition is burial, entombment, burial at sea or cremation.

(16) “Embalmed” Human remains shall be considered embalmed when sufficient disinfectant solution or preservative fluid has been injected into the circulatory system and/or applied externally to render it not a hazard to public health.

(17) “Endowment Care Funds” Endowment care funds are principal amounts deposited from which the revenue on the principal is used for the care and maintenance of a cemetery.

(18) “Final Processing” Final Processing is the processing of cremated bone fragments to an unidentifiable dimension.

(19) “Grave Liner” A grave liner is a burial receptacle either in sectional or box form, built and designed to be installed in a grave to assist in preventing the ground from collapsing.

(20) “Holder of a Certificate of Registration” As used in this chapter a “Holder of a Certificate of Registration” means the same as “Certified Provider” as defined in ORS 97.923(2).

(21) “Holding Room” A holding room is a suitable room constructed in accordance with OAR 830-040-0020 (2), (3), (4), (5), and (6) which licensed funeral establishments use for the care, storage, or holding of human remains prior to effecting disposition. This room shall be of sufficient size to accommodate at least one table for a casketed remains and attendant that may be used by the funeral establishment to care for or repair remains in those facilities which do not offer on premises embalmings. This room would be other than a chapel, viewing or visitation room, office supply room, closet or other room normally open to the public.

(22) “Human Remains” Human remains means a dead human body.

(23) “Identification Viewing” Identification viewing means viewing the remains for the purpose of identifying the remains, regardless of whether the remains have been washed or otherwise prepared.

(24) “Identifying Metal Disc” An identifying metal disc is a metal disc, approximately one inch in diameter with a number assigned by the State Registrar’s office, each with a different number, for the purpose of accompanying dead human remains through the disposition process and to serve as a means of permanent identification of those remains.

(25) “Intern Apprentice” An intern apprentice is any student enrolled in an accredited funeral service education program who is serving his/her three-month internship under the supervision of a combination-licensed funeral service practitioner/embalmer at a participating funeral establishment.

(26) “Licensed Facility” A licensed facility is any licensed business governed by ORS Chapter 692, either cemetery, crematory, immediate disposition company or funeral establishment.

(27) “Licensee” Licensee means any individual or facility licensed under ORS Chapter 692 and any preneed salesperson registered under ORS 97.931.

(28) “Minimum Preparation of Human Remains” As used in this rule minimum preparation of human remains means the human remains are completely washed as defined in this section.

(29) “Offensive Treatment of Human Remains” As used in this rule and in ORS Chapter 692, offensive treatment of human remains is treatment offensive to the generally accepted standards of the community.

(30) “Prearrangement” As used in this chapter, means sales or agreements for undelivered goods or services to be delivered at an unspecified date in the future, entered into before a death has occurred, i.e., “before the time of need”. Prearrangements by this definition do not include the sale of interment rights purchased before a death when the property is developed.

(31) “Preneed Funds” Preneed funds are specified amounts paid for goods and/or services that are sold in advance of need but not delivered.

(32) “Preneed salesperson” As used in these rules, “preneed salesperson” means an individual registered under ORS 97.931 and employed by a certified provider to engage in the sale of prearrangement or preconstruction sales contracts on behalf of the certified provider.

(33) “Preparation Room” As used in these rules, preparation room means the same as embalming facility as used in ORS Chapter 692.

(34) “Principal” Principal means those persons who have controlling authority over the licensed facility, including but not limited to: (a) Managers or other persons who have decision-making authority and whose primary duties include control over the operation of the licensed facility; (b) Officers or directors who have some degree of responsibility for the operation of the licensed facility; (c) Stock holders or corporations who own or control ten percent or more of the licensed facility by owning or controlling ten percent or more of the voting stock; and (d) Partners.

(35) “Processed Cremated Remains” As used in this chapter, processed cremated remains are the result of pulverization, where the residual from the cremation process is cleaned leaving bone fragments reduced to unidentifiable dimensions.

(36) “Public Viewing” Public viewing means the human remains have, at minimum, been washed, as defined in this section, and the remains are placed in a viewing room, church, chapel or other suitable place for viewing of the remains.

(37) “Receptacle” As used in this chapter, a receptacle means a rigid container for human remains.

(38) “Refrigeration Unit” As used in this chapter, a refrigeration unit is one used in licensed facilities to store dead human remains that meet commercial standards.

(39) “Registration” As used in this chapter, registration may refer to the registration of a cemetery that does not fall under the category of “Operating Cemetery” as defined in ORS 692.010(7) or it may refer to the “registration” of preneed salespersons. Registration of nonoperating cemeteries, and preneed salespersons is required for compliance with Oregon Laws.

(40) “Sanitary Condition” Sanitary means clean from dirt, foreign particles, blood stains, offensive odors, insects, etc.

(41) “Sealed Casket” A sealed casket is one that is designed by a manufacturer to be sealed prior to final disposition.

(42) “Solicitation” Solicitation is defined as actively endeavoring to obtain business or clientele through means such as telephone or personal contact.

(43) “Visitation” Visitation means a specific time and place to gather where the human remains are present, except for graveside service.

(44) “Washed” A human remains shall be considered washed and brought to a sanitary condition when the entire surface of the human remains has been bathed with a disinfectant solution and the mouth, nose, and other body orifices have been washed and when necessary packed with cotton saturated with a disinfectant solution.

Stat. Auth.: ORS 128.414 & 692.320 Stats. Implemented: ORS 692.320 & 128.414 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1988, f. & cert. ef. 2-10-88; MCB 1-1989, f. & cert. ef. 2-6-89; Renumbered from 830-030-0010 (1)(a) - (k) & 830-0300020 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 12001(Temp), f. 12-12-01, cert. ef. 1-1-02 thru 6-29-02; MCB 1-2002, f. 5-30-02, cert. ef. 6-3002; MCB 1-2009, f. & cert. ef. 7-1-09; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-011-0010 Employees, Meetings, Officers of the Board (1) The Board shall employ an executive director, office manager, licensing specialist, investigator, and inspector to maintain the office of the Board, answer correspondence, and perform those duties necessary in carrying out the provisions of the law and of these rules. The office of the Board shall be such place as is designated by the Board.

(2) The Board shall meet at least six times per year, at a date, time, and place determined by the Board. Special meetings may be called by the president as deemed applicable.

(3) The Board, at its regular meeting in January of each year, shall elect from its members a president, a vice-president, and a secretary-treasurer to serve until the next election. Special elections may be held at the discretion of the Board. The president, or, in his absence, the vice-

president, shall preside at all meetings, appoint all committees, and perform all functions incidental to the president of the Board.

(4) The executive director shall act under instruction of the president of the Board, and in his/her absence the vice-president and shall be responsible for supervising and monitoring the activities of the Board’s office and staff. The executive director is authorized by the Board to sign correspondence, legal documents and other necessary papers to carry out Board mandates.

(5) No individual member of the Board or any of their employees may be sued for doing or omitting to do any act in the performance of their duties as prescribed by ORS 692.180.

Stat. Auth.: ORS 183.341, 692.300, 692.310 & 692.320 Stats. Implemented: ORS 183.341, 692.300, 692.310 & 692.320 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; FDB 16, f. & ef. 6-30-77; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 10-21-86; Renumbered from 830-010-0005 ; MCB 2-1988, f. & cert. ef. 9-9-88; MCB 1-1989, f. & cert. ef. 2-6-89; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97 830-011-0020 Apprenticeship -- Generally (1) Apprenticeship for embalmer, funeral service practitioner, or intern apprentice must be served under persons licensed and working in Oregon who have been licensed for at least one year. A funeral service practitioner may supervise only one apprentice at a time and an embalmer may supervise only one apprentice at a time. (The only exception to this rule is that an embalmer may supervise up to three intern apprentices from an accredited funeral service education provider in addition to an apprentice embalmer.) A person who holds both a funeral service practitioner license and an embalmer license may supervise an apprentice funeral service practitioner and an apprentice embalmer. The licensee who supervises an apprentice must be working and located in the same licensed facility as the apprentice he/she is supervising.

(2) Apprentice embalmers must assist in the preparation of at least 45 human remains during the apprenticeship period under the personal supervision of a licensed embalmer. A record showing the name of the deceased, date, and place of death, and the date of embalming shall be kept and furnished to the Board upon request.

(3) Apprentice embalmers must work a minimum of at least thirty hours per week and at least three days per week, excluding up to 30 days of vacation time per year.

(4) Apprentice funeral service practitioners must work a minimum of 30 hours per week during normal business hours, excluding 30 days of vacation leave per year, and must assist in the

planning of at least 25 funerals or dispositions per year through some form of direct contact with the family or representative of the deceased. Apprentice funeral service practitioners may not be accredited for time served in their funeral service practitioner apprenticeship while being enrolled in a full-time funeral service education program. For the purpose of this chapter, fulltime is considered 12 or more credit hours per quarter. If the apprentice is enrolled in 11 or less credit hours per quarter, he/she will be considered a part-time student and could qualify for a funeral service practitioner apprenticeship providing he/she can meet the minimum requirements set forth above. Apprentice funeral service practitioners who are planning to become part-time students shall submit a letter to the Board clearly explaining their ability to attend classes and still meet the minimum requirements set forth above. Each applicant shall be approved individually based on the submission of all appropriate paperwork, fees and letters of explanation. No credit will be granted for apprenticeship time served unless prior approval by the Board has been granted. A log book shall be kept, on the premises, showing all arrangements made or participated in by the apprentice and be available upon request. The log book shall be retained for a period of one year after completion of the apprenticeship and shall include the following: (a) Name of deceased; (b) Date and place of death; (c) Date arrangements were made; (d) Apprentice participation with family; and (e) Number of days and hours worked per week.

(5) Intern apprentices shall serve their apprenticeships in accordance with the internship guidelines established by an accredited funeral service education program. A copy of the guidelines is available from the Board upon request. Intern apprentices are only required to intern at a funeral home for 15 hours per week and may acquire half credit for the three-month period toward the twelve-month licensing requirement for embalmer toward licensing. If the intern apprentice is also serving an embalmer apprenticeship and is meeting the thirty hour a week requirement set forth in section (3) of this rule then full credit shall accrue toward completion of the embalmer apprenticeship. If the intern is performing the functions of an intern funeral service practitioner in addition to an intern apprentice then the apprentice may also receive half-credit for the three-month period toward the 12-month requirement for a funeral service practitioner license.

(6) Applicants for an apprentice certificate shall make application in accordance with ORS Chapter 692. The application must be accompanied by the fee prescribed by OAR 830020-0040 , a certified copy of the applicant's birth certificate, and satisfactory proof of high

school graduation or equivalency. If an applicant for an apprentice certificate does not have a high school diploma, he/she must present satisfactory evidence that he/she possesses the equivalent of a high school education received in some private, public, or trade school, or he/she must successfully pass the high school equivalency test (General Education Development Test) given by the local high school, or some similar equivalency test conducted by a similar agency.

Prior to becoming licensed as a funeral service practitioner, apprentices shall provide a certified copy of a transcript from a school accredited by an Association of Schools and Colleges demonstrating completion of an Associate’s degree or higher degree. Prior to becoming licensed as an embalmer, apprentices shall provide proof of completion of an accredited course of funeral service education.

(7) The effective date of the apprenticeship shall be the date the completed application, fee, and the required certificates are received and validated in the office of the Board. A letter will be sent notifying the apprentice of the status of his/her apprenticeship.

(8) The certificate of apprenticeship shall be issued to the applicant as an apprentice to a specified licensee. If the apprentice changes establishments or person to whom apprenticed, he/she shall file a request for approval of transfer with the Board immediately. A certificate shall be reissued upon payment of an administrative charge. When an apprentice ceases employment at the supervisor's facility, the apprenticeship certificate shall become null and void. It is the responsibility of the supervisor to notify the Board's office of any termination in apprenticeship.

(9) Apprentice funeral service practitioner and embalmer certificates shall not be granted to any person for a longer period than 48 aggregate months. When an apprentice has completed his/her apprenticeship, he/she will no longer be licensed as an apprentice, but must qualify either as a licensed embalmer or licensed funeral service practitioner.

(10) If a funeral service practitioner's apprentice makes any arrangements for a deceased person the licensed funeral service practitioner supervising the apprentice is responsible for any arrangements made by the apprentice.

(11) An applicant for Oregon funeral service practitioner or embalmer licensure shall be deemed to have satisfied the respective apprenticeship requirement upon submitting proof satisfactory to the Board that the person has practiced, respectively, as a licensed funeral service practitioner or embalmer: (a) For three years of the past five years; or (b) For a total of ten years.

(12) Embalmer applicants who meet the requirements set forth in section (11) of this rule, shall be required to demonstrate competency by way of a practical examination at a time and place designated by the Board.

(13) Funeral Service Practitioner applicants who meet the requirements set forth in section (11) of this rule shall be required to successfully complete a written examination and receive a score of not less than 75 percent, based on the total number of questions.

Stat. Auth.: ORS 692.160 & 692.320 Stats. Implemented: ORS 692.045, 692.070, 692.105, 692.130 & 692.190 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0050 ; MCB 2-1988, f. & cert. ef. 9-9-88; MCB 11989, f. & cert. ef. 2-6-89; MCB 1-1992, f. & cert. ef. 2-11-92; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09 830-011-0030 Leave of Absence from Apprenticeship (1) Leaves of absence from apprenticeship may be granted by the Board in accordance with ORS Chapter 692. Application for leave of absence shall be submitted on a form provided by the Board.

(2) Time spent in embalming college by an apprentice shall not be counted as part of the twelve months leave of absence which may be approved by the Board. No request for leave of absence is necessary when an apprentice enters embalming college. The apprentice shall, however, notify the Board of the name of the college he is attending and the date of his entry in college.

(3) If an apprentice enters military service of the United States, he shall notify the Board of the date of his entry into service. Upon release from military service, he shall notify the Board. If he is resuming his apprenticeship immediately, this fact must be certified to by the funeral service practitioner or embalmer under whom he is apprenticing: (a) If an apprentice resumes his apprenticeship within one year of his release from military service, the Board may grant him full credit for times served on his apprenticeship prior to entry into the military service; and (b) An apprentice returning from military leave who resumes his apprenticeship within six months need not request a leave of absence to cover the time between discharge from service and return to apprenticeship. However, an apprentice returning from military leave who does

not intend to resume his apprenticeship within six months should request an official leave of absence in order to insure receiving credit for time previously served.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.190 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; Renumbered from 830-010-0055 830-011-0040 Completion of Funeral Service Practitioner and Embalmer Apprenticeship and Examination (1) A funeral service practitioner apprenticeship shall be completed within 48 aggregate months.

The individual must successfully complete practical experience as a funeral service practitioner's apprentice under ORS 692.190.

(2) An embalmer apprenticeship shall be completed within 48 aggregate months, excluding time lost as provided in ORS 692.190(7). Extensions of the 48 aggregate month period for completion of an embalmer apprenticeship may be granted by the Mortuary and Cemetery Board due to extenuating circumstances beyond the control of the apprentice. The embalmer apprentice shall submit written evidence of graduation from an accredited program of funeral service education. An embalmer apprentice may either take the Oregon embalmer examination or he may submit to the Board proof of passing the National Board Examination written by the Conference of Funeral Service Examining Boards of the United States, Inc. in lieu of the Oregon embalmer examination. In either case an average score of at least 75 percent as described in OAR 830-020-0000 (2)(b) will be required for passing.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.105, 692.045 & 692.190 Hist.: FDB 1-1978, f. & ef. 6-30-78; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0060 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09 830-011-0050 Background Investigation Required Prior to Oregon Licen?sure (1) All applicants for individual or facility licenses, and principals of licensed facilities must submit to a background investigation. The background investigation may include, but not be limited to, information solicited from the Law Enforcement Data Systems, Corporations Commissions, Department of Motor Vehicles, other State agencies, personal references, former

employers, credit checks, and when applicable, information solicited from the Secretary of State’s Office, Division of Audits on endowment care, prearrangement and preconstruction sales funds. If the principal is a corporation, the Board may perform background investigations on the principals of that corporation. The Board may require the applicant or licensee to furnish any information necessary to perform a background investigation.

(2) The Board may deny, suspend or refuse to issue or renew a license or certificate when conditions exist in relation to any principal of a licensed facility which constitute grounds for refusing to issue or renew a license or certificate or for suspension of a license.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.025 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1988, f. & cert. ef. 2-10-88; MCB 1-1994, f. 628-94, cert. ef. 8-1-94; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-011-0070 Registration of Preneed Salespersons and Endowment Care Cemetery Salespersons (1) An individual may not engage in prearrangement or preconstruction (preneed) sales under ORS 97.923 to 97.949 unless the individual is registered as a "preneed salesperson" with the State Mortuary and Cemetery Board. Individuals who are currently licensed as a funeral service practitioner or embalmer or certificated as an apprentice funeral service practitioner or apprentice embalmer need not register separately to sell preneed.

(2) Applicants for registration as a "preneed salesperson" must apply on a form provided by the Board, pay the preneed salesperson fees set forth in OAR 830-020-0040 and submit to a background investigation. The background investigation may include but is not limited to information solicited from the Department of State Police, Law Enforcement Data System, Oregon Department of Motor Vehicles, other government agencies including local law enforcement agencies, the courts and prior employers.

(3) Endowment care cemetery salespersons engaging in prearrangement or preconstruction sales must comply with all the requirements set forth in this section.

(4) A certificate of registration will be issued to an approved preneed salesperson applicant. An applicant may not make preneed sales or engage in preneed sales activity, including but not limited to marketing and participating in sales presentations, until a certificate of registration has been issued to the applicant by the Board. It is the responsibility of the salesperson to keep the Board's office advised (in writing) of any address changes within 30 days of the change.

(5) All preneed salesperson certificates of registration will expire on March 1 in even-numbered years unless renewed as provided in this section.

(6) On or before December 31 of each odd numbered year, the Board will mail to each registered preneed salesperson a form containing notice that the renewal fee is due and payable.

The renewal form will be mailed to the most current address filed with the Board by the preneed salesperson. If the renewal form is not returned and the renewal fee is not paid by the renewal date the certificate of registration will lapse.

(7) Upon lapse of a preneed salesperson certificate of registration, the Board will send notice of the lapse by registered or certified mail to the most current address filed with the Board by the preneed salesperson.

(8) The Board may reinstate a certificate of registration if the preneed salesperson applies for reinstatement on a form provided by the Board not later than the 90th day after the lapse and pays the renewal fee as well as the reinstatement fee established in OAR 830-0200040 .

Stat. Auth.: ORS 128.414 Stats. Implemented: ORS 128.414 Hist.: MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-2001(Temp), f. 12-12-01, cert. ef. 1-1-02 thru 6-29-02; MCB 1-2002, f. 5-30-02, cert. ef. 630-02 830-011-0080 Grounds for Civil Penalty, Revocation, Suspension or Refusal to Issue or Renew a Preneed Salespersons Registration (1) In accordance with ORS 97.933(5), the Holder of a Certificate of Registration is responsible for the conduct of their preneed salespersons. Therefore, the Board may take disciplinary action against a licensee that is the Holder of the Certificate of Registration for the misconduct of their preneed salespersons. It is the responsibility of the Holder of the Certificate of Registration to insure that sound sales and business practices are used in the training and supervision of their preneed salespersons.

(2) Upon complaint or upon its own motion, the Board may investigate any complaint concerning a preneed salesperson, a preneed salesperson applicant or an individual engaged in preneed sales activity without registration. For any of the causes described in ORS 692.180(1) or OAR 830-050-0050 , or upon a determination that a preneed salesperson, applicant or unregistered individual has not complied with the provisions of ORS 97.923 to 97.949 or

ORS chapter 692 or any rules adopted thereunder, the Board may impose a civil penalty of up to $1000 per violation or suspend, revoke or refuse to issue or renew a registration.

Stat. Auth.: ORS 128.414 & 692.320 Stats. Implemented: ORS 128.414 Hist.: MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2001(Temp), f. 12-12-01, cert. ef. 1-1-02 thru 6-29-02; MCB 1-2002, f. 5-30-02, cert. ef. 6-30-02 The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

DIVISION 20 EXAMINATION AND LICENSURE 830-020-0000 Applications and Examinations for Funeral Service Practi?tioner and Embalmer Licenses (1) All applications for funeral service practitioner and embalmer licenses by examination, accompanied by the examination fee prescribed by ORS Chapter 692, must be received in the office of the Board at least 14 days before the examination is held, or be postmarked before midnight of that date.

(2) The examinations for a funeral service practitioner, and embalmer shall be given at least twice each year: (a) Applicants for a funeral service practitioner license shall be required to successfully complete a written examination and receive a score of not less than 75 percent, based on the total number of questions; (b) Applicants for an embalmer’s license shall be required to successfully complete a written examination that will include two sections, funeral service arts and funeral service sciences, and must receive an average score of at least 75 percent on the sections with not less than 70 percent on either of these two sections; and

(c) If the Board deems it necessary, the applicant for an embalmer’s license may also be required to pass an examination testing his qualifications as to the practical application of his knowledge.

(3) Upon successful completion of the funeral service practitioner’s examination, an appropriate license for the current year will be issued to the examinee after fulfilling the apprenticeship and upon payment of the annual license fee prescribed by ORS Chapter 692. An applicant for an embalmer’s license may be examined by the Board after first providing evidence of graduation from a funeral service program accredited by the American Board of Funeral Service Education, but shall not receive an embalmer’s license until he has fulfilled his apprenticeship and paid the required fee as prescribed in ORS Chapter 692.

(4) If an applicant for a funeral service practitioner’s, or embalmer’s license fails to satisfactorily complete the examination, he may retake the examination the next time it is given upon payment of the full examination fee. Such fee must be received in the office of the Board at least 14 days before the examination is given.

(5) The examination fee shall not be returned to an examinee once he takes the examination.

(6) Test results will be mailed to examinees within 30 days after completion of the examination.

Exams are not reviewable by examinee, pursuant to the Public Records Act, ORS Chapter 192.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.045, 692.070, 692.105, 692.130, 692.140 & 692.320 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0100 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-020-0010 License Fee Due After Examination A license fee which is not received at the office of the Board within 30 days following receipt of notice of successful completion of the examination and completion of the apprenticeship for funeral service practitioner or embalmer, shall be considered delinquent and shall be subject to the reinstatement provisions of ORS 692.170 for lapsed licenses.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.148 & 692.160 Hist.: FDB 1-1978, f. & ef. 6-30-78; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 10-

21-86; Renumbered from 830-010-0101 MCB 1-1998, f. & cert. ef. 6-22-98

; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97;

830-020-0015 Disaster Mutual Aid Agreement In instances of a State emergency or disaster, it is the intention of the Oregon State Mortuary and Cemetery Board to allow funeral service practitioners and embalmers similarly licensed in other states, who are members of a disaster mortuary team and volunteering to appropriately care for deceased victims to practice in Oregon until the disaster or emergency has subsided.

Individual volunteers shall be a member of a "Disaster Mortuary Team" authorized by local or federal authorities to provide such services. Only funeral service practitioners and/or embalmers licensed in Oregon shall sign death certificates.

Stat. Auth.: ORS 183.341 & 692.320 Stats. Implemented: ORS 692.320 Hist.: MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-020-0020 Funeral Service Practitioner and Embalmer Licenses; Mili?tary Leave (1) Funeral service practitioners and embalmers shall be licensed only after compliance with ORS Chapter 692, and rules adopted thereunder. Licenses for funeral service practitioner and embalmer will not be issued or renewed unless assessed civil penalties have been paid.

(2) A license issued pursuant to ORS Chapter 692 shall not be transferable.

(3) The Board shall publish, on its internet website, a list of the Board’s licensees.

(4) A person licensed under ORS Chapter 692 shall not be required to renew his/her individual funeral service practitioner or embalmer license while in active military service unless the person is required by that branch of the military service to maintain an active license from the state in which he/she is licensed in order to perform those services for that branch of the service.

Such person shall notify the Board in writing of the date he/she will begin active military duty.

The Board will not require this person to pay renewal licensing fees until completion of military duty. After release from active duty under honorable conditions, this person shall notify the Board in writing within 60 days of such discharge and shall be restored to former status. No fees will be requested until the following renewal period.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.190 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0105 ; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-020-0030 Reciprocal Licensure (1) An applicant for reciprocal licensure shall apply to the Board on a form provided by the Board. The application shall be accompanied by the following: (a) The reciprocal fee as prescribed by OAR

830-020-0040

;

(b) A certified copy of the applicant's birth certificate; (c) A certified copy of transcripts from a school accredited by an Association of Schools and Colleges demonstrating completion of an Associate’s degree or higher degree (for funeral service practitioner licensure) or proof of passing an accredited course of funeral service education (for embalmer licensure); (d) A certificate from the state(s) the applicant is licensed in which includes: Length of apprenticeship, examination score, date licensed, status of license at the present time, and whether the applicant's license has ever been suspended or revoked or other disciplinary action taken; (e) Proof that the applicant is licensed and has practiced, respectively, as a funeral service practitioner or an embalmer in another state for three of the past five years immediately preceding the respective application date; and (f) An authorization signed by the applicant for the Board to perform a thorough background investigation as described in ORS 692.025(8).

(2) An applicant for reciprocal funeral service practitioner license shall be required to pass the Board's funeral service practitioner examination as a means of providing satisfactory proof to the Board that the applicant has the requisite qualifications for licensing as a funeral service practitioner in this state. The examination shall include Oregon and federal laws, rules and regulations relating to the care, preparation, disposition and transportation of human remains and to survivor death benefits. Reciprocal applicants for funeral service practitioner license shall be required to receive a score of not less than 75 percent, based on the total number of

questions, in order to pass the examination. Reciprocal applicants shall be eligible to take the examination at the regularly scheduled examination dates if their applications are received at least 30 days prior to the examination date.

(3) Applicants for reciprocal embalmer licensure shall be required to show evidence satisfactory to the Board that the applicant has successfully passed the National Board Examination as administered by the Conference of Funeral Service Examining Boards or an equivalent examination written by the Conference of Funeral Service Examining Boards that shall include two sections, funeral service arts and funeral service sciences, and must receive an average score of at least 75 percent on the sections with not less than 70 percent on either of these two sections.

(4) At no time shall a license be issued to a reciprocal applicant before a complete background check has been performed and Board approval has been received.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.140 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-109 830-020-0040 License, Certificate and Registration Fees (1) Initial application fees: (a) Funeral establishment, immediate disposition company, crematory or cemetery that performs more than five interments per year — $150 (includes first principal) plus $50 for each additional principal; (b) Cemetery that performs five or fewer interments annually — $100 (includes first principal) plus $50 for each additional principal; (c) Change of principa l— $50 per licensed facility; (d) Apprentice funeral service practitioner or apprentice embalmer — $50; (e) Reciprocal funeral service practitioner or reciprocal embalmer — $160; (f) Intern Apprentice — $25; (g) Preneed Salesperson — $150;

(h) Certificate of Removal Registration — $30; (i) Funeral Service Practitioner — $80 per year; (j) Embalmer — $80 per year; (k) Death Care Consultant — $80 per year.

(2) Renewal application fees: (a) Funeral establishment or immediate disposition company — $350 per year, payable biennially; (b) Crematory — $100 per year plus $2 per cremation performed during the two calendar years preceding the year in which the current license expires, payable biennially; (c) Cemetery — $4 per interment performed during the two calendar years preceding the year in which the current license expires up to a maximum of 150 interments or $600 per year, payable biennially; (Cemeteries with ten or fewer interments biennially are not required to pay a renewal fee in accordance with ORS 692.275.) (d) Funeral service practitioner — $80 per year, payable biennially; (e) Embalmer — $80 per year, payable biennially; (f) Combination funeral service practitioner/embalmer — $160 per year, payable biennially; (g) Apprentice funeral service practitioner — $25 per year, payable annually; (h) Apprentice embalmer — $25 per year, payable annually; (i) Preneed salesperson — $25 per year, payable biennially. (j) Death care consultant — $80 per year, payable biennially; (3) Exam fees: (a) Funeral service practitioner exam — $100; (b) Embalmer exam (written or practical) — $130 to $400 (depending on the cost to the Board). (c) Death care consultant exam — $100

(4) License, certificate and registration reissue fees: (a) Transfer of apprenticeship, replacement license, name change or manager change — $25; (b) Licensed facility location change — $250.

(5) Reinstatement of lapsed license, certificate or registration — $50 each.

(6) Funeral service practitioners, embalmers, and preneed salespersons shall renew their licenses on even numbered years. Funeral establishments, immediate disposition companies, cemeteries, and crematoriums shall renew on odd numbered years.

(7) Fees paid under this section are not refundable or transferable.

Stat. Auth.: ORS 692.160, 692.320 & 97.931 Stats. Implemented: ORS 692.160 & 97.931 Hist.: SMB 1-1984, f. & ef. 10-22-84; MCB 1-1985(Temp), f. & ef. 7-3-85; MCB 21985(Temp), f. & ef. 11-5-85; MCB 1-1986, f. & ef. 10-21-86; Renumbered from 830010-0110 ; MCB 2-1989(Temp), f. 10-2-89, cert. ef. 11-1-89; MCB 3-1989, f. 12-4-89, cert. ef. 12-1-89; MCB 1-1992, f. & cert. ef. 2-11-92; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 3-1993, f. 10-28-93, cert. ef. 11-1-93; MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 11997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2001(Temp), f.

12-12-01, cert. ef. 1-1-02 thru 6-29-02; MCB 1-2002, f. 5-30-02, cert. ef. 6-30-02; MCB 12004, f. 9-30-04, cert. ef. 11-1-04; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-020-0050 Administrative Fees (1) The Mortuary and Cemetery Board may charge a fee reasonably calculated to reimburse the agency for costs of providing and conveying copies of public records.

(2) All fees and charges must be paid before public records will be available for inspection or copies provided.

(3) The Board establishes the following fees: (a) $60 per hour fee to obtain the requested documents (prorated with a $15 minimum); (b) $1 for the first page and $0.25 for each additional page; (c) $75 per set of computer-generated lists on paper;

(d) $80 per set of computer-generated lists on peel-n-stick labels; (e) $10 per copy of individual Board meeting minutes; (f) $10 each for cassette tape recordings; (g) A fee to cover the printing and postage for a copy of the Board's Directory of Licensees; and, (h) $10 each for Certificates issued by the Board.

Stat. Auth.: ORS 692.160 & 692.320 Stats. Implemented: ORS 692.160 Hist.: MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97 The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

DIVISION 30 DUTIES OF FUNERAL SERVICE PRACTITIONER CREMATORY AUTHORITY -- CEMETERY AUTHORITY 830-030-0000 In General (1) No licensee, operator of a licensed facility, or their agent shall interfere with another licensee, operator of a licensed facility, or their agent who has been legally called to take care of human remains, or perform services relating to the disposition of human remains. The choice of licensed funeral homes, cemeteries, crematories or immediate disposition companies, or licensed person shall be left entirely to the person with the legal right to control final disposition.

(2) It shall be the responsibility of the funeral service practitioner to prepare a certificate of death and file the same with the vital statistics local registrar in the county where the death occurred.

(3) It shall be the responsibility of the funeral service practitioner to see that an identifying metal disc (with a number assigned by the State Registrar's Office) is attached to each receptacle containing human remains. When remains are to be cremated, the identifying metal disc shall be secured to the top of the head end of the casket or alternative container. When remains are going to be buried or entombed, the identifying metal disc shall be placed on the back side of the head end of the casket behind the handle. If there are no handles, the identifying metal disc should be attached in the same general vicinity. The number on the identifying metal disc shall be written on the certificate of death and final disposition permit by the responsible funeral service practitioner.

(4) It shall be the responsibility of the Crematory Authority to see that the identifying metal disc shall accompany remains through the cremation process.

(5) It shall be the responsibility of the Cemetery Authority or Crematory Authority to see that the identifying metal disc is properly secured to each receptacle containing human remains when remains are delivered to the Cemetery Authority or Crematory Authority and that the number on the identifying metal disc is the number recorded on the final disposition permit. The Cemetery Authority or Crematory Authority shall sign the final disposition permit verifying this fact prior to accepting the remains. At no time shall the Cemetery Authority or Crematory Authority accept remains without an identifying metal disc unless death occurred in a state other than Oregon.

(6) In the case of scattering of cremated remains by a licensee, the identifying metal disc shall be made a part of the licensee's permanent record.

(7) It shall be the responsibility of the funeral establishment licensee or person acting as such handling the disposition of human remains, to pay the death certificate filing fee as required in ORS 432.312(1). This fee shall be paid within 30 days after the billing, and in no case, longer than 90 days after the billing. Failure to pay death certificate filing fees shall be cause for disciplinary action by the Board.

(8) It shall be the responsibility of the funeral establishment licensee, immediate disposition company, Cemetery Authority, and Crematory Authority to assign a manager for each funeral establishment, cemetery or crematory. In the case of funeral establishments and immediate disposition companies, the manager shall be an Oregon licensed funeral service practitioner.

(9) Notwithstanding the provisions of subsection (8) of this section, the Board may authorize a funeral service practitioner to manage more than one funeral establishment or immediate disposition company when the Board, in its sole discretion, determines that the management of more than one funeral establishment or immediate disposition company by a single funeral service practitioner is in the public interest. A request by a funeral service practitioner to manage more than one funeral establishment or immediate disposition company shall be in

writing and shall describe the basis for the request. Board approval shall be in writing and shall identify each funeral establishment or immediate disposition company the funeral service practitioner is authorized to manage.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 432.165, 432.307, 692.180 & 692.405 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0150 ; MCB 1-1989, f. & cert. ef. 2-6-89; MCB 11993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09 830-030-0004 Scope of Practice The purpose of this rule is to establish an acceptable scope of practice for licensed funeral service practitioners, embalmers, and preneed salespersons.

(1) Only a funeral service practitioner or funeral service practitioner apprentice shall: (a) Work directly with at need persons to arrange for the disposition of human remains; and (b) Coordinate and direct the various tasks associated with performing funeral services for at need persons including but not limited to: taking all vital information on the deceased for the purpose of filing the death certificate; arranging for transportation of the remains; coordinating the services for final disposition; supervising or otherwise controlling the care, preparation, processing and handling of human remains.

(2) Only a registered preneed salesperson or other funeral service licensee shall engage in prearrangement or preconstruction sales.

(3) A preneed funeral service salesperson shall not engage in at need funeral arrangements or sales.

(4) Only a licensed embalmer or certificated embalmer apprentice shall: (a) Provide the necessary handling and preparation of human remains, e.g. washing, disinfecting, setting features, embalming and supervising dressing; and, (b) Perform the required sanitizing of the preparation room, including but not limited to, embalming tables, work surfaces, sinks, floors, instruments, and handling and properly disposing of contaminated waste.

Stat. Auth.: ORS 183.341 & 692.320 Stats. Implemented: ORS 692.025 Hist.: MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-030-0008 Scope of License The purpose of this rule is to establish an acceptable scope of license for funeral establishments and immediate disposition companies.

(1) Only a licensed funeral establishment shall: (a) Have facilities for the care and preparation, processing and handling of human remains before the remains undergo cremation, entombment or burial, or before the remains are transported out of the State of Oregon; (b) Offer embalming, employ a licensed embalmer, have on premises either a preparation room or holding room facility to care for and prepare human remains; and (c) Offer formal viewing of human remains.

(2) An Immediate Disposition Company shall only: (a) Arrange for immediate burials and immediate cremations without public viewing, visitation or ceremony with the human remains present, except for a graveside service; and (b) If minimum preparation of a human remains is requested by the family, for purposes of having an "identification viewing", the immediate disposition company shall refer the family to a licensed funeral establishment to provide those services.

Stat. Auth.: ORS 183.341 & 692.320 Stats. Implemented: ORS 692.025 Hist.: MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-030-0010 Care of Human Remains (1) All human remains that will be embalmed shall be disinfected by approved disinfecting solutions in such manner to help eliminate the danger of spreading diseases or infection. All human remains that are not going to be embalmed must be wrapped in a sheet. If a human

remains is to be held longer than 24 hours, it must at minimum either be embalmed or refrigerated at 36 degrees F. or less until final disposition.

(2) It is the duty of funeral service practitioners and embalmers to see that every precaution is taken to prevent the spread of infections from persons who have died of communicable diseases.

(3) No embalmer shall embalm a human remains without obtaining written or oral permission of a person who has the right to control the disposition of the remains. When oral permission is received to embalm, written documentation/confirmation of the oral permission shall be required and shall be documented by separate signature specifically authorizing embalming either on the "Statement of Funeral Goods and Services Selected" or on a separate embalming authorization form. Written permission shall become a part of the permanent record as outlined in OAR 830-040-0000 (6).

(4) All human remains shall be cremated, interred or entombed within ten days after a licensed funeral establishment takes possession of the remains. If human remains are going to be kept longer than a ten-day period due to exigent circumstances, it is the responsibility of the licensee responsible for those human remains to notify the Board's office.

Stat. Auth.: ORS 692.160 & 692.320 Stats. Implemented: ORS 97.130 & 692.025 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; FDB 1-1979, f. & ef. 2-21-79; SMB 1-1984, f. & ef. 10-2284; MCB 1-1986, f. & ef. 10-21-86; Renumbered from 830-010-0155 ; MCB 1-1989, f. & cert. ef. 2-6-89; Renumbered (1)(a) thru (k) to 830-011-0000 ; MCB 1-1993, f.

4-14-93, cert. ef. 4-16-93; MCB 1-1994, f. 6-28-94, cert. ef. 8-1-94; MCB 1-1998, f. & cert. ef.

6-22-98 830-030-0030 Removal and Identification of Human Remains (1) In accordance with the identifying requirements established in ORS 692.405, the crematory authority shall, immediately upon taking custody of human remains, verify that the human remains bear a means of identification attached thereto as described in OAR 830-0300000 (3), (4)(a) and (b). A crematory authority shall not cremate human remains without an identifying metal disc unless death occurred in a state other than Oregon.

(2) Documents identifying the human remains placed in the custody of a crematory authority prior to cremation shall contain the following information: (a) Name of deceased;

(b) Date of death; (c) Place of death; (d) Name and relationship of authorizing agent; and (e) Name of authorizing agent or firm engaging crematory services.

(3) If the crematory authority takes custody subsequent to the human remains being placed within a cremation container, the crematory authority shall satisfy itself that identification has been made as described in section (2) of this rule, and thereafter shall place a similar appropriate identification upon the exterior of the cremation container.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.405 Hist.: MCB 1-1986, f. & ef. 10-21-86 830-030-0040 Holding Human Remains for Cremation and Cremation of Human Remains (1) No Crematory Authority shall cremate a human remains without obtaining written permission of the person who has right to control the disposition of the remains.

(2) When the crematory authority is unable to cremate the human remains immediately upon taking custody thereof, the crematory authority shall place the remains in a room which shall be marked as "Private" or "Authorized Entry Only".

(3) Human remains that are not embalmed shall be held only within a refrigerated facility or in compliance with applicable public health regulations.

(4) The unauthorized simultaneous cremation of more than one human remains within the same cremation chamber is specifically forbidden. It may be done only when authorized as provided in section (6) of this rule.

(5) Immediately prior to being placed within the cremation chamber, the identification of the human remains shall be verified by the crematory authority staff; and the identifying metal disc from the top head end of the cremation container shall be removed and placed on the inside of the cremation chamber where it shall remain until the cremation process is complete. The identifying metal disc may be hung on the outside of the retort if the cremation chamber has a hook for such purpose.

(6) A crematory authority may only simultaneously cremate more than one human remains within the same cremation chamber upon having received such written authorization to do so from the authorizing agent of each human remains to be cremated. A written authorization shall exempt the crematory authority from all liability for comingling of the products of the cremation process.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.025, 692.275 & 692.405 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1988, f. & cert. ef. 2-10-88; MCB 1-1989, f. & cert. ef. 2-6-89 ; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-030-0050 Processing of Cremated Remains In order to protect the public's interests and to prevent any misrepresentation in the conduct of doing business, the crematory authority shall process cremated remains in the following manner: (1) Upon completion of the cremation, insofar as is possible, all residual of the cremation process shall be removed from the cremation chamber and the chamber swept clean. The residual shall be placed within a container or tray that will ensure against co-mingling with other cremated remains, and the identification removed from the cremation chamber and attached to the container or tray to await final processing; (2) All residual of the cremation process shall undergo final processing; (3) The entire processed cremated remains shall be placed in a cremated remains container. The identifying metal disc shall be placed on the cremated remains container. The cremated remainscontainer contents shall not contain any other object unrelated to the cremation process unless specific authorization has been received from the authorizing agent; (4) If the entire processed remains will not fit within the dimensions of the cremated remains container, the remainder shall be returned either in a separate container, or upon written permission of the authorizing agent, be disposed of according to the established procedures of the crematory authority; and, (5) The following information will be affixed to the temporary receptacle, or attached to the permanent receptacle for cremated remains: deceased name, date of death, identifying metal disc number, name of funeral home, and name of crematory.

Stat. Auth.: ORS 183.341, 183.545 & 692.320 Stats. Implemented: ORS 692.025 & 692.275 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-2009, f. & cert. ef. 7-1-09 830-030-0060 Rules for Transportation of Human Remains (Does not Include Removal of Deceased from Place of Death to Funeral Establishment, Cemetery, Crematory or Other Holding Facility) (1) When an unembalmed human remains is to be transported to a destination after 24 hours after death the remains may be removed from refrigeration and transported as described in OAR 830-030-0080 (1) providing that the remains can be transported to its destination within the six hour time-frame. If the remains cannot be transported to its destination within the six hour time-frame, it shall be embalmed or placed in a sealed rigid container.

(2) No disinterred human remains shall be transported from one cemetery to another within the State of Oregon or transported out of the state, except by permit of the State Health Division. A disinterred human remains shall be any human remains removed from one cemetery to another cemetery (this does not apply to cremated remains).

Stat. Auth.: ORS 183.341, 183.545 & 692.160 Stats. Implemented: ORS 432.317 & 692.025 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0160 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09 830-030-0070 Transportation and Care of Persons Who Have Died of Communicable Diseases (Does not Include Removal of Deceased from Place of Death to Funeral Establishment, Crematory or Other Holding Facility) (1) The transportation of persons who have died of communicable diseases specified by the Oregon State Health Division shall be permitted only under the following conditions: the human remains shall be thoroughly embalmed with approved disinfectant solution; all orifices shall be closed with absorbent cotton; and the body shall be washed.

(2) Communicable diseases which apply to this section are as follows: (a) Acquired immunodeficiency syndrome;

(b) Diphtheria; (c) Hemorrhagic fevers (e.g., Ebola); (d) Hepatitis B; (e) Hepatitis C; (f) Hepatitis, delta; (g) Human immunodeficiency virus; (h) Plague; (i) Rabies; (j) Tularemia; and (k) Tuberculosis.

(3) If religious custom or the conditions of the remains prohibit embalming, a human remains shall be received for transportation by a common carrier if the human remains are placed in a sealed metal casket enclosed in a strong transportation case or in a sound casket enclosed in a sealed metal or metal lined transportation case.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.025 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-030-0080 Requirements for the Holding of Funerals (1) If a public or private funeral service and/or public viewing is desired over an unembalmed refrigerated human remains, the unembalmed human remains shall not be removed from refrigeration for longer than a total of six hours. No public or private funeral service or public viewing shall be held over the remains of an unwashed, human remains.

(2) No public viewing shall be held over the remains of persons dead from any of the communicable diseases unless embalmed.

(3) Nothing in this section is meant to limit or discourage identification or private viewing of an unwashed, unembalmed human remains by family members or hinder religious customs.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.025 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; FDB 1-1979, f. & ef. 2-21-79; SMB 1-1984, f. & ef. 10-2284; MCB 1-1986, f. & ef. 10-21-86; Renumbered from 830-010-0165 ; MCB 1-1989, f. & cert. ef. 2-6-89; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-030-0090 Standards of Practice Every licensee or agent of a licensed facility of the Oregon State Mortuary and Cemetery Board (Board) shall abide by the accepted standards of the Death Care Industry and the minimum standards, including but not limited to the following standards of practice set forth by the Board.

Violations of the following may be cause for Board action.

(1) Required conduct related to safety and integrity: (a) Compliance with Oregon Revised Statutes relating to death care; (b) Compliance with Oregon Public Health Laws; (c) Compliance with FTC Funeral Rule; (d) Implementation and/or follow through of agreed upon arrangements as designated by the responsible party; (e) Assign persons to perform functions for which they are licensed and which are within their scope of practice/scope of duties; (f)Maintain supervision of apprentices and unlicensed persons to whom tasks are assigned; (g) Report through proper channels facts known regarding the incompetent, unethical, unsafe or illegal practices of any death care industry licensee; (h) Respect the dignity and rights of clients, regardless of social or economic status, age, race, religion, sex, sexual preference, national origin, or disability; and (i) Respect the dignity of dead human remains by appropriate handling, including but not limited to, refrigerating, embalming, dressing, cremating, and burial.

(2) Conduct unacceptable under the Board’s “Standards of Practice.” (a) Conduct generally: (A) Abusing a corpse, as defined in ORS 166.085 and 166.087; (B) Abusing a client. The definition of abuse includes but is not limited to causing physical or emotional discomfort or intimidating, threatening or harassing a client; (C) Engaging in unacceptable behavior towards or in the presence of a client such as using derogatory names or gestures or profane language; (D) Failing to report actual or suspected incidents of client or corpse abuse through the proper channels in the work place and to the appropriate state agencies; (E) Using the death care industry practitioner/client relationship to exploit the client by gaining property or items of value from the client for personal gain beyond the compensation for services; (F) Aiding, abetting, or assisting any individual to violate or circumvent any law, rule or regulation intended to guide the conduct of the death care industry; (G) Failing to conduct death care services for the living or the deceased without discrimination on the basis of age, race, religion, gender, gender identity, sexual preference, national origin, nature of health problems or disability. (b) Conduct related to communication and record keeping: (A) Inaccurate record keeping in client record as required in OAR

830-040-0000

;

(B) Falsifying a client’s funeral service, cemetery or crematory records; including but not limited to, filling in someone else’s omissions, signing someone else’s name, recording services and/or merchandise not provided, fabricating data; (C) Altering a funeral service, cemetery or crematory record; including but not limited to, changing words/letters/numbers from the original document to mislead the reader of the record; (D) Destroying any document pertaining to a death care service as it pertains to statutory requirements; and (E) Directing another person to falsify, alter or destroy any death care document. (c) Conduct related to licensure violations:

(A) Practicing without an appropriate, Oregon license/certificate or registration; (B) Allowing another person to use one’s license, certificate or registration; (C) Using another’s license, certificate or registration; (D) Using fraud, misrepresentation, or deceit during the application process for licensure, certification or registration or while taking the licensure exam; (E) Impersonating any applicant or acting as a proxy for the applicant in any Board examination; and (F) Disclosing the contents of the licensure examination or soliciting, accepting or compiling information regarding the contents of the examination, before, during or after its administration. (d) Conduct related to the licensee’s relationship with the Board: (A) Failing to provide the Board with requested documents within the Board’s jurisdiction; and (B) Failing to cooperate or answer truthfully and completely inquiries regarding matters within the Board’s jurisdiction.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.320 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0170 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 12010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-030-0100 Misleading Business Practices The following practices are prohibited and shall be considered misrepresentation in the conduct of doing business: (1) Any presentation in such language or manner as to lead the prospect to believe the interment space or rights offered is being given to him and the money he would pay would go into the care fund, whenever this is not the fact.

(2) Any representation that the interment space or rights, merchandise or services are offered at a special price to the prospect only, or for a limited period of time only, whenever this is not the fact.

(3) Any offer of a discount on the price for interment space or rights, merchandise or services, whenever the price of such space, merchandise or services has been increased to cover such an alleged discount.

(4) Any guarantee or representation that the purchase would realize a profit by reselling at a later date.

(5) Any use of interment space used for the unauthorized interment of cremains, remains or other materials without the written authorization by the owner or representative of the owner of such space or interment rights.

(6) Any sale of merchandise or services for future delivery without adequate reserves or trust funds to guarantee such dealing when required. (Lending one's property or name to the sale of merchandise or services for future delivery is deemed the equivalent of the sale of same).

(7) Any offer of free interment space or rights, merchandise or services (hereinafter referred to as "free goods") either in a drawing or lottery, or offer of free goods to any organization, group or person in conjunction with another obligation without disclosure of such obligation.

(8) Any denial of responsibility by the owner or operator for the representations and practices of employees of the facility.

(9) Any sales presentation or practice which conceals or misstates a material fact shall be considered a misrepresentation in the conduct of doing business.

(10) Any failure to comply with the terms of the sales contracts, or state or local law requirements, with respect to irrevocable permanent care, and failure to comply with any other applicable laws and regulations relating to cemeteries.

(11) Any advertising or other presentation or indication that a licensee is in any way connected with the federal government, any other government agency, or any veterans' or other organization. If a veterans' or other organization's program is referred to in any advertisement, sales program or presentation, such reference shall be accompanied by a disclaimer in bold type to the effect that "This program is not financed or connected in any manner with any government agency or veteran's or other organization".

(12) Any use of advertisements, printed materials, forms, or any other materials that resemble or suggest official government documents or publications.

(13) Any advertising or other representation that interment space is not available in government cemeteries in the certificate of authority's area, without full disclosure in such advertisements or other representations of the availability of space in the nearest government cemeteries.

(14) Any circulation or petitions relating to veterans' benefits, which have been proposed by members of Congress or other government officials, without the written express consent of the author, and any use of such material in connection with sales promotion programs.

(15) Any advertising or other offer of interment space or rights to veterans or others which does not provide for deed or assignment of such space or rights at the time of acceptance of the offer and customary or required endowment care payment, unless these facts are clearly disclosed at the outset in such advertisement or offer.

(16) Any misuse of the word "free" in advertising, sales promotions or presentations in connection with sales programs. If allowance or discount to veterans or other persons is offered, it must be bonafide and the comparative price for the veteran and nonveteran or other such person must be shown. Any such allowance or discount must not be made by adjusting upward the price of other items, or the price of the interment space or rights for wives to cover the lower price to the veterans or other persons. Further, it shall be a violation of these rules to fail to disclose any material fact or condition of the offer, or to use any other misrepresentation in sales practice.

(17) The provisions of these rules shall apply to any and all other groups whereby offers similar to veteran's programs are sponsored by a licensee. Examples of such groups are the Masonic Order, labor unions, head of household, or any other associated groups selected for any sales promotion.

(18) Licensees shall, in their preneed sales programs, include a reasonable period of not less than five days during which purchasers are extended the privilege of canceling their purchase contracts.

(19) Licensees who violate any of the provisions of these rules will be subject to disciplinary action by the Board as provided for in ORS 692.180.

Stat. Auth.: ORS 183.341, 183.545 & 692.320 Stats. Implemented: ORS 692.025 & 692.180 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97 The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

DIVISION 40

FUNERAL ESTABLISHMENTS, IMMEDIATE DISPOSITION COMPANIES, CREMATORIUMS, CEMETERIES AND OPERATORS OF SAME 830-040-0000 General Principles (1) Every licensee operating under ORS Chapter 692 shall be responsible for complying with the provisions of ORS Chapter 692 and rules adopted thereunder, and any other law pertaining to the duties and responsibilities of the funeral service practitioner or the operation or licensing of funeral establishments, immediate disposition companies, cemeteries and crematoriums.

(2) No licensed facility shall be advertised or operated without the appropriate license or certification or be held out under any name which could be termed misleading.

(3) When a person, firm, partnership or corporation applies to the Board for a funeral establishment license, immediate disposition company license, or certificate of authority to operate a cemetery or crematorium, the name shall contain the identification of the activity, business or profession of funeral, immediate disposition, cemetery or crematory service as set forth in ORS Chapter 692 and the rules adopted thereto. This identified name shall be the registered name with the Board and shall also be utilized as the advertised name of the funeral, immediate disposition company, cemetery or crematory establishment.

(4) Applications for all licensed facilities shall specify the names of all principals. If the principal is a corporation, the application shall include the names of all principals of that corporation.

(5) When there is a change in any principal of the licensed facility, the licensee shall provide the Board with the name of the new principal(s) on a form provided by the Board within 30 days of the change. If the new principal is a corporation, the licensee shall provide the names of the principals of that corporation to the Board on a form provided by the Board.

(6) All licensees, licensed facilities and funeral service practitioners shall keep a detailed, accurate, and permanent record of all transactions that are performed for the care and preparation and final disposition of human remains. The record shall set forth as a minimum: (a) Name of decedent and the identifying metal disc number provided by Vital Statistics; (b) Date of death; (c) Name of purchaser of professional services and relationship;

(d) Name of place wherein remains are to be interred or cremated (in cemetery records the exact location of the interment of remains by crypt, niche, or by grave, lot and plot); (e) The name of the funeral service practitioner or cemetery or crematory personnel responsible for making the arrangements; (f) The name of the embalmer responsible for embalming (does not apply to cemetery or crematorium records); and (g) Written documentation of permission to embalm or cremate a human remains is required from the person who has the right to control disposition of the remains pursuant to ORS 97.130(1) and (2). The record of such authorization shall be made to include as a minimum: The name of the authorizing individual and relationship to the deceased, date and time contacted, phone number and name of the licensee or funeral home representative acquiring the authorization (does not apply to cemetery or crematorium records).

(7) In the case of cremation, the licensee responsible for making the cremation arrangements shall require the person making the cremation arrangements to provide the licensee with a signed statement specifying the action taken regarding delivery of the cremated remains. A copy of this statement shall be retained by the responsible licensee and be made a part of the permanent record.

(8) If cremated remains are not retained by the licensee accepting initial responsibility, the licensee shall upon delivery of such cremated remains to another individual, obtain a signed receipt from that individual. The receipt shall state the name of the individual receiving the cremated remains, the name of the deceased, and the date of delivery of such cremated remains.

The individual receiving the cremated remains shall sign the receipt. The licensee or the licensee’s representative releasing the cremated remains shall also sign the receipt and a copy of that receipt shall remain a part of the permanent record.

(9) No licensee or operator of a licensed facility or a licensee’s agent shall: (a) Fail to preserve permanent records for inspection by the Board; or (b) Alter, cancel or obliterate entries in permanent records for the purpose of falsifying any record required by this chapter to be made, maintained or preserved.

(10) After human remains are released to the cemetery authority, they shall be placed in their designated grave, crypt or vault within 24 hours after taking possession of the remains unless exigent circumstances exist. After human remains are released to the crematory authority, those remains shall be cremated and processed within 48 hours unless exigent circumstances exist. In such exigent circumstances, the cemetery/crematory authority shall notify both the funeral

service practitioner responsible for the arrangements and the office of the Board. The funeral service practitioner responsible for the arrangements for that deceased shall notify the family of such exigent circumstances.

(11) No licensee shall pay, cause to be paid or offer to pay, and no person, firm or corporation shall receive, directly or indirectly, any commission, bonus, rebate or other thing of value in consideration for recommending or causing a human remains to be taken to any specific funeral establishment.

(12) When the Board issues to any person a certificate of authority to operate, license or certificate of apprenticeship the licensee shall post the certificate in a conspicuous location for public viewing. Individual licenses will be available for inspection upon request.

(13) Every cemetery authority and crematory authority shall keep the Board’s office informed of the location of their permanent records. These records shall be made available for random inspections by the Board at any reasonable time.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.025 & 692.160 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0200 ; MCB 1-1988, f. & cert. ef. 2-10-88; MCB 1-1989, f. & cert. ef. 2-6-89; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-1897, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-2410 830-040-0005 Contract Requirements It is the responsibility of each licensed facility entering into contracts, either at need, prearrangement or preconstruction, for death care goods and services to have printed (in a minimum 10-point print) at the bottom of each contract "This facility is licensed by the Oregon State Mortuary and Cemetery Board". All contracts executed after January 1, 1998 shall contain this language.

Stat. Auth.: ORS 183.341 & 692.320 Stats. Implemented: ORS 692.320 Hist.: MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98 830-040-0010

Inspection of Licensed Facilities or Location Where Records Are Kept: Investigations (1) All funeral establishments, cemeteries and crematories shall keep their premises sanitary at all times.

(2) Every licensee shall accommodate the inspector or investigator of the Board in making his/her random inspections. No appointments shall be necessary unless exigent circumstances exist. In such cases, the licensee shall make the reasons known to the Board in writing within ten days following the attempted inspection.

(3) No licensee or employee of a licensed facility shall give false or misleading information to an inspector, investigator or any other member of the Board while investigating a possible violation of law or administrative rules.

(4) Every licensee shall provide the State Mortuary and Cemetery Board inspector a copy of all price lists and other business documents as requested relevant to inspection or investigation.

(5) No person, licensee, or any agent of a licensee, shall interfere with any inspection or investigation conducted by an agent of the Board.

(6) No licensee, nor any employee of a licensee, shall refuse or fail to promptly open a door to a licensed facility upon request of an investigator or inspector to enter the premises when the licensee or employee knows or should know that such request is made by an officer or inspector of the Board, and the investigator or inspector has reason to believe that a violation of law or administrative rule is occurring on the premises. This provision shall not be construed to deny the State Mortuary and Cemetery Board investigator and inspector access at any reasonable time to any licensed facility.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.180 Hist.: MCB 1-1986, f. & ef. 10-21-86; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93 830-040-0020 Requirements and Specifications for Preparation Rooms (1) The preparation room shall be of sufficient size to accommodate an operating or embalming table, a sink with running water and proper sewerage connections or systems, an instrument table, and a cabinet or shelves.

(2) The interior of the preparation room, all furnishings, and equipment shall be finished with materials impervious to microbes, liquids and gases.

(3) Outside ventilation shall be provided for by windows or transoms or forced air ventilation.

The installation must be so arranged that it shall not be a menace to public health or offensive to the public.

(4) In order to make the room as sanitary as possible, flooring must be impervious to microbes, liquids and gases.

(5) The preparation room must be private and cannot be located near a public passageway. The preparation room entry door(s) must be labeled as "private"or "authorized entry only". This sign must be conspicuous and readable and must be permanently affixed to the door. The lettering on the sign shall not be smaller than one inch high.

(6) All windows and exterior doors are to be screened or permanently closed and must be installed in such a way that the room shall be obstructed from view from the outside and so that fumes and odors are prevented from entering other parts of the building.

(7) The equipment for preparation rooms shall include the following: (a) An operating or embalming table, which provides suitable drainage; (b) A covered waste can and a sink with running water and sewerage connections, disinfectants and antiseptics; (c) A first aid emergency kit for personnel use which shall contain the minimum first aid supplies as specified by Workers' Compensation Department, OAR 437-127-0015; and (d) In addition to the supplies required by Workers' Compensation Department, the State Mortuary and Cemetery Board requires one eye wash station be available for personnel use. The station should be plumbed into the cold water supply. There shall be two water spouts which are activated by one motion. The water must be able to flow continuously, hands free, for not less than 15 minutes to allow both eyelids to be held open during the rinsing process.

(8) Instruments used during an embalming shall be cleaned and sterilized (either in a steam sterilizer or by chemicals) after each embalming. Instruments shall be free of stains and foreign particles.

(9) The preparation room shall be kept in a sanitary condition at all times.

(10) All facilities shall have a mortuary or hospital refrigeration unit available which is suitable for the storage of human remains. The refrigeration unit shall be in good operating condition and shall be maintained in a sanitary condition at all times. The refrigeration shall be no more than 30 minutes driving time from the licensed facility.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.025 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0205 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1998, f. & cert. ef. 6-22-98 830-040-0030 Name Registered with Board Each licensed facility shall be registered with the State Mortuary and Cemetery Board by its true corporate, firm or individual name. In addition, one assumed business name, as registered with the Corporation Commission, may be used by such licensed facility and shall be promptly reported to the Board.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.025 Hist.: FDB 1-1978, f. & ef. 6-30-78; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0210 830-040-0040 Change of Ownership Prior to a change of ownership, the prospective new owner shall apply to the Board for the issuance of a new license on forms provided by the Board in the new owner's name. (Refer to section (3) of this rule). In no event shall a funeral establishment, immediate disposition company, crematory or cemetery be operated without the appropriate license or certificate of authority to operate. The appropriate fees and disclosures shall accompany the application.

(1) Board approval: It is the intent of this rule that all licensed facilities receive Board approval prior to the sale or change of ownership of a licensed facility and provide the Board with a full disclosure of ownership of that licensed facility including percentages of ownership.

(2) All licensed facilities shall be licensed by the Board and all applications for licenses shall specify the real and true names of the person(s) who own or have an interest in the business proposed to be licensed by the Board, and shall be signed by such person(s) or in the case of corporations, by a duly authorized officer or agent.

(3) Licenses issued under ORS 692.146 and 692.275 are not transferable; therefore, prior to change of ownership, sales, or purchase agreements pertaining to such shall be conditioned upon the prospective new purchaser's ability to apply for and obtain the necessary license or

certificate of authority to operate. All licensed or certificated facilities are subject to the inspection and approval of the Board. Before opening a new facility or continuing the operation of an existing facility under new ownership, the prospective operator or new owner shall apply to the Board on a form provided by the Board with all ownership and, if applicable, corporate information. Prior to a transfer of ownership, the prospective new purchaser and seller shall notify the Department of Consumer and Business Services, giving notice of sale to that office, and give the approximate or intended date of the change of ownership.

(4) The purchase of a controlling interest (a majority) of assets or stock of an existing licensed facility will constitute a sale or change of ownership. The person or persons who own the stock of a licensed facility shall be considered the ownership of the licensed facility. Any one person who owns a majority of the stock shall be considered an owner. When percentages of stock ownership change, any person moving into a majority position shall be required to submit an application for change of ownership.

(5) Corporate Licenses: (a) The corporate licensee shall notify the Board in writing whenever a person intends to acquire or accumulate ownership or control of ten percent or more of any class of stock in a licensed facility, except for stock in a publicly traded corporation; (b) Except for publicly traded corporations, the corporate licensee shall notify the Board immediately in writing when there has been a change in an officer or director; (c) The Board may disapprove a change or acquisition described in this rule for any of the grounds for which a license may be denied.

(6) Partnership licensees: (a) For the purposes of this rule, a partnership is an association of two or more persons who carry on a business jointly and who demonstrate an intent to be treated as partners by signing a partnership agreement, or by entering into a lease or contract under a name different from their real and true names; (b) The licensee must obtain prior written approval from the Board whenever a person intends to become a general partner in a partnership or intends to acquire or control ten percent or more of the total investment commitment in a licensed limited partnership; (c) The licensee shall notify the Board in writing whenever an existing approved partner increases or decreases his/her investment interest;

(d) The Board may disapprove a change or acquisition described in this rule for any of the grounds for which a license may be denied.

(7) Colicensees: For purposes of this rule, whenever two or more persons intend to carry on the business jointly other than as a corporation, partnership, or other approved legal entity, they shall be treated as colicensees. Spouses usually fall within this category. Corporations, partnerships, individuals, or other legal entities may become colicensees. If corporations, or partnerships become colicensees, they must comply with the requirements pertaining to corporate and partnership licensees.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.025 & 692.160 Hist.: FDB 1-1978 f. & ef. 6-30-78; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0215 ; MCB 1-1993, 4-14-93, cert. ef. 4-16-93; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2009, f. & cert. ef. 7-1-09 830-040-0050 Advertising (1) Each licensed facility advertising through any media (including but not limited to telephone books, newspapers, direct mail, bill boards, etc.) shall include either the licensed facility’s registered name, or its assumed business name and physical address as it appears on the Board’s records. All printed materials and letterhead shall include the physical address of the facility.

(2) No person, firm or corporation shall advertise, promote, or market at need or preneed funeral arrangements without first having received a license from the Board.

(3) No cemetery or cremation facility, or person, firm or corporation shall advertise, promote, or market at need or preneed cemetery or cremation plans without first having received either a certificate of authority to operate that cemetery or crematorium.

(4) No person, firm or corporation shall advertise, promote, or market at need or preneed immediate disposition arrangements without having first registered with the Board.

(5) Any advertisement or marketing materials which intentionally conceals or misstates a material fact shall be considered misrepresentation.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.160 Hist.: FDB 1-1978, f. & ef. 6-30-78; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0220 ; MCB 1-1989, f. & cert. ef. 2-6-89; MCB 1-

1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef. 9-24-10 830-040-0060 Listing of Employees -- Name (1) Any listing of names of employees of a licensed facility in connection with that facility shall use either the facility's registered name or its assumed business name as it appears on the Board's records.

(2) All licensed facilities shall report to the Board, on a form provided for such purpose, a complete list of all licensed employees (full-time, part-time, and licensed independent contractors) at the time of renewal of license.

Stat. Auth.: ORS 183.341, 183.545, 692.160 & 692.320 Stats. Implemented: ORS 692.025 Hist.: FDB 1-1978, f. & ef. 6-30-78; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0225 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97 830-040-0070 Multiple Establishments at Single Location The following criteria shall apply to the operation of more than one funeral establishment at a single location: (1) One or more of the establishments shall give prompt written notice to the Board of the commencement of the use of the single location and shall give such further notice thereof as the Board deems reasonable in the circumstances to apprise interested persons thereof.

(2) For purposes of funeral establishment inspection sheets, each of the establishments shall be considered as if they constituted a single establishment.

(3) In issuing a license to each establishment, the other establishments shall be named as associated therewith.

(4) Two or more establishments operating at a single location must so identify this fact in any public communications.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.025 & 692.180 Hist.: FDB 1-1978, f. & ef. 6-30-78; FDB 1-1979, f. & ef. 2-21-79; SMB 1-1984, f. & ef. 10-2284; MCB 1-1986, f. & ef. 10-21-86; Renumbered from 830-010-0230 ; MCB 11997, f. 6-18-97, cert. ef. 7-1-97 830-040-0080 Rental Cover Where an establishment offers an outside cover for reuse which is to be used in conjunction with a burial or cremation container, the items shall be represented as separate and distinct items. The "cover" is defined as a partial enclosure which appears similar to a casket.

Stat. Auth.: ORS 692.320 Stats. Implemented: ORS 692.320 Hist.: FDB 1-1978, f. & ef. 6-30-78; FDB 1-1979, f. & ef. 2-21-79; SMB 1-1984, f. & ef. 10-2284; MCB 1-1986, f. & ef. 10-21-86; Renumbered from 830-010-0235 The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

DIVISION 50 UNPROFESSIONAL CONDUCT

830-050-0000 Failure to Comply with Rules (1) Failure to comply with ORS Chapter 692 and these rules shall be considered unprofessional conduct.

(2) It is considered unprofessional conduct for any person or licensee to directly or indirectly cause any other person or licensee to be in violation of any section of applicable rule or law.

Stat. Auth.: ORS 183.341 & ORS 692.320 Stats. Implemented: ORS 692.320 Hist.: FDB 13, f. 9-9-74, ef. 3-1-75; SMB 1-1984, f. & ef. 10-22-84; MCB 1-1986, f. & ef. 1021-86; Renumbered from 830-010-0250 ; MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93

830-050-0050 Cause for Disciplinary Action The following circumstances may be considered grounds for reprimand, assessment of civil penalty, or refusal to grant, refusal to renew, revocation, or suspension of an applicant's or a licensee's license, certificate, or registration.

(1) Evidence of habitual use or abuse of intoxicants, drugs or controlled substances which impairs or compromises acceptable industry practice.

(2) Making false or misleading statements in applying to the Board for licensure, certificate of authority, certificate of registration, or apprenticeship.

(3) Conviction of a crime whose facts and circumstances have a demonstrable bearing upon the standards of the profession.

(4) Insanity or mental disease as evidenced by an adjudication or by voluntary commitment to an institution.

(5) Disciplinary action by Oregon or another state against a personal, professional or business license, including but not limited to a death care industry license, where the conduct upon which the disciplinary action was based bears a demonstrable relationship to death care industry practices or operations.

(6) Violating any provision of ORS Chapter 692, or any rule adopted by the Board, Board Order, or failing to comply with a Board request.

(7) Failure to report to the Board any information required in OAR

830-011-0060

.

(8) Allowing an unlicensed, uncertificated or non-registered individual to perform the duties of licensed individuals including but not limited to, making arrangements with families, making preneed arrangements, assisting with embalmings, etc.

(9) Fraudulent or dishonest conduct where such conduct bears a demonstrable relationship to sales and/or business practices.

Stat. Auth.: ORS 692.320 & ORS 128. 414 Stats. Implemented: ORS 692.180, ORS 692.320 & ORS 128.414 Hist.: MCB 1-1993, f. 4-14-93, cert. ef. 4-16-93; MCB 1-1997, f. 6-18-97, cert. ef. 7-1-97; MCB 1-1998, f. & cert. ef. 6-22-98; MCB 1-2001(Temp), f. 12-12-01, cert. ef. 1-1-02 thru 6-2902; MCB 1-2002, f. 5-30-02, cert. ef. 6-30-02 The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

DIVISION 60 DEATH CARE CONSULTANTS LICENSURE, EXAMINATION AND SCOPE OF PRACTICE 830-060-0010 Initial Applications, Background, Examination, License Renewal (1) Any individual who practices as a death care consultant must be licensed under this chapter. (a) This chapter does not apply to persons who provide general information on funeral or final disposition arrangements via education classes or workshops, publications (printed or electronic materials) or speaking engagements or to persons who practice law under ORS Chapter 9.160. (b) The Board shall not take action against an individual for practicing without a death care consultant license based on conduct that occurs before the Board distributes the results of the first death care consultant examination administered by the Board if the individual had submitted a license application before the exam and the individual pays the appropriate fees and sits for the first death care consultant examination administered by the Board.

(2) Application Requirements: (a) Applicants for licensure as a death care consultant must apply on the most current application form available at the time the applicant submits the application. Applicants may obtain the most current application via the Board’s website, at the Board’s office, or request the Board send the application by mail. (b) Applicants for licensure as a death care consultant must pay all appropriate fees established by the Board under OAR 830-020-0040 .

(c) Applicants for licensure as a death care consultant are, prior to licensure, required to successfully complete a written examination established by the Board, and receive a score of not less than 75 percent, based on the total number of questions. (d) Applicants for licensure, prior to completing the written examination for death care consultant licensure, must be at least 18 years old. (e) All applicants for licensure as a death care consultant licensure must submit to a background investigation pursuant to OAR 830-011-0050 and ORS 692.025(8).

(3) Examinations: (a) All applications for death care consultant examination, accompanied by the examination fee established under OAR 830-020-0040 , must be received in the office of the Board at least 14 days before the examination is held, or be postmarked before midnight of that date. (b) The examination fee will not be returned to an applicant/examinee once the examination begins. (c) If an applicant for a death care consultant’s license fails to successfully complete the examination, that person may retake the examination the next time it is given upon payment of the full examination fee. The examination fee must be received in the office of the Board at least 14 days before the examination is given. (d) The examinations for death care consultants shall be given at least twice each year. (e) Examination results will be distributed within 30 days after the examination. (f) Examination questions and answers are not reviewable by examinee pursuant to the Public Records Act, ORS Chapter 162.

(4) Renewing Licenses, Lapsed Licenses (a) All death care consultant licenses issued will expire two years from the date of licensure unless renewed as provided in this section. (b) It is the responsibility of the death care consultant to keep the Board’s office advised, in writing, of any address changes within 30 days of the change. (c) At least sixty (60) days prior to the expiration of the death care consultant’s two-year license, the Board will mail to the licensed death care consultant a form stating that the renewal fee is due and payable. The renewal notice will be mailed to the most current address filed with

the Board by the death care consultant. If the renewal form is not returned and the renewal fee is not paid by the renewal date the license will lapse. (d) Upon lapse of a death care consultant license, the Board will send notice of the lapse to the most current address filed with the Board by the death care consultant. (e) The Board may reinstate a lapsed license if the death care consultant applies for reinstatement on a form provided by the Board not later than the 90th day after the lapse and pays the renewal fee as well as the reinstatement fee established in OAR 830-0200040 .

Stat. Auth.: ORS 692.143, 692.320 & 2009 SB 796 Stats. Implemented: ORS 692.025, 692.143, 692.160 & 692.170 Hist.: MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef.

9-24-10 830-060-0020 Death Care Consultant Scope of Practice, Records, Price List, General (1) A death care consultant may provide information or advice on matters related to funeral or final disposition arrangements including those matters subject to State or Federal regulatory requirements.

(2) Death care consultants may not provide any direct physical assistance with, or supervision of, the handling of the remains unless the individual also holds the proper license or licenses under this chapter and ORS 692.

(3) Death care consultants shall maintain legible permanent records of all transactions or contracts for services provided including, at a minimum, the following information: (a) The name, address and telephone number of the person acting as the funeral service practitioner (b) The name, address and telephone number of the person having the right to control final disposition of the remains pursuant to ORS 97.130 (c) The date or dates the consultation services are provided (d) The physical location or locations the consultation services are provided (4) Death care consultants shall maintain a general price list of all consultation services offered for sale. The death care consultant must give the general price list to any consumer, for their

retention, before entering into discussions about consultation services. The general price list must contain, at a minimum, the following information: (a) The death care consultant’s name and, if applicable, their business name as registered with the Secretary of State Corporation Division (b) The effective date of the price list (c) The consultation services offered with their prices (d) On the first page of the price list, in prominent type, the death care consultant’s license number must be printed in the following format: “Oregon Mortuary and Cemetery Board License No. DC-____” (5) A death care consultant may practice under any lawful business title not otherwise protected by law, as long as they indicate proper licensure on the general price list.

(6) Death care consultant permanent records and price lists shall be submitted to the Board upon request for inspection or investigation.

Stat. Auth.: ORS 692.025, 692.143, 692.320, 692.160, 692.170 Stats. Implemented: ORS 692.160 Hist.: MCB 1-2010(Temp), f. & cert. ef. 4-1-10 thru 9-27-10; MCB 2-2010, f. 9-23-10, cert. ef.

9-24-10 The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Chapter 692 — Funeral Service Practitioners; Embalmers; Death Care Consultants; 2009 EDITION Funeral Establishments; Cemetery and Crematory Operators FUNERALS; CEMETERIES AND CREMATORIUMS OCCUPATIONS AND PROFESSIONS GENERAL PROVISIONS 692.010

Definitions

692.025

License required for funeral service practitioner, embalmer, death care consultant, funeral establishment operator, cemetery or crematory operator

692.040

Application of chapter

LICENSING 692.045

Funeral service practitioner license; application; examination; experience

692.070

Scope of examination for funeral service practitioner license; notice of examination

692.105

Embalmer license; application; qualifications of applicant

692.130

Scope and conduct of embalmer examination

692.140

Reciprocity for embalmers or funeral service practitioners

692.143

License to practice as death care consultant; application; qualifications of applicant; fees; rules

692.146

Application for funeral establishment or immediate disposition company license

692.148

When new or reissued license, registration or certificate required; fee

692.160

License and certificate fees; expiration date; notice of renewal; rules

692.170

Reinstatement of lapsed licenses

692.180

Grounds for revocation, suspension or refusal to issue or renew licenses or certificates; civil penalty; investigation; confidentiality

692.190

Application for and issuance of apprentice registration; conditions and duration of apprenticeship; rules

692.230

Grounds for suspension and revocation of certificates of apprenticeship; reregistration when certificate has lapsed or is suspended or revoked; investigation; confidentiality

692.260

Grounds for revocation, suspension or refusal to renew funeral establishment or immediate disposition company license

692.265

License denial and civil penalty procedure; rules and orders; judicial review

692.270

Certificate of removal registration for removal of dead human bodies; requirements; sanctions

692.275

Certificate of authority for operating cemetery, crematorium or facility for final disposition; fees; registration of certain cemeteries; rules applicable to crematoriums

STATE BOARD 692.300

State Mortuary and Cemetery Board; appointment; term; qualifications

692.310

Meetings; officers

692.320

Powers and duties; rules

692.330

Compensation and expenses

692.350

Publication of statutes and rules

692.375

State Mortuary and Cemetery Board Account; disposition of receipts

ENFORCEMENT 692.380

Courts having jurisdiction; initiation of proceedings

692.385

Enforcement proceedings instituted by board; relation to other enforcement provisions

692.387

Availability of inspection warrants; effect

692.389

Issuance of inspection warrant upon cause; supporting affidavit; cause of issuance of warrant

692.391

Issuance of inspection warrant by magistrate; examination of applicant; contents and conditions of warrant

692.393

Execution of inspection warrant; presentation of credentials; authority and purpose; time of expiration

MISCELLANEOUS 692.400

Duty to report prohibited conduct

692.405

Identifying receptacle

692.410

Environmentally sound practices; rules

PENALTIES 692.990

Penalties

GENERAL PROVISIONS 692.010 Definitions. As used in this chapter:

(1) “Board” means the State Mortuary and Cemetery Board.

(2) “Cemetery” means any one, or a combination of more than one, of the following, in a place used, or intended to be used, and dedicated, for cemetery purposes: (a) A burial park, for earth interments; (b) A mausoleum, for crypt interments; (c) A columbarium, for permanent cinerary interments; (d) A scattering garden or other designated area above or below ground where a person may pay to establish a memorial of cremated remains; or (e) A cenotaph, the primary purpose of which is to provide an area where a person may pay to establish a memorial to honor a person whose remains may be interred elsewhere or whose remains cannot be recovered.

(3) “Exempt operating cemetery” means an operating cemetery that has 10 or fewer interments annually.

(4) “Final disposition” means the burial, interment, cremation, dissolution or other disposition of human remains authorized by the board by rule.

(5) “Holding room” means a room that is located in a licensed facility for the care, storage or holding of dead human bodies prior to effecting disposition.

(6) “Immediate disposition company” means any business licensed under this chapter, other than a licensed funeral establishment, where a licensed funeral service practitioner operates the business of immediate final disposition and where business records are kept.

(7) “Operating cemetery” means a cemetery that: (a) Performs interments; (b) Has fiduciary responsibility for endowment care, general care or special care funds; or (c) Has outstanding preneed service contracts for unperformed services.

(8) “Rental cover” means a partial enclosure that appears similar to a casket that is utilized for viewing purposes and surrounds the burial or cremation container. [Amended by 1957 c.596 §1; 1983 c.810 §3; 1985 c.207 §7; 1987 c.252 §10; 1989 c.177 §1; 1997 c.638 §2; 2001 c.224 §1; 2007 c.436 §1; 2009 c.709 §1] Note: Section 19, chapter 709, Oregon Laws 2009, provides: Sec. 19. The amendments to ORS 692.010, 692.160, 692.180, 692.275 and 692.320 by sections 1, 5, 6, 12 and 13 of this 2009 Act apply to facilities used for final disposition of human remains, other than cemeteries and crematoriums, on or after the operative date specified in section 17 of this 2009 Act [March 31, 2010]. [2009 c.709 §19] Note: The amendments to 692.010 by section 1, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, is set forth for the user’s convenience.

692.010. As used in this chapter: (1) “Board” means the State Mortuary and Cemetery Board.

(2) “Cemetery” means any one, or a combination of more than one, of the following, in a place used, or intended to be used, and dedicated, for cemetery purposes: (a) A burial park, for earth interments; (b) A mausoleum, for crypt interments; or (c) A columbarium, for permanent cinerary interments.

(3) “Exempt operating cemetery” means an operating cemetery that has 10 or fewer interments annually.

(4) “Holding room” means a room that is located in a licensed facility for the care, storage or holding of dead human bodies prior to effecting disposition.

(5) “Immediate disposition” means a direct method of disposition of dead human remains by way of immediate burial or immediate cremation.

(6) “Immediate disposition company” means any business licensed under this chapter, other than a licensed funeral establishment, where a licensed funeral service practitioner operates the business of immediate disposition and where business records are kept.

(7) “Operating cemetery” means a cemetery that: (a) Performs interments; (b) Has fiduciary responsibility for endowment care, general care or special care funds; or (c) Has outstanding preneed service contracts for unperformed services.

(8) “Rental cover” means a partial enclosure that appears similar to a casket that is utilized for viewing purposes and surrounds the burial or cremation container.

692.020 [Amended by 1973 c.411 §1; repealed by 1983 c.810 §29] 692.025 License required for funeral service practitioner, embalmer, death care consultant, funeral establishment operator, cemetery or crematory operator. (1) An individual may not practice as a funeral service practitioner unless the individual is licensed as a funeral service practitioner under ORS 692.045. Regardless of any title used by the individual, an individual practices as a funeral service practitioner if the individual is engaged directly or indirectly in offering funeral services for payment or supervising or otherwise controlling the transportation, care, preparation, processing and handling of dead human bodies before the bodies undergo final disposition, or before the bodies are transported out of the State of Oregon.

(2) An individual may not practice as an embalmer unless the individual is licensed as an embalmer under ORS 692.105. Regardless of any title used by the individual, an individual practices as an embalmer if the individual is engaged or purports to be engaged in either of the following: (a) The practice of disinfecting or preserving from decay dead human bodies. (b) Preparing human bodies dead of contagious or infectious disease for transportation by railroad, express company or common carrier.

(3) An individual may not practice as a death care consultant unless the individual is licensed as a death care consultant under ORS 692.143. Regardless of any title used by the individual, an individual practices as a death care consultant if the individual offers, for payment, consultations directly relating to the performance of funeral or final disposition services.

(4) A person may not operate a funeral establishment unless the establishment meets the requirements under this subsection. A place is a funeral establishment if the place is customarily used for the care, preparation or viewing of dead human bodies before the bodies undergo final disposition, or before the bodies are transported out of the State of Oregon. A funeral establishment must: (a) Be licensed by the State Mortuary and Cemetery Board under ORS 692.146; (b) Be operated by a funeral service practitioner; (c) Have on the premises embalming facilities or holding room facilities meeting requirements established by the board; and (d) Have access to hospital or mortuary refrigeration.

(5) A person may not operate an immediate disposition company unless the immediate disposition company meets the requirements under this subsection. An immediate disposition company must: (a) Be licensed at a fixed location under ORS 692.146; and (b) Be operated by a licensed funeral service practitioner.

(6) A person or city, county or other municipal corporation may not conduct the business of an operating cemetery without first receiving a certificate of authority to conduct the business of an operating cemetery under ORS 692.275.

(7) A person may not operate a crematorium unless the crematorium meets the requirements of ORS 692.275.

(8) An applicant for a license or certificate described in this section and a principal of a licensed establishment described in this section must consent to a background check, including information solicited from the Department of State Police. [1983 c.810 §4; 1985 c.207 §9; 1989 c.177 §2; 1991 c.542 §2; 1997 c.638 §3; 2009 c.709 §2] Note: Section 18, chapter 709, Oregon Laws 2009, provides: Sec. 18. Section 4 of this 2009 Act [692.143] and the amendments to ORS 692.025, 692.040, 692.160, 692.180 and 692.320 by sections 2, 6 and 11 to 13 of this 2009 Act apply to persons practicing as death care consultants on or after the operative date specified in section 17 of this 2009 Act [March 31, 2010]. [2009 c.709 §18] Note: The amendments to 692.025 by section 2, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, is set forth for the user’s convenience.

692.025. (1) An individual may not practice as a funeral service practitioner unless the individual is licensed as a funeral service practitioner under ORS 692.045. An individual practices as a funeral service practitioner if the individual for payment is engaged directly or indirectly in supervising or otherwise controlling the transportation, care, preparation, processing and handling of dead human bodies before the bodies undergo cremation, entombment or burial, or before the bodies are transported out of the State of Oregon.

(2) An individual may not practice as an embalmer unless the individual is licensed as an embalmer under ORS 692.105. An individual practices as an embalmer if the individual is engaged or purports to be engaged in either of the following: (a) The practice of disinfecting or preserving from decay dead human bodies. (b) Preparing human bodies dead of contagious or infectious disease for transportation by railroad, express company or common carrier.

(3) A person may not operate a funeral establishment unless the establishment meets the requirements under this subsection. A place is a funeral establishment if the place is used for the care and preparation of dead human bodies before the bodies undergo cremation, entombment or burial, or before the bodies are transported out of the State of Oregon. A funeral establishment must: (a) Be licensed by the State Mortuary and Cemetery Board under ORS 692.146; (b) Be operated by a funeral service practitioner; (c) Have on the premises embalming facilities or holding room facilities meeting requirements established by the board; and (d) Have access to hospital or mortuary refrigeration.

(4) A person may not operate an immediate disposition company unless the immediate disposition company meets the requirements under this subsection. An immediate disposition company must: (a) Be licensed at a fixed location under ORS 692.146; and (b) Be operated by a licensed funeral service practitioner.

(5) No person or city, county or other municipal corporation shall conduct the business of an operating cemetery without first receiving a certificate of authority to conduct the business of an operating cemetery under ORS 692.275.

(6) A person may not operate a crematorium unless the crematorium meets the requirements of ORS 692.275.

(7) All applicants for licenses, certificates, or licensees under this section and all principals of any licensed establishment must consent to a background check, including information solicited from the Department of State Police.

692.030 [Amended by 1973 c.411 §2; repealed by 1983 c.810 §29] 692.040 Application of chapter. This chapter does not apply to any of the following: (1) A public institution, medical college, county medical society, anatomical association, college of embalming or institution approved by the Demonstrator of Anatomy to accept bodies for education or research purposes under ORS 97.170.

(2) The customs or rites of any religious sect except as to the burial or other disposition of their dead.

(3) A person who picks up dead human bodies under the direction of a licensed funeral service practitioner for delivery to a licensed funeral service practitioner, a licensed funeral establishment, an authorized cemetery, an authorized crematorium or another authorized facility for final disposition of human remains pursuant to an agreement with the funeral service practitioner, if the person is not otherwise engaged in any of the activities of a funeral service practitioner, an embalmer, a funeral establishment, a death care consultant, a cemetery or a crematorium as described in ORS 692.025 or another authorized facility for final disposition of human remains as described in ORS 692.275.

(4) A person who picks up dead human bodies under the direction of a licensed funeral service practitioner employed by a funeral establishment registered under ORS 692.270 for transportation out of the state or for delivery out of the state to a funeral service practitioner, funeral establishment, cemetery or crematorium pursuant to an agreement with the funeral service practitioner, if the person is not otherwise engaged in any of the activities of a funeral service practitioner, an embalmer, a funeral establishment, a death care consultant, a cemetery or a crematorium as described in ORS 692.025 or another authorized facility for final disposition of human remains as described in ORS 692.275. [Amended by 1957 c.596 §2; 1983 c.810 §5; 1985 c.207 §10; 1999 c.724 §5; 2009 c.709 §11] Note: See first note under 692.025.

Note: The amendments to 692.040 by section 11, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, is set forth for the user’s convenience.

692.040. This chapter does not apply to any of the following: (1) A public institution, medical college, county medical society, anatomical association, college of embalming, or any officer thereof, or to any other recognized person carrying out the statutes of the State of Oregon prescribing the conditions under which indigent dead human bodies are held subject for scientific or anatomical study.

(2) The customs or rites of any religious sect except as to the burial or other disposition of their dead.

(3) A person who picks up dead human bodies under the direction of a funeral service practitioner for delivery to a funeral service practitioner, funeral establishment, cemetery or crematorium pursuant to an agreement with the funeral service practitioner, if the person is not otherwise engaged in any of the activities

of a funeral service practitioner, an embalmer, a funeral establishment, a cemetery or a crematorium as described in ORS 692.025.

(4) A person who picks up dead human bodies under the direction of a licensed funeral service practitioner employed by a funeral establishment registered under ORS 692.270 for transportation out of the state or for delivery to a funeral service practitioner, funeral establishment, cemetery or crematorium pursuant to an agreement with the funeral service practitioner, if the person is not otherwise engaged in any of the activities of a funeral service practitioner, an embalmer, a funeral establishment, a cemetery or a crematorium as described in ORS 692.025.

LICENSING 692.045 Funeral service practitioner license; application; examination; experience. (1) The State Mortuary and Cemetery Board shall issue a license to an individual to practice as a funeral service practitioner if the individual meets the following requirements: (a) The individual must apply to the board for a funeral service practitioner’s license on an application form provided by the board. (b) The individual must pass an examination conducted by the board under ORS 692.070 following application for the funeral service practitioner’s license. (c) The individual must successfully complete practical experience as a funeral service practitioner’s apprentice under ORS 692.190.

(2) An individual may not take an examination under ORS 692.070 until the individual has provided written evidence of graduation from an associate degree program meeting the requirements established by board rule.

(3) Notwithstanding subsection (2) of this section, an applicant with four years of experience as a licensed funeral service practitioner or embalmer in this state or in another state is not required to provide written evidence of graduation from an associate degree program in order to take the examination under ORS 692.070. [1983 c.810 §6; 1989 c.177 §3; 1993 c.308 §4; 1997 c.638 §4; 1999 c.724 §8; 2007 c.170 §3] 692.050 [Repealed by 1983 c.810 §29] 692.060 [Amended by 1971 c.115 §1; 1979 c.858 §1; repealed by 1983 c.810 §29] 692.070 Scope of examination for funeral service practitioner license; notice of examination. (1) The State Mortuary and Cemetery Board shall offer an examination at least once each year to applicants for a license to practice as a funeral service practitioner.

(2) The examination shall include Oregon and federal laws, rules and regulations relating to the care, preparation, disposition and transportation of dead human bodies and to survivor death benefits.

(3) Notice of the time and place of the examination shall be sent to the applicants by mail at least 10 days before the examination. [Amended by 1981 c.719 §1; 1983 c.810 §7; 1989 c.177 §4; 1997 c.638 §5] 692.080 [Repealed by 1983 c.810 §29] 692.090 [Amended by 1971 c.115 §2; repealed by 1997 c.638 §12] 692.100 [Repealed by 1983 c.810 §29]

692.105 Embalmer license; application; qualifications of applicant. (1) The State Mortuary and Cemetery Board shall issue a license to an individual to practice as an embalmer if the individual is 18 years of age or older, applies for a license and has successfully met the qualifications described in this section.

(2) An individual must apply for a license by applying to the board on an application form provided by the board.

(3) An individual applying for a license under this section must meet the following requirements: (a) The individual must complete 12 months of practical experience as an embalmer’s apprentice as provided in ORS 692.190. (b) The individual must provide written evidence of graduation from an accredited program of funeral service education. (c) The individual must obtain a passing score on the examination provided in ORS 692.130 or show evidence satisfactory to the board that the individual has successfully passed the National Board Examination as administered by the Conference of Funeral Service Examining Boards. (d) The individual must be knowledgeable in the application of state law.

(4) When an individual provides written evidence of graduation from an accredited program of funeral service education, if the individual does not show evidence satisfactory to the board, as provided under subsection (3) of this section, that the individual has passed the National Board Examination, the board may examine the individual as provided in ORS 692.130. In any case, however, the board shall not issue an embalmer’s license until an individual has completed the apprenticeship qualification. [1983 c.810 §8; 1993 c.308 §5] 692.110 [Amended by 1971 c.115 §3; repealed by 1983 c.810 §29] 692.120 [Amended by 1971 c.115 §4; 1981 c.719 §2; repealed by 1983 c.810 §29] 692.130 Scope and conduct of embalmer examination. (1) The State Mortuary and Cemetery Board shall offer an examination at least once each year to applicants for a license to practice as an embalmer.

(2) Notice of the time and place of the examination shall be sent to the applicants by mail at least 10 days before the examination.

(3) The board shall specify the subjects in funeral service arts and science to be included in the examination for a license to operate as an embalmer. The board may use the questions prepared by the Conference of Funeral Service Examining Boards or its successor.

(4) The board shall adopt rules establishing standards for minimum performance on the examination and conditions for reexamination. [Amended by 1955 c.754 §1; 1971 c.115 §5; 1973 c.411 §3; 1979 c.858 §2; 1981 c.719 §3; 1983 c.810 §9] 692.140 Reciprocity for embalmers or funeral service practitioners. (1) The State Mortuary and Cemetery Board shall issue a license to practice as a funeral service practitioner or an embalmer to an applicant from another state if: (a) The applicant for recognition of the license applies to the board and fulfills the requirements specified in subsection (2) of this section; and (b) The board is satisfied that the applicant has the requisite qualifications for licensing as a funeral service practitioner or an embalmer in this state.

(2) An applicant under this section shall apply to the board on a form provided by the board. The applicant shall include with the application:

(a) Proof satisfactory to the board that the applicant is licensed in good standing in another state and has practiced as a funeral service practitioner or an embalmer who was licensed and in good standing in another state for three of the five years immediately preceding the application date. (b) Payment of the initial reciprocity licensing fee established under ORS 692.160. [Amended by 1971 c.115 §6; 1973 c.411 §4; 1981 c.719 §4; 1983 c.810 §10; 1989 c.177 §5; 1997 c.638 §6; 2007 c.170 §1] 692.143 License to practice as death care consultant; application; qualifications of applicant; fees; rules. The State Mortuary and Cemetery Board shall issue a license to an individual to practice as a death care consultant if the individual: (1) Applies to the board for a death care consultant license on an application form provided by the board; (2) Passes an examination conducted by the board covering Oregon and federal laws and rules relating to the care, preparation, disposition and transportation of dead human bodies; (3) Pays fees required by the board by rule; and (4) Meets other requirements established by the board by rule. [2009 c.709 §4] Note: 692.143 becomes operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009.

Note: See first note under 692.025.

692.144 [1957 c.596 §4; 1971 c.115 §7; repealed by 1983 c.810 §29] 692.146 Application for funeral establishment or immediate disposition company license.(1) The State Mortuary and Cemetery Board shall issue a license to a funeral establishment or immediate disposition company if the person who will operate the establishment or immediate disposition company applies to the board for a license on a form provided by the board. The application shall be accompanied by the application fee established under ORS 692.160.

(2) The application shall disclose the following: (a) The name and address of the establishment or company. (b) That the establishment is operated by a licensed funeral service practitioner. (c) That the immediate disposition company is operated by a licensed funeral service practitioner.

(3) For purposes of this section and ORS 692.025, each branch of a licensee’s funeral establishment or immediate disposition company is a separate establishment and must be licensed at a fixed place of business. [1957 c.596 §5; 1971 c.115 §8; 1983 c.810 §11; 1989 c.177 §6; 1997 c.638 §7] 692.148 When new or reissued license, registration or certificate required; fee. (1) If the principals of a licensed funeral establishment or immediate disposition company change, the establishment or company shall apply to the State Mortuary and Cemetery Board for a new license.

(2) A person holding a license or certificate of authority or who is registered under this chapter shall apply to the board for reissuance of the license, certificate or registration if any of the following occur: (a) The name of the person changes; (b) The location of the funeral establishment, immediate disposition company or crematorium changes; (c) An apprentice registered under ORS 692.190 transfers from one licensed funeral service practitioner or licensed embalmer to another; (d) The original license, registration or certificate is lost or destroyed; or

(e) When a person holding a license or certificate of authority issued under this chapter obtains another license or certificate of authority issued under this chapter.

(3) The application for reissuance of the license, registration or certificate shall include payment of the fee established under ORS 692.160. The board shall reissue the license, certificate or registration when the board receives the application and the fee. [1993 c.308 §3] 692.150 [Repealed by 1983 c.810 §29] 692.160 License and certificate fees; expiration date; notice of renewal; rules. (1) The fees that may be charged under this chapter are: (a) A fee covering requests for applications for a funeral service practitioner license, an embalmer license, a death care consultant license, a funeral establishment license, an immediate disposition company license, a certificate of authority for a cemetery, a certificate of authority for a crematorium, a certificate of authority for any other facility for final disposition of human remains, registration as a funeral service practitioner apprentice, registration as an embalmer apprentice, a certificate of removal registration, a license as a reciprocal funeral service practitioner or a license as a reciprocal embalmer. The application fee shall be accompanied by an additional fee for each principal of a funeral establishment, immediate disposition company, cemetery, crematorium or other facility for final disposition of human remains. (b) A fee covering the renewal of a license for a funeral establishment, a license for an immediate disposition company, a certificate of authority for a crematorium or a certificate of authority for any other facility for final disposition of human remains. (c) A fee covering the renewal of a funeral service practitioner license, an embalmer license or a death care consultant license. (d) A fee for renewal of a combination funeral service practitioner and embalmer license. (e) A fee for renewal of the registration of a funeral service practitioner apprentice or an embalmer apprentice. (f) An examination fee for a funeral service practitioner license, an embalmer license or a death care consultant license. (g) A fee covering the renewal of a certificate of authority for a cemetery. (h) A fee covering the reinstatement of a lapsed license or certificate of authority. (i) A fee for reissuing a license, registration or certificate of authority as provided in ORS 692.148. (j) Fees for copying any public record maintained by the State Mortuary and Cemetery Board, for documents distributed by the board and postage for mailing any copies or documents.

(2) All licenses granted under this chapter to funeral service practitioners, embalmers and death care consultants expire on January 1 in even-numbered years or on such date as may be specified by rule of the State Mortuary and Cemetery Board. All licenses or certificates of authority granted under this chapter to operators of funeral establishments, to operators of immediate disposition companies, to operators of cemeteries, to operators of crematoriums or to operators of other facilities for final disposition of human remains expire on January 1 in odd-numbered years or on such date as may be specified by board rule.

(3) The board shall mail to each licensed funeral service practitioner, to each licensed embalmer, to each licensed death care consultant, to each licensed operator of a funeral establishment or immediate disposition company and to each cemetery, crematorium and other facility for final disposition of human remains holding a certificate of authority under ORS 692.275, addressed to the licensee or certificate holder at the licensee’s or certificate holder’s last-known address, a notice that the renewal fee is due and payable and that if the fee is not paid by the renewal date the license or certificate of authority shall lapse. The board

shall mail the notice at least 60 days before the license or certificate of authority expires. The board may impose continuing education requirements as a prerequisite for relicensure.

(4) Subject to prior approval of the Oregon Department of Administrative Services and a report to the Emergency Board prior to adopting the fees and charges, the fees and charges established under this section shall not exceed the cost of administering the regulatory program of the State Mortuary and Cemetery Board pertaining to the purpose for which the fee or charge is established, as authorized by the Legislative Assembly within the board’s budget, as the budget may be modified by the Emergency Board. [Amended by 1957 c.596 §11; 1971 c.115 §9; 1973 c.411 §5; 1977 c.873 §11; 1979 c.36 §1; 1981 c.719 §5; 1983 c.290 §1; 1985 c.207 §11; 1989 c.177 §7; 1991 c.703 §35; 1993 c.248 §1; 1993 c.308 §1; 1997 c.638 §8; 1999 c.724 §9; 2007 c.768 §53; 2009 c.709 §12] Note: See first note under 692.010.

Note: See first note under 692.025.

Note: The amendments to 692.160 by section 12, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, is set forth for the user’s convenience.

692.160. (1) The fees that may be charged under this chapter are: (a) A fee covering requests for applications for a funeral establishment license, an immediate disposition company license, a certificate of authority for a cemetery, a certificate of authority for a crematorium, registration as a funeral service practitioner apprentice, registration as an embalmer apprentice, a certificate of removal registration, a license as a reciprocal funeral service practitioner or a license as a reciprocal embalmer. The application fee shall be accompanied by an additional fee for each principal of a funeral establishment, immediate disposition company, cemetery or crematorium. (b) A fee covering the renewal of a license for a funeral establishment, a license for an immediate disposition company or a certificate of authority for a crematorium. (c) A fee covering the renewal of a funeral service practitioner license or an embalmer license. (d) A fee for renewal of a combination funeral service practitioner and embalmer license. (e) A fee for renewal of the registration of a funeral service practitioner apprentice or an embalmer apprentice. (f) An examination fee for a funeral service practitioner license or an embalmer license. (g) A fee covering the renewal of a certificate of authority for a cemetery. (h) A fee covering the reinstatement of a lapsed license or certificate of authority. (i) A fee for reissuing a license, registration or certificate of authority as provided in ORS 692.148. (j) Fees for copying any public record maintained by the State Mortuary and Cemetery Board, for documents distributed by the board and postage for mailing any copies or documents.

(2) All licenses granted under this chapter to funeral service practitioners and embalmers shall expire on January 1 in even-numbered years or on such date as may be specified by rule of the State Mortuary and Cemetery Board. All licenses or certificates of authority granted under this chapter to operators of funeral establishments, to operators of immediate disposition companies, to operators of cemeteries or to operators of crematoriums shall expire on January 1 in odd-numbered years or on such date as may be specified by board rule.

(3) The board shall mail to each licensed funeral service practitioner, to each licensed embalmer, to each licensed operator of a funeral establishment or immediate disposition company and to each cemetery and crematorium holding a certificate of authority under ORS 692.275, addressed to the licensee or certificate

holder at the licensee’s or certificate holder’s last-known address, a notice that the renewal fee is due and payable and that if the fee is not paid by the renewal date the license or certificate of authority shall lapse.

The notice shall be mailed to each licensed funeral service practitioner and to each licensed embalmer at least 60 days before the license expires. The notice shall be mailed to each licensed operator of a funeral establishment or immediate disposition company and to each cemetery and crematorium holding a certificate of authority under ORS 692.275 at least 60 days before the license or certificate of authority expires. The board may impose continuing education requirements as a prerequisite for relicensure.

(4) Subject to prior approval of the Oregon Department of Administrative Services and a report to the Emergency Board prior to adopting the fees and charges, the fees and charges established under this section shall not exceed the cost of administering the regulatory program of the State Mortuary and Cemetery Board pertaining to the purpose for which the fee or charge is established, as authorized by the Legislative Assembly within the board’s budget, as the budget may be modified by the Emergency Board.

692.165 [1957 c.596 §7; 1971 c.115 §10; 1983 c.810 §14; 1989 c.177 §8; repealed by 1993 c.308 §6] 692.170 Reinstatement of lapsed licenses. (1) When a licensee or an apprentice has allowed a license or a certificate of apprenticeship to lapse, the State Mortuary and Cemetery Board may reinstate the license or certificate if the licensee or apprentice: (a) Applies for reinstatement not later than the 90th day after the lapse; and (b) Pays all fees owing to the date of reinstatement as well as a reinstatement fee established under ORS 692.160.

(2) Upon the lapse of a license or certificate, the board shall send the notice of lapse to the licensee or apprentice by registered or certified mail at the last-known address of the licensee or apprentice. [Amended by 1971 c.115 §11; 1973 c.411 §6; 1983 c.810 §15] 692.180 Grounds for revocation, suspension or refusal to issue or renew licenses or certificates; civil penalty; investigation; confidentiality. (1) Upon complaint or upon its own motion, the State Mortuary and Cemetery Board may investigate a complaint made by any person or by the board. If the board finds any of the causes described in this section in regard to any person, licensee or applicant or the holder of a certificate of authority, the board may impose a civil penalty of not more than $1,000 for each violation, suspend or revoke a license to practice or to operate under this chapter or refuse to grant or renew a license. The causes are as follows: (a) Misrepresentation in the conduct of business or in obtaining a license. (b) Fraudulent or dishonest conduct, when the conduct bears a demonstrable relationship to funeral service practice, embalming practice or the operation of cemeteries, crematoriums or other facilities for final disposition of human remains. (c) Except as provided in this paragraph, solicitation of human remains by the licensee or any agent, assistant or employee of the licensee, either before or after death. This paragraph does not apply to: (A) Activities permissible under ORS 97.923 to 97.949; or (B) The sale, in accordance with provisions of the Insurance Code, of prearranged funeral or cemetery merchandise or services, or any combination thereof, to be funded by the contemporaneous or subsequent assignment of a life insurance policy or an annuity contract. (d) Offensive treatment of dead human bodies or evidence that a body in the person’s custody has been disposed of in violation of ORS chapter 432 or rules adopted pursuant thereto.

(e) Aiding or abetting a person who is not a licensee or an apprentice in any act involving the disposition of dead human bodies before the bodies undergo final disposition or before the bodies are transported out of the State of Oregon. (f) Sale or reuse of any casket or body container that has been previously utilized for the placement of a deceased human body. This does not include use of a rental cover as defined in ORS 692.010. (g) Violation of any of the provisions of this chapter or any rules adopted under this chapter. (h) Violation of any provision of ORS 97.929 or 97.937 or regulations adopted by the Federal Trade Commission regulating funeral industry practices. (i) Conviction of a crime, when the crime bears a demonstrable relationship to funeral service practice, embalming practice, death care consultant practice or the operation of cemeteries, crematoriums or other facilities for final disposition of human remains. A certified copy of the conviction is conclusive evidence of the conviction. (j) Violation of ORS chapter 97 as it relates to disposition of human bodies and to cemeteries. (k) Refusing to surrender promptly the custody of a dead human body, upon the express order of the person lawfully entitled to the custody of the body.

(L) Acting as the legal representative of any deceased person for whom the licensee has rendered services governed by this chapter. This subsection does not prohibit a licensee from acting as the legal representative of a deceased relative or a deceased licensee if the deceased licensee was a partner, employee or employer in the licensee’s practice. (m) Failure to pay any civil penalty imposed by the board within 10 days after the order is entered or, if appealed, within 10 days after the order is sustained on appeal. (n) Impairment as defined in ORS 676.303.

(2) All amounts recovered under this section shall be deposited in the State Mortuary and Cemetery Board Account established under ORS 692.375.

(3) Civil penalties under this section shall be imposed as provided in ORS 183.745.

(4) Upon receipt of a complaint, the board shall conduct an investigation as described under ORS 676.165.

(5) Information that the board obtains as part of an investigation into licensee or applicant conduct or as part of a contested case proceeding, consent order or stipulated agreement involving licensee or applicant conduct is confidential as provided under ORS 676.175. [Amended by 1971 c.115 §12; 1983 c.810 §16; 1985 c.207 §12; 1987 c.252 §8; 1987 c.813 §10; 1991 c.734 §82; 1995 c.326 §1; 1995 c.696 §45; 1997 c.791 §53; 1999 c.59 §207; 2001 c.796 §21; 2009 c.709 §13; 2009 c.756 §84] Note: See first note under 692.010.

Note: See first note under 692.025.

Note: The amendments to 692.180 by section 13, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, including amendments by section 84, chapter 756, Oregon Laws 2009, is set forth for the user’s convenience.

692.180. (1) Upon complaint or upon its own motion, the State Mortuary and Cemetery Board may investigate any complaint concerning any person, licensee or holder of a certificate of authority made by any person or by the board. If the board finds any of the causes described in this section in regard to any person, licensee or applicant or the holder of a certificate of authority, the board may impose a civil penalty

of not more than $1,000 for each violation, suspend or revoke a license to practice or to operate under this chapter or refuse to grant or renew a license. The causes are as follows: (a) Misrepresentation in the conduct of business or in obtaining a license. (b) Fraudulent or dishonest conduct, when the conduct bears a demonstrable relationship to funeral service practice, embalming practice or the operation of cemeteries or crematoriums. (c) Except as provided in this paragraph, solicitation of human dead bodies by the licensee or any agent, assistant or employee of the licensee, either before or after death. This paragraph does not apply to: (A) Activities permissible under ORS 97.923 to 97.949; or (B) The sale, in accordance with provisions of the Insurance Code, of prearranged funeral or cemetery merchandise or services, or any combination thereof, to be funded by the contemporaneous or subsequent assignment of a life insurance policy or an annuity contract. (d) Offensive treatment of dead human bodies or a body in the person’s custody has been disposed of in violation of ORS chapter 432 or rules adopted pursuant thereto. (e) Aiding or abetting a person who is not a licensee or an apprentice in any act involving the disposition of dead human bodies before the bodies undergo cremation, entombment or burial or before the bodies are transported out of the State of Oregon. (f) Sale or reuse of any casket or body container that has been previously utilized for the placement of a deceased human body. This does not include use of a rental cover as defined in ORS 692.010. (g) Violation of any of the provisions of this chapter or any rules adopted under this chapter. (h) Violation of any provision of ORS 97.929 or 97.937 or regulations adopted by the Federal Trade Commission regulating funeral industry practices. (i) Conviction of a crime, when the crime bears a demonstrable relationship to funeral service practice, embalming practice or the operation of cemeteries or crematoriums. A copy of the record of the conviction certified to by the clerk of the court entering the conviction shall be conclusive evidence of the conviction. (j) Violation of ORS chapter 97 as it relates to disposition of human bodies and to cemeteries. (k) Refusing to surrender promptly the custody of a dead human body, upon the express order of the person lawfully entitled to the custody of the body.

(L) Acting as the legal representative of any deceased person for whom the licensee has rendered services governed by this chapter. This subsection does not prohibit a licensee from acting as the legal representative of a deceased relative or a deceased licensee if the deceased licensee was a partner, employee or employer in the licensee’s practice. (m) Failure to pay any civil penalty imposed by the board within 10 days after the order is entered or, if appealed, within 10 days after the order is sustained on appeal. (n) Impairment as defined in ORS 676.303.

(2) All amounts recovered under this section shall be deposited in accordance with ORS 692.375.

(3) Civil penalties under this section shall be imposed as provided in ORS 183.745.

(4) Upon receipt of a complaint, the board shall conduct an investigation as described under ORS 676.165.

(5) Information that the board obtains as part of an investigation into licensee or applicant conduct or as part of a contested case proceeding, consent order or stipulated agreement involving licensee or applicant conduct is confidential as provided under ORS 676.175.

692.190 Application for and issuance of apprentice registration; conditions and duration of apprenticeship; rules. (1) An individual who wishes to engage as an apprentice shall apply to the State Mortuary and Cemetery Board for registration as a funeral service practitioner apprentice or an embalmer apprentice upon a form provided by the board. The individual must consent to a background check,

including information solicited from the Department of State Police. The application must be accompanied by the fee established under ORS 692.160.

(2) One funeral service practitioner apprentice at a time is authorized to operate under or in connection with each licensed funeral service practitioner practicing in this state for the purpose of learning the functions of a funeral service practitioner.

(3) One embalmer apprentice at a time is authorized to engage in the study of the art of embalming under the instruction and supervision of each licensed embalmer practicing in this state.

(4) The duration of an apprenticeship required for licensure is: (a) Twelve months for a funeral service practitioner apprentice. (b) Twelve months for an embalmer apprentice.

(5) A person may serve as a funeral service practitioner apprentice for an aggregate total of not more than 48 months. In computing time under this subsection, the board shall exclude time lost by interruptions caused by active duty of the apprentice in the military service of the United States or its allies during war or national emergency and by interruptions that the board finds are excusable under rules of the board.

(6) An embalmer apprentice may serve the apprenticeship concurrently with the funeral service practitioner apprenticeship.

(7) A person may serve as an embalmer apprentice for an aggregate total of not more than 48 months. In computing time under this subsection, the board shall exclude time lost by interruptions caused by active duty of the apprentice in the military service of the United States or its allies during war or national emergency and by interruptions that the board finds are excusable under rules of the board.

(8) Notwithstanding subsections (2) and (3) of this section, a licensed funeral service practitioner or a licensed embalmer may serve as a preceptor for not more than three students serving a funeral service internship in accordance with guidelines established by an accredited funeral service education program.

(9) The board shall adopt rules under which the board may confer credit for apprenticeship service or its equivalency performed by: (a) An applicant in another state; or (b) An applicant whose license or certificate of apprenticeship has lapsed. [Amended by 1973 c.411 §7; 1981 c.719 §8; 1983 c.810 §12; 1985 c.207 §13; 1989 c.177 §9; 1993 c.275 §1; 1997 c.97 §1; 1997 c.638 §9; 2007 c.170 §2] 692.200 [Amended by 1973 c.411 §8; repealed by 1983 c.810 §29] 692.210 [Repealed by 1983 c.810 §29] 692.220 [Repealed by 1983 c.810 §29] 692.230 Grounds for suspension and revocation of certificates of apprenticeship; reregistration when certificate has lapsed or is suspended or revoked; investigation; confidentiality. (1) The State Mortuary and Cemetery Board may suspend or revoke a certificate of apprenticeship, after notice and upon hearing, if the board finds any of the causes specified in ORS 692.180 in regard to the apprentice.

(2) An apprentice who has had a certificate of apprenticeship suspended or revoked may apply for reregistration within one year after the suspension or revocation, but the board shall not allow more than two reregistrations. When the circumstances warrant, the board may allow an apprentice credit under a reregistration for time actually served under a previous registration. However, if the previous registration has been suspended or revoked under subsection (1) of this section, the board shall not credit on the registration more than 75 percent of the time previously served.

(3) Upon receipt of a complaint, the board shall conduct an investigation as described under ORS 676.165.

(4) Information that the board obtains as part of an investigation into licensee or applicant conduct or as part of a contested case proceeding, consent order or stipulated agreement involving licensee or applicant conduct is confidential as provided under ORS 676.175. [Amended by 1973 c.411 §9; 1983 c.810 §17; 1997 c.791 §54] 692.240 [Amended by 1971 c.115 §13; repealed by 1971 c.734 §21] 692.250 [Repealed by 1971 c.734 §21] 692.260 Grounds for revocation, suspension or refusal to renew funeral establishment or immediate disposition company license. The State Mortuary and Cemetery Board may revoke, suspend or refuse to renew a license issued to a funeral establishment or immediate disposition company if the board finds any of the following in regard to the establishment or company or its operation: (1) Any of the causes specified in ORS 692.180.

(2) Violation of ORS 692.025 (4).

(3) Failure to comply with the rules of the board. [1957 c.596 §6; 1971 c.734 §149; 1983 c.810 §18; 1989 c.177 §10; 1997 c.638 §10; 2009 c.709 §14] Note: The amendments to 692.260 by section 14, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, is set forth for the user’s convenience.

692.260. The State Mortuary and Cemetery Board may revoke, suspend or refuse to renew a license issued to a funeral establishment or immediate disposition company if the board finds any of the following in regard to the establishment or company or its operation: (1) Any of the causes specified in ORS 692.180.

(2) Violation of ORS 692.025 (3).

(3) Failure to comply with the rules of the board.

692.265 License denial and civil penalty procedure; rules and orders; judicial review. (1) If the State Mortuary and Cemetery Board proposes to impose a civil penalty or to revoke, suspend or refuse to issue or renew any license or certificate, the board shall accord an opportunity for hearing as provided in ORS chapter 183.

(2) Adoption of rules, conduct of hearings and issuance of orders and judicial review of rules and orders shall be as provided in ORS chapter 183. [1971 c.734 §151; 1983 c.810 §19] 692.270 Certificate of removal registration for removal of dead human bodies; requirements; sanctions. (1) The State Mortuary and Cemetery Board shall issue a certificate of removal registration to a funeral establishment licensed in another state contiguous to Oregon with laws substantially similar to the provisions of this section for the limited purpose of removing dead human bodies from Oregon, prior to submitting a certificate of death, if the establishment that will make the removals applies to the board for a certificate of removal registration on a form provided by the board. The application fee established under ORS 692.160 shall accompany the application. A certificate issued under this subsection expires upon a change of ownership of the funeral establishment.

(2) For purposes of this section, each branch of a registrant’s funeral establishment is a separate establishment and must be registered as a fixed place of business.

(3) Notwithstanding ORS 692.025 (1) and 692.045, a funeral service practitioner who files death certificates in another state may file an Oregon certificate of death if the funeral service practitioner is employed by a licensed funeral establishment registered with the board under this section.

(4) The conduct of a funeral service practitioner or any other person employed by or acting on behalf of a removal registrant shall be the direct responsibility of the holder of a certificate of removal registration.

(5) For any of the causes described in ORS 692.180, or for violation of any death care rule or law in another state, the board may impose upon the holder of a certificate of removal registration or applicant any of the sanctions described in ORS 692.180. [1999 c.724 §6] Note: 692.270 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 692 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

692.275 Certificate of authority for operating cemetery, crematorium or facility for final disposition; fees; registration of certain cemeteries; rules applicable to crematoriums. (1) A person may not conduct the business of an operating cemetery unless the person has a certificate of authority to do so. A person may apply for a certificate of authority on a form provided by the State Mortuary and Cemetery Board. The application must be accompanied by the application fee established under ORS 692.160. However, any exempt operating cemetery is entitled to receive a certificate of authority to operate upon payment of an initial fee not to exceed $100 and a fee not to exceed $50 for registration of all principals regardless of the total number of principals. An exempt operating cemetery is not required to pay the renewal fee or the fee for any change in principal other than the cemetery manager.

(2) A cemetery, other than an operating cemetery or a historic cemetery listed with the Oregon Commission on Historic Cemeteries under ORS 97.782, must be registered with the board. An owner of a cemetery, other than an operating cemetery or a historic cemetery listed with the Oregon Commission on Historic Cemeteries under ORS 97.782, must register the cemetery with the board on a form provided by the board. No fee may be required of a cemetery registrant.

(3) A person may not operate a crematorium unless the person has a certificate of authority to do so. A person may apply for a certificate of authority to operate a crematorium on a form provided by the board.

The application must be accompanied by the application fee established under ORS 692.160.

(4) For purposes of this section and ORS 692.025, each location of a cemetery or crematorium is a separate location and must be licensed separately. Those cemeteries that are subject to registration must be registered separately.

(5) The board may consider the recommendations of national associations related to cremation in adopting rules regulating crematoriums.

(6) A person may not operate a facility for final disposition of human remains other than a cemetery or a crematorium unless the person has a certificate of authority to do so. A person may apply for a certificate of authority on a form provided by the board. The application must be accompanied by an application fee established under ORS 692.160.

(7) This section applies to operating cemeteries or other cemeteries owned by any city, county or other municipal corporation.

(8) The board may not subject an exempt operating cemetery to random inspections. [1985 c.207 §19; 1989 c.177 §11; 1991 c.542 §3; 1999 c.731 §11; 2001 c.224 §2; 2003 c.173 §10; 2007 c.436 §2; 2009 c.709 §5]

Note: See first note under 692.010.

Note: The amendments to 692.275 by section 5, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, is set forth for the user’s convenience.

692.275. (1) The application for a certificate of authority to conduct the business of an operating cemetery shall be made on a form provided by the State Mortuary and Cemetery Board. The application shall be accompanied by the application fee established under ORS 692.160. However, any exempt operating cemetery is entitled to receive a certificate of authority to operate upon payment of an initial fee not to exceed $100 and a fee not to exceed $50 for registration of all principals regardless of the total number of principals. An exempt operating cemetery is not required to pay the renewal fee or the fee for any change in principal other than the cemetery manager.

(2) A cemetery, other than an operating cemetery or a historic cemetery listed with the Oregon Commission on Historic Cemeteries under ORS 97.782, shall be registered with the board. An owner of a cemetery, other than an operating cemetery or a historic cemetery listed with the Oregon Commission on Historic Cemeteries under ORS 97.782, shall register the cemetery with the board on a form provided by the board. No fee shall be required of a cemetery registrant.

(3) The person who plans to operate a crematorium shall apply before operation for a certificate of authority to operate a crematorium on a form provided by the board. The application shall be accompanied by the application fee established under ORS 692.160.

(4) For purposes of this section and ORS 692.025, each location of a cemetery or crematorium is a separate location and must be licensed separately. Those cemeteries that are subject to registration shall be registered separately.

(5) The recommendation of the Cremation Association of North America shall be used in adopting rules regulating crematoriums.

(6) This section applies to operating cemeteries or other cemeteries owned by any city, county or other municipal corporation.

(7) The board may not subject an exempt operating cemetery to random inspections.

692.285 [1985 c.207 §21; 1987 c.813 §14; 1993 c.467 §1; 1995 c.144 §6; 1995 c.325 §1; 1997 c.98 §1; repealed by 2001 c.796 §29] STATE BOARD 692.300 State Mortuary and Cemetery Board; appointment; term; qualifications. (1) There is created the State Mortuary and Cemetery Board to carry out the purposes and enforce the provisions of this chapter. The board consists of 11 members appointed by the Governor and subject to confirmation by the Senate in the manner provided in ORS 171.562 and 171.565. All members of the board must be residents of this state. Of the members of the board: (a) Two members must be licensed funeral service practitioners. One of the members under this paragraph must be a funeral service practitioner who does not offer embalming. (b) One member must be a licensed embalmer. (c) Three members must be representatives of cemeteries, one representing for-profit cemeteries, one representing a city or county owned or operated cemetery and one representing a special district owned or operated cemetery.

(d) One member must be a representative of a crematorium. (e) Four members must be representatives of the public, one of whom must be a member of a recognized senior citizen organization.

(2)(a) Board members required to be licensed funeral service practitioners or licensed embalmers may be selected by the Governor from a list of three to five nominees for each vacancy, submitted by: (A) Any professional organization representing funeral service practitioners, if the vacancy on the board is for a funeral service practitioner position; or (B) Any professional organization representing embalmers, if the vacancy on the board is for an embalmer position. (b) In selecting the members of the board, the Governor shall strive to balance the representation on the board according to: (A) Geographic areas of this state; and (B) Ethnic group.

(3)(a) The term of office of the members of the board shall be three years ending on December 31, but a member serves at the pleasure of the Governor. The terms must be staggered so that no more than four terms end each year. A member is eligible for no more than two consecutive terms. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term. (b) A board member shall be removed immediately from the board if, during the member’s term, the member: (A) Is not a resident of this state; (B) Has been absent from three consecutive board meetings, unless at least one absence is excused; (C) Is not a licensed funeral service practitioner or a retired funeral service practitioner whose license was in good standing at the time of retirement, if the board member was appointed to serve on the board as a funeral service practitioner; or (D) Is not a licensed embalmer or a retired embalmer whose license was in good standing at the time of retirement, if the board member was appointed to serve on the board as an embalmer. [Amended by 1971 c.650 §25; 1973 c.792 §46; 1979 c.858 §3; 1981 c.439 §1; 1983 c.810 §20; 1985 c.207 §15; 1991 c.542 §5; 1997 c.632 §12; 2009 c.535 §35; 2009 c.756 §85] 692.310 Meetings; officers. The State Mortuary and Cemetery Board shall meet at least semiannually, and at such other times as it may determine, and shall elect from its members, each for a term of one year, a president and secretary. The secretary shall also act and serve as treasurer of the board. [Amended by 1971 c.115 §14; 1973 c.411 §10; 1983 c.810 §21] 692.320 Powers and duties; rules. (1) The State Mortuary and Cemetery Board may adopt and enforce rules for the protection of the public health, safety and welfare relating to the following: (a) The licensing of or issuance of certificates of authority for funeral service practitioners, embalmers, death care consultants, funeral establishments, crematoriums, cemeteries and other facilities for final disposition of human remains. (b) The registration of apprentices. (c) The practice of funeral service practitioners, embalmers and death care consultants, and the operation of funeral establishments, immediate disposition companies, crematoriums, cemeteries and other facilities for final disposition of human remains. (d) Sanitary conditions of funeral establishments, crematoriums, cemeteries, other facilities for final disposition of human remains and any location in which human remains are stored or processed prior to final disposition.

(e) Matters necessary to carry out the provisions of this chapter.

(2) Other than areas used as living quarters, the board shall inspect not less than once biennially the facilities and records of funeral establishments, cemeteries, crematoriums and immediate disposition companies, other facilities for final disposition of human remains and any location in which human remains may be stored, temporarily held or processed prior to final disposition. The inspection of the records of such locations is limited to those records required to comply with this chapter or ORS chapter 432 or rules adopted pursuant thereto. The board may make random inspections at other times. The board shall employ one or more persons to perform such inspections and aid in the enforcement of this chapter and rules adopted thereunder. A person employed under this subsection may not be a member of the board or actively engaged in a practice regulated by this chapter.

(3) The board may hold hearings, conduct investigations, subpoena witnesses, administer oaths and take testimony in order to carry out the provisions of this chapter.

(4) The board shall have a common seal and, subject to any applicable provision of the State Personnel Relations Law, may employ staff, fix the compensation for them and incur other necessary expenses.

[Amended by 1957 c.596 §8; 1973 c.411 §11; 1983 c.389 §6; 1983 c.810 §22; 1985 c.207 §17; 1987 c.252 §1; 1989 c.177 §12; 1993 c.248 §4; 1997 c.638 §11; 2009 c.709 §6; 2009 c.756 §86] Note: See first note under 692.010.

Note: See first note under 692.025.

Note: The amendments to 692.320 by section 6, chapter 709, Oregon Laws 2009, become operative March 31, 2010. See section 17, chapter 709, Oregon Laws 2009. The text that is operative until March 31, 2010, including amendments by section 86, chapter 756, Oregon Laws 2009, is set forth for the user’s convenience.

692.320. (1) The State Mortuary and Cemetery Board has the power to adopt and enforce for the protection of the public health, safety and welfare reasonable rules relating to the following: (a) The licensing of funeral service practitioners, embalmers, funeral establishments, crematoriums and cemeteries. (b) The registration of apprentices. (c) The practice of funeral service practitioners and embalmers, and the operation of funeral establishments, immediate disposition companies, crematoriums and cemeteries. (d) Sanitary conditions of funeral establishments, crematoriums, cemeteries and any location in which dead human bodies are stored or processed prior to final disposition. (e) Matters necessary to carry out the provisions of this chapter.

(2) Other than areas used as living quarters, the board shall inspect not less than once biennially the facilities and records of funeral establishments, cemeteries and crematoriums and immediate disposition companies and any location in which dead human bodies may be stored, temporarily held or processed prior to final disposition. The inspection of the records of such locations shall be limited to those records required to comply with this chapter or ORS chapter 432 or rules adopted pursuant thereto. The board may make random inspections at other times. The board shall employ one or more persons to perform such inspections and aid in the enforcement of this chapter and rules adopted thereunder. No person employed under this subsection may be a member of the board or actively engaged in a practice regulated by this chapter.

(3) The board may hold hearings, conduct investigations, subpoena witnesses, administer oaths and take testimony in order to carry out the provisions of this chapter.

(4) The board shall have a common seal and, subject to any applicable provision of the State Personnel Relations Law, may employ staff, fix the compensation for them and incur other necessary expenses.

692.330 Compensation and expenses. Each member of the State Mortuary and Cemetery Board is entitled to compensation and expenses as provided in ORS 292.495. [Amended by 1969 c.314 §93; 1973 c.411 §12] 692.340 [Repealed by 1973 c.411 §15] 692.350 Publication of statutes and rules. Except as provided in this section, after each change in the provisions of this chapter or in the rules adopted under this chapter, the State Mortuary and Cemetery Board shall publish for distribution to funeral service practitioners, embalmers and apprentices and to other interested persons, the provisions of this chapter together with all rules adopted under this chapter. If a change or changes in the rules are not extensive in scope, the board may publish the changes in supplementary form. [Amended by 1983 c.810 §23] 692.360 [Repealed by 1973 c.411 §15] 692.370 [Amended by 1967 c.637 §35; repealed by 1973 c.411 §15] 692.375 State Mortuary and Cemetery Board Account; disposition of receipts. The State Mortuary and Cemetery Board Account is established in the State Treasury, separate and distinct from the General Fund. All moneys received by the State Mortuary and Cemetery Board under this chapter shall be paid into the account and are appropriated continuously to be used only for the administration and enforcement of this chapter, for the administration and enforcement of ORS 97.931 and for the purpose of education of funeral service practitioners, embalmers and death care consultants. Any interest or other income from moneys in the account shall be credited to the account. [1973 c.411 §14; 1983 c.810 §24; 2001 c.796 §26; 2005 c.726 §1; 2009 c.709 §15] ENFORCEMENT 692.380 Courts having jurisdiction; initiation of proceedings. Circuit courts, justice courts and municipal courts sitting as justice courts have concurrent jurisdiction with the circuit courts of the State of Oregon in all prosecutions arising under this chapter. The district attorney is authorized to institute prosecutions for violations of this chapter by information, or prosecutions may be instituted by indictment, or by complaint verified before any magistrate.

692.385 Enforcement proceedings instituted by board; relation to other enforcement provisions. (1) Whenever it appears to the State Mortuary and Cemetery Board that any person is engaged or about to engage in any acts or practices which constitute a violation of any statute administered by the board, or any rule or order issued thereunder, the board may institute proceedings in the circuit courts to enforce obedience thereto by injunction, or by other processes, mandatory or otherwise, restraining such person, or its officers, agents, employees and representatives from further violation of such statute, rule or order, and enjoining upon them obedience thereto.

(2) The provisions of this section are in addition to and not in substitution of any other enforcement provisions contained in any statute administered by the board. [1987 c.252 §3]

692.387 Availability of inspection warrants; effect. Upon application of the State Mortuary and Cemetery Board, or any public officer, agent or employee of the board acting in the course of official duties, magistrates authorized to issue search warrants may issue an inspection warrant whenever an inspection or investigation of any place subject to the jurisdiction of the board is required or authorized. The inspection warrant is an order authorizing the inspection or investigation to be conducted at a designated place subject to jurisdiction of the board. [1987 c.252 §4] 692.389 Issuance of inspection warrant upon cause; supporting affidavit; cause of issuance of warrant. (1) An inspection warrant shall be issued only upon cause, supported by affidavit, particularly describing the applicant’s status in applying for the warrant under ORS 692.387 to 692.393, the statute, ordinance or regulation requiring or authorizing the inspection or investigation, the place to be inspected or investigated and the purpose for which the inspection or investigation is to be made including the basis upon which cause exists to inspect. In addition, the affidavit shall contain either a statement that entry has been sought and refused or facts or circumstances reasonably showing that the purposes of the inspection or investigation might be frustrated if entry were sought without an inspection warrant.

(2) Cause shall be considered to exist if reasonable legislative or administrative standards for conducting a routine, periodic or area inspection are satisfied with respect to the particular place subject to the jurisdiction of the State Mortuary and Cemetery Board, or there is probable cause to believe that a condition of nonconformity with a statute, rule or order within the board’s authority exists with respect to the particular place, or an investigation is reasonably believed to be necessary in order to determine or verify the existence of jurisdiction or of a violation of any statute, rule or order enforceable by the board. [1987 c.252 §5] 692.391 Issuance of inspection warrant by magistrate; examination of applicant; contents and conditions of warrant. (1) Before issuing an inspection warrant, the magistrate may examine under oath the applicant and any other witness until satisfied of the existence of grounds for granting such application.

(2) If the magistrate is satisfied that cause for the inspection or investigation exists and that the other requirements for granting the application are satisfied, the magistrate shall issue the warrant, particularly describing the name and title of the person or persons authorized to execute the warrant, the place to be entered and the purpose of the inspection or investigation. The warrant shall contain a direction that it be executed on any day of the week between the hours of 8 a.m. and 6 p.m., or where the magistrate has specially determined upon a showing that it cannot be effectively executed between those hours, that it be executed at any additional or other time of the day or night. [1987 c.252 §6] 692.393 Execution of inspection warrant; presentation of credentials; authority and purpose; time of expiration. (1) Except as provided in subsection (2) of this section, in executing an inspection warrant, the person authorized to execute the warrant shall, before entry, make a reasonable effort to present the person’s credentials, authority and purpose to an occupant or person in possession of the place designated in the warrant and show upon request to the occupant or person in possession of the place the warrant or a copy thereof.

(2) In executing an inspection warrant, the person authorized to execute the warrant need not inform anyone of the person’s authority and purpose, as prescribed in subsection (1) of this section, but may promptly enter the designated place if it is at the time unoccupied or not in the possession of any person or at the time reasonably believed to be in such condition.

(3) A peace officer may be requested to assist in the execution of the inspection warrant.

(4) An inspection warrant must be executed and returned to the magistrate by whom it was issued within 10 days from its date, unless such magistrate before the expiration of such time, by indorsement thereon, extends the time for five days. After the expiration of the time prescribed by this subsection, the warrant unless executed is void. [1987 c.252 §7] MISCELLANEOUS 692.400 Duty to report prohibited conduct. Unless state or federal laws relating to confidentiality or the protection of health information prohibit disclosure, a person licensed or registered under this chapter who has reasonable cause to believe that a licensee of another board has engaged in prohibited conduct as defined in ORS 676.150 shall report the prohibited conduct in the manner provided in ORS 676.150. [2009 c.536 §35] 692.405 Identifying receptacle. The funeral service practitioner or person acting as such shall be responsible for causing to be affixed to each receptacle, as defined by rule of the State Mortuary and Cemetery Board, in which a dead human body is contained an identifying metal disc, of a design to be approved by rule of the State Mortuary and Cemetery Board, that shall remain attached to the receptacle in which the body is contained and shall bear a corresponding number that is also on both the death certificate and the final disposition permit. In the event of cremation, the disc shall stay with the cremated remains.

[1985 c.207 §20] 692.410 Environmentally sound practices; rules. The State Mortuary and Cemetery Board shall adopt rules promoting environmentally sound death care practices. [2009 c.709 §7] Note: 692.410 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 692 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

PENALTIES 692.990 Penalties. Violation of ORS 692.025 is a misdemeanor. [Amended by 1957 c.596 §9; 1983 c.810 §25] Chapter 97 — Rights and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts 2009 EDITION CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS PROPERTY RIGHTS AND TRANSACTIONS GENERAL PROVISIONS 97.010

Definitions

97.020

Exemption of certain organizations and cemeteries from certain sections of chapter

97.030

Vested rights not acquired

97.040

Private family burial grounds

AUTOPSIES 97.082

Consent for certain autopsies; form

DISPOSITION OF HUMAN BODIES 97.110

Human remains not to be attached

97.120

Human remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990

97.130

Right to control disposition of remains; delegation

97.145

Liability for failure to conform to written instrument directing control of remains

97.150

Disposition of cremated remains; procedures; notice; actions against cemetery or funeral service providers

97.153

Diagnostic or therapeutic radioisotopes in body

97.160

Duty of hospital or sanitarium to notify before sending remains to undertaker; procedures

97.170

Disposition of unclaimed body of deceased person; rules

97.180

Period within which body may not be used

97.190

Post-mortem examination of body

97.200

Disposition of remains after educational use thereof

97.210

Exceptions to application of ORS 97.170 to 97.200; rules

97.220

Disinterment

DEDICATION TO CEMETERY PURPOSES; PLATTINGS 97.310

Survey and subdivision of land; map or plat of mausoleum or columbarium; access easement

97.320

Filing map or plat and declaration of dedication of land to cemetery purposes

97.330

When dedication is complete

97.340

Effect of dedication

97.350

Dedication to cemetery purposes not invalid

97.360

Resurvey and alteration in shape or size; vacation of streets, walks, driveways and parks and replatting into lots

97.370

Fixing date of hearing; notice

97.380

Hearing; order allowing replatting

97.390

Assessment of benefits and damages

97.400

Disposal of newly created lots; disposition and use of proceeds from sale; failure of owner to perform duties

97.410

Right of adjacent lot owner upon vacation of way

97.420

Effect of failure to object

97.430

Declaration of exercise of police power and right of eminent domain

97.440

Removal of dedication

97.445

Vacating county interest in cemetery real property

97.450

Discontinuance of cemetery and removal of remains and markers

97.460

Requirements for establishment of cemetery or burial park

SALES AND RIGHTS IN RESPECT OF CEMETERY PLOTS 97.510

Sale and conveyance of plots by cemetery authority

97.520

Sale or offer to sell cemetery plot upon promise of resale at financial profit

97.530

Commission, bonus or rebate for sale of plot or services

97.540

Commission, bonus or rebate for recommendation of cemetery

97.550

Plots are indivisible

97.560

Presumption of sole ownership in grantee of plot

97.570

Spouse has vested right of interment

97.580

Divestiture of spouse’s right of interment

97.590

Transfer of plot or right of interment

97.600

Descent of plot

97.610

Determining occupant of burial plot having co-owners

97.620

Death of co-owner; authorization to use plot under directions of surviving owners

97.630

Family plots; order of occupation

97.640

Waiver or termination of vested right of interment

97.650

Limitations upon vested right of interment

CEMETERY MANAGEMENT 97.710

Power of cemetery to make rules and regulations

97.720

Record of interments and cremations; inspection

97.730

Gifts and bequests in trust for cemeteries

INDIAN GRAVES AND PROTECTED OBJECTS 97.740

Definitions for ORS 97.740 to 97.760

97.745

Prohibited acts; application; notice

97.750

Permitted acts; notice

97.760

Civil action by Indian tribe or member; time for commencing action; venue; damages; attorney fees

OREGON COMMISSION ON HISTORIC CEMETERIES 97.772

Definition of “historic cemetery”

97.774

Oregon Commission on Historic Cemeteries; terms

97.776

Commission members; nominations

97.778

Chairperson; quorum; meetings

97.780

Duties

97.782

Listing of historic cemeteries; form

97.784

Executive secretary; support services

CEMETERY CARE 97.810

Endowment care and nonendowed care cemeteries

97.820

Placing cemetery under endowed care; deposit; commingling endowment and special care funds; trustee or custodian of fund

97.825

Suits to enforce endowed care statutes; attorney fees

97.830

Investment and reinvestment of principal of endowed care funds; use and application of income

97.835

Limitation of duties and liability of trustee

97.840

Cemetery authority authorized to receive and hold gifts of property; disposition of gifts

97.850

Endowment and special care funds are charitable

97.860

Agreements for care

97.865

Application of ORS 97.810 to 97.865 to religious, county and city cemeteries

97.870

Unused and uncared for portions of cemetery declared common nuisances

97.880

Resolution declaring a nuisance

97.890

Complaint

97.900

Summons

97.910

Disuse as prima facie evidence of abandonment

97.920

Judgment declaring nuisance, authorizing abatement and creating and foreclosing lien

PREARRANGEMENT SALES AND PRECONSTRUCTION SALES 97.923

Definitions for ORS 97.923 to 97.949

97.925

Purpose

97.926

Rulemaking authority

97.927

Applicability of ORS 97.923 to 97.949

97.929

Exceptions to ORS 97.923 to 97.949

97.931

Registration of salesperson for endowment care cemeteries, preconstruction sales and prearrangement sales; rules; background check; civil penalties

97.933

Certification of provider of prearrangement or preconstruction sales; annual reports; audits; fees

97.935

Registration of master trustees; annual reports; annual audits; fees

97.936

Emergency orders of suspension or restriction

97.937

Deposit of trust funds made by endowment care cemeteries

97.939

Prearrangement or preconstruction sales contracts; contents; delivery

97.941

Prearrangement or preconstruction trust fund deposits

97.942

Appointment of receiver; criteria

97.943

Distributions from prearrangement trust fund deposits

97.944

Distributions from preconstruction trust fund deposits

97.945

Funeral and Cemetery Consumer Protection Trust Fund; fee; rules

97.946

Advertising and marketing prohibitions

97.947

Examination of providers and master trustees by director; subpoena power; depositions

97.948

Grounds for discipline by director for violation of ORS 97.923 to 97.949; suspension and revocation of certificate or registration; civil penalties; notification of board

97.949

Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949

REVISED UNIFORM ANATOMICAL GIFT ACT 97.951

Short title

97.953

Definitions

97.955

Purpose of anatomical gift; persons authorized to make gift

97.957

Methods of making anatomical gift before death of donor

97.959

Revocation or amendment of anatomical gift before death of donor

97.961

Refusal to make anatomical gift; effect of refusal

97.963

Effect of making, amending or revoking anatomical gift

97.965

Persons authorized to make anatomical gift of body or body part of decedent

97.967

Methods for making, amending or revoking anatomical gift of body or body part of decedent by authorized person

97.969

Authorized recipients of anatomical gifts; purposes for which gift may be used

97.970

Search for document of anatomical gift or refusal; duty to send document or refusal to hospital

97.971

Delivery of document of gift or refusal not required; right to examine

97.972

Rights and duties of procurement organizations and others; authorized examinations

97.973

Coordination of procurement and use of anatomical gifts

97.974

Immunity of persons acting in accordance with ORS 97.951 to 97.982

97.976

Law governing validity of document of gift; presumption of validity

97.977

Donor registry; duty of Department of Transportation to cooperate with donor registry

97.978

Resolution of conflict between potential anatomical gift and advance directive

97.979

Cooperation between medical examiner and procurement organization

97.980

Facilitation of anatomical gift from decedent whose body is under jurisdiction of medical examiner

97.981

Purchase or sale of body parts prohibited

97.982

Alteration of document of anatomical gift prohibited

97.983

Relation to Electronic Signatures in Global and National Commerce Act

ANATOMICAL GIFTS 97.984

Liability of executor who carries out anatomical gift

97.985

Transplants not covered by implied warranty

FEDERAL AID FOR CEMETERIES 97.987

Department of Transportation use of federal moneys for cemetery care

PENALTIES 97.990

Penalties

97.992

Penalties for ORS 97.937

97.994

Penalties for ORS 97.931, 97.933 and 97.941

GENERAL PROVISIONS 97.010 Definitions. As used in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920, 97.923 to 97.949, 97.990 and 97.994: (1) “Burial” means the placement of human remains in a grave or lawn crypt.

(2) “Burial park” means a tract of land for the burial of human remains, used, or intended to be used, and dedicated for cemetery purposes.

(3) “Burial right” means the right to use a grave, mausoleum, columbarium, ossuary or scattering garden for the interment or other disposition of human remains.

(4) “Cemetery” means a place: (a) Dedicated to and used, or intended to be used, for a permanent memorial or the permanent interment of human remains; and (b) That may contain a mausoleum, crypt or vault interment, a columbarium, an ossuary, a cenotaph, a scattering garden, any other structure or place used or intended to be used for the interment or disposition of human remains or any combination of these structures or places.

(5) “Cemetery association” means a corporation or association authorized by its articles of incorporation to conduct the business of a cemetery, but does not include a corporation sole or a charitable, eleemosynary association or corporation.

(6) “Cemetery authority” means a person who owns or controls cemetery lands or property, including but not limited to a cemetery corporation, association or corporation sole.

(7) “Cemetery business” and “cemetery purpose” are used interchangeably and mean any business or purpose requisite or incident to, or necessary for establishing, maintaining, operating, improving or conducting a cemetery, interring human remains, and the care, preservation and embellishment of cemetery property.

(8) “Cemetery merchandise” means personal property offered for sale or sold for use in connection with the final disposition, memorialization or interment of human remains. “Cemetery merchandise” includes, but is not limited to, an outer burial container and a memorial.

(9) “Cemetery services” means services provided by a cemetery authority for interment or scattering, and installation of cemetery merchandise.

(10) “Cenotaph” means a place, the primary purpose of which is to provide an area where a person may pay to establish a memorial to honor a person whose remains may be interred elsewhere or whose remains cannot be recovered.

(11) “Columbarium” means a structure or room containing receptacles for permanent inurnment of cremated remains in a place used, or intended to be used, and dedicated for cemetery purposes.

(12) “Cremated remains” means the remains of a cremated human body after completion of the cremation process.

(13) “Cremation” means the technical process, using direct flame and heat, that reduces human remains to bone fragments.

(14) “Crematory” means a structure containing a retort for the reduction of bodies of deceased persons to cremated remains.

(15) “Crypt” or “vault” means a space in a mausoleum of sufficient size used, or intended to be used, to entomb uncremated human remains.

(16) “Directors” or “governing body” means the board of directors, board of trustees or other governing body of a cemetery association.

(17) “Endowment care” means the general care and maintenance of developed portions of a cemetery and memorials erected thereon financed from the income of a trust fund.

(18) “Entombment” means the placement of human remains in a crypt or vault.

(19) “Funeral merchandise” means personal property offered for sale or sold for use in connection with funeral services. “Funeral merchandise” includes, but is not limited to, acknowledgment cards, alternative containers, caskets, clothing, cremation containers, cremation interment containers, flowers, memory folders, monuments, outer burial containers, prayer cards, register books and urns.

(20) “Funeral services” means services customarily provided by a funeral service practitioner including, but not limited to, care and preparation of human remains for final disposition, professional services relating to a funeral or an alternative to a funeral, transportation of human remains, limousine services, use of facilities or equipment for viewing human remains, visitation, memorial services or services that are used in connection with a funeral or alternative to a funeral, coordinating or conducting funeral rites or ceremonies, and other services provided in connection with a funeral, alternative to a funeral or final disposition of human remains.

(21) “Grave” means a space of ground in a burial park used, or intended to be used, for burial of the remains of one person.

(22) “Human remains” or “remains” means the body of a deceased person in any stage of decomposition or after cremation.

(23) “Interment” means the disposition of human remains by inurnment, entombment or burial.

(24) “Inurnment” means the placement of cremated remains in a receptacle and the deposit of the receptacle in a niche.

(25) “Lot,” “plot” or “burial space” means space in a cemetery owned by one or more individuals, an association or fraternal or other organization and used, or intended to be used, for the permanent interment therein of the remains of one or more deceased persons. Such terms include and apply with like effect to one, or more than one, adjoining grave, crypt, vault or niche.

(26) “Mausoleum” means a structure substantially exposed above ground for the entombment of human remains in crypts or vaults in a place used, or intended to be used, and dedicated for cemetery purposes.

(27) “Memorial” means a product, other than a mausoleum or columbarium, used for identifying an interment space or for commemoration of the life, deeds or career of a decedent including, but not limited to, an ossuary, monument, marker, niche plate, urn garden plaque, crypt plate, cenotaph, marker bench or vase.

(28) “Niche” means a recess usually in a columbarium used, or intended to be used, for the inurnment of the cremated remains of one or more persons.

(29) “Ossuary” means a receptacle used for the communal placement of cremated remains without benefit of an urn or any other container in which cremated remains may be commingled with other cremated remains and are nonrecoverable.

(30) “Plot owner” or “owner” means any person identified in the records of the cemetery authority as owner of the burial rights to a burial plot, or who holds a certificate of ownership conveyed from the cemetery authority of the burial rights in a particular lot, plot or space.

(31) “Scattering” means the lawful dispersion of cremated remains that need not be associated with an interment right or issuance of a deed, that may be recorded only as a service that has taken place and may not be recorded on the permanent records of the cemetery authority.

(32) “Scattering garden” means a location set aside within a cemetery that is used for the spreading or broadcasting of cremated remains that have been removed from their container and can be mixed with or placed on top of the soil or ground cover or buried in an underground receptacle on a commingled basis and that are nonrecoverable.

(33) “Special care” means any care in excess of endowed care in accordance with the specific directions of a donor of funds. [Amended by 1955 c.545 §1; 1965 c.396 §1; 2007 c.661 §1; 2009 c.709 §10] 97.020 Exemption of certain organizations and cemeteries from certain sections of chapter. (1) The provisions of ORS 97.030, 97.120, 97.310 to 97.350, 97.360 (1), 97.510 and 97.550 relating to private cemeteries do not apply to: (a) Any religious or eleemosynary corporation, church, religious society or denomination, corporation sole administering temporalities of any church or religious society or denomination or any cemetery that such entity organizes, controls or operates. (b) Any county or city cemetery.

(2) The provisions of ORS 97.810 to 97.865 relating to private cemeteries do not apply to: (a) Any religious or eleemosynary corporation, church, religious society or denomination, corporation sole administering temporalities of any church or religious society or denomination or any cemetery that such entity organizes, controls or operates, unless the cemetery authority for an entity described in this paragraph elects to subject itself to ORS 97.810 to 97.865. (b) Any county or city cemetery, unless the county or city elects to subject itself to ORS 97.810 to 97.865. [Amended by 1955 c.473 §1; 1997 c.167 §1] 97.030 Vested rights not acquired. No cemetery authority or person having a right of sepulture or any other right under ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 acquires any vested right by virtue thereof which the Legislative Assembly may not subsequently amend, alter or repeal.

97.040 Private family burial grounds. Except for ORS 97.730, 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 do not apply to private family burial grounds where lots are not offered for sale.

97.050 [1977 c.183 §1; 1983 c.526 §4; 1985 c.747 §49; 1987 c.660 §16; 1989 c.1034 §8; renumbered 127.605 in 1989] 97.055 [1977 c.183 §2; 1979 c.211 §1; 1983 c.526 §5; renumbered 127.610 in 1989] 97.060 [1977 c.183 §3; renumbered 127.615 in 1989]

97.065 [1977 c.183 §4; renumbered 127.620 in 1989] 97.070 [1977 c.183 §5; renumbered 127.625 in 1989] 97.075 [1977 c.183 §6; repealed by 1983 c.526 §7] 97.080 [1977 c.183 §7; renumbered 127.630 in 1989] AUTOPSIES 97.082 Consent for certain autopsies; form. (1) Except as provided in subsection (2) of this section, whenever a person dies and no autopsy is ordered by a medical examiner or district attorney pursuant to ORS 146.117, an autopsy may not be conducted without the prior written consent of a person within the first applicable class of the following listed classes: (a) The spouse of the decedent; (b) A son or daughter of the decedent 18 years of age or older; (c) Either parent of the decedent; (d) A brother or sister of the decedent 18 years of age or older; (e) A guardian of the decedent at the time of death; (f) A person in the next degree of kindred to the decedent; (g) The personal representative of the estate of the decedent; or (h) The person nominated as the personal representative of the decedent in the decedent’s last will.

(2)(a) Consent required under subsection (1) of this section must be granted on a written autopsy consent form developed pursuant to subsection (3) of this section. (b) If the person authorized by subsection (1) of this section to grant written consent to conduct an autopsy is not available to grant written consent in person, the authorized person may grant consent by completing the required consent form and returning the signed form, by facsimile or other electronic transmission, to the party requesting permission.

(3) The Public Health Officer, in consultation with the State Medical Examiner, shall develop and make available a standardized written autopsy consent form that: (a) Grants the person specified in subsection (1) of this section the authority to: (A) Grant permission to conduct an unlimited autopsy; (B) Grant permission to conduct a limited autopsy and to specify what limitations are imposed upon the autopsy; or (C) Refuse permission to conduct an autopsy. (b) Provides a section for the person specified in subsection (1) of this section to submit specific instructions with respect to tests to be performed during the autopsy and to the disposition of organs and tissue removed for purposes of a limited autopsy. (c) Provides that the consent signature be accompanied by the signature of a witness. [2003 c.416 §1] Note: 97.082 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.083 [1983 c.526 §1; renumbered 127.635 in 1989]

97.084 [1983 c.526 §2; renumbered 127.640 in 1989] 97.085 [1977 c.183 §§8,9,10; renumbered 127.645 in 1989] 97.090 [1977 c.183 §11; renumbered 127.650 in 1989] DISPOSITION OF HUMAN BODIES 97.110 Human remains not to be attached. No person shall attach, detain or claim to detain any human remains for any debt or demand or upon any pretended lien or charge.

97.120 Human remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990. A cemetery authority shall deposit or dispose of human remains as provided by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.

97.130 Right to control disposition of remains; delegation. (1) Any individual of sound mind who is 18 years of age or older, by completion of a written signed instrument or by preparing or prearranging with any funeral service practitioner licensed under ORS chapter 692, may direct any lawful manner of disposition of the individual’s remains. Except as provided under subsection (6) of this section, disposition directions or disposition prearrangements that are prepaid or that are filed with a funeral service practitioner licensed under ORS chapter 692 shall not be subject to cancellation or substantial revision.

(2) A person within the first applicable listed class among the following listed classes that is available at the time of death or, in the absence of actual notice of a contrary direction by the decedent as described under subsection (1) of this section or actual notice of opposition by completion of a written instrument by a member of the same class or a member of a prior class, may direct any lawful manner of disposition of a decedent’s remains by completion of a written instrument: (a) The spouse of the decedent. (b) A son or daughter of the decedent 18 years of age or older. (c) Either parent of the decedent. (d) A brother or sister of the decedent 18 years of age or older. (e) A guardian of the decedent at the time of death. (f) A person in the next degree of kindred to the decedent. (g) The personal representative of the estate of the decedent. (h) The person nominated as the personal representative of the decedent in the decedent’s last will. (i) A public health officer.

(3) The decedent or any person authorized in subsection (2) of this section to direct the manner of disposition of the decedent’s remains may delegate such authority to any person 18 years of age or older.

Such delegation shall be made by completion of the written instrument described in subsection (7) of this section. The person to whom the authority is delegated shall have the same authority under subsection (2) of this section as the person delegating the authority.

(4) If a decedent or the decedent’s designee issues more than one authorization or direction for the disposal of the decedent’s remains, only the most recent authorization or direction shall be binding.

(5) A donation of anatomical gifts under ORS 97.951 to 97.982 shall take priority over directions for the disposition of a decedent’s remains under this section only if the person making the donation is of a priority

under subsection (1) or (2) of this section the same as or higher than the priority of the person directing the disposition of the remains.

(6) If the decedent directs a disposition under subsection (1) of this section and those financially responsible for the disposition are without sufficient funds to pay for such disposition or the estate of the decedent has insufficient funds to pay for the disposition, or if the direction is unlawful, the direction shall be void and disposition shall be in accordance with the direction provided by those persons given priority in subsection (2) of this section and who agree to be financially responsible.

(7) The signature of the individual shall be required for the completion of the written instrument required in subsection (3) of this section. The following form or a form substantially similar shall be used by all individuals: ______________________________________________________________________________ APPOINTMENT OF PERSON TO MAKE DECISIONS CONCERNING DISPOSITION OF REMAINS I, __________________, appoint __________________, whose address is _______________ and whose telephone number is (___)_________, as the person to make all decisions regarding the disposition of my remains upon my death for my burial or cremation. In the event ____________ is unable to act, I appoint ____________, whose address is __________________ and whose telephone number is (___)_________, as my alternate person to make all decisions regarding the disposition of my remains upon my death for my burial or cremation.

It is my intent that this Appointment of Person to Make Decisions Concerning Disposition of Remains act as and be accepted as the written authorization presently required by ORS 97.130 (or its corresponding future provisions) or any other provision of Oregon Law, authorizing me to name a person to have authority to dispose of my remains.

DATED this ___ day of ______, _____. __________________ (Signature) DECLARATION OF WITNESSES We declare that ____________ is personally known to us, that he/she signed this Appointment of Person to Make Decisions Concerning Disposition of Remains in our presence, that he/she appeared to be of sound mind and not acting under duress, fraud or undue influence, and that neither of us is the person so appointed by this document.

Witnessed By: _______________ Date: _____ Witnessed By: _______________ Date: _____ ______________________________________________________________________________

(8) Subject to the provisions of ORS 97.951 to 97.982, if disposition of the remains of a decedent has not been directed and authorized under this section within 10 days after the date of the death of the decedent, a public health officer may direct and authorize disposition of the remains.

(9) Notwithstanding subsection (2) of this section, a person arrested for or charged with criminal homicide by reason of the death of the decedent may not direct the disposition of the decedent’s remains.

The disposition of the decedent’s remains shall be made in accordance with the directions of an eligible person within the first applicable class established under subsection (2) of this section. [Amended by 1969 c.175 §10; 1969 c.591 §279; 1973 c.823 §97; 1995 c.717 §10; 1997 c.472 §1; 1999 c.201 §5; 2007 c.373 §1; 2007 c.681 §24] 97.132 [1961 c.674 §1; repealed by 1969 c.175 §12] 97.134 [1961 c.674 §§2,3; repealed by 1969 c.175 §12] 97.140 [Repealed by 1957 c.423 §1 (97.141 and 97.145 enacted in lieu of 97.140)] 97.141 [1957 c.423 §2 (97.141 and 97.145 enacted in lieu of 97.140); repealed by 1997 c.472 §13] 97.145 Liability for failure to conform to written instrument directing control of remains.No cemetery authority, crematory operator or licensed funeral service practitioner interring or cremating remains pursuant to a written instrument signed by the decedent or a person described in ORS 97.130 (2) shall be liable for any failure to conform to the priority of control of remains provided in ORS 97.130, except when it shall have received two or more conflicting written instruments prior to interment or cremation of said remains. [1957 c.423 §3 (97.141 and 97.145 enacted in lieu of 97.140); 1997 c.472 §2] 97.150 Disposition of cremated remains; procedures; notice; actions against cemetery or funeral service providers. (1) If the cemetery authority, crematory operator or licensed funeral service practitioner has been authorized to cremate remains of a decedent pursuant to ORS 97.130, the authorization shall also contain further instructions to the cemetery authority, crematory operator or licensed funeral service practitioner as to the final disposition of the cremated remains. If the cremated remains are left in the possession of the cemetery authority, crematory operator or licensed funeral service practitioner and no such instructions are given to the cemetery authority, crematory operator or licensed funeral service practitioner within 180 days after the date of cremation, the cemetery authority, crematory operator or licensed funeral service practitioner shall make a reasonable effort to notify the person, pursuant to ORS 97.130, who has the right to control the disposition of the cremated remains. The notice shall state that the cemetery authority, crematory operator or licensed funeral service practitioner intends to dispose of the cremated remains unless such person gives instructions to the contrary to the cemetery authority, crematory operator or licensed funeral service practitioner within 30 days of the date of such notice from the cemetery authority, crematory operator or licensed funeral service practitioner. Reasonable effort to notify shall include, but not be limited to, notice, personally or by certified mail, return receipt requested, to the person who has the right to control the disposition of the cremated remains at the address of such person in the records of the cemetery authority, crematory operator or licensed funeral service practitioner. If disposition of the cremated remains has not been directed and authorized by such person within said 30-day period, the cemetery authority, crematory operator or licensed funeral service practitioner may dispose of the cremated remains as is legally practicable.

(2) No cemetery authority, crematory operator or licensed funeral service practitioner shall be liable, and no action shall lie against any cemetery authority, crematory operator or licensed funeral service practitioner relating to any cremated remains that have been left in its possession for a period of 180 days unless the cemetery authority, crematory operator or licensed funeral service practitioner has failed to make such reasonable effort to notify the person described in subsection (1) of this section or unless a written contract has been entered into with the cemetery authority, crematory operator or licensed funeral service practitioner for their care or unless permanent interment has been made. If the cemetery authority, crematory operator or licensed funeral service practitioner has complied with this section, then the cemetery authority, crematory operator or licensed funeral service practitioner may dispose of the remains as is legally practicable. [Amended by 1989 c.669 §1; 1997 c.472 §3] 97.153 Diagnostic or therapeutic radioisotopes in body. Notwithstanding section 14, chapter 653, Oregon Laws 1991, or ORS 469.525, diagnostic or therapeutic radioisotopes remaining inside the uncremated body of a deceased person may be buried, entombed or otherwise disposed of in a cemetery or other lawful place for the burial, entombment or other disposal of the uncremated body of the deceased person even though the body contains low-level radioactive waste as defined under 42 U.S.C. 2021(b) as of January 1, 1995, by-product material as defined under 42 U.S.C. 2014 as of January 1, 1995, or special nuclear material exempted by the United States Nuclear Regulatory Commission as of January 1, 1995, under authority of 42 U.S.C. 2077(d). [1995 c.252 §1] Note: 97.153 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.160 Duty of hospital or sanitarium to notify before sending remains to undertaker; procedures. (1) No hospital or sanitarium, or the employees, agents or representatives thereof, shall send or cause to be sent to any funeral service practitioner, undertaker, mortician or embalmer the remains of any decedent without having complied with this section before final disposition of the remains.

(2) If the admitting record contains the name of a relative, friend or other person identified by the decedent in the admitting record, or if the hospital or sanitarium is aware of the name of any other person chargeable with the funeral expenses of the decedent, the hospital or the sanitarium must notify the relative, friend or other person personally or by certified mail, return receipt requested.

(3) If a hospital or sanitarium is unable to give actual notice to a relative, friend or other person under the provisions of subsection (2) of this section, the hospital or sanitarium must publish a notice of death at least one time in a newspaper of general circulation in the county where the death occurred, or, if there is no such newspaper, in a newspaper most likely to give notice of the death to relatives and friends of the decedent. The notice must contain the name of the decedent and the address and phone number for the hospital or sanitarium.

(4) If the remains of the decedent are not claimed within 10 days after the giving of notice under subsection (2) of this section, or within 10 days after publication under subsection (3) of this section if publication is made under subsection (3) of this section, the hospital or sanitarium may arrange for the disposal of the remains of the decedent without further notice in the manner specified by ORS 97.170 to 97.200.

(5) Nothing in this section limits or governs the authority of any administrator or executor, trustee or other person having a fiduciary relationship with the deceased or to the state, counties, cities or towns in the disposition of the remains of a deceased person. [Amended by 1993 c.92 §1]

97.170 Disposition of unclaimed body of deceased person; rules. (1) As used in this section, “indigent person” means a deceased person who does not have a death or final expense benefit or insurance policy that pays for disposition of the deceased person’s body or other means to pay for disposition of the deceased person’s body and who has no relative or other person with the legal right to direct and the means to pay for disposition of the deceased person’s body.

(2)(a) The Oregon Health and Science University shall appoint a Demonstrator of Anatomy from the staff of the university. (b) The Demonstrator of Anatomy shall maintain a list of institutions that may accept or process bodies for education or research purposes.

(3) A medical examiner as defined in ORS 146.003 or a health care facility as defined in ORS 442.015 that has charge of an unclaimed body of a deceased person shall promptly attempt to locate and notify the relatives of the deceased person or other persons who have an interest in the deceased person and shall arrange with any person who will pay the expenses to make disposition of the body. If the medical examiner or health care facility cannot locate a person who will pay the expenses of disposition of the body, the medical examiner or health care facility may transfer the body to a licensed funeral service practitioner.

(4)(a) A licensed funeral service practitioner who takes custody of the unclaimed body of a deceased person shall promptly verify that a medical examiner or health care facility attempted to locate relatives and interested persons as provided in subsection (3) of this section. (b) If a medical examiner or health care facility has not attempted to locate relatives and interested persons as provided in subsection (3) of this section, the funeral service practitioner shall, within five days after taking custody of the body, attempt to locate and notify relatives and interested persons and shall arrange with any person who will pay the expenses to make disposition of the body. (c) If no one claims the body within five days after the funeral service practitioner takes custody of the body, or if the persons notified acquiesce, the funeral service practitioner may transfer the body to an institution approved by the Demonstrator of Anatomy under subsection (2) of this section that desires the body for education or research purposes. The funeral service practitioner shall arrange with an institution that desires the body to pay for care, preparation and transportation of the body to the institution. (d) If no relative, interested person or institution claims the body as provided in paragraphs (b) and (c) of this subsection, the funeral service practitioner may cremate or bury the body without the consent of persons listed in ORS 97.130 and is indemnified from any liability arising from having made such disposition. The method of disposition must be in the least costly and most environmentally sound manner that complies with law, and that does not conflict with known wishes of the deceased. If the deceased person is an indigent person, the Department of Human Services shall reimburse the funeral service practitioner for the costs of disposition under subsection (6) of this section.

(5) When the deceased person is a child over whom the department held guardianship at the time of death, the department shall promptly attempt to locate and notify the relatives of the deceased child or any other person who has an interest in the deceased child and shall arrange with any person who will pay the expenses to make disposition of the body. If no relatives or interested persons claim the body, the department may transfer the body to an institution that is on the list maintained by the Demonstrator of Anatomy under subsection (2) of this section that desires the body for education or research purposes, or may authorize burial or cremation of the body. The department shall pay expenses related to burial or cremation authorized by the department under this subsection.

(6) Upon receipt of an itemized statement of expenses and proof as required by the department by rule that the deceased person is an indigent person, the department shall reimburse a funeral service practitioner the reasonable costs for disposition of the body of any unclaimed deceased indigent person. The method of

disposition must be in the least costly and most environmentally sound manner that complies with law. The department may adopt rules establishing the process for reimbursement and setting the maximum amount that may be reimbursed to a funeral service practitioner under this subsection. [Amended by 1973 c.842 §1; 1985 c.704 §1; 1993 c.345 §4; 1995 c.162 §62; 2009 c.709 §8] 97.180 Period within which body may not be used. Upon receipt of any body by a school or college pursuant to ORS 97.170, it shall be properly embalmed for anatomical purposes, but shall be retained 30 days before being used or dismembered. If it is claimed by any relative or friend within that period, it shall be delivered to the claimant.

97.190 Post-mortem examination of body. Unless required by a medical examiner to determine the cause of death or specifically authorized and ordered by the superintendent of the hospital or institution in which any person coming under the provisions of ORS 97.170 may die, no such body as is mentioned in ORS 97.170 is subject to post-mortem examination, except by consent of the Demonstrator of Anatomy.

[Amended by 1959 c.629 §43; 1965 c.221 §13; 1977 c.582 §1] 97.200 Disposition of remains after educational use thereof. The remains of any corpse used for the purposes authorized by ORS 97.170 shall, upon completion of such use, be decently buried or cremated and the ashes, in case of cremation, shall be delivered to any relative who claims them, after establishing relationship. All expenses incident to burial and cremation and the delivery of ashes to any relative shall be borne by the educational institution which used the body for educational purposes.

97.210 Exceptions to application of ORS 97.170 to 97.200; rules. The body of any person who died of smallpox, diphtheria, scarlet fever or other disease that the Oregon Health Authority, by rule, may prescribe, shall not be subject to the provisions of ORS 97.170 to 97.200. [Amended by 1977 c.582 §2; 2009 c.595 §62] 97.220 Disinterment. (1) The remains of a deceased person interred in a plot in a cemetery may be removed from the plot with the consent of the cemetery authority and written consent of the person under ORS 97.130 (2)(a), (b) or (c) who has the right to control the disposition of the remains of the deceased person. If the consent of any such person or of the cemetery authority cannot be obtained, permission by the county court where the cemetery is situated is sufficient. Notice of application to the court for such permission must be given at least 60 days prior thereto, personally or by mail, to the cemetery authority, to the person not consenting and to every other person or authority on whom service of notice is required by the county court.

(2) If the payment for the purchase of an interment space becomes past due and so remains for a period of 90 days, this section does not apply to or prohibit the removal of any remains from one plot to another in the same cemetery or the removal of remains by the cemetery authority from a plot to some other suitable place.

(3) This section does not apply to the disinterment of remains upon order of court or if ordered under the provisions of ORS 146.045 (3)(e). [Amended by 1977 c.582 §3; 2007 c.661 §2] 97.230 [Repealed by 1973 c.286 §1] 97.250 [1969 c.175 §1; repealed by 1995 c.717 §9]

97.255 [1969 c.175 §3; repealed by 1995 c.717 §9] 97.260 [1969 c.175 §2; repealed by 1995 c.717 §9] 97.265 [1969 c.175 §4; 1973 c.823 §§98,157; 1993 c.218 §1; repealed by 1995 c.717 §9] 97.268 [1985 c.379 §1; repealed by 1995 c.717 §9] 97.270 [1969 c.175 §5; repealed by 1995 c.717 §9] 97.275 [1969 c.175 §6; 1969 c.591 §278a; 1975 c.215 §1; repealed by 1995 c.717 §9] 97.280 [1969 c.175 §7; repealed by 1995 c.717 §9] 97.285 [1969 c.175 §8; repealed by 1995 c.717 §9] 97.290 [1969 c.175 §9; repealed by 1995 c.717 §9] 97.295 [Formerly 116.115; 1995 c.717 §11; renumbered 97.966 in 1995] 97.300 [1969 c.271 §1; 1995 c.717 §12; renumbered 97.968 in 1995] DEDICATION TO CEMETERY PURPOSES; PLATTINGS 97.310 Survey and subdivision of land; map or plat of mausoleum or columbarium; access easement. (1) Every cemetery authority, from time to time as its property may require for cemetery purposes, shall: (a) In case of land, survey and subdivide it into sections, blocks, plots, avenues, walks or other subdivisions and make a good and substantial map or plat showing them, with descriptive names or numbers. In all instances this shall be done in compliance with ORS 92.010 to 92.192 except that ORS 92.090 (2)(a) and (b) shall not be applicable to streets, alleys, ways and footpaths located wholly within a cemetery. (b) In case of a mausoleum or columbarium, make a good substantial map or plat on which are delineated the sections, halls, rooms, corridors, elevation and other divisions, with descriptive names or numbers. In all instances this shall be done in compliance with the state building code.

(2) Every lot in a cemetery subdivision shall include an access easement across the lot for the benefit of adjacent lots. Designated areas between lots for the purpose of providing access to separate lots are not required to approve a subdivision under this section. A cemetery authority must disclose to a potential purchaser of a lot in the cemetery the existence of the access easement across the lot. [Amended by 1965 c.396 §2; 1979 c.57 §1; 1985 c.582 §3; 1999 c.381 §1] 97.320 Filing map or plat and declaration of dedication of land to cemetery purposes. In case of a cemetery lot, the cemetery authority shall file the map or plat in the office of the recording officer of the county in which all or a portion of the property is situated, and it forthwith shall file for record in that officer’s office a written declaration dedicating the property delineated on the plat or map exclusively to cemetery purposes.

97.330 When dedication is complete. Upon the filing of the map or plat and of the declaration for record, the dedication is complete for all purposes, and thereafter the property shall be held, occupied and used exclusively for cemetery purposes.

97.340 Effect of dedication. After property is dedicated to cemetery purposes pursuant to ORS 97.310 to 97.330 and 97.360 (1), neither the dedication nor the title of a plot owner shall be affected by the dissolution of the cemetery authority by nonuser on its part, by alienation of the property, by any encumbrances, by sale under execution or otherwise, except as provided in ORS 97.310 to 97.350, 97.360 (2), 97.440, 97.510 to 97.650, 97.710, 97.720 and 97.810 to 97.865.

97.350 Dedication to cemetery purposes not invalid. Dedication to cemetery purposes pursuant to ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 is not invalid as violating any laws against perpetuities or the suspension of the power of alienation of title to or use of property, and is deemed to be in respect for the dead, and is a provision for the interment of human remains and is a duty to, and for the benefit of, the general public.

97.360 Resurvey and alteration in shape or size; vacation of streets, walks, driveways and parks and replatting into lots. (1) Any part or subdivision of the property so mapped and platted may, by order of the directors and consent of the lot owners, be resurveyed and altered in shape and size and an amended map or plat filed, so long as such change does not disturb any interred remains.

(2) Whenever a majority of the lots as platted or laid out in any cemetery established before March 3, 1927, or any part thereof, has been sold without the owners or persons in control of the cemetery having made provision for the establishment of an adequate endowment fund for the perpetual maintenance, upkeep and beautification of the cemetery and of the lots therein, the avenues, streets, alleys, walks, driveways and parks therein may be vacated or altered and replatted into lots which may be sold for burial purposes in the manner provided in this subsection and in ORS 97.370 to 97.430. Application for the vacation or alteration of any avenues, streets, alleys, walks, driveways or parks, and for the replatting of the same, or any portion thereof, for cemetery lots in any such cemetery shall be made to the county court or board of county commissioners in the county where the cemetery is situated. The application may be by the owners or persons in control of the cemetery or by a group of 20 or more persons owning lots or having relatives buried therein. The application shall be verified and shall specify the lots owned by each petitioner in which are buried bodies of relatives in which the petitioner is interested and shall state the reason for the proposed change and what provisions have theretofore been made for the perpetual upkeep, maintenance and beautification of the cemetery, and there shall be presented therewith a plat of the cemetery, together with the proposed replat, which shall have clearly indicated thereon the proposed changes.

97.370 Fixing date of hearing; notice. When any application mentioned in ORS 97.360 (2) is filed, the court or board shall fix the time for the hearing of it and notice of the time thereof shall be given by publication in a paper of general circulation published in the town in which the cemetery is situated or in the town to which it is nearest once a week for a period of six successive weeks prior to the date of the hearing and a copy of such notice shall be posted for a like period at three public and conspicuous places in the cemetery. Such notice shall be addressed to all persons owning lots or having an interest in the cemetery, but need not name them, and shall set forth in a general way the proposed changes, the reason stated in the application for making it, the time when the hearing of the application will be had, and shall state that a plat

showing the proposed changes is on file with the county clerk of the county in which the cemetery is situated.

97.380 Hearing; order allowing replatting. At the hearing mentioned in ORS 97.370 the court or board shall consider and hear any evidence introduced in favor of the proposed change and all objections thereto and, after a full hearing thereon, may allow the proposed change and replat in whole or in part. If the proposed change is allowed, either in whole or in part, an order allowing it shall be made providing that title to any new lot created by the alteration or vacation of any avenues, streets, alleys, driveways, walks or parks, or any part thereof, shall be vested in the owner of the fee of the part of the cemetery sought to be vacated in trust for burial purposes, or vested in any association which may be formed for the purpose of taking over the cemetery and operating and maintaining it in accordance with the provisions of ORS 97.400.

[Amended by 1985 c.582 §4; 1999 c.381 §2] 97.390 Assessment of benefits and damages. If any damages are claimed by the owner of any lot in any such cemetery as is mentioned in ORS 97.360 (2), which lot is adjacent to the avenues, streets, alleys, driveways or parks vacated as provided in ORS 97.380, they shall be ascertained by the county court or board of county commissioners and offset against the benefits accruing to the lot owner on account of the upkeep and beautification of the cemetery in the manner provided in ORS 97.400. Any person feeling aggrieved at the amount of damages so assessed by the board may appeal from such order of allowance to the circuit court of the county in which the cemetery is situated in the same manner as is provided by statute for appeal from the assessment of damages by the exercise of eminent domain in locating a county road and on such appeal the jury, in assessing the amount of damages to be allowed to the appellant, shall offset against such damages the benefits accruing to the appellant as in this section above provided.

97.400 Disposal of newly created lots; disposition and use of proceeds from sale; failure of owner to perform duties. Any owner or association accepting the trust of handling and disposing of lots newly created pursuant to ORS 97.380 shall by the acceptance thereof agree to dispose of the lots only for burial purposes and at a price not less than that fixed by the county court or board of county commissioners. The net funds derived from the sale of the lots remaining after the payment of the reasonable expenses incident to the vacation and of the sale shall be placed in an irreducible and perpetual fund and the interest therefrom shall be used for the perpetual upkeep and beautification of the cemetery and the lots therein situated. The fund shall be placed in some reliable trust company specified by the court or board, which trust company shall invest the same and pay the income therefrom to the owner or association charged with the disposal of such lots. Any owner or association taking over the sale of the lots shall comply with such provisions as the court or board may require of it in the upkeep, beautification and care of the cemetery with the income thereof, and if such owner or association for any reason fails to perform such duties, the court or board may, on its own motion, from time to time, appoint some other association or individual to perform them. The restrictions of this section shall not apply to the sale of lots obtained by replatting cemeteries owned and maintained by any county.

97.410 Right of adjacent lot owner upon vacation of way. The vacation of an avenue, street, alley, driveway, walk or park adjacent to a cemetery lot shall vest in the owner of such lot no interest in the vacated portion thereof; but the adjacent owner shall, for 30 days after the date of such an order of vacation, have the right to purchase any new lot adjacent to the lot of the owner at the price fixed by the court or board at which the lots are to be sold, and if there is more than one adjacent lot owner, the new lot shall be sold to the one offering the highest price therefor.

97.420 Effect of failure to object. Any owner of such cemetery as is mentioned in ORS 97.360 (2), or of any lot therein, or any relative or heir of any deceased person buried in such cemetery who fails to appear and file written objection to any proposed replat, alteration or vacation, authorized by ORS 97.360 (2), shall be deemed to have consented to the proposed change and shall be forever barred from claiming any right to use and have open for traffic or passageway any streets, alleys, driveways or parks vacated, or any right, title or interest therein, except as provided in ORS 97.360 (2) and 97.370 to 97.410.

97.430 Declaration of exercise of police power and right of eminent domain. The enactment of ORS 97.360 (2) and 97.370 to 97.430 is hereby declared to be a necessary exercise of the police powers of the state in order to preserve and keep existing cemeteries as resting places for the dead and to preserve old and historic cemeteries from becoming unkempt and places of reproach and desolation in the communities in which they are located. The taking of avenues, streets, alleys, walks, driveways and parks for the purpose and by the method specified in ORS 97.360 (2) and 97.370 to 97.420 is hereby declared an exercise of the right of eminent domain in behalf of the public health, safety, comfort, pleasure and historic instruction.

97.440 Removal of dedication. (1) Property dedicated to cemetery purposes shall be held and used exclusively for cemetery purposes until the dedication is removed from all or any part of it by an order and decree of the county court or board of county commissioners of the county in which the property is situated in a proceeding brought by the cemetery authority for that purpose and upon notice of hearing and proof satisfactory to the court that: (a) The portion of the property from which dedication is sought to be removed is not being used for interment of human remains; or (b) The Oregon Commission on Historic Cemeteries has received notice of and had the opportunity to comment on the removal from the dedicated property of all human remains and markers dated prior to February 14, 1909.

(2) The notice of hearing required by this section must: (a) Be given by publication once a week for at least four consecutive weeks in a newspaper of general circulation in the county where the cemetery is located and by publication twice in a newspaper with statewide circulation; (b) Be posted in three conspicuous places on that portion of the property from which the dedication is to be removed; (c) Describe the portion of the cemetery property sought to be removed from dedication; (d) State that all remains and markers have been removed or that no interments have been made in the portion of the cemetery property sought to be removed from dedication; and (e) Specify the time and place of the hearing. [Amended by 2003 c.237 §1] 97.445 Vacating county interest in cemetery real property. Consistent with the provisions of ORS 368.326 to 368.366, a county may vacate any real property interests the county may own in a cemetery.

Consistent with ORS 368.366 (2), the county may vacate its real property interests in favor of a private nonprofit organization provided the organization states its intent to provide for the continuing maintenance and care of the cemetery and associated facilities. [1997 c.747 §2] 97.450 Discontinuance of cemetery and removal of remains and markers. (1)(a) Whenever any cemetery that is within the limits of any county, city or town has been abandoned, or it is desirable to abandon such cemetery, the governing body of any county, if the cemetery is owned by the county, or the

corporate authorities of the city or town, if the cemetery is owned by the city or town, or the trustees or directors, if the cemetery is owned by an association or corporation, may order that such burial ground be discontinued, have the remains of all persons interred in the cemetery moved to some other suitable place and provide for the removal and reerection of all stones and monuments marking said graves. Each removal must be made in an appropriate manner and in accordance with the directions of the Director of the Oregon Health Authority. Prior to any removal authorized under this section, written notice must be given to the family, or next of kin of the deceased, if known, and if unknown, notice of the removal shall be published for at least four successive weeks in a newspaper of general circulation in the county in which the cemetery is located and twice in a newspaper with statewide circulation. (b) Any removal and the costs of the proceedings under this section shall be at the expense of the county, city or town, individual, corporation or association owning the cemetery to be moved.

(2) Notwithstanding subsection (1)(a) of this section, a cemetery or burial ground containing human remains that were interred before February 14, 1909, may not be discontinued or declared abandoned or have remains removed from the burial ground or cemetery without prior notice to and comment by the Oregon Commission on Historic Cemeteries. When commenting on a request to discontinue or declare abandoned a cemetery or burial ground, the commission shall consider: (a) The listing of the cemetery or burial ground under ORS 97.782; (b) The historic significance of the cemetery or graves included in the request; and (c) The findings of any archaeological survey of the cemetery or burial ground. [Amended by 1955 c.472 §1; 2003 c.237 §2; 2009 c.595 §63] 97.460 Requirements for establishment of cemetery or burial park. (1) A person may not lay out, open up or use any property for cemetery or burial park purposes unless the person: (a) Is the owner of the property; (b) Has the written consent of the planning commission of the county or city having jurisdiction under ORS 92.042 or, if there is no such commission in such county or city, the governing body of such county or city; (c) Agrees to maintain records of the disposition of human remains on the property as required by the planning commission or governing body of the county or city having jurisdiction under ORS 92.042; and (d) Agrees to disclose the disposition of human remains upon sale of the property. Failure to disclose the disposition of human remains does not invalidate the sale of the property.

(2) A planning commission of a county or city or, if there is no planning commission in a county or city, the governing body of the county or city, shall provide to the State Mortuary and Cemetery Board a list of the requirements for laying out, opening up or using property in the county or city for cemetery or burial park purposes. [Formerly 64.060; 1965 c.396 §3; 2009 c.709 §9] SALES AND RIGHTS IN RESPECT OF CEMETERY PLOTS 97.510 Sale and conveyance of plots by cemetery authority. (1) After filing the map or plat and recording the declaration of dedication, a cemetery authority may sell and convey plots subject to such rules and regulations as may be then in effect and subject to such other and further limitations, conditions and restrictions made a part of the declaration of dedication by reference or included in the instrument of conveyance of the plot.

(2) Scattering of cremated remains in a scattering garden is not a sale or conveyance. [Amended by 2007 c.661 §3]

97.520 Sale or offer to sell cemetery plot upon promise of resale at financial profit. A person, firm or corporation may not sell or offer to sell a cemetery plot upon the promise, representation or inducement of resale at a financial profit, except with the consent and approval of the Director of the Department of Consumer and Business Services. Each violation of this section constitutes a separate offense. [Amended by 1989 c.171 §13; 2007 c.661 §4] 97.530 Commission, bonus or rebate for sale of plot or services. No cemetery authority shall pay or offer to pay, and no person, firm or corporation shall receive, directly or indirectly, a commission, bonus, rebate or other thing of value for the sale of a plot or services. This does not apply to a person regularly employed by the cemetery authority for such purpose. Each violation of this section constitutes a separate offense.

97.540 Commission, bonus or rebate for recommendation of cemetery. No person shall pay, cause to be paid or offer to pay, and no person, firm or corporation shall receive, directly or indirectly, except as provided in ORS 97.530, any commission, bonus, rebate or other thing of value in consideration of recommending or causing a dead human body to be disposed of in any cemetery. Each violation of this section constitutes a separate offense.

97.550 Plots are indivisible. All plots, the use of which has been conveyed by deed or certificate of ownership as a separate plot, are indivisible except with the consent of the cemetery authority, or as provided by law.

97.560 Presumption of sole ownership in grantee of plot. All plots conveyed to individuals are presumed to be solely and separately owned by the person named in the instrument of conveyance.

97.570 Spouse has vested right of interment. (1) The spouse of an owner of any plot containing more than one interment space has a vested right of interment of the remains of the spouse in the plot, and any person thereafter becoming the spouse of the owner has a vested right of interment of the remains of the person in the plot if more than one interment space is unoccupied at the time the person becomes the spouse of the owner.

(2) The purchase by a married person of more than one interment space shall create in the spouse a right of interment therein.

97.580 Divestiture of spouse’s right of interment. No conveyance or other action of the owner without the written consent or joinder of the spouse of the owner divests the spouse of the vested right of interment, except that a judgment of divorce between them terminates the right unless otherwise provided in the judgment. [Amended by 2003 c.576 §357] 97.590 Transfer of plot or right of interment. No transfer of any plot, heretofore or hereafter made, or any right of interment is complete or effective until recorded on the books of the cemetery authority.

97.600 Descent of plot. Upon the death of the owner, unless the owner has disposed of the plot either by specific direction in the will of the owner or by a written declaration filed and recorded in the office of the cemetery authority, if no interment has been made in an interment plot which has been transferred by deed or certificate of ownership to an individual owner or if all remains previously interred are lawfully removed,

the plot descends to the heirs at law of the owner, subject to the rights of interment of the decedent and the surviving spouse of the decedent.

97.610 Determining occupant of burial plot having co-owners. When there are two or more owners of a burial plot or of rights of interment therein, such owners may designate one or more persons to designate the burials to be made in the plot and file written notice of such designation with the cemetery association. In the absence of such notice or of written objection to its so doing, the cemetery association is not liable to any owner for interring or permitting an interment therein upon the request or direction of any registered co-owner of the plot.

97.620 Death of co-owner; authorization to use plot under directions of surviving owners.An affidavit by any person having knowledge of the fact, setting forth the fact of the death of one owner and establishing the identity of the surviving owners named in the deed to any plot, when filed with the cemetery authority operating the cemetery in which the plot is located, is authorization to the cemetery authority to permit the use of the unoccupied portion of the plot in accordance with the directions of the surviving owners or their successors in interest.

97.630 Family plots; order of occupation. (1) Whenever an interment of the remains of a member or of a relative of a member of the family of the record owner, or of the remains of the record owner, is made in a plot transferred by deed or certificate of ownership to an individual owner, and the owner dies without making disposition of the plot, either by direction in the owner’s will, or by a written declaration filed and recorded in the office of the cemetery authority, the plot thereby becomes inalienable and shall be held as the family plot of the owner, and occupied in the following order: (a) One grave, niche or crypt may be used for the owner’s interment; one for the owner’s surviving spouse, if there is one, who by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 has a vested right of interment in it; and in those remaining, if any, the children of the deceased owner in order of death may be interred without the consent of any person claiming any interest in the plot. (b) If no child survives, the right of interment goes in order of death to the spouse of any child of the record owner.

(2) Any surviving spouse, child or child’s spouse who has a right of interment in a family plot may waive such right in favor of any other relative or spouse of a relative of either the deceased owner or of the deceased owner’s spouse, and upon such waiver the remains of the person in whose favor the waiver is made may be interred in the plot.

(3) Notwithstanding subsection (1) of this section, the personal representative of the deceased owner of a family plot may sell unoccupied interment spaces in the plot as property of the estate of the deceased owner when there are no existing rights of interment in those spaces or all existing rights of interment in those spaces have been waived and thereby terminated.

(4) Whenever a plot is transferred by deed or certificate of ownership to an individual owner and the transfer is recorded on the books of the cemetery authority, the cemetery authority shall provide to the individual owner a written statement, in a form approved by the State Mortuary and Cemetery Board, containing a clear explanation of the provisions of subsections (1) and (2) of this section and of the rights of interment established thereby. [Amended by 1985 c.652 §1] 97.640 Waiver or termination of vested right of interment. A vested right of interment may be waived and is terminated upon the interment elsewhere of the remains of the person in whom it is vested.

97.650 Limitations upon vested right of interment. No vested right of interment gives to any person the right to have the remains of the person interred in any interment space in which the remains of any deceased person having equal or prior vested right of interment have been interred; nor does it give any person the right to have the remains of more than one deceased person interred in a single interment space in violation of the rules and regulations of the cemetery in which the interment space is located.

CEMETERY MANAGEMENT 97.710 Power of cemetery to make rules and regulations. (1) The cemetery authority may make and enforce rules and regulations for: (a) The use, care, control, management, restriction and protection of its cemetery; (b) Restricting and limiting the use of all property within its cemetery; (c) Regulating the uniformity, class and kind of all markers, monuments and other structures within its cemetery; (d) Prohibiting the erection of monuments, markers or other structures in or upon any portion of its property; (e) Regulating or preventing the erection of monuments, effigies and structures within any portion of the cemetery grounds and for the removal thereof; (f) Regulating the care or preventing the introduction of plants or shrubs within such grounds; (g) Preventing the interment in any part thereof of a body not entitled to interment therein; (h) Preventing the use of burial plots for purposes violative of its restrictions; (i) Regulating the conduct of persons and preventing improper assemblages therein; and (j) All other purposes deemed necessary by the cemetery authority for the proper conduct of its business and the protection and safeguarding of the premises and the principles, plans and ideals on which the cemetery was organized.

(2) The cemetery authority from time to time may amend, add to, revise, change or modify such rules and regulations.

(3) Such rules and regulations shall be plainly printed or typewritten and maintained, subject to inspection, in the office of the cemetery authority.

97.720 Record of interments and cremations; inspection. (1) The person in charge of any premises on which interments or cremations are made shall keep a record of all remains interred or cremated on the premises under the person’s charge, in each case stating the name of each deceased person, the date of interment or cremation, and the name and address of the funeral service practitioner. The interment records shall be open to inspection by survivors of the decedent during the customary office hours of the cemetery authority.

(2) A record shall be kept of the ownership of all plots in the cemetery which have been conveyed by the cemetery authority and of all transfers of plots in the cemetery.

97.730 Gifts and bequests in trust for cemeteries. Gifts, grants and bequests of personal property in trust for the purpose of providing perpetual care and maintenance, improvement or embellishment of private burial lots in or outside of cemeteries and of the walks, fences, monuments, structures or tombs thereon, are permitted and shall be deemed to be for perpetual and benevolent uses. They are not invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries in the instrument creating the trust; nor are they invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. But nothing in this section affects any existing authority or cause to pass upon

the reasonableness of the amount of such gift, grant or bequest. Any cemetery association may act as trustee of and execute any such trust with respect to lots, walks, fences, monuments, structures or tombs, both within or outside its own cemetery limits, but within the county where such cemetery association has its principal office and place of business, whether such power is otherwise included in its corporate powers or not.

INDIAN GRAVES AND PROTECTED OBJECTS 97.740 Definitions for ORS 97.740 to 97.760. For the purposes of ORS 97.740 to 97.760: (1) “Burial” has the meaning given that term in ORS 358.905.

(2) “Funerary object” has the meaning given that term in ORS 358.905.

(3) “Human remains” has the meaning given that term in ORS 358.905.

(4) “Indian tribe” means any tribe of Indians recognized by the Secretary of the Interior or listed in the Klamath Termination Act, 25 U.S.C. 3564 et seq., or listed in the Western Oregon Indian Termination Act, 25 U.S.C. 3691 et seq., if the traditional cultural area of the tribe includes Oregon lands.

(5) “Object of cultural patrimony” has the meaning given that term in ORS 358.905.

(6) “Professional archaeologist” means a person who has extensive formal training and experience in systematic, scientific archaeology.

(7) “Sacred object” has the meaning given that term in ORS 358.905. [1977 c.647 §1; 1981 c.442 §3; 1985 c.198 §2; 1993 c.459 §9; 1997 c.249 §34] 97.745 Prohibited acts; application; notice. (1) Except as provided in ORS 97.750, no person shall willfully remove, mutilate, deface, injure or destroy any cairn, burial, human remains, funerary object, sacred object or object of cultural patrimony of any native Indian. Persons disturbing native Indian cairns or burials through inadvertence, including by construction, mining, logging or agricultural activity, shall at their own expense reinter the human remains or funerary object under the supervision of the appropriate Indian tribe.

(2) Except as authorized by the appropriate Indian tribe, no person shall: (a) Possess any native Indian artifacts, human remains or funerary object having been taken from a native Indian cairn or burial in a manner other than that authorized under ORS 97.750. (b) Publicly display or exhibit any native Indian human remains, funerary object, sacred object or object of cultural patrimony. (c) Sell any native Indian artifacts, human remains or funerary object having been taken from a native Indian cairn or burial or sell any sacred object or object of cultural patrimony.

(3) This section does not apply to: (a) The possession or sale of native Indian artifacts discovered in or taken from locations other than native Indian cairns or burials; or (b) Actions taken in the performance of official law enforcement duties.

(4) Any discovered human remains suspected to be native Indian shall be reported to the state police, the State Historic Preservation Officer, the appropriate Indian tribe and the Commission on Indian Services.

[1977 c.647 §2; 1979 c.420 §1; 1981 c.442 §4; 1985 c.198 §1; 1993 c.459 §10] 97.750 Permitted acts; notice. (1) Any proposed excavation by a professional archaeologist of a native Indian cairn or burial shall be initiated only after prior written notification to the State Historic Preservation Officer and the state police, as defined in ORS 358.905, and with the prior written consent of the appropriate Indian tribe in the vicinity of the intended action. Failure of a tribe to respond to a request for

permission within 30 days of its mailing shall be deemed consent. All associated material objects, funerary objects and human remains removed during such an excavation shall be reinterred at the archaeologist’s expense under the supervision of the Indian tribe.

(2) In order to determine the appropriate Indian tribe under this section and ORS 97.745, a professional archaeologist or other person shall consult with the Commission on Indian Services which shall designate the appropriate tribe. [1977 c.647 §3; 1979 c.420 §2; 1981 c.442 §5; 1993 c.459 §11] 97.760 Civil action by Indian tribe or member; time for commencing action; venue; damages; attorney fees. (1) Apart from any criminal prosecution, an Indian tribe or enrolled member thereof shall have a civil action to secure an injunction, damages or other appropriate relief against any person who is alleged to have violated ORS 97.745. The action must be brought within two years of the discovery of the violation by the plaintiff. The action may be filed in the circuit court of the county in which the subject grave, cairn, remains or artifacts are located, or within which the defendant resides.

(2) Any conviction pursuant to ORS 97.990 (5) shall be prima facie evidence of a violation of ORS 97.745 in an action brought under this section.

(3) If the plaintiff prevails: (a) The court may grant injunctive or such other equitable relief as is appropriate, including forfeiture of any artifacts or remains acquired or equipment used in the violation. The court shall order the disposition of any items forfeited as it sees fit, including the reinterment of any human remains in accordance with ORS 97.745 (1); (b) The plaintiff shall recover imputed damages in an amount not to exceed $10,000 or actual damages, whichever is greater. Actual damages include special and general damages, which include damages for emotional distress; (c) The plaintiff may recover punitive damages upon proof that the violation was willful. Punitive damages may be recovered without proof of actual damages. All punitive damages shall be paid by the defendant to the Commission on Indian Services for the purposes of Indian historic preservation; and (d) An award of imputed or punitive damages may be made only once for a particular violation by a particular person, but shall not preclude the award of such damages based on violations by other persons or on other violations.

(4) The court may award reasonable attorney fees to the prevailing party in an action under this section.

[1981 c.442 §2; 1995 c.543 §1; 1995 c.618 §55] 97.770 [1995 c.457 §7; repealed by 1999 c.731 §14] 97.771 [1995 c.457 §1; 1997 c.632 §1; repealed by 1999 c.731 §14] OREGON COMMISSION ON HISTORIC CEMETERIES 97.772 Definition of “historic cemetery.” For purposes of ORS 97.772 to 97.784, “historic cemetery” means any burial place that contains the remains of one or more persons who died before February 14, 1909.

[1999 c.731 §1; 2003 c.173 §1] Note: 97.772 to 97.784 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.773 [1995 c.457 §3; repealed by 1999 c.731 §14] 97.774 Oregon Commission on Historic Cemeteries; terms. (1) There is established within the State Parks and Recreation Department the Oregon Commission on Historic Cemeteries consisting of seven members appointed by the State Parks and Recreation Director.

(2) The term of office of each member is four years, but a member serves at the pleasure of the director.

Before the expiration of the term of a member, the director shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the director shall make an appointment to become immediately effective for the unexpired term.

(3) A member of the commission is entitled to compensation and expenses as provided in ORS 292.495.

[1999 c.731 §2; 2003 c.173 §2] Note: See note under 97.772.

97.775 [1995 c.457 §4; repealed by 1999 c.731 §14] 97.776 Commission members; nominations. The members of the Oregon Commission on Historic Cemeteries must be citizens of this state who are well informed on the restoration and maintenance of historic cemeteries. The State Parks and Recreation Director shall select members from nominations made by organizations of local historic cemeteries, organizations of nonprofit cemeteries, the State Mortuary and Cemetery Board and statewide cemetery associations. The director shall try to appoint individuals to the commission who represent or are knowledgeable concerning Native American burial places, rural cemeteries, family burial places and metropolitan cemeteries. [1999 c.731 §4; 2003 c.173 §3] Note: See note under 97.772.

97.777 [1995 c.457 §5; repealed by 1999 c.731 §14] 97.778 Chairperson; quorum; meetings. (1) The Oregon Commission on Historic Cemeteries shall select one of its members as chairperson and another as vice chairperson for such terms and with duties and powers necessary for the performance of the functions of such offices as the commission determines.

(2) A majority of the members of the commission constitutes a quorum for the transaction of business.

(3) The commission shall meet at least once every three months at a place, day and hour determined by the commission. The commission also shall meet at other times and places specified by the call of the chairperson or of a majority of the members of the commission. [1999 c.731 §5; 2003 c.173 §4] Note: See note under 97.772.

97.779 [1995 c.457 §6; repealed by 1999 c.731 §14] 97.780 Duties. The Oregon Commission on Historic Cemeteries shall: (1) Maintain a listing of all historic cemeteries in this state.

(2) Assist in coordination of restoration, renovation and maintenance of Oregon’s historic cemeteries.

(3) Make recommendations to the State Parks and Recreation Director for projects and funding to help maintain and improve Oregon’s historic cemeteries.

(4) Obtain grant funding and seek legislative appropriations for individual historic cemeteries and groups of historic cemeteries.

(5) Make recommendations to the Legislative Assembly for changes in law that will help protect historic cemeteries as part of Oregon’s heritage.

(6) Assist the director in locating and listing historic cemeteries.

(7) Assist cemeteries listed as historic cemeteries with the commission to rehabilitate and maintain those cemeteries and to promote public education relating to historic cemeteries.

(8) Establish a process to obtain advice from authorities on the subject of the care of old grave markers and graveyards as part of any restoration process. [1999 c.731 §6; 2003 c.173 §5] Note: See note under 97.772.

97.782 Listing of historic cemeteries; form. A historic cemetery that is not an operating cemetery, as defined in ORS 692.010, shall be listed with the Oregon Commission on Historic Cemeteries. An owner or any other person or association of individuals that maintains such a historic cemetery shall list the historic cemetery with the Oregon Commission on Historic Cemeteries on a form provided by the commission. No fee shall be required from a historic cemetery for listing. [1999 c.731 §7; 2003 c.173 §6] Note: See note under 97.772.

97.784 Executive secretary; support services. The State Parks and Recreation Department shall provide support services to the Oregon Commission on Historic Cemeteries. One staff person of the department shall be the executive secretary of the commission. [1999 c.731 §8; 2003 c.173 §7] Note: See note under 97.772.

CEMETERY CARE 97.810 Endowment care and nonendowed care cemeteries. (1) As used in this section, “endowment care cemetery” means a cemetery that maintains an endowment care fund placed in an irrevocable trust fund.

(2) An endowment care cemetery shall deposit with the trustee or custodian of its endowment care fund not less than the following amounts received from the sale of plots, niches, crypts or private mausoleums: (a) Fifteen percent of the gross sales price with a minimum of $5 for each grave or, when the gross sales price is paid in installments, 15 percent of each installment until at least 15 percent of the gross sales price has been deposited, with a minimum of $5 for each grave. (b) Five percent of the gross sales price for each niche or, when the gross sales price is paid in installments, five percent of each installment until at least five percent of the gross sales price has been deposited. (c) Five percent of the gross sales price for each crypt or, when the gross sales price is paid in installments, five percent of each installment until at least five percent of the gross sales price has been deposited. (d) Five percent of the gross sales price for each private mausoleum or, when the gross sales price is paid in installments, five percent of each installment until at least five percent of the gross sales price has been deposited.

(3) The cemetery authority shall, within 30 days from the receipt of a payment, deposit with the trustee or custodian of its endowment care fund any payment received by the cemetery authority that is: (a) Required by subsection (2) of this section to be paid into the fund; or (b) A payment for special care, gifts, grants, contributions, devises or bequests made with respect to the separate or special care of a particular plot, grave, niche, crypt, mausoleum, monument or marker or that of a particular family.

(4) Within 75 days of the end of its fiscal year, each endowment care cemetery, except one owned by a city or a county, shall file with the Director of the Department of Consumer and Business Services a statement containing the following information pertaining to the endowment care fund: (a) The total amount invested in bonds, securities, mortgages and other investments; (b) The total amount of cash on hand not invested at the close of the previous calendar or fiscal year; (c) The income earned by investments in the preceding calendar or fiscal year; (d) The amounts of such income expended for maintenance in the preceding calendar or fiscal year; (e) The amount paid into the fund in the preceding calendar or fiscal year; and (f) Such other items as the director may from time to time require to show accurately the complete financial condition of the trust on the date of the statement.

(5) All of the information appearing on the statement shall be verified by an owner or officer of the cemetery authority, and a copy of the statement shall be maintained in the business office of the cemetery authority.

(6) The director shall have authority to require, as often as the director deems necessary, the cemetery authority to make under oath a detailed report of the condition and assets of any cemetery endowment care fund.

(7) At the time of the filing of the statements of its endowment care fund each cemetery authority shall pay to the director an annual fee as follows: (a) Up to 100 interments per year, $40. (b) Over 100 interments per year, $100.

(8) All fees received by the director under this section shall be immediately turned over to the State Treasurer who shall deposit the moneys in the Consumer and Business Services Fund created under ORS 705.145.

(9) A cemetery may not operate as an endowment care, permanent maintenance or free care cemetery until the provisions of this section are complied with. There shall be printed or stamped at the head of all contracts and certificates of ownership or deeds referring to plots in an endowment care cemetery, the following statement: “This cemetery is an endowment care cemetery,” in lettering equivalent to at least 10point No. 2 black type, and there shall be printed in the body of or stamped upon the above-described instruments the following statement: “Endowment care means the general care and maintenance of all developed portions of the cemetery and memorials erected thereon.”

(10) A cemetery that otherwise complies with this section may be designated an endowment care cemetery even though it contains a small area that may be sold without endowed care, if it is separately set off from the remainder of the cemetery. There shall be printed or stamped at the head of all contracts and certificates of ownership or deeds referring to plots in this area the phrase “nonendowed care” in lettering equivalent to at least 10-point No. 2 black type.

(11) A nonendowed care cemetery is a cemetery that does not deposit in an endowment care fund the minimum specified in subsection (1) of this section.

(12) A cemetery authority may not in any way advertise or represent that it operates wholly or partially as an endowment care cemetery, or otherwise advertise or represent that it provides general care or maintenance of all or portions of the cemetery or memorials erected thereon, unless the provisions of this

section are complied with. [Amended by 1955 c.545 §2; 1965 c.396 §4; 1967 c.213 §1; 1987 c.295 §1; 1995 c.144 §4; 1999 c.66 §1; 2001 c.796 §23; 2007 c.661 §5] 97.820 Placing cemetery under endowed care; deposit; commingling endowment and special care funds; trustee or custodian of fund. (1) Every cemetery authority that operates a cemetery may place its cemetery under endowed care and establish, maintain and operate an endowment care fund. All endowed care funds shall be deposited with and held solely by the trustee or custodian appointed by the cemetery authority.

(2) Endowment care and special care funds may be commingled for investment and the income therefrom shall be divided between the endowment care and special care funds in the proportion that each fund contributed to the principal sum invested. The income of the endowment care fund may be used only to finance the care of the cemetery.

(3) The cemetery authority shall appoint as sole trustee of the endowment care fund a trust company as defined in ORS 706.008 that is authorized to transact trust business in this state, or an insured institution as defined in ORS 706.008 that is authorized to accept deposits in this state. Such trust company or insured institution shall receive and accept the fund, including any accumulated endowment care fund in existence at the time of its appointment and perform such duties as are agreed upon in the agreement between it and the cemetery authority. An insured institution not qualified to transact trust business in this state may act as custodian of such endowment care fund provided: (a) The duties of the insured institution are essentially custodial or ministerial in nature; and (b) The insured institution invests the funds from such plan only in its own time or savings deposits.

(4) The trustee or custodian may resign upon written notice to the cemetery authority or the cemetery authority may remove the trustee or custodian by written notice to it. In case of the resignation or removal of the trustee or custodian, the cemetery authority forthwith shall appoint a successor trustee or custodian and provide for the direct transfer of all endowed care funds and earnings thereon from the former trustee or custodian to the successor trustee or custodian. [Amended by 1955 c.545 §3; 1965 c.396 §5; 1985 c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229 §22; 1993 c.318 §11; 1997 c.167 §2; 1997 c.631 §395; 2007 c.661 §6] 97.825 Suits to enforce endowed care statutes; attorney fees. (1) If the cemetery authority fails to remit to the trustee or trustees, in accordance with the law, the funds herein provided for endowment and special care, or fails to expend the net income from the funds and generally care for and maintain any portion of a cemetery entitled to endowment care, any three lot owners whose lots are entitled to endowment care, or any one lot owner whose lot is entitled to special care, or the next of kin, heirs at law or personal representatives of such lot owners, shall have the right, or the district attorney of any county wherein is situated such lots, shall have the power, by suit for mandatory injunction or for appointment of a receiver, to sue for, to take charge of, and to expend such net income. The suit may be filed in the circuit court of the county in which said cemetery is located, to compel the expenditure either by the cemetery authority or by any receiver so appointed by the court, of the net income from such endowment care fund for the purposes set out in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.

(2) When the Director of the Department of Consumer and Business Services has reason to believe that a cemetery endowment care fund does not conform to the requirement of law, or when the director has reason to believe that any cemetery is operating in violation of ORS 97.810 or 97.820, or when the director has sent an endowment care cemetery a notice of delinquency to make any report to the director required by ORS 97.810, the director shall, as soon thereafter as reasonable, give notice of the foregoing to the trustee or

trustees of the cemetery endowment care fund, the cemetery authority, the Attorney General of Oregon and the State Mortuary and Cemetery Board.

(3) Within 120 days after the receipt of such notice, the Attorney General shall institute suit in the circuit court of any county of this state in which such cemetery is located, for a mandatory injunction against further sales of graves, plots, crypts, niches, burial vaults, markers or other cemetery merchandise by such cemetery or for the appointment of a receiver to take charge of the cemetery, unless the Attorney General shall prior to that time be notified by the director that such failure to conform to the requirements of the law or to report has been corrected.

(4) The Attorney General may delay instituting any suit brought under subsection (3) of this section for no more than an additional 30 days if, in the discretion of the Attorney General after consulting with the director, it appears to the Attorney General: (a) That the failure to conform to the requirements of the law or to report will be corrected; and (b) That no harm to the public will occur during the additional 30 days.

(5) If a trustee fails to perform the duties of the trustee under ORS 97.810 to 97.920, the trustee shall be liable for any damage resulting from that failure to any lot owners or the next of kin, heirs at law or personal representatives of such lot owners.

(6) The court may award reasonable attorney fees, costs and disbursements to the prevailing party in an action under this section. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1; 2001 c.796 §24; 2007 c.661 §7] 97.830 Investment and reinvestment of principal of endowed care funds; use and application of income. (1) The principal of all funds for endowed care shall be invested, from time to time reinvested and kept invested. If a trust agreement imposes upon the trustee or custodian the duty to direct the investment or reinvestment of endowed care funds, the trustee or custodian shall perform this duty governed by ORS 130.750 to 130.775. Otherwise, the cemetery authority, governed by ORS 130.750 to 130.775, shall direct the investment and reinvestment of endowed care funds in the time or savings deposits of the custodian bank or savings association.

(2) The principal of invested endowed care funds shall never be voluntarily reduced, but shall be maintained separate and distinct by the trustee or custodian from all other funds except that it shall be proper to commingle endowment care funds with special care funds. The payment of charges chargeable against principal under ORS chapter 129 or of other expenses necessarily incurred in the administration of the trust in accordance with subsection (1) of this section shall not constitute a voluntary reduction of principal. The net income earned shall be used solely for the general care and maintenance of the cemetery property entitled to endowment care, as stipulated in the resolution, bylaw and other action or instrument by which the fund was established, and in such manner as the cemetery authority may from time to time determine to be in the best interests of such endowed property. Such net income shall never be used for the improvement or embellishment of undeveloped property offered for sale. [Amended by 1955 c.545 §4; 1985 c.450 §3; 1987 c.295 §3; 1995 c.157 §24; 1995 c.297 §1; 2003 c.279 §32; 2005 c.348 §125] 97.835 Limitation of duties and liability of trustee. The trustee shall have no duty whatsoever to operate, maintain or to supervise the general maintenance of any endowment fund cemetery, and the trustee shall have no duty whatsoever to enforce collection of any of the trust funds either from the purchasers of lots, or from the cemetery authority, and the trustee shall have no duty whatsoever to see to the application of the net income after payment of the net income to the cemetery authority. The trustee shall be entitled to rely without liability upon the affidavit of the cemetery authority showing the amount payable to the trustee as endowment care funds. [1955 c.545 §6]

97.840 Cemetery authority authorized to receive and hold gifts of property; disposition of gifts. A cemetery authority which has established an endowment care fund may take, receive and hold any property, real, personal or mixed, bequeathed, devised, granted, given or otherwise contributed to it for its endowment care fund. Within 30 days of the receipt of such contributions, the cemetery authority shall deposit, with the trustee or custodian of the fund to which the property was contributed, all moneys and all documents or instruments of title or conveyance evidencing the contribution. As soon as practicable, the cemetery authority shall provide for the sale of all property for fair market value and, within 30 days of the receipt of the proceeds thereof, shall deposit the proceeds with the trustee or custodian. The trustee or custodian shall execute all documents necessary to effect the sale, consistent with the purposes of this section. [Amended by 1987 c.295 §4] 97.850 Endowment and special care funds are charitable. The endowment and special care funds and all payments or contributions to them are expressly permitted as and for charitable and eleemosynary purposes. Endowment care is a provision for the discharge of a duty from the persons contributing to the persons interred and to be interred in the cemetery and a provision for the benefit and protection of the public by preserving and keeping cemeteries from becoming unkempt and places of reproach and desolation in the communities in which they are situated.

97.860 Agreements for care. (1) Upon payment of the purchase price, including the amount fixed as a proportionate contribution for endowed care, there may be included in the deed of conveyance, or by separate instrument, an agreement to care, in accordance with the plan adopted, for the cemetery and its appurtenances to the proportionate extent the income received by the cemetery authority from the contribution permits.

(2) Upon the application of an owner of any plot, and upon the payment by the owner of the amount fixed as a reasonable and proportionate contribution for endowed care, a cemetery authority may enter into an agreement with the owner for the care of the plot of the owner and its appurtenances.

97.865 Application of ORS 97.810 to 97.865 to religious, county and city cemeteries. (1) A cemetery authority that operates a cemetery for any religious or eleemosynary corporation, church, religious society or denomination, corporation sole administering temporalities of any church or religious society or denomination and any county or city may make an irrevocable election to have ORS 97.810 to 97.865 apply to any cemetery controlled or operated by the cemetery authority, county or city by filing a written statement indicating such action with the Director of the Department of Consumer and Business Services.

The statement shall be in the form prescribed by the director and shall contain the information specified by the director.

(2)(a) When a cemetery authority, county or city files a statement described in this section with the director, ORS 97.810 to 97.865 applies to a cemetery controlled or operated by the cemetery authority, county or city beginning on the first day of the fiscal year next following the filing of the statement. (b) ORS 294.035 does not apply to funds held by a county or city under ORS 97.810 to 97.865. [1997 c.167 §4; 2001 c.796 §25; 2007 c.661 §8] 97.870 Unused and uncared for portions of cemetery declared common nuisances. (1) In all cases where a cemetery authority has owned a site for a cemetery for more than 40 years and has during that period sold lots, subdivisions of lots, pieces or parcels of the cemetery for burial purposes and the grantee or party claiming through the grantee has not used portions of such lots, subdivisions of lots, pieces or parcels

of the cemetery for purposes of burial and has not kept them free of weeds or brush, but has allowed them to remain entirely unused for more than 40 years or uncared for and unused for more than 20 years prior to the adoption of the resolution provided for in ORS 97.880, and such lots, subdivisions of lots, pieces and parcels of the cemetery are adjacent to improved parts thereof, and by reason of their uncared-for condition detract from the appearance of the cemetery and interfere with the harmonious improvement thereof, and furnish a place for the propagation of weeds and brush, thereby becoming a menace to adjacent property, such lots, subdivisions of lots, pieces and parcels of such cemetery, which are unused and uncared for as aforesaid, hereby are declared to be a common nuisance and contrary to public policy.

(2) The provisions of this section are not applicable to portions of cemeteries which have been or are sold with agreements between the cemetery authority or its successor in interest, or both, and the grantee providing for endowment care, permanent maintenance or free care. [Amended by 1965 c.396 §7; 2007 c.661 §9] 97.880 Resolution declaring a nuisance. The governing board of a cemetery authority described in ORS 97.870 may adopt a resolution declaring such unused and unimproved portion of its cemetery as is described in ORS 97.870 a common nuisance and an abandoned and unused portion of such cemetery, and may direct its officers to file the complaint described in ORS 97.890. [Amended by 1983 c.740 §9] 97.890 Complaint. (1) Upon the adoption of the resolution described in ORS 97.880 the officers of the cemetery authority may file a complaint in the circuit court for the county in which the cemetery is located against the owners, holders or parties interested in such abandoned portion of its cemetery demanding that the court require such owners, holders or interested parties to keep the premises clear of weeds and brush and in condition in harmony with other lots and, if the owners, holders, or interested parties fail to appear in court and comply with the order of the court, demanding that the court make a judgment declaring such portions of the cemetery a common nuisance, directing the governing board to abate the nuisance by clearing the premises and keeping them clear of weeds and brush, creating a lien upon such lots and parcels in favor of the cemetery authority, providing that the lien be foreclosed and the lots and parcels be sold in the same manner as other sales upon execution are made and authorizing the governing board to become a purchaser thereof on behalf of the cemetery authority.

(2) In such suit any number of owners of different lots, subdivisions of lots, pieces or parcels of the cemetery may be included in the one suit.

(3) It is a sufficient designation of the property so abandoned and unimproved to give the lot number or portion thereof, or a description of the piece or parcel having no lot number, together with the name of the owner thereof, as appears on the record of the cemetery authority.

(4) In addition to the names of the persons that appear on the records of the cemetery authority as the record owners of such unused and unimproved portions of the cemetery, the plaintiff shall include as a defendant in a complaint the following: “Also all other persons unknown claiming any right, title, estate, lien or interest in the unused and unimproved portions of the cemetery described in the complaint.”

[Amended by 2003 c.576 §358; 2007 c.661 §10] 97.900 Summons. (1) Summons shall be served upon all owners or holders who are residents of this state in like manner as in service of summons in a civil action if such owners and holders are known to the sheriff in the county in which the cemetery is located. If the defendants are not known to the sheriff, it is sufficient to serve the owners and holders whose names appear on the tax rolls of the county for the year previous to that in which the suit is started. The plaintiff is not required to mail a copy of the summons or complaint to nonresident defendants.

(2) All owners and holders of such unimproved lots whose names do not appear on the tax rolls as aforesaid as shown by the return of the sheriff may be served by publication in any legal newspaper published in the county in which the cemetery is located for four consecutive weeks upon return of the sheriff that such owners and holders are not known and cannot be served in the jurisdiction of the sheriff.

(3) The published summons shall contain the names of the record owners, as shown by the records of the cemetery authority, and “also all other persons unknown claiming any right, title, estate, lien or interest in the unused and unimproved portions of the cemetery described in the complaint,” together with a brief description of the lot, or subdivisions of lots, pieces or parcels of the cemetery and a statement setting forth the order and judgment described in ORS 97.890 (1) for which the plaintiff has applied to the court in the complaint. Such summons shall require all parties defendant to appear and show cause why an order should not be made declaring the unused and unimproved portions of the cemeteries to be a common nuisance, directing the cemetery authority to abate the nuisance, creating a lien thereon, providing that it be foreclosed and directing that the unused and unimproved portion of the cemetery be sold within four weeks from and after the date of the first publication thereof. [Amended by 2003 c.576 §359; 2007 c.661 §11] 97.910 Disuse as prima facie evidence of abandonment. In all cases arising under ORS 97.870 to 97.900, the fact that the owner, holder or interested party, of the unused and unimproved portion of the cemetery has not, for a term of 20 years or more, used the plot and has failed to keep it clear of weeds or brush is prima facie evidence that the owner, holder or interested party has abandoned it.

97.920 Judgment declaring nuisance, authorizing abatement and creating and foreclosing lien. Upon the failure of the owner of the premises to comply with the order of the court requiring proper care of the premises or upon the failure of any of the defendants to appear and answer the complaint or upon the trial of the cause, if the court finds that the allegations of the complaint are supported by the evidence and that the summons has been served as provided in ORS 97.900, the court may enter a judgment in accordance with the allegations of the complaint and the provisions of ORS 97.890 (1). [Amended by 2003 c.576 §360] PREARRANGEMENT SALES AND PRECONSTRUCTION SALES 97.923 Definitions for ORS 97.923 to 97.949. As used in ORS 97.923 to 97.949 and 97.994 unless the context requires otherwise: (1) “Beneficiary” means the person, if known, who is to receive the funeral and cemetery merchandise, funeral and cemetery services or completed interment spaces.

(2) “Certified provider” means any person certified under ORS 97.933 to sell or offer for sale prearrangement sales contracts or preconstruction sales contracts.

(3) “Delivery” occurs when: (a) Physical possession of the funeral or cemetery merchandise is transferred to the purchaser; or (b) If authorized by a purchaser under a purchase agreement: (A) The title to the funeral or cemetery merchandise has been transferred to the purchaser, has been paid for, and is in the possession of the seller, who has documented the sale in the purchaser’s records through use of a serial or other identifying number and placed the merchandise, until needed, for storage on the seller’s premises; or (B) The merchandise has been identified for the purchaser or the beneficiary as documented by the manufacturer’s receipt placed by the seller in the purchaser’s records and held by the manufacturer for future delivery.

(4) “Depository” means a financial institution or trust company, as those terms are defined ORS 706.008, that is authorized to accept deposits in this state or to transact trust business in this state.

(5) “Director” means the Director of the Department of Consumer and Business Services.

(6) “Guaranteed contract” means a written preconstruction sales contract or prearrangement sales contract that guarantees the beneficiary the specific undeveloped space or spaces or funeral and cemetery merchandise or funeral and cemetery services contained in the contract and under which no charges other than the sales price contained in the contract shall be required upon delivery or performance of the funeral or cemetery merchandise or services.

(7) “Master trustee” means an entity that is not a certified provider under ORS 97.923 to 97.949 and that has fiduciary responsibility for the uniform administration of funds including, but not limited to, acceptance, custodianship, investment and accounting, delivered to it by a certified provider for the benefit of purchasers of preconstruction sales contracts or prearrangement sales contracts. “Master trustee” does not include a financial institution, as defined in ORS 706.008, that acts solely as a depository under ORS 97.923 to 97.949.

(8) “Nonguaranteed contract” means a written preconstruction sales contract or prearrangement sales contract that guarantees the beneficiary the specific undeveloped space or spaces or funeral or cemetery merchandise or services contained in the contract, when the price of the merchandise and services selected has not been fixed and will be determined by existing prices at the time the merchandise and services are delivered or provided.

(9) “Prearrangement sales” or “prearrangement sales contract” means any sale, excluding the sale and contemporaneous or subsequent assignment of a life insurance policy or an annuity contract, made to a purchaser, that has as its purpose the furnishing of funeral or cemetery merchandise or services in connection with the final disposition or commemoration of the memory of a dead human body, for use at a time determinable by the death of the person or persons whose body or bodies are to be disposed and where the sale terms require payment or payments to be made at a currently determinable time.

(10) “Preconstruction sale” or “preconstruction sales contract” means a sale made to a purchaser, for the purpose of furnishing undeveloped interment spaces and when the sale terms require payment or payments to be made at a currently determinable time.

(11) “Provider” means any entity that sells and offers for sale funeral or cemetery merchandise or services.

(12) “Purchaser” means a beneficiary or a person acting on behalf of a beneficiary who enters into a prearrangement sales contract or a preconstruction sales contract with a certified provider under which any payment or payments made under the contract are required to be deposited in trust under ORS 97.941.

(13) “Salesperson” means an individual registered under ORS 97.931 and employed by a certified provider to engage in the sale of prearrangement or preconstruction sales contracts on behalf of the certified provider.

(14) “Sales price” means the gross amount paid by a purchaser for a prearrangement sales contract or preconstruction sales contract, excluding sales taxes, credit life insurance premiums and finance charges.

(15) “Trust” means an express trust created under ORS 97.941 whereby a trustee has the duty to administer the amounts specified under ORS 97.941 received under a prearrangement sales contract or a preconstruction sales contract for the benefit of the purchaser of a prearrangement sales contract or preconstruction sales contract.

(16) “Undeveloped interment spaces” or “undeveloped spaces” means any space to be used for the reception of human remains that is not completely constructed or developed at the time of initial payment.

[Formerly 128.400; 2003 c.362 §1; 2007 c.661 §12]

Note: 97.923 to 97.949 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.925 Purpose. It is the purpose of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to assure funds for performance to those purchasers who contract through prearrangement sales contracts for the purchase of funeral or cemetery merchandise or services, and through preconstruction sales contracts for undeveloped interment spaces. It is also the purpose of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 to provide for the certification or registration of persons selling or offering for sale prearrangement sales contracts and preconstruction sales contracts, the creation and administration of prearrangement sales contract and preconstruction sales contract trust funds, the disbursement and allocation of trust funds upon the certified provider’s performance of its contractual obligations and to provide protection for the purchaser upon the certified provider’s default. [Formerly 128.405; 2007 c.661 §13] Note: See note under 97.923.

97.926 Rulemaking authority. The Director of the Department of Consumer and Business Services may adopt rules that are necessary or appropriate to: (1) Protect purchasers of prearrangement sales contracts and preconstruction sales contracts and the public; and (2) Administer ORS 97.923 to 97.949. [2007 c.661 §25] Note: See note under 97.923.

97.927 Applicability of ORS 97.923 to 97.949. (1) Except as provided in this section, ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 apply to all certified providers, master trustees and salespersons who sell or offer for sale prearrangement sales contracts or preconstruction sales contracts.

(2) ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to: (a) Agreements to sell or sales made by endowment care cemeteries under ORS 97.929; or (b) Any nonprofit memorial society charging less than a $100 membership fee.

(3) Notwithstanding subsection (2) of this section, ORS 97.937 applies to: (a) Agreements to sell or sales made by endowment care cemeteries under ORS 97.929; or (b) Any nonprofit memorial society charging less than a $100 membership fee. [Formerly 128.407; 2003 c.362 §2; 2007 c.661 §14] Note: See note under 97.923.

97.929 Exceptions to ORS 97.923 to 97.949. (1) The provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to: (a) Agreements to sell or sales of graves, crypts or niches where such graves, crypts or niches are in existence at the time of the sale or agreement to sell and are located in an endowment care cemetery as defined in ORS 97.810. (b) Agreements to sell or sales of crypts or niches where such crypts or niches are not in existence at the time of the sale or agreement to sell and are to be located in an endowment care cemetery, provided that: (A) Thirty-five percent of the sales price of each crypt or niche described in this paragraph is deposited in accordance with the provisions of ORS 97.937; or

(B) Such endowment care cemetery deposits a bond with a corporate surety authorized to do business in this state, or an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008. The bond or letter of credit shall be in an amount equal to 35 percent of the total sales price of all crypts or niches described in this paragraph that have been sold by the endowment care cemetery and that have not yet been completed. (c) Agreements to sell or sales of burial vaults or markers for installation in an endowment care cemetery, provided that: (A) Sixty-six and two-thirds percent of the sale price of such vaults or markers is deposited in accordance with the provisions of ORS 97.937; (B) Such endowment care cemetery is at the time of the sale or agreement to sell and for not less than 24 months before such sale or agreement has been in continuous operation as an endowment care cemetery and has assumed the obligation to supply and install the vault or marker and maintain it as part of its endowment care program; and (C) Such endowment care cemetery deposits with the Director of the Department of Consumer and Business Services: (i) A bond in a form approved by the director in the amount of $10,000 issued by a corporate surety authorized to do business in this state; or (ii) An irrevocable letter of credit in a form approved by the director in the amount of $10,000 issued by an insured institution, as defined in ORS 706.008.

(2) Notwithstanding the exception provided in subsection (1) of this section, a person who would otherwise have a claim against a certified provider, a master trustee or a salesperson under the provisions of ORS 97.923 to 97.949 or ORS chapter 692 shall have a right against the bond or letter of credit described in subsection (1)(b) and (c) of this section. [Formerly 128.412; 2003 c.271 §1] Note: Section 2, chapter 68, Oregon Laws 1999, provides: Sec. 2. (1) The amendments to ORS 128.412 [renumbered 97.929] by section 1 of this 1999 Act apply only to agreements to sell crypts or niches entered into on or after the effective date of this 1999 Act [October 23, 1999], and sales of crypts and niches made on or after the effective date of this 1999 Act. (2) An endowment care cemetery that deposited a bond or an irrevocable letter of credit under the provisions of ORS 128.412 (2)(b) (1997 Edition) before the effective date of this 1999 Act must continue to maintain the bond or irrevocable letter of credit in the amount provided by ORS 128.412 (2)(b) (1997 Edition) until such time as all the crypts and niches that were part of the development covered by the bond or letter of credit are completed. Any endowment care cemetery that maintains a bond or letter of credit pursuant to this subsection is not required to maintain a bond or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of this 1999 Act, for the purpose of crypts and niches located in the development covered by the bond or letter of credit maintained under the provisions of this subsection, but the endowment care cemetery must maintain a bond or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of this 1999 Act, for sales of, and agreements to sell, crypts or niches located in any development commenced on or after the effective date of this 1999 Act. [1999 c.68 §2] Note: 97.929 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.930 [1977 c.715 §§2,3; renumbered 97.975 in 2001]

97.931 Registration of salesperson for endowment care cemeteries, preconstruction sales and prearrangement sales; rules; background check; civil penalties. (1) A salesperson may not engage in prearrangement sales made by endowment care cemeteries under ORS 97.929 or in preconstruction sales or prearrangement sales unless the salesperson is registered with the State Mortuary and Cemetery Board or holds a current funeral service practitioner license, embalmer license, funeral service practitioner apprentice registration or embalmer apprentice registration. The board by rule shall: (a) Establish procedures for issuing salesperson registrations under this subsection; (b) Establish standards for determining whether a salesperson registration should be issued; (c) Set renewal and salesperson registration fees; and (d) Require biennial renewal of salesperson registrations.

(2) The board may conduct a background check of any salesperson applying for registration under subsection (1) of this section. The background check may include information solicited from the Department of State Police. After consideration of information obtained from any background check and any other information in its possession, the board shall determine whether to register the salesperson.

(3)(a) The board may impose a civil penalty of up to $1,000 per violation or suspend, revoke or refuse to issue or renew the registration of a salesperson described in subsection (1) of this section upon a determination that the applicant or holder has not complied with the provisions of ORS 97.923 to 97.949 or ORS chapter 692, or any rules adopted thereunder. When the board proposes to take such action, the person affected by the action shall be accorded notice and an opportunity for hearing as provided by ORS chapter 183. The board shall notify the Director of the Department of Consumer and Business Services of its intent to take action against a salesperson or person acting as a salesperson. (b) The board shall suspend, revoke or refuse to issue or renew the registration of a salesperson if the director requests the board to take such action.

(4) Fees and other moneys received by the board under this section shall be deposited into the State Mortuary and Cemetery Board Account established in ORS 692.375. [Formerly 128.414; 2005 c.726 §2] Note: See note under 97.923.

97.933 Certification of provider of prearrangement or preconstruction sales; annual reports; audits; fees. (1) A provider may not engage in prearrangement sales or preconstruction sales unless the provider is certified by the Director of the Department of Consumer and Business Services. The director shall: (a) Establish procedures for issuing certificates required by this section. (b) Establish standards for determining whether a certificate should be issued. (c) Set certification and renewal fees. (d) Require annual renewal of certification. (e) Establish standards for rules of conduct of certified providers.

(2) The fees described in this section shall be reasonable and shall defray the costs associated with the administration of ORS 97.923 to 97.949.

(3)(a) Every certified provider shall file an annual report with the director on forms provided by the director. The annual report shall contain any information reasonably considered necessary by the director, including but not limited to: (A) A disclosure of changes in trust deposits; (B) The number of consecutively numbered prearrangement or preconstruction sales contracts sold during the reporting period;

(C) A complete inventory of the funeral merchandise, cemetery merchandise or a combination thereof delivered in lieu of trust fund requirements under ORS 97.941, including: (i) The location of the merchandise; (ii) Merchandise serial numbers or warehouse receipt numbers identified by the name of the purchaser or the beneficiary; and (iii) The statement of the certified provider that each item of merchandise is in the seller’s possession at the specified location; and (D) The number of withdrawals from or terminations of any trusts. (b) If the annual report is not filed or is filed and shows any material discrepancy, the director may take appropriate action and send notification of the matter to the State Mortuary and Cemetery Board. (c) The director may relieve a certified provider of the duty to file the annual report upon a determination that the certified provider has performed all obligations under the prearrangement sales contract or preconstruction sales contract, or that such obligations lawfully have been assumed by another or have been discharged or canceled.

(4) The director may audit the records of a certified provider that relate to prearrangement sales or preconstruction sales, as the director may consider appropriate. The director may refer any matter outside of normal auditing procedures to the office of the Attorney General for investigation and send notification of the referral to the State Mortuary and Cemetery Board.

(5) The conduct of individuals, including salespersons as defined in ORS 97.923, employed by a certified provider is the direct responsibility of the certified provider.

(6) A certificate issued to a provider is not transferable. A person that seeks to purchase or otherwise acquire control of a cemetery or funeral establishment that is a certified provider shall first apply to the director and obtain approval of the purchase or change in control.

(7) A certificate issued to a provider becomes inactive when the certificate is surrendered to the director.

The director retains jurisdiction over the provider as long as trust funds remain on deposit for prearrangement sales contracts or preconstruction sales contracts. While the certificate is inactive, the provider shall: (a) Cease all prearrangement sales to the public; (b) Collect and deposit into trust all installment funds paid toward contracts sold prior to becoming inactive; (c) Seek disbursal of trust funds only in accordance with the requirements of the written contracts and ORS 97.923 to 97.949 until the funds have been exhausted; and (d) Continue to submit required annual reports and renewal fees until no trust funds remain on deposit.

[2001 c.796 §1; 2003 c.362 §3; 2007 c.661 §15] Note: See note under 97.923.

97.935 Registration of master trustees; annual reports; annual audits; fees. (1) A person may not operate as a master trustee unless the person is registered with the Director of the Department of Consumer and Business Services. The director shall: (a) Establish procedures for registering persons under this section. (b) Establish standards for master trustees. (c) Set registration and renewal fees. (d) Establish standards for rules of conduct of master trustees.

(2)(a) Every master trustee shall file an annual report with the director on forms provided by the director. The annual report shall contain any information reasonably considered necessary by the director, including but not limited to: (A) A disclosure of changes in trust deposits; and (B) A list of all certified providers for which the master trustee holds funds and the total amount of funds held for each certified provider. (b) The director may take appropriate action under ORS 97.948 and 97.949 if a master trustee fails to file the annual report or the report contains any material discrepancy. (c) The director may relieve a master trustee of the duty to file the annual report upon a determination that the master trustee has performed all obligations under the trust agreement with each certified provider, or that the master trustee’s obligations have been lawfully assumed by another person or have been discharged or canceled.

(3) The director may conduct an annual audit of a master trustee. The director shall prescribe the form of audits under this section.

(4) A master trustee who is audited under this section shall pay all expenses and costs incurred by the director in conducting the audit. [2001 c.796 §2; 2003 c.362 §4; 2007 c.661 §16] Note: See note under 97.923.

97.936 Emergency orders of suspension or restriction. (1) In addition to other actions authorized under ORS 97.948 (2), the Director of the Department of Consumer and Business Services may: (a) Issue an emergency order suspending or restricting a certificate or registration or ordering a certified provider or master trustee or a person acting as a certified provider or master trustee to cease and desist from specified conduct; or (b) Take other action deemed necessary by the director in the circumstances.

(2) The director shall promptly provide opportunity for hearing pursuant to ORS chapter 183.

(3) Emergency orders are: (a) Effective when issued; (b) Reviewable as provided in ORS 183.480; and (c) Enforceable in the courts of this state. [2007 c.661 §23] Note: See note under 97.923.

97.937 Deposit of trust funds made by endowment care cemeteries. (1) This section applies to trust deposits required to be made by endowment care cemeteries under ORS 97.929.

(2) As used in this section, “common trust account” means trust funds received by a provider from two or more purchasers.

(3) All such trust funds shall be deposited by the provider with a financial institution in the State of Oregon carrying deposit insurance, within 15 days after receipt thereof. A trust fund shall be held in a separate account in the name of the provider followed by the words “funeral plan trust account,” in trust for the person for whom such prearranged funeral plan is made, or in a common trust account in the name of the provider in trust for each person for whom such prearranged funeral plan is made, until a trust fund is released under any of the following conditions: (a) Upon presentation of proof of the death of the person for whom a prearranged funeral plan is made, the financial institution shall release the principal and accrued income allocable to that person’s account to the provider.

(b) Upon presentation of the written request of the purchaser of a revocable trust, the financial institution shall release the principal and accrued income allocable to the purchaser’s account as directed in such request. (c) Upon presentation of proof of the death, dissolution, insolvency or merger with another of the provider of a revocable trust, the financial institution shall release the principal and accrued income allocable to each purchaser’s account to that purchaser. (d) Upon presentation of proof of the death, dissolution, insolvency or merger with another of the provider of an irrevocable trust, the financial institution shall continue to hold such trust fund subject to the funeral plan trust, and upon appointment of a successor provider by the purchaser, the purchaser’s legal representative, the Director of the Department of Consumer and Business Services or a court of competent jurisdiction, the financial institution shall release such trust fund to the successor provider only as provided in paragraph (a) of this subsection.

(4) If trust funds are held in a common trust account under subsection (3) of this section, the provider shall maintain records showing the purchaser and beneficiary of each individual trust fund in the account and the allocation to each individual trust fund of interest earned by the account. The records concerning allocation of interest must be updated at least annually.

(5) The provider may appoint a successor depository. The original depository shall only release the trust funds to the successor depository as described in subsections (1) to (4) of this section.

(6) The financial institution is not responsible for the fulfillment of any prearranged funeral plan, excepting only such financial institution shall release a trust fund as provided in this section.

(7) The director may appoint a successor provider upon a determination that the original provider has ceased to provide the kinds of services and things which the original provider agreed to provide, that the purchaser or the purchaser’s legal representative cannot be readily identified or contacted and that the appointment of a successor provider is appropriate in order to protect the interests of the trust beneficiaries.

Financial institutions holding deposits of such trust funds shall change their records to reflect such appointment of a successor provider upon receipt of written notice of the appointment from the director.

Where the director proposes to take such action under this subsection, the provider being replaced shall be accorded notice and an opportunity for hearing as provided in ORS chapter 183. [Formerly 128.415; 2007 c.661 §17] Note: Section 16, chapter 813, Oregon Laws 1987, provides: Sec. 16. Notwithstanding the repeal of ORS 128.410 by section 17 of this Act and the amendments to ORS 128.415 [renumbered 97.937] by section 12 of this Act, ORS 128.410 and ORS 128.415 (1985 Replacement Part) shall continue to apply to any prearranged funeral plan entered into prior to the effective date of this Act [September 27, 1987]. [1987 c.813 §16] Note: 97.937 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.939 Prearrangement or preconstruction sales contracts; contents; delivery. (1) Three copies of a written sales contract shall be executed for each prearrangement sales contract or preconstruction sales contract sold by a certified provider. The certified provider shall retain one copy of the contract and a copy of the completed contract shall be given to: (a) The purchaser; and (b) The depository or the master trustee, if applicable.

(2) Upon receiving a trust deposit under ORS 97.941, the master trustee shall sign a copy of the contract received under subsection (1) of this section, retain a copy for its files and return the contract to the purchaser.

(3) Each completed contract shall: (a) Comply with the plain language standards described in ORS 180.545 (1); (b) Be consecutively numbered; (c) Have a corresponding consecutively numbered receipt; (d) Be preprinted or, if the certified provider uses a master trustee, be obtained from the master trustee; (e) Identify the purchaser and certified provider who sold the contract; (f) Specify whether the contract is a guaranteed contract or a nonguaranteed contract; (g) Specify the specific funeral or cemetery merchandise or services or undeveloped interment spaces included and not included in the contract; and (h) If a guaranteed contract, disclose that the certified provider may retain 10 percent of the sales price.

(4)(a) Notwithstanding ORS 97.943 (8), in the case of a prearrangement sales contract, if at the time of entering into the contract, the beneficiary of the contract is a recipient of public assistance or reasonably anticipates becoming a recipient of public assistance, the contract may provide that the contract is irrevocable. (b) The contract may provide for an election by the beneficiary, or by the purchaser on behalf of the beneficiary, to make the contract thereafter irrevocable if after the contract is entered into, the beneficiary becomes eligible or seeks to become eligible for public assistance. [Formerly 128.421; 2007 c.661 §18] Note: See note under 97.923.

97.941 Prearrangement or preconstruction trust fund deposits. (1) Upon receiving anything of value under a prearrangement sales contract or preconstruction sales contract, the certified provider who sold the contract shall deposit the following amounts into one or more trust funds maintained pursuant to ORS 97.923 to 97.949, 97.992, 97.994 and 692.180: (a) Ninety percent of the amount received in payment of a guaranteed prearrangement sales contract or guaranteed preconstruction sales contract. The remaining 10 percent shall be paid to the provider who sold the contract; or (b) One hundred percent of the amount received in payment of a nonguaranteed prearrangement sales contract or nonguaranteed preconstruction sales contract.

(2) All trust deposits required by ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 shall be placed in a depository or delivered to a master trustee within five business days of their receipt.

(3)(a) The trust deposits of a provider that does not use the services of a master trustee shall be maintained in a depository, except that the provider may invest the trust funds in a manner that is, in the opinion of the provider, reasonable and prudent under the circumstances. (b) A provider that invests trust funds may invest the funds only in: (A) Certificates of deposit; (B) U.S. Treasuries; (C) Issues of U.S. government agencies; (D) Guaranteed investment contracts; or (E) Banker’s acceptances or corporate bonds rated A or better by Standard & Poor’s Corporation or Moody’s Investors Service.

(c) All investments made under paragraph (b) of this subsection shall be placed in the custody of the depository in which the trust funds were originally deposited or any other depository that may qualify under ORS 97.923 to 97.949. (d) Prearrangement sales contract trust fund and preconstruction sales contract trust fund accounts shall be in the name of the provider who sold the contract under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.

(4) Funds deposited in the trust fund account shall be identified in the records of the provider by the name of the purchaser and beneficiary and adequate records shall be maintained to allocate all earnings to each prearrangement sales contract or preconstruction sales contract. Nothing shall prevent the provider from commingling the deposits in any such trust fund account for purposes of managing and investing the funds. A common trust fund account shall be identified by the name of the provider.

(5) When a prearrangement sales contract or preconstruction sales contract includes rights of interment and funeral or cemetery merchandise or services, the application of payments received under the contract shall be clearly provided in the contract.

(6) Any person engaging in prearrangement sales or preconstruction sales who enters into a combination sale which involves the sale of items subject to trust and any item not subject to trust shall be prohibited from increasing the sales price of those items not subject to trust with the purpose of allocating a lesser sales price to items which require a trust deposit.

(7)(a) A provider may appoint a successor provider. The depository shall release the trust funds deposited under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 and accrued income only to the successor provider as described in ORS 97.943 and 97.944 or upon presentation of the written request of the purchaser. (b) If appointing a successor provider under this subsection, the original provider shall notify the Director of the Department of Consumer and Business Services of the proposed change at least 30 days prior to the appointment.

(8)(a) A provider may appoint a successor depository or a master trustee as defined in ORS 97.923. (b) If appointing a successor depository or master trustee under this subsection, the provider, the successor depository and the master trustee must notify the director of the proposed change at least 30 days prior to the appointment.

(9)(a) The director may appoint a successor certified provider upon a determination that: (A) The original certified provider has ceased to provide the services and merchandise that the original certified provider agreed to provide; (B) The certificate issued to the original certified provider has been revoked or surrendered; and (C) The appointment of a successor certified provider is appropriate in order to protect the interests of the purchasers and beneficiaries of prearrangement sales contracts or preconstruction sales contracts. (b) Depositories or master trustees holding deposits of trust funds by the original certified provider shall change their records to reflect the appointment of a successor certified provider upon receipt of written notice of the appointment from the director.

(10) The trust fund accounts shall be a single purpose fund. In the event of the provider’s bankruptcy, the funds and accrued income shall not be available to any creditor as assets of the provider, but shall be distributed to the purchasers or managed for their benefit by the trustee in bankruptcy, receiver or assignee.

(11)(a) If the original provider is licensed under ORS chapter 692 and voluntarily surrenders the license to the State Mortuary and Cemetery Board, the original provider shall transfer responsibility as provider under this section to a successor provider who holds a certificate issued by the director under ORS 97.933.

(b) If the original provider is not licensed under ORS chapter 692, upon presentation of proof of the death, dissolution, insolvency or merger with another provider of the original provider, the depository shall release the prearrangement trust fund deposits or preconstruction trust fund deposits to the purchaser. (c) If the original provider is licensed under ORS chapter 692, upon proof of the death, insolvency or involuntary surrender of the license of the original provider, the depository shall release the prearrangement trust fund deposits or preconstruction trust fund deposits to the purchaser.

(12) The purchaser or beneficiary of a prearrangement sales contract or preconstruction sales contract may be named cotrustee with the provider with the written consent of the purchaser or beneficiary.

(13) A provider who has not appointed a master trustee shall have an annual audit of all trust account funds performed by an independent certified public accountant in accordance with generally accepted accounting procedures. The provider shall make the audit results available to the director if requested.

(14) As used in this section, “common trust fund account” means trust funds received by a provider from two or more purchasers. [Formerly 128.423; 2007 c.661 §19] Note: See note under 97.923.

97.942 Appointment of receiver; criteria. (1) The Attorney General, on behalf of the Director of the Department of Consumer and Business Services, may petition the circuit courts of this state for appointment of a receiver for a certified provider or person acting as a certified provider without certification.

(2) If the court determines that a receivership is necessary or advisable, the court shall appoint a receiver: (a) When a receiver would ensure the orderly and proper conduct of a provider’s professional business and affairs during or in the aftermath of an administrative proceeding to revoke or suspend the provider; (b) When a receiver would protect the public’s interest and rights in the business, premises or activities of the provider sought to be placed in receivership; (c) Upon a showing of serious and repeated violations of ORS 97.923 to 97.949 demonstrating an inability or unwillingness to comply with the provisions of ORS 97.923 to 97.949; (d) When a receiver would prevent loss, wasting, dissipation, theft or conversion of assets that should be marshaled and held available for the honoring of obligations under ORS 97.923 to 97.949; or (e) When the court receives proof of other grounds that the court deems good and sufficient for instituting receivership action concerning the receiver sought to be placed in receivership.

(3)(a) A receivership under this section may be temporary or for the winding up and dissolution of a business, as the director may request and the court determines to be necessary or advisable in the circumstances. (b) Venue of receivership proceedings may be, at the director’s request, in Marion County or the county where the subject of the receivership is located. The appointed receiver shall be the director or a person that the director nominates and that the court approves. (c) The director may expend money from budgeted funds or the Funeral and Cemetery Consumer Protection Trust Fund to implement a receivership. Any expenditures are a claim against the estate in the receivership proceedings. [2007 c.661 §24] Note: See note under 97.923.

97.943 Distributions from prearrangement trust fund deposits. (1) A depository may not make any distributions from prearrangement sales contract trust deposits except as provided in this section.

(2) The principal of a trust created pursuant to a prearrangement sales contract shall be paid to the certified provider who sold the contract if the certified provider who sold the contract swears, by affidavit, that the certified provider has delivered all merchandise and performed all services required under the prearrangement sales contract and delivers to the depository one of the following: (a) A certified death certificate of the beneficiary; or (b) A sworn affidavit signed by the certified provider and by: (A) One member of the beneficiary’s family; or (B) The executor of the beneficiary’s estate.

(3) The principal of a trust created pursuant to a prearrangement sales contract shall be paid to the purchaser if the original provider is no longer qualified to serve as provider under ORS 97.941 (10).

(4) Upon completion by the certified provider of the actions described in subsection (2) of this section, the depository shall pay to the certified provider from the prearrangement sales contract trust fund an amount equal to the sales price of the merchandise delivered.

(5) Upon the final payment to the certified provider of the principal in trust under subsection (2) of this section, the undistributed earnings of the trust shall be paid to: (a) The certified provider who sold the contract if the contract is a guaranteed contract; or (b) The contract purchaser, or the purchaser’s estate, if the contract is a nonguaranteed contract.

(6) The depository may rely upon the certifications and affidavits made to it under the provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180, and shall not be liable to any person for such reliance.

(7) If for any reason a certified provider who sold the prearrangement sales contract has refused to comply, or cannot or does not comply with the terms of the prearrangement sales contract within a reasonable time after the certified provider is required to do so, the purchaser or heirs or assigns or duly authorized representative of the purchaser or the beneficiary shall have the right to a refund in the amount equal to the sales price paid for undelivered merchandise and unperformed services plus undistributed earnings amounts held in trust attributable to such contract, within 30 days of the filing of a sworn affidavit with the certified provider who sold the contract and the depository setting forth the existence of the contract and the fact of breach. A copy of this affidavit shall be filed with the Director of the Department of Consumer and Business Services. In the event a certified provider who has sold a prearrangement sales contract is prevented from performing by strike, shortage of materials, civil disorder, natural disaster or any like occurrence beyond the control of the certified provider, the certified provider’s time for performance shall be extended by the length of such delay.

(8) Except for an irrevocable contract described in ORS 97.939 (4), at any time prior to the death of the beneficiary of a prearrangement sales contract, the purchaser of the prearrangement sales contract may cancel the contract and shall be entitled to a refund of all amounts paid on the contract, all amounts in trust including earnings allocated to the contract that are in excess of all amounts paid on the contract and unallocated earnings on trust contract amounts from the date of the last allocation to the date of the refund request, less any amounts paid for merchandise already delivered or services already performed, which amounts may be retained by the certified provider as compensation.

(9) Notwithstanding ORS 97.941 (4) and subsection (5) of this section, upon receiving a sworn affidavit from the master trustee or provider stating that qualifying expenses, taxes or fees have been incurred, a depository shall allow a master trustee or provider to pay from earnings of trust fund deposits any expenses, accounting fees, taxes, depository fees, investment manager fees and other fees as may be necessary to enable the provider to comply with the reporting required by ORS 97.923 to 97.949, and to perform other services for the trust as may be authorized by ORS 97.923 to 97.949. Any payment of expenses or fees from earnings of a trust fund deposit under this subsection shall not:

(a) Exceed an amount equal to two percent per calendar year of the value of the trust as determined on the first day of January of each calendar year; (b) Include the payment of any fee to the provider in consideration for services rendered as provider; or (c) Reduce, diminish or in any other way lessen the value of the trust fund deposit so that the services or merchandise provided for under the contract are reduced, diminished or in any other way lessened.

[Formerly 128.425; 2005 c.66 §1; 2007 c.661 §20] Note: See note under 97.923.

97.944 Distributions from preconstruction trust fund deposits. (1) A depository may not make any distributions from preconstruction sales contract trust deposits except as provided in this section.

(2)(a) The construction or development of undeveloped interment spaces shall be commenced on the phase of construction or development, or the section or sections of spaces in which sales are made within five years of the date of the first sale. The certified provider who sold the preconstruction sales contract shall give written notice including a description of the project to the Director of the Department of Consumer and Business Services no later than 30 days after the first sale. (b) Once commenced, construction or development shall be pursued diligently to completion. The first phase of construction must be completed within seven years of the first sale. However, any delay caused by strike, shortage of materials, civil disorder, natural disaster or any similar occurrence beyond the control of the certified provider extends the time of completion by the length of a delay. (c) If construction or development is not commenced or completed within the times specified, any contract purchaser may surrender and cancel the contract and upon cancellation shall be entitled to a refund of the actual amounts paid toward the purchase price, together with interest accrued on the amount deposited to the trust.

(3) Except as otherwise authorized by this section, every certified provider selling undeveloped spaces shall provide facilities for temporary interment for purchasers or beneficiaries of contracts who die prior to completion of the space. Such temporary facilities shall be constructed of permanent materials, and, insofar as practical, be landscaped and groomed to the extent customary in that community. The heirs, assigns or personal representative of a purchaser or beneficiary shall not be required to accept temporary underground interment space where undeveloped space contracted for was an aboveground entombment or inurnment space. In the event that temporary facilities as described in this subsection are not made available upon the death of a purchaser or beneficiary, the heirs, assigns or personal representative is entitled to a refund of the entire sales price paid plus undistributed interest attributable to such amount while in trust.

(4) If the certified provider who sold the preconstruction sales contract delivers a completed space acceptable to the heirs, assigns or personal representative of a purchaser or beneficiary, other than a temporary facility, in lieu of the undeveloped space purchased, the certified provider shall provide the depository with a delivery certificate and all sums deposited under the preconstruction sales contract and income allocable to that contract shall be paid to the certified provider.

(5) During the construction or development of interment spaces, upon receiving the sworn certification of the certified provider who sold the preconstruction sales contract and the contractor, the depository shall disburse from the trust fund the amount equivalent to the cost of performed labor or delivered materials as certified, not to exceed the amounts deposited and income allocable to those contracts. A person who executes and delivers a completion certificate with actual knowledge of a falsity contained therein shall be considered in violation of ORS 97.923 to 97.949 and 692.180.

(6) Upon completion of the phase of construction or development, section or sections of the project as certified to the depository by the certified provider and the contractor, the trust requirements shall terminate

and all funds held in the preconstruction sales contract trust fund attributable to the completed phase, section or sections shall be paid to the certified provider who sold the preconstruction sales contract.

(7) Upon the payment to a certified provider of preconstruction sales contract trust funds under subsection (4) or (6) of this section, the undistributed income of the trust shall be paid to: (a) The certified provider who sold the contract if the contract is a guaranteed contract; or (b) The contract purchaser, or the purchaser’s estate, if the contract is a nonguaranteed contract.

(8) If the preconstruction sales contract purchaser defaults in making payments under an installment preconstruction sales contract, and default continues for at least 30 days after the purchaser has received written notice of default, the certified provider who sold the contract may cancel the contract and withdraw from the trust fund the entire balance of the defaulting purchaser’s account as liquidated damages. Upon certification of the default, the depository shall deliver the balance to the certified provider. The depository may rely on the certification and affidavits made to it under the provisions of ORS 97.923 to 979.949, 97.992, 97.994 and 692.180 and shall not be liable to any person for such reliance. [Formerly 128.430; 2007 c.661 §21] Note: See note under 97.923.

97.945 Funeral and Cemetery Consumer Protection Trust Fund; fee; rules. (1) Every prearrangement sales contract or preconstruction sales contract seller shall pay to the Director of the Department of Consumer and Business Services a $5 fee for each prearrangement sales contract or preconstruction sales contract entered into, to be paid into a special income earning fund in the State Treasury, separate from the General Fund, known as the Funeral and Cemetery Consumer Protection Trust Fund. The fees shall be remitted to the director annually within 30 days after the end of December for all contracts that have been entered into during the 12-month period.

(2) Except as provided in this section, the fund shall be used solely for the purpose of providing restitution to purchasers who have suffered pecuniary loss arising out of prearrangement sales contracts or preconstruction sales contracts. The fund may be used for payment of actual administrative expenses incurred in administering the fund. All moneys in the Funeral and Cemetery Consumer Protection Trust Fund are appropriated continuously to the director for the payment of restitution under this section and the payment of expenses incurred in performing the duties and functions of the director required under ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.

(3) The director shall administer the fund and shall adopt rules governing the payment of restitution from the fund.

(4) Payments for restitution shall be made only upon order of the director where the director determines that the obligation is noncollectible from the certified provider. Restitution shall not exceed the amount of the sales price paid plus interest at the statutory rate.

(5) The fund shall not be applied toward any restitution for losses on a prearrangement sales contract or preconstruction sales contract entered into prior to September 27, 1987.

(6) The fund shall not be allocated for any purpose other than that specified in ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.

(7) If the director proposes to deny an application for restitution from the fund, the director shall accord an opportunity for a hearing as provided in ORS chapter 183.

(8) Notwithstanding any other provision of this section, the payment of restitution from the fund shall be a matter of grace and not of right and no purchaser shall have vested rights in the fund as a beneficiary or otherwise.

(9) The status of the fund shall be reviewed annually by the director. If the review determines that the fund together with all accumulated income earned on the fund is sufficient to cover costs of potential claims against the fund and that the total number of outstanding claims filed against the fund is less than 10 percent of the fund’s current balance, then payments to the fund shall be adjusted accordingly at the discretion of the director. [Formerly 128.435; 2003 c.362 §5] Note: See note under 97.923.

97.946 Advertising and marketing prohibitions. (1) A person may not engage in unsolicited door to door or telephone advertising and marketing of prearrangement sales contracts or preconstruction sales contracts. The costs of advertising and marketing may not be paid from trust funds.

(2) Advertising and marketing a prearrangement sales contract or a preconstruction sales contract by a funeral service practitioner, embalmer or funeral service establishment licensed under ORS chapter 692 does not constitute a violation of ORS 692.180 (1)(c). [Formerly 128.440] Note: See note under 97.923.

97.947 Examination of providers and master trustees by director; subpoena power; depositions. (1)(a) The Director of the Department of Consumer and Business Services may examine the conditions and resources, including sales contracts, of a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration to determine whether the certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration is complying with ORS 97.923 to 97.949, the rules of the director and any other laws of this state applicable to a certified provider or master trustee. (b) In addition to the authority conferred by ORS 97.948, the director may require a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration to pay the actual and reasonable costs of the examination.

(2) For the purpose of an examination under this section, the director may administer oaths and affirmations, compel the attendance of witnesses, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director considers relevant or material to the examination.

(3) If a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration fails to comply with a subpoena issued under this section or a party or witness refuses to testify on any matter, the judge of the circuit court for any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court or a refusal to testify on a matter before the court.

(4) Each witness who appears before the director under a subpoena issued under this section shall receive the fees and mileage provided for witnesses in ORS 44.415 (2), except that a witness subpoenaed at the instance of parties other than the director or an examiner may not be compensated for attendance or travel unless the director certifies that the testimony of the witness was material to the matter investigated.

(5) During the course of any examination, the director may cause the depositions of witnesses to be taken in the manner prescribed by law for like depositions in civil suits in the circuit court. [2001 c.796 §3; 2003 c.362 §6; 2005 c.338 §1] Note: Section 30, chapter 338, Oregon Laws 2005, provides: Sec. 30. The amendments to ORS 97.947 by section 1 of this 2005 Act apply to:

(1) Conditions and resources, including sales contracts, in existence before, on or after the effective date of this 2005 Act [January 1, 2006].

(2) Conduct occurring before, on or after the effective date of this 2005 Act. [2005 c.338 §30] Note: See note under 97.923.

97.948 Grounds for discipline by director for violation of ORS 97.923 to 97.949; suspension and revocation of certificate or registration; civil penalties; notification of board.(1) The Director of the Department of Consumer and Business Services may discipline a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration who has been found by an audit or examination conducted by the director: (a) To be in violation of ORS 97.923 to 97.949; (b) To have liabilities that exceed assets; (c) To be unable to meet obligations as they come due; or (d) To be in a financial condition that fails to adequately protect the interests of customers.

(2) In disciplining a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration under subsection (1) of this section, the director may take the following actions: (a) Impose probation. (b) Suspend the certificate or registration. (c) Revoke the certificate or registration. (d) Place limitations on the certificate or registration. (e) Refuse to issue or renew a certificate or registration. (f) Issue an order to cease and desist from the activities that support the discipline. (g) Take any other disciplinary action that the director finds proper, including assessment of the costs of the investigation and disciplinary proceedings and assessment of a civil penalty not to exceed $10,000 per violation.

(3) If the certificate or registration of a certified provider or master trustee is suspended under this section, the holder of the certificate or registration may not engage in the activities allowed by the certificate or registration during the term of suspension. Upon the expiration of the term of suspension, the director shall reinstate the certificate or registration if the conditions for which the certificate or registration was suspended no longer exist.

(4) The director shall enter each case of disciplinary action on the records of the Department of Consumer and Business Services.

(5) Civil penalties under this section may be imposed as provided in ORS 183.745.

(6) If the director takes disciplinary action under this section, the director may send a notice of the action to the State Mortuary and Cemetery Board and to the Attorney General. [2001 c.796 §4; 2003 c.362 §7; 2005 c.338 §2] Note: Section 31, chapter 338, Oregon Laws 2005, provides: Sec. 31. The order authorized by the amendments to ORS 97.948 by section 2 of this 2005 Act applies to actions occurring before, on or after the effective date of this 2005 Act [January 1, 2006]. [2005 c.338 §31] Note: See note under 97.923.

97.949 Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949. (1) If the Director of the Department of Consumer and Business Services has reason to believe that a person has violated any provision of ORS 97.923 to 97.949, the director may give the information relative to the violation to the appropriate federal, state or local law enforcement officer having jurisdiction over the violation.

(2) If the director, in the course of taking an action against a certified provider, master trustee or person acting as a certified provider or master trustee without certification or registration, finds that a salesperson or person acting as a salesperson has violated any provision of ORS 97.923 to 97.949, the director shall provide the State Mortuary and Cemetery Board with a copy of the findings and the order of the director.

The board shall, upon receipt of such information, discipline the salesperson or person acting as a salesperson as required by law. [2001 c.796 §5; 2003 c.362 §8; 2005 c.338 §3] Note: See note under 97.923.

97.950 [1995 c.717 §1; 1997 c.472 §4; 1999 c.201 §1; 2005 c.505 §1; repealed by 2007 c.681 §31] REVISED UNIFORM ANATOMICAL GIFT ACT 97.951 Short title. ORS 97.951 to 97.982 may be cited as the Revised Uniform Anatomical Gift Act. [2007 c.681 §1] Note: 97.951 to 97.982 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.952 [1995 c.717 §2; 1997 c.472 §5; 2005 c.505 §2; repealed by 2007 c.681 §31] 97.953 Definitions. As used in ORS 97.951 to 97.982: (1) “Adult” means an individual who is 18 years of age or older.

(2) “Agent” means an: (a) Attorney-in-fact as that term is defined in ORS 127.505; or (b) Individual expressly authorized to make an anatomical gift on the principal’s behalf by any record signed by the principal.

(3) “Anatomical gift” means a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research or education.

(4) “Body part” means an organ, an eye or tissue of a human being. The term does not include the whole body.

(5) “Decedent” means a deceased individual whose body or body part is or may be the source of an anatomical gift, and includes a stillborn infant or a fetus.

(6)(a) “Disinterested witness” means a witness other than: (A) A spouse, child, parent, sibling, grandchild, grandparent or guardian of the individual who makes, amends, revokes or refuses to make an anatomical gift; or (B) An adult who exhibited special care and concern for the individual. (b) “Disinterested witness” does not include a person to whom an anatomical gift could pass under ORS 97.969.

(7) “Document of gift” means a donor card or other record used to make an anatomical gift. The term includes a statement, symbol or designation on a driver license, identification card or donor registry.

(8) “Donor” means an individual whose body or body part is the subject of an anatomical gift.

(9) “Donor registry” means a centralized database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.

(10) “Driver license” means a license or permit issued under ORS 807.021, 807.040, 807.200, 807.280 or 807.730, regardless of whether conditions are attached to the license or permit.

(11) “Eye bank” means an organization licensed, accredited or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of human eyes or portions of human eyes.

(12) “Guardian” means a person appointed by a court to make decisions regarding the support, care, education, health or welfare of an individual. “Guardian” does not include a guardian ad litem.

(13) “Hospital” means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state or a subdivision of a state.

(14) “Identification card” means the card issued under ORS 807.021, 807.400 or 807.730, or a comparable provision of the motor vehicle laws of another state.

(15) “Know” means to have actual knowledge.

(16) “Minor” means an individual who is under 18 years of age.

(17) “Organ procurement organization” means an organization designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization.

(18) “Parent” means a parent whose parental rights have not been terminated.

(19) “Physician” means an individual authorized to practice medicine or osteopathy under the law of any state.

(20) “Procurement organization” means an eye bank, organ procurement organization or tissue bank.

(21) “Prospective donor” means an individual who is dead or near death and has been determined by a procurement organization to have a body part that could be medically suitable for transplantation, therapy, research or education. The term does not include an individual who has made a refusal.

(22) “Reasonably available” means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

(23) “Recipient” means an individual into whose body a decedent’s body part has been or is intended to be transplanted.

(24) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(25) “Refusal” means a record that expressly states an intent to prohibit other persons from making an anatomical gift of an individual’s body or body part.

(26) “Sign” means, with the present intent to authenticate or adopt a record: (a) To execute or adopt a tangible symbol; or (b) To attach to or logically associate with the record an electronic symbol, sound or process.

(27) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(28) “Technician” means an individual determined to be qualified to remove or process body parts by an appropriate organization that is licensed, accredited or regulated under federal or state law. The term includes an enucleator.

(29) “Tissue” means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.

(30) “Tissue bank” means a person that is licensed, accredited or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of tissue.

(31) “Transplant hospital” means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients. [2007 c.681 §2; 2008 c.1 §33] Note: See note under 97.951.

97.954 [1995 c.717 §3; 1997 c.472 §6; 1999 c.201 §2; 2005 c.505 §3; repealed by 2007 c.681 §31] 97.955 Purpose of anatomical gift; persons authorized to make gift. (1) Subject to ORS 97.963, a donor may make an anatomical gift of a donor’s body or body part during the life of the donor for the purpose of transplantation, therapy, research or education.

(2) An anatomical gift may be made in the manner provided in ORS 97.957 by: (a) The donor, if the donor is an adult or if the donor is a minor and is: (A) Emancipated; or (B) Authorized under ORS 807.280 to apply for an instruction driver permit because the donor is at least 15 years of age; (b) An agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift; (c) A parent of the donor, if the donor is an unemancipated minor; or (d) The donor’s guardian. [2007 c.681 §3] Note: See note under 97.951.

97.956 [1995 c.717 §4; 1997 c.472 §7; 1999 c.201 §3; repealed by 2007 c.681 §31] 97.957 Methods of making anatomical gift before death of donor. (1) A donor may make an anatomical gift: (a) By a designation on the donor’s driver license or identification card; (b) In a will; (c) During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; (d) By a donor card or other record signed by the donor or other person making the gift; or (e) By authorizing that a statement, symbol or designation indicating that the donor has made an anatomical gift is to be included on a donor registry.

(2) If the donor or other person authorized to make an anatomical gift under ORS 97.955 is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and must: (a) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and (b) State that it has been signed and witnessed as provided in paragraph (a) of this subsection.

(3) Revocation, suspension, expiration or cancellation of a driver license or identification card upon which an anatomical gift is indicated does not invalidate the gift.

(4) An anatomical gift made by will takes effect upon the donor’s death whether or not the will is probated. Invalidation of the will after the donor’s death does not invalidate the gift.

(5) An anatomical gift made by a designation on the donor’s driver license or identification card is conclusively presumed valid. [2007 c.681 §4; 2009 c.106 §1] Note: Section 5, chapter 106, Oregon Laws 2009, provides: Sec. 5. The amendments to ORS 97.957 and 97.959 by sections 1 and 2 of this 2009 Act apply to donor designations appearing on driver licenses or identification cards issued by this state or any other state before, on or after the effective date of this 2009 Act [January 1, 2010]. [2009 c.106 §5] Note: See note under 97.951.

97.958 [1995 c.717 §5; 1997 c.472 §8; 1999 c.201 §4; 2005 c.505 §4; repealed by 2007 c.681 §31] 97.959 Revocation or amendment of anatomical gift before death of donor. (1) Except as provided in subsection (7) of this section, an anatomical gift made by a designation on a donor’s driver license or identification card under ORS 97.957 (1)(a) may be revoked only by the donor in accordance with the provisions of this section and may not be revoked by any other person otherwise authorized to make, amend or revoke a gift under ORS 97.963 or 97.967 or this section.

(2) Except as provided in subsection (1) of this section and ORS 97.963, a donor or other person authorized to make an anatomical gift under ORS 97.955 may amend or revoke an anatomical gift by: (a) A record signed by: (A) The donor; (B) The other person; or (C) Subject to subsection (3) of this section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or (b) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.

(3) A record signed pursuant to subsection (2)(a)(C) of this section must: (a) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and (b) State that it has been signed and witnessed as required in this subsection.

(4) Except as provided in ORS 97.963, a donor or other person authorized to make an anatomical gift under ORS 97.955 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.

(5) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.

(6) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (4) of this section.

(7) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor’s body or body part. [2007 c.681 §5; 2009 c.106 §2] Note: See note under 97.957.

Note: See note under 97.951.

97.960 [1995 c.717 §6; 1997 c.472 §9; repealed by 2007 c.681 §31]

97.961 Refusal to make anatomical gift; effect of refusal. (1) An individual may refuse to make an anatomical gift of the individual’s body or body part by: (a) A record signed by: (A) The individual; or (B) Subject to subsection (2) of this section, another individual acting at the direction of the individual if the individual is physically unable to sign; (b) The individual’s will, whether or not the will is admitted to probate or invalidated after the individual’s death; or (c) Any form of communication made by the individual during the individual’s terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.

(2) A record signed under subsection (1)(a)(B) of this section must: (a) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and (b) State that it has been signed and witnessed as provided in this subsection.

(3) An individual who has made a refusal may amend or revoke the refusal: (a) In the manner provided in subsection (1) of this section for making a refusal; (b) By subsequently making an anatomical gift pursuant to ORS 97.957 that is inconsistent with the refusal; or (c) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, provided that the destruction or cancellation is done with the intent to revoke the refusal.

(4) Except as otherwise provided in subsection (5) of this section, in the absence of an express, contrary indication by the individual set forth in the refusal, an individual’s unrevoked refusal to make an anatomical gift of the individual’s body or body part prohibits all other persons from making an anatomical gift of the individual’s body or body part.

(5) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor’s refusal. [2007 c.681 §6; 2009 c.106 §3] Note: See note under 97.951.

97.962 [1995 c.717 §7; repealed by 2007 c.681 §31] 97.963 Effect of making, amending or revoking anatomical gift. (1) An anatomical gift of a donor’s body or body part, if the donor made an anatomical gift of the donor’s body or body part under ORS 97.957 or an amendment to an anatomical gift of the donor’s body or body part under ORS 97.959, may not be revoked except in accordance with ORS 97.959.

(2) A donor’s revocation of an anatomical gift of the donor’s body or body part under ORS 97.959 is not a refusal and does not prohibit another person specified in ORS 97.955 or 97.965 from making an anatomical gift of the donor’s body or body part under ORS 97.957 or 97.967.

(3) If a person other than the donor makes an unrevoked anatomical gift of the donor’s body or body part under ORS 97.957 or an amendment to an anatomical gift of the donor’s body or body part under ORS 97.959, another person may not make, amend or revoke the gift of the donor’s body or body part under ORS 97.967.

(4) A revocation of an anatomical gift of a donor’s body or body part under ORS 97.959 by a person other than the donor does not prohibit another person from making an anatomical gift of the body or body part under ORS 97.957 or 97.967.

(5) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under ORS 97.955, an anatomical gift of a body part is neither a refusal to give another body part nor a limitation on the making of an anatomical gift of another body part at a later time by the donor or other person.

(6) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under ORS 97.955, an anatomical gift of a body part for one or more of the purposes set forth in ORS 97.955 is not a limitation on the making of an anatomical gift of the body part for any of the other purposes by the donor or other person under ORS 97.957 or 97.967. [2007 c.681 §7; 2009 c.106 §4] Note: See note under 97.951.

97.964 [1995 c.717 §8; 2005 c.505 §5; repealed by 2007 c.681 §31] 97.965 Persons authorized to make anatomical gift of body or body part of decedent. (1) Subject to subsections (2) and (3) of this section and unless prohibited by ORS 97.961 or 97.963, an anatomical gift of a decedent’s body or body part for purpose of transplantation, therapy, research or education may be made by any member of the following classes of persons who is reasonably available, in the following order: (a) An agent of the decedent at the time of death who could have made an anatomical gift under ORS 97.955 (2)(b) immediately before the decedent’s death; (b) The spouse of the decedent; (c) An adult child of the decedent; (d) A parent of the decedent; (e) An adult sibling of the decedent; (f) An adult grandchild of the decedent; (g) A grandparent of the decedent; (h) An adult who exhibited special care and concern for the decedent; (i) A guardian of the decedent at the time of death; or (j) Any other person having the authority to dispose of the decedent’s body.

(2) If there is more than one member of a class listed in subsection (1) of this section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under ORS 97.969 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.

(3) A person may not make an anatomical gift if, at the time of the decedent’s death, a person in a prior class under subsection (1) of this section is reasonably available to make or to object to the making of an anatomical gift. [2007 c.681 §8] Note: See note under 97.951.

97.966 [Formerly 97.295; 2007 c.681 §30; renumbered 97.984 in 2007] 97.967 Methods for making, amending or revoking anatomical gift of body or body part of decedent by authorized person. (1) A person authorized to make an anatomical gift under ORS 97.965 may make an anatomical gift by a document of gift signed by the person making the gift or by that person’s oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.

(2) Subject to subsection (3) of this section, an anatomical gift by a person authorized under ORS 97.965 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under ORS 97.965 may be: (a) Amended only if a majority of the reasonably available members agree to amendment of the gift; or (b) Revoked only if a majority of the reasonably available members agree to the revocation of the gift or if they are equally divided as to whether to revoke the gift.

(3) A revocation under subsection (2) of this section is effective only if, before an incision has been made to remove a body part from the donor’s body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, physician or technician knows of the revocation. [2007 c.681 §9] Note: See note under 97.951.

97.968 [Formerly 97.300; renumbered 97.985 in 2007] 97.969 Authorized recipients of anatomical gifts; purposes for which gift may be used. (1) An anatomical gift may be made to the following persons named in the document of gift: (a) A hospital, accredited medical school, dental school, college, university, organ procurement organization or other appropriate person, for research or education; (b) Subject to subsection (2) of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the body part; or (c) An eye bank or tissue bank.

(2) If an anatomical gift to an individual under subsection (1)(b) of this section cannot be transplanted into the individual, the body part passes in accordance with subsection (7) of this section in the absence of an express, contrary indication by the person making the anatomical gift.

(3) If an anatomical gift of one or more specific body parts or of all body parts is made in a document of gift that does not name a person described in subsection (1) of this section but identifies the purpose for which an anatomical gift may be used, the following rules apply: (a) If the body part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank. (b) If the body part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank. (c) If the body part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ. (d) If the body part is an organ, an eye or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.

(4) For the purposes of subsection (3) of this section, if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

(5) If an anatomical gift of one or more specific body parts is made in a document of gift that does not name a person described in subsection (1) of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (7) of this section.

(6) If a document of gift specifies only a general intent to make an anatomical gift by words such as “donor,” “organ donor” or “body donor” or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (7) of this section.

(7) For purposes of subsections (2), (5) and (6) of this section, the following rules apply: (a) If the body part is an eye, the gift passes to the appropriate eye bank. (b) If the body part is tissue, the gift passes to the appropriate tissue bank. (c) If the body part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(8) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (1)(b) of this section, passes to the organ procurement organization as custodian of the organ.

(9) If an anatomical gift does not pass pursuant to subsections (1) to (8) of this section or the decedent’s body or body part is not used for transplantation, therapy, research or education, custody of the body or body part passes to the person under obligation to dispose of the body or body part.

(10) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under ORS 97.957 or 97.967 or if the person knows that the decedent made a refusal under ORS 97.961 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.

(11) Except as otherwise provided in subsection (1)(b) of this section, ORS 97.951 to 97.982 do not affect the allocation of organs for transplantation or therapy. [2007 c.681 §10] Note: See note under 97.951.

97.970 Search for document of anatomical gift or refusal; duty to send document or refusal to hospital. (1) The following persons shall make a reasonable search of an individual who the persons reasonably believe is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal: (a) A law enforcement officer, firefighter, paramedic or other emergency rescuer finding the individual; and (b) If no other source of the information is immediately available, a hospital, as soon as practicable after the individual’s arrival at the hospital.

(2) If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (1)(a) of this section and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or the refusal to the hospital.

(3) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section but may be subject to administrative sanctions. [2007 c.681 §11] Note: See note under 97.951.

97.971 Delivery of document of gift or refusal not required; right to examine. (1) A document of gift need not be delivered during the donor’s lifetime to be effective.

(2) Upon or after an individual’s death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or the refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to whom the gift could pass under ORS 97.969. [2007 c.681 §12]

Note: See note under 97.951.

97.972 Rights and duties of procurement organizations and others; authorized examinations. (1) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Department of Transportation and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.

(2) A procurement organization must be allowed reasonable access to information in the records of the Department of Transportation to ascertain whether an individual at or near death is a donor.

(3) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a body part that is or could be the subject of an anatomical gift for transplantation, therapy, research or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the body part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.

(4) Unless otherwise prohibited by law, at any time after a donor’s death, the person to whom a body part passes under ORS 97.969 may conduct any reasonable examination necessary to ensure the medical suitability of the body or body part for its intended purpose.

(5) Unless otherwise prohibited by law, an examination under subsection (3) or (4) of this section may include an examination of all medical and dental records of the donor or prospective donor.

(6) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.

(7) Upon referral by a hospital under subsection (1) of this section, a procurement organization shall make a reasonable search for any person listed in ORS 97.965 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended or revoked, it shall promptly advise the other person of all relevant information.

(8) Subject to ORS 97.969 (9) and 97.980, the rights of the person to whom a body part passes under ORS 97.969 are superior to the rights of all others with respect to the body part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and ORS 97.951 to 97.982, a person who accepts an anatomical gift of an entire body may allow embalming, burial or cremation and use of remains in a funeral service. If the gift is of a body part, the person to whom the body part passes under ORS 97.969, upon the death of the donor and before embalming, burial or cremation, shall cause the body part to be removed without unnecessary mutilation.

(9) Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent’s death may participate in the procedures for removing or transplanting a body part from the decedent.

(10) A physician or technician may remove from the body of a donor a donated body part that the physician or technician is qualified to remove. [2007 c.681 §13] Note: See note under 97.951.

97.973 Coordination of procurement and use of anatomical gifts. Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts. [2007 c.681 §14] Note: See note under 97.951.

97.974 Immunity of persons acting in accordance with ORS 97.951 to 97.982. (1) A person who acts in accordance with ORS 97.951 to 97.982 or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution or administrative proceeding.

(2) Neither the person making an anatomical gift nor the donor’s estate is liable for any injury or damage that results from the making or use of the gift.

(3) In determining whether an anatomical gift has been made, amended or revoked under ORS 97.951 to 97.982, a person may rely upon representations of an individual listed in ORS 97.965 (1)(b), (c), (d), (e), (f), (g) or (h) relating to the individual’s relationship to the donor or prospective donor unless the person knows that the representation is untrue. [2007 c.681 §15] Note: See note under 97.951.

97.975 [Formerly 97.930; renumbered 97.987 in 2007] 97.976 Law governing validity of document of gift; presumption of validity. (1) A document of gift is valid if executed in accordance with: (a) ORS 97.951 to 97.982; (b) The laws of the state or country where it was executed; or (c) The laws of the state or country where the person making the anatomical gift was domiciled, had a place of residence or was a national at the time the document of gift was executed.

(2) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift.

(3) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked. [2007 c.681 §16] Note: See note under 97.951.

97.977 Donor registry; duty of Department of Transportation to cooperate with donor registry. (1)(a) The Oregon Health Authority may allow an organ procurement organization to establish a donor registry. (b) Only one donor registry may be established within this state. (c) The donor registry shall comply with subsections (3) and (4) of this section.

(2) The Department of Transportation shall: (a) Cooperate with a person who administers the donor registry established under subsection (1) of this section for the purpose of transferring to the donor registry all relevant information regarding a donor’s making, amending or revoking an anatomical gift. (b) When requested by the organ procurement organization that has established the donor registry in this state, the department shall electronically transfer to the organ procurement organization the name, address, birthdate and donor designation listed on the driver license or identification card of a person designated as a

donor. The organ procurement organization shall treat the information transferred from the department as confidential and may use the information only to expedite the making of anatomical gifts authorized by the donor.

(3) The donor registry must: (a) Allow a donor or other person authorized under ORS 97.955 to include on the donor registry a statement or symbol that the donor has made, amended or revoked an anatomical gift; (b) Be accessible to a procurement organization to allow the procurement organization to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended or revoked an anatomical gift; and (c) Be accessible for purposes of this subsection seven days a week on a 24-hour basis.

(4) Personally identifiable information on the donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor or person who made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended or revoked an anatomical gift. [2007 c.681 §17; 2009 c.595 §64] Note: See note under 97.951.

97.978 Resolution of conflict between potential anatomical gift and advance directive. (1) As used in this section: (a) “Advance directive” has the meaning given that term in ORS 127.505. (b) “Declaration” means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn from the prospective donor. (c) “Health care decision” means any decision regarding the health care of a prospective donor.

(2) If a prospective donor has a declaration or advance directive and the terms of the declaration or advance directive and the express or implied terms of a potential anatomical gift are in conflict regarding administration of measures necessary to ensure the medical suitability of a body part for transplantation, therapy, research or education, the prospective donor and the prospective donor’s attending physician shall confer to resolve the conflict.

(3) If the prospective donor is incapable of resolving the conflict, one of the following persons shall act for the prospective donor to resolve the conflict: (a) An agent acting under the prospective donor’s declaration or advance directive; or (b) If an agent is not named in the declaration or advance directive or the agent is not reasonably available, another person authorized by law, other than in ORS 97.951 to 97.982, to make health care decisions for the prospective donor.

(4) The conflict must be resolved as expeditiously as possible.

(5) Information relevant to the resolution of the conflict may be obtained from the appropriate procurement organization and any person authorized under ORS 97.965 to make an anatomical gift for the prospective donor.

(6) During the resolution of the conflict, measures necessary to ensure the medical suitability of the body part may not be withheld or withdrawn from the prospective donor unless withholding or withdrawing the measures is medically indicated by appropriate end of life care. [2007 c.681 §18] Note: See note under 97.951.

97.979 Cooperation between medical examiner and procurement organization. (1) A medical examiner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research or education.

(2) Subject to ORS 97.980, if a medical examiner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the medical examiner and a post-mortem examination is going to be performed, the medical examiner or designee shall conduct a post-mortem examination of the body or the body part in a manner and within a period compatible with its preservation for the purposes of the gift.

(3) A body part may not be removed from the body of a decedent under the jurisdiction of a medical examiner for transplantation, therapy, research or education unless the body part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the medical examiner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection does not preclude a medical examiner from performing the medicolegal investigation upon the body or body parts of a decedent under the jurisdiction of the medical examiner. [2007 c.681 §19] Note: See note under 97.951.

97.980 Facilitation of anatomical gift from decedent whose body is under jurisdiction of medical examiner. (1) Upon request of a procurement organization, a medical examiner shall release to the procurement organization the name, contact information and available medical and social history of a decedent whose body is under the jurisdiction of the medical examiner. If the decedent’s body or body part is medically suitable for transplantation, therapy, research or education, the medical examiner shall release post-mortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner only if relevant to transplantation, therapy, research or education.

(2) The medical examiner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, X-rays, other diagnostic results and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner that the medical examiner determines may be relevant to the investigation.

(3) A person who has any information requested by a medical examiner pursuant to subsection (2) of this section shall provide that information as expeditiously as possible to allow the medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of body parts for the purpose of transplantation, therapy, research or education.

(4) If an anatomical gift has been or might be made of a body part of a decedent whose body is under the jurisdiction of the medical examiner and a post-mortem examination is not required, or the medical examiner determines that a post-mortem examination is required but that the recovery of the body part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner and procurement organization shall cooperate in the timely removal of the body part from the decedent for the purpose of transplantation, therapy, research or education.

(5) If an anatomical gift of a body part from the decedent under the jurisdiction of the medical examiner has been or might be made, but the medical examiner initially believes that the recovery of the body part could interfere with the post-mortem investigation into the decedent’s cause or manner of death, the medical examiner shall consult with the procurement organization, or physician or technician designated by the procurement organization, about the proposed recovery. The procurement organization shall provide the medical examiner with all of the information that the procurement organization possesses that could relate to the decedent’s cause or manner of death.

(6)(a) The medical examiner and the procurement organization may enter into an agreement establishing protocols and procedures governing their relationship when: (A) An anatomical gift of a body part from a decedent whose body is under the jurisdiction of the medical examiner has been or might be made; and (B) The medical examiner believes that the recovery of the body part could interfere with the postmortem investigation into the decedent’s cause or manner of death or the documentation or preservation of evidence. (b) A decision regarding the recovery of the body part from the decedent shall be made in accordance with the agreement. (c) The medical examiner and the procurement organization shall evaluate the effectiveness of the agreement at regular intervals but not less frequently than every two years.

(7)(a) In the absence of an agreement establishing protocols and procedures governing the relationship between the medical examiner and the procurement organization when an anatomical gift of an eye or tissue from a decedent whose body is under the jurisdiction of the medical examiner has been or might be made, and following the consultation under subsection (5) of this section, the medical examiner may delay the recovery of the eye or tissue until after the collection of evidence or the post-mortem examination, in order to preserve and collect evidence, to maintain a proper chain of custody and to allow an accurate determination of the decedent’s cause or manner of death. (b) When a determination to delay the recovery of an eye or tissue is made, every effort possible shall be made by the medical examiner to complete the collection of evidence or the post-mortem examination in a timely manner compatible with the preservation of the eye or tissue for the purpose of transplantation, therapy, research or education. (c) The collection of evidence or the post-mortem examination shall occur during the normal business hours of the medical examiner and, when possible and practicable, at times other than the normal business hours of the medical examiner. (d) If the collection of evidence or the post-mortem examination occurs at times other than the normal business hours of the medical examiner, the procurement organization shall reimburse the medical examiner a mutually agreed-upon reasonable fee.

(8) If the medical examiner denies or delays recovery under subsection (6) or (7) of this section, the medical examiner shall: (a) Explain in a record the specific reasons for not allowing or for delaying recovery of the body part; (b) Include the specific reasons in the records of the medical examiner; and (c) Provide a record with the specific reasons to the procurement organization.

(9) If the medical examiner allows recovery of a body part, the procurement organization shall cooperate with the medical examiner in any documentation of injuries and the preservation and collection of evidence prior to and during the recovery of the body part and, upon request of the medical examiner, shall cause the physician or technician who removes the body part to provide the medical examiner with a record describing the condition of the body part, a photograph and any other information and observations that would assist in the post-mortem examination. [2007 c.681 §20] Note: See note under 97.951.

97.981 Purchase or sale of body parts prohibited. (1) Except as otherwise provided in subsection (3) of this section, a person commits the crime of purchase or sale of a body part for transplantation or therapy if the person, for valuable consideration, knowingly purchases or sells a body part for transplantation or therapy if removal of the body part from an individual is intended to occur after the individual’s death.

(2) Purchase or sale of a body part for transplantation or therapy is a Class C felony.

(3) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation or disposal of a body part. [2007 c.681 §21] Note: See note under 97.951.

97.982 Alteration of document of anatomical gift prohibited. (1) A person commits the crime of alteration of a document of gift if the person, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces or obliterates a document of gift, an amendment or revocation of a document of gift or a refusal.

(2) Alteration of a document of gift is a Class C felony. [2007 c.681 §22] Note: See note under 97.951.

97.983 Relation to Electronic Signatures in Global and National Commerce Act. The provisions of ORS 97.951 to 97.982 modify, limit and supersede the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but do not modify, limit or supersede section 101(a) of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, or authorize electronic delivery of any of the notices described in section 103(b) of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7003(b) as in effect January 1, 2008. [2007 c.681 §23] Note: 97.983 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

ANATOMICAL GIFTS 97.984 Liability of executor who carries out anatomical gift. A person named executor who carries out an anatomical gift of the testator made under the provisions of ORS 97.957 before issuance of letters testamentary or under a will which is not admitted to probate shall not be liable to the surviving spouse or next of kin for performing acts necessary to carry out the gift of the testator. [Formerly 97.966] 97.985 Transplants not covered by implied warranty. (1) The procuring, processing, furnishing, distributing, administering or using of any part of a human body for the purpose of injecting, transfusing or transplanting that part into a human body is not a sales transaction covered by an implied warranty under the Uniform Commercial Code or otherwise.

(2) As used in this section, “part” means organs or parts of organs, tissues, eyes or parts of eyes, bones, arteries, blood, other fluids and any other portions of a human body. [Formerly 97.968] FEDERAL AID FOR CEMETERIES 97.987 Department of Transportation use of federal moneys for cemetery care. (1) In addition to any other duties of the Department of Transportation, the department may apply for, accept and expend, use or dispose of moneys and property received from the federal government for the purpose of establishing any program of restoration, care, maintenance and preservation of cemeteries. The department shall administer

any funds received pursuant to this section in accordance with the conditions established by the federal government.

(2) In carrying out the provisions of subsection (1) of this section the Department of Transportation may contract or consult with any nonprofit corporation established for the purpose of promoting cemetery care and maintenance. [Formerly 97.975] PENALTIES 97.990 Penalties. (1) Violation of ORS 97.160 is a misdemeanor and upon conviction is punishable by a fine not exceeding $100.

(2) Every officer, agent or employee of this state or of any county, city or any other municipal subdivision thereof who willfully neglects to notify the Demonstrator of Anatomy of the existence of a body as required by ORS 97.170 to 97.210 or who refuses to deliver possession of such body according to the provisions of ORS 97.170 to 97.210 or who mutilates or permits any such body to be mutilated so that it is not valuable for anatomical purposes or who refuses or neglects to perform any of the duties enjoined upon the officer, agent or employee by ORS 97.170 to 97.210, is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $50 for each offense.

(3) Violation of ORS 97.520, 97.530 or 97.540 is a misdemeanor.

(4) Any person, association or corporation who operates a cemetery, mausoleum or columbarium contrary to the provisions of ORS 97.020 to 97.040, 97.110 to 97.130, 97.145, 97.150, 97.220, 97.310 to 97.360 (1), 97.440, 97.510 to 97.560, 97.710, 97.720, 97.810, 97.820, 97.830 and 97.840 to 97.860 is guilty of maintaining a nuisance and, upon conviction, is punishable by a fine not exceeding $500 or by imprisonment in the county jail for not more than six months, or both.

(5)(a) Violation of ORS 97.745 is a Class C felony. (b) In addition to any other sentence provided by law for criminal violations of ORS 97.745, the judge shall impose a penalty not to exceed $10,000 on any person convicted of a criminal violation of ORS 97.745.

(6) In addition to the penalty of subsection (5) of this section, any native Indian artifacts or human remains taken by, or in possession of, any person sentenced under subsection (5) of this section and all equipment used in the violation may be ordered forfeited by the court in which conviction occurs, and may be disposed of as the court directs. [Subsections (5) to (7) enacted as 1977 c.183 §12; subsection (8) enacted as 1977 c.647 §4; 1979 c.420 §3; 1983 c.526 §6; 1985 c.198 §5; subsections (5) to (7) renumbered 127.990 in 1991; subsection (5)(b) of 1995 Edition enacted as 1995 c.543 §3] 97.992 Penalties for ORS 97.937. Violation of any of the provisions of ORS 97.937 is punishable, upon conviction, by a fine not exceeding $1,000, or imprisonment in the county jail not exceeding one year, or both. [Formerly 128.990] Note: 97.992 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

97.994 Penalties for ORS 97.931, 97.933 and 97.941. Violation of any of the provisions of ORS 97.931, 97.933, 97.941 or 97.943 is punishable as a Class A misdemeanor. [Formerly 128.991; 2003 c.362 §9]

Note: 97.994 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 97 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

The Oregon Administrative Rules contain OARs filed through May 13, 2011

DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, DIVISION OF FINANCE AND CORPORATE SECURITIES

DIVISION 930 PREARRANGEMENT AND PRECONSTRUCTION PLANS 441-930-0010 Definitions In addition to the definitions in ORS 97.010 and 97.923, the following definitions apply to OAR 441-930-0010 to 441-930-0360: (1) "Applicant" means an entity applying to the director for a certification concerning prearrangement plans or for a registration to serve as a master trustee.

(2) “Director” means the Director of the Department of Consumer and Business Services.

(3) “Limited Operations Certified Provider” means a certified provider responsible for administering 10 or fewer prearrangement or preconstruction sales contracts which have a cumulative value of less than $20,000.

(4) "Registrant" means an entity holding a registration for a master trustee, issued by the director.

(5) "Trust Agreement" means any agreement governing a trust fund established to receive the proceeds of a prearrangement or preconstruction plan and administered by a registered master trustee.

(6) "Unconscionable tactics" include, but are not limited to, actions by which a person:

(a) Knowingly takes advantage of a customer's physical infirmity, ignorance, illiteracy or inability to understand the language of the agreement; or (b) Knowingly permits a customer to enter into a transaction from which the customer will derive no material benefit.

Stat. Auth.: ORS 97.926 Stats. Implemented: ORS 97.926 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0010 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 Master Trustees 441-930-0030 Applications for Registration of Master Trustees (1) Each entity desiring to register as master trustee shall apply by submitting a written application with the director.

(2) The application must contain the following on a form prescribed by the director: (a) Information concerning the applicant's identity and business address(es); (b) A list of all officers, directors, and owners of the business; (c) Personal background and business, professional, or work history of all persons identified in subsection (2)(b) of this rule; (d) Proof that the entity is legally qualified to conduct business in this state, having made the appropriate filings with the Secretary of State; (e) The depositories the applicant will use for funds received under the appointment from the certified provider; (f) Financial statements including: (A) A copy of the applicant's most recent audited financial statement, including balance sheet, statement of income or loss, statement of changes in shareholder equity, and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles;

(B) If the audited financial statement is more than six months old, an internally prepared statement for the most recent month end; and (g) A registration fee as set in OAR 441-930-0270.

(3) The director may conduct a background check of any of the officers, directors, and owners applying for registration. The background check may include information solicited from the Oregon State Police.

(4) A registration is continuing and remains in effect until it is surrendered by the registrant or revoked or suspended by the director.

Stat. Auth.: ORS 97.926 & 97.935 Stats. Implemented: ORS 97.935 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0030 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 2-2006, f. & cert. ef.

2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0035 Renewal Procedure Submission of the annual report pursuant to OAR 441-930-0068 and the fees pursuant to 441930-0270 shall constitute renewal of the application for registration.

Stat. Auth.: ORS 97.926 & 97.935 Stats. Implemented: ORS 97.935 Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0045 Material Changes, Notice of Civil and Criminal Actions A master trustee must provide information to the director within 30 days of a material change to any information contained in the original application or any documents submitted with or as part of the application, including: (1) Bankruptcy; (2) Civil or criminal actions described on the application; (3) Disciplinary disclosure answers;

(4) Change in additional affiliated business entity name; (5) Change in control or ownership; (6) Change in form of organization; (7) Change of address; (8) Change in scope of business; or (9) Change in the depository used by a master trustee.

Stat. Auth.: ORS 97.926 & 97.935 Stats. Implemented: ORS 97.935 Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0065 When Application Deemed Abandoned (1) For purposes of this rule, the term "application" includes all documents, information and fees prescribed for the registration of a master trustee.

(2) An application shall be deemed deficient when: (a) The applicant has paid insufficient fees and the director has notified the applicant that fees are insufficient; (b) Documents required to be submitted to the director by OAR 441-930-0030 and 441-9300035 have not been submitted by the applicant; or (c) The applicant has not submitted information requested by the director.

(3) An application shall be deemed abandoned if: (a) The application has been on file for a minimum of 60 days; (b) The application is deficient; and (c) The applicant has failed to respond within 30 days to the director's written notice of warning of abandonment.

(4) An applicant whose application has been abandoned may reapply by submitting a new application and registration fee.

Stat. Auth.: ORS 97.926 & 97.935 Stats. Implemented: ORS 97.935 Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0068 Annual Report Each master trustee is responsible for and shall file an annual report with the director by April 1 of each year on forms provided by the director. The report shall cover the preceding calendar year and shall include information on trusted funds: (1) The actual value at the beginning and end of the calendar year; (2) Deposits and withdrawals; (3) Income earned and fees paid; (4) Taxes paid for beneficiaries; (5) Gains and losses; and (6) The balance of all trust accounts as of December 31.

Stat. Auth.: ORS 97.926 & 97.935 Stats. Implemented: ORS 97.935 Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0070 Examination of Master Trustee (1) Each master trustee that is or should be registered may be subject to an annual examination by the director. The director may, conduct an examination at the office of the master trustee or at the office of the director. The examination will be of the condition and resources of the master trustee, including: (a) A review of the minutes of the annual meeting of owners and any special meeting; (b) A review of all board or management meetings;

(c) Operating policies and procedures; (d) Security of funds, including documentation demonstrating that all trust funds are received from each certified provider; (e) Investment vehicles; (f) Receipt and dispersal of funds; (g) Investment and banking accounts; (h) Audit reports; and (i) Regulatory audit reports.

(2) A master trustee shall pay to the director the fees and costs of examination described in OAR 441-930-0270.

(3) At the discretion of the director, a master trustee located outside Oregon may make the books and records available for examination in Oregon.

(4) Upon completion of an examination conducted pursuant to OAR 441-930-0070 or 441-9300260 the director shall issue a written report to the master trustee indicating the examination procedures applied and the examination findings.

Stat. Auth.: ORS 97.926, 97.935, & 97.947 Stats. Implemented: ORS 97.935 & 97.947 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0070 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0080 Master Trustee Rules of Conduct (1) A master trustee is a fiduciary and has a duty to act solely for the benefit of purchasers of prearrangement sales contracts.

(2) The fees to be charged shall be described in a written agreement between the master trustee and each certified provider that has appointed the master trustee.

(3) A master trustee may delegate administration, record keeping, custody, investment or management functions that a prudent trustee of comparable skills could properly delegate under

the circumstances. The master trustee may not delegate, and shall exercise reasonable care, skill and caution in: (a) Selecting an agent; (b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; (c) Periodically reviewing the agent's actions to monitor and ensure the agent's performance and compliance with the terms of the delegation; and (d) Ensuring that all trust funds received are from a certified provider by a sales contract, including, but not limited to ensuring that all contracts are accounted for and ensuring certification of providers from whom they accept trust funds.

(4) A master trustee shall invest and manage trust assets as a prudent investor would. A master trustee that complies with ORS 130.755 satisfies this requirement.

(5) In investing and managing trust assets, regardless of whether those functions have been delegated, a master trustee may only incur fees and expenses that are appropriate and reasonable in relation to the assets, the purposes of the trust and the skills of the master trustee, not to exceed the maximum specified in ORS 97.943.

Stat. Auth.: ORS 97.926 & 97.935 Stats. Implemented: ORS 97.935 Hist.: FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 142010, f. 12-30-10, cert. ef. 1-1-11 Certified Providers 441-930-0210 Application for Certification (1) Each entity desiring to obtain a certification shall apply by submitting a written application with the director.

(2) An application must contain the following on or with a form prescribed by the director: (a) A list of all officers, directors, and owners of the business; (b) Information concerning the applicant's identity and business address(es);

(c) If the applicant is an individual or sole proprietorship, the applicant's social security number.

Provision of this number is mandatory and failure to provide the applicant's social security number shall be considered grounds for denying certification to the applicant. (d) The business, professional or work history of all persons identified in subsection (2)(a) of this rule; (e) Proof that the entity is legally qualified to conduct business in this state, having made the appropriate filings with the Secretary of State; (f) The master trustee and depository(ies) the applicant intends to use for funds received from the sale of the prearrangement plans; (g) For certified providers who place trust funds in a depository and will not be using a master trustee for long-term trust investment, financial statements including: (A) A copy of the applicant's most recent audited financial statement, including balance sheet, statement of income or loss, statement of changes in shareholder equity and statement of changes in financial position. All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles; and (B) If the audited financial statement is more than six months old, an internally prepared statement for the most recent month; (h) A list of prearrangement plans to which the applicant was a party at the date of application; and (i) A certification fee as set in OAR 441-930-0270.

(3) The director may conduct a background check of any officer, director, or owner applying for certification. The background check may include information solicited from Oregon State Police.

(4) Authority for operation as a certified provider is continuing and remains in effect until surrendered by the provider or revoked or suspended by the director.

Stat. Auth.: ORS 97.926, 97.933, & 97.948 Stats. Implemented: ORS 97.933 & 97.948 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; DOC 2-2002(Temp) f. & cert. ef. 2-12-02 thru 8-1-02; DO 3-2002, f. & cert. ef. 5-23-02; Renumbered from 440-300-0210 ; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 2-2006, f. & cert. ef. 2-2206; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0220 Renewal Procedure Submission of the annual report pursuant to OAR 441-930-0250 and the fees pursuant to 441930-0270 shall constitute renewal of the application for certification.

Stat. Auth.: ORS 97.926 & 97.933 Stats. Implemented: ORS 97.933 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0220 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0230 Material Changes, Notice of Civil and Criminal Actions A certified provider must provide information to the director within 30 days of a material change to any information contained in the original application or any documents submitted with or as a part of the application, including: (1) Bankruptcy; (2) Civil or criminal actions described on the application; (3) Disciplinary disclosure answers on the application; (4) Change in additional affiliated business entity name; (5) Change in control or ownership; (6) Change in form of organization; (7) Change of address for a master trustee; (8) Change in scope of business; (9) Change in any depository used by the certified provider; or (10) Change in the master trustee being used by the certified provider.

Stat. Auth.: ORS 97.926 & 97.933 Stats. Implemented: ORS 97.933

Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0230 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0240 When Application Deemed Abandoned (1) For purposes of this rule, the term "application" includes all documents, information and fees prescribed for a certified provider as set forth in ORS 97.923 to 97.949, OAR 441-9300030, 441-930-0210 and 441-930-0270.

(2) An application shall be deemed deficient when: (a) Insufficient fees have been paid and the director has notified the applicant that fees are insufficient; (b) Documents required to be submitted to the director by OAR 441-930-0210 or 441-930-0020 have not been submitted by the applicant; or (c) Information requested by the director has not been submitted by the applicant.

(3) An application shall be deemed abandoned if: (a) The application has been on file for a minimum of 60 days; (b) The application is deficient; and (c) The applicant has failed to respond within 30 days to the director's written notice of warning of abandonment.

(4) An applicant whose application has been abandoned may reapply by submitting a new application, including fees.

Stat. Auth.: ORS 97.926 & 97.933 Stats. Implemented: ORS 97.933 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0240 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0250 Annual Report

Each certified provider is responsible for and shall file an annual report with the director by April 1 of each year on forms provided by the director. The report shall cover the preceding calendar year and shall include: (1) The actual value at of all trusted funds at the beginning and end of the calendar year; (2) Deposits and withdrawals from trusted funds; (3) Income earned and fees paid on trust accounts; (4) Withdrawals from principal of the trust account; (5) Expenses withdrawn from trust account income for master trustee, accounting, record keeping and administration, depository and investment fees; (6) Taxes paid for the benefit of beneficiaries; (7) Gains and losses of trusted funds; (8) For certified providers who have placed trust funds with a depository, a copy of their most recent audited annual financial statement, including a balance sheet, statement of income or loss, statement of changes in shareholder equity and statement of changes in financial position.

All financial statements must be prepared by an independent certified public accountant in accordance with generally accepted accounting principles; and (9) An inventory of the details of the merchandise specified in ORS 97.933 from a certified provider that has sold and delivered funeral merchandise, cemetery merchandise, or a combination,.

Stat. Auth.: ORS 97.926 & 97.933 Stats. Implemented: ORS 97.933 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; DOC 2-2002(Temp) f. & cert. ef. 2-12-02 thru 8-1-02; DO 3-2002, f. & cert. ef. 5-23-02; Renumbered from 440-300-0250 ; FCS 3-2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-108; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0255 Reporting by Limited Operations Certified Provider A limited operations certified provider must report the following activities to the director within 15 days of the occurrence:

(1) Transfer of any contract to another certified provider; or (2) Sale of any new prearrangement or preconstruction contract.

Stat. Auth.: ORS 97.926 Stats. Implemented: ORS 97.933 Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0260 Examination of Certified Providers (1) Each provider that is or should be certified is subject to an examination by the director. The director may conduct an examination of the condition and resources, including a review of the sales contracts used by the certified provider, to determine whether the provider is complying with requirements of ORS 97.923 to 97.949, the laws of this state and the rules of the director.

(2) A provider shall pay to the director all fees and costs of an examination pursuant to the provisions of OAR 441-930-0270.

(3) Upon the motion of the director or upon receipt of a complaint by a customer of the provider, the director may examine the provider with respect to any violation. In lieu of an annual on-site examination, the director may accept a report prepared by an independent accounting firm. Reports so accepted are considered for all purposes as an official report of the director.

(4) The director may examine a record relating to a prearrangement plan at any place and in any manner the director considers necessary to protect the interests of the purchasers or beneficiaries.

(5) Certified providers who maintain books and records outside the state of Oregon may, at the discretion of the director, produce the records in Oregon for examination.

(6) Upon completion of an examination conducted by the director shall issue a written report to the certified provider indicating the examination procedures applied and the examination findings.

Stat. Auth.: ORS 97.926, 97.933, & 97.947 Stats. Implemented: ORS 97.947 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0260 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11

441-930-0267 Irrevocable Prearrangement Sales Contracts (1) Certified providers may only issue an irrevocable prearrangement sales contract in limited circumstances. The certified provider must receive proof from the purchaser or beneficiary that the beneficiary of the trust is: (a) Currently receiving public assistance; or (b) Has filed the necessary papers and started the formal process to receive benefits.

(2) An irrevocable trust may not be cancelled, changed, or revised to become any other type of preneed funding mechanism and may not be distributed for any purpose other than the death of the beneficiary.

(3) A revocable contract may be converted to an irrevocable contract upon agreement of all parties to reflect a change of circumstances of the beneficiary of the sales contract.

Stat. Auth.: ORS 97.926 Stats. Implemented: ORS 97.939 & 97.943 Hist.: FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 Certified Providers and Registered Master Trustees 441-930-0270 Fees Assessed to Certified Providers and Registered Master Trustees The director shall annually assess the following fees for each registered master trustee, certified provider, or applicant: (1) Certification Fee — $450 per certified provider. Each location is a separate entity for purposed of this fee.

(2) Registration Fee — $450 per master trustee.

(3) Limited Operations Fee — $150.

(4) Exam Fees — $75 per hour for each examiner, plus costs of an examination.

(5) If the books and records are located outside Oregon, the certified provider or master trustee must pay travel and per diem expenses.

Stat. Auth.: ORS 97.926, 97.933 & 97.935 Stats. Implemented: ORS 97.933 & 97.935 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0270 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 7-2004, f. 12-14-04, cert. ef. 1-1-05; FCS 3-2005, f. & cert. ef.

9-6-05; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 8-2008, f. & cert. ef. 8-28-08; FCS 14-2010, f.

12-30-10, cert. ef. 1-1-11 441-930-0290 Unprofessional Conduct An entity engaging in the following conduct is subject to probation, suspension, revocation, or denial of a certification or registration and assessment of a civil penalty pursuant to ORS 97.948 and OAR 441-930-0310: (1) Furnishing false or misleading information to the director in connection with: (a) Obtaining, renewing, reinstating, or maintaining certification or registration; (b) The filing of an annual report; or (c) An investigation; (2) Failing to furnish accurate and understandable price information to consumers; (3) Employing any unconscionable tactic in connection with the offer or sale of a prearrangement plan; (4) Failing to make and verify trust deposits in the amounts and within the times specified in ORS 97.941; (5) Withdrawing principal or income of a trust account in excess of what is permitted pursuant to ORS 97.943; (6) Failing to comply with the annual reporting requirements as required by ORS 97.933 or these rules; (7) Failing to provide the goods and services agreed to in a sales contract; (8) Using trust funds for non-trust purposes; (9) Failing to release trust funds to the rightful payee within 30 days of the date of request for release; or

(10) Failing to comply with any other provision of ORS 97.923 to 97.949, or these rules.

Stat. Auth.: ORS 97.926, 97.933, & 97.935 Stats. Implemented: ORS 97.933, 97.935, 97.941, & 97.948 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0290 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0300 Notice of Complaint (1) Each certified provider and each master trustee who has filed a complaint against any of its partners, officers, or directors, or, associated persons located in Oregon, with any law enforcement agency, any other regulatory agency with jurisdiction over prearrangement plans, or any bonding company regarding any loss arising from alleged acts of such person, shall send a copy of the complaint to the director within ten calendar days following its filing with the other agency or bonding company.

(2) The certified provider or master trustee shall notify the director within ten calendar days of learning of any action initiated by a law enforcement agency or regulatory agency against any of its partners, officers, or directors, or associated persons located in Oregon on the basis of something other than a complaint from the certified provider or master trustee.

(3) The certified provider or master trustee shall file a copy of any finding, censure, fine, suspension, or expulsion made as a result of an action by any law enforcement agency or other regulatory agency with the director within ten calendar days following receipt of the document.

Stat. Auth.: ORS 97.926 Stats. Implemented: ORS 97.933 & 97.935 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0300 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0310 Revocation, Suspension and Denial of Certificate or Registration The director may impose a civil penalty or probation, or revoke, suspend, or deny a certification of a certified provider or a registration of a master trustee when one or more of the following conditions exist:

(1) The certified provider's license under ORS 692.160 expires or is suspended or revoked by the State Mortuary and Cemetery Board; (2) The certified provider or master trustee fails to submit an annual report required by ORS 97.933; (3) The certified provider or master trustee fails to submit the certification or registration fee required by OAR 441-930-0270; (4) The certified provider or master trustee fails to maintain or denies the director access to the financial records and supporting documents necessary to examine their annual report; (5) The certified provider or master trustee has filed a materially false or misleading report with the director; (6) The certified provider fails to deliver or deposit prearrangement plan receipts to the master trustee or depository within five business days as required by ORS 97.941; (7) The certified provider or master trustee fails to account to interested persons for monies received; (8) The certified provider or master trustee has willfully or repeatedly violated or failed to comply with any provision of ORS 97.923 to 97.949, or OAR 441-930-0030 through 441-9300360; (9) The certified provider or master trustee is permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the business of a certified provider or master trustee, respectively; (10) The certified provider or master trustee is the subject of disciplinary action by another state or government agency provided the activity subject to discipline would constitute a violation of Oregon law or administrative rules; (11) The director finds that the certified provider, master trustee, or an applicant for certification or for registration has been convicted of a felony or a misdemeanor that involved dishonesty or fraud, in this state or any other state; (12) The director finds that an administrative agency, in this state or any other state, has issued a final order against the certified provider, master trustee, or an applicant for certification or for registration;

(13) The director finds that the certified provider, master trustee, or an applicant for certification or for registration has an outstanding judgment by a court, in this state or any other state; or (14) The director finds that the applicant or an officer, director, or owner of the applicant does not possess the financial and business experience required by these rules.

Stat. Auth.: ORS 97.926, 97.933 & 97.935 Stats. Implemented: ORS 97.948 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0310 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0320 Notice Requirements (1) The director shall provide written notice to the certified provider, master trustee, or applicant and to the State Mortuary and Cemetery Board of the director's intent to impose discipline pursuant to ORS 97.936, 97.948, or to deny an application.

(2) The director shall provide written notice of the Director's Final Order to impose discipline pursuant to ORS 97.936, 97.948, or to deny an application from: (a) A certified provider or certified provider applicant that sells or is responsible for administering a prearrangement or preconstruction plan trust accounts; or (b) A master trustee or master trustee applicant, holding trust funds from a certified provider (3) This notice shall state: (a) The reasons for the action; (b) The effective date of the action; and (c) The right to request a hearing under ORS Chapter 183.

Stat. Auth.: ORS 97.933 & 97.935 Stats. Implemented: ORS 97.936 & 97.948 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0320 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 5-2007, f. 10-11-07, cert. ef. 1-1-08; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 441-930-0330

Records to be Retained (1) Each certified provider and master trustee shall maintain records to document the balances and transactions included in its annual report filed pursuant to OAR 441-930- 0068 and 441930-0250 and shall retain these records for examination by the director. Each certified provider and master trustee shall make, keep and preserve the following books, accounts and other records for a period of three years after funds from all trust have been distributed, at need or upon cancellation of the contract. The records required to be maintained include, but are not limited to: (a) Work papers documenting preparation of the annual report; (b) General ledger or subsidiary ledger account records relating to prearrangement plans; (c) Receipts register; (d) Sales registers that show the delivered merchandise and/or services provided in the appropriate trust agreement file, including the name and date of birth of the beneficiary and a description of the merchandise; (e) Work papers documenting distribution of interest income to individual trusts in a common trust account; (f) Prearrangement or preconstruction contract files, trust agreement files, and other supporting documentation related to prearrangement transactions. Every contract sold or to be administered by the certified provider must be accounted for and retained, even if they were voided or not issued; (g) Bank statements; and (h) Statements from other financial institutions.

(2) Books, accounts, and other records required to be maintained under section (1) of this rule may be maintained: (a) In a photographic, electronic, and other similar form; or (b) At a location in Oregon, unless specifically authorized by the director.

Stat. Auth.: ORS 97.926. 97.933 & 97.935 Stats. Implemented: ORS 97.947 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from

440-300-0330

; FCS 3-

2004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 Funeral and Cemetery Consumer Protection Trust Fund 441-930-0350 Funeral and Cemetery Consumer Protection Trust Fund (1) The director shall order restitution from the Funeral and Cemetery Consumer Protection Trust Fund when the following conditions are met: (a) A claim for restitution is submitted to the director on forms supplied by the director accompanied by: (b) A copy of the prearrangement or preconstruction contract; (c) Copies of canceled checks or payment receipts demonstrating payment; (d) Correspondence with the provider concerning attempts to obtain repayment; and (e) Any other information the claimant believes may be helpful to document the claim.

(2) The director will review the claim form and accompanying documentation to determine if a loss was incurred by the claimant on a prearrangement or preconstruction sales contract.

(3) Sufficient funds must be available in the Funeral and Cemetery Consumer Protection Trust Fund to pay the claim.

(4) The director shall provide written notice of its intent to order restitution or not to order restitution to the maker of the claim and to the person or entity that is the subject of the claim.

Stat. Auth.: ORS 97.926 & 97.945 Stats. Implemented: ORS 97.945 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0350 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 Endowment Care Cemeteries 441-930-0360 Surety Bond Requirements for Endowment Care Cemeteries

(1) If a surety bond is revoked, or otherwise terminated, the endowment care cemetery must immediately file a replacement bond.

Failure to send the notice at least 30 days in advance will not preclude the endowment care cemetery from being subject to the provisions of ORS 97.923 to 97.949 and 692.180.

(2) An endowment care cemetery may cancel the surety bond or letter of credit upon 30 days advance notice to the director of completion of the covered construction of all crypts and niches or burial vaults or markers that were part of the development.

Stat. Auth.: ORS 97.926 Stats. Implemented: ORS 97.929 Hist.: DO 1-2002, f. & cert. ef. 1-10-02; Renumbered from 440-300-0360 ; FCS 32004, f. & cert. ef. 9-30-04; FCS 2-2006, f. & cert. ef. 2-22-06; FCS 14-2010, f. 12-30-10, cert. ef. 1-1-11 Chapter 65 — Nonprofit Corporations 2009 EDITION

NONPROFIT CORPORATIONS CORPORATIONS AND PARTNERSHIPS GENERAL PROVISIONS (Definitions) 65.001

Definitions

(Filing Documents) 65.004

Filing requirements

65.007

Filing, service, copying and certification fees

65.011

Effective time and date of document

65.014

Correcting filed document

65.016

Forms; rules

65.017

Filing duty of Secretary of State

65.021

Appeal from Secretary of State’s refusal to file document

65.024

Evidentiary effect of certified copy of filed document or secretary’s certificate

65.027

Certificate of existence or authorization

(Secretary of State) 65.031

Powers

(Notice) 65.034

Notice

(Private Foundations) 65.036

Private foundations

(Judicial Relief) 65.038

Judicial relief

(Attorney General) 65.040

Notice to Attorney General; effect of failure to notify

(Religious Corporations) 65.042

Religious corporations; constitutional protections

INCORPORATION 65.044

Incorporators

65.047

Articles of incorporation

65.051

Incorporation

65.054

Liability for preincorporation transactions

65.057

Organization of corporation

65.061

Bylaws

65.064

Emergency bylaws and powers

65.067

Corporation sole

PURPOSES AND POWERS 65.074

Purposes

65.077

General powers

65.081

Emergency powers

65.084

Challenge of corporate authority; remedy

NAME 65.094

Corporate name

65.097

Reserved name

65.101

Registered name

OFFICE AND AGENT 65.111

Registered office and registered agent

65.114

Change of registered office or registered agent

65.117

Resignation of registered agent

65.121

Service on the corporation

MEMBERS AND MEMBERSHIPS (Admission of Members) 65.131

Admission

65.134

Consideration

65.137

No requirement for members

(Members’ Rights and Obligations) 65.144

Differences in rights and obligations of members

65.147

Transfers

65.151

Member’s liability to third parties

65.154

Member’s liability for dues, assessments and fees

65.157

Creditor’s action against member

(Resignation and Termination) 65.164

Resignation

65.167

Termination, expulsion or suspension

65.171

Acquiring memberships

(Derivative Suits) 65.174

Derivative suits

(Delegates) 65.177

Delegates

MEMBERSHIP MEETINGS AND VOTING (Meetings and Action Without Meetings) 65.201

Annual and regular meetings

65.204

Special meeting

65.207

Court-ordered meeting; attorney fees

65.211

Action without meeting

65.214

Notice of meeting

65.217

Waiver of notice

65.221

Record date

65.222

Action by written ballot

(Voting) 65.224

Members’ list for meeting; attorney fees

65.227

Voting entitlement of members

65.231

Proxies

65.234

Adjournment

65.237

Corporation’s acceptance of votes

65.241

Quorum requirements

65.244

Voting requirements

65.247

Cumulative voting for directors

65.251

Other methods of electing directors

(Voting Agreements) 65.254

Voting agreements

DIRECTORS AND OFFICERS (Board of Directors) 65.301

Requirement for and duties of board

65.304

Qualifications of directors

65.307

Number of directors

65.311

Election, designation and appointment of directors

65.314

Terms of directors generally

65.317

Staggered terms for directors

65.321

Resignation of directors

65.324

Removal of directors elected by members or directors

65.327

Removal of directors by judicial proceeding

65.331

Removal of designated or appointed directors

65.334

Vacancy on board

65.335

Compensation of directors

(Meetings and Action of Board) 65.337

Regular and special meetings

65.341

Action without meeting

65.344

Call and notice of meetings

65.347

Waiver of notice

65.351

Quorum and voting

65.354

Committees

(Standards of Conduct) 65.357

General standards for directors

65.361

Director conflict of interest

65.364

Loans to or guarantees for directors and officers

65.367

Liability for unlawful distributions

65.369

Liability of qualified directors

(Officers) 65.371

Required officers

65.374

Duties and authority of officers

65.377

Standards of conduct for officers

65.381

Resignation and removal of officers

65.384

Contract rights of officers

(Indemnification) 65.387

Definitions for ORS 65.387 to 65.414

65.391

Authority to indemnify

65.394

Mandatory indemnification

65.397

Advance for expenses

65.401

Court-ordered indemnification

65.404

Determination and authorization of indemnification

65.407

Indemnification of officers, employees and agents

65.411

Insurance

65.414

Application of ORS 65.387 to 65.411

AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS (Amendment of Articles of Incorporation) 65.431

Authority

65.434

Amendment by directors

65.437

Amendment by board of directors and members

65.441

Class voting by members on amendments

65.447

Articles of amendment

65.451

Restated articles of incorporation

65.454

Amendment pursuant to court order

65.457

Effect of amendment and restatement

(Amendment of Bylaws) 65.461

Amendment by directors

65.464

Amendment by directors and members

65.467

Approval by third persons

MERGER 65.481

Approval of plan of merger

65.484

Limitations on mergers by public benefit or religious corporations

65.487

Action on plan by board, members and third persons

65.491

Articles of merger

65.494

Effect of merger

65.497

Merger with foreign corporation

65.501

Effect of merger on bequests, devises and gifts

65.504

Merger with business corporation

SALE OF ASSETS 65.531

Sale of assets in regular course of activities; mortgage of assets

65.534

Sale of assets other than in regular course of activities

DISTRIBUTIONS 65.551

Prohibited distributions

65.554

Authorized distributions

DISSOLUTION (Voluntary Dissolution) 65.621

Dissolution by incorporators

65.624

Dissolution by directors, members and third persons

65.627

Notices to Attorney General

65.631

Articles of dissolution

65.634

Revocation of dissolution

65.637

Effect of dissolution

65.641

Known claims against dissolved corporation

65.644

Unknown claims against dissolved corporation

(Administrative Dissolution) 65.647

Grounds for administrative dissolution

65.651

Procedure for and effect of administrative dissolution

65.654

Reinstatement following administrative dissolution

65.657

Appeal from denial of reinstatement

(Judicial Dissolution) 65.661

Grounds for judicial dissolution

65.664

Procedure for judicial dissolution

65.667

Receivership or custodianship

65.671

Judgment of dissolution

(Disposition of Assets) 65.674

Deposit with Department of State Lands

FOREIGN CORPORATIONS (Authority to Transact Business) 65.701

Authority to transact business required

65.704

Consequences of transacting business without authority

65.707

Application for authority to transact business

65.711

Amendment to application for authority

65.714

Effect of authority

65.717

Corporate name of foreign corporation

65.721

Registered office and registered agent of foreign corporation

65.724

Change of registered office or registered agent of foreign corporation

65.727

Resignation of registered agent of foreign corporation

65.731

Service on foreign corporation

(Withdrawal) 65.734

Withdrawal of foreign corporation

(Administrative Revocation of Authority) 65.737

Grounds for administrative revocation

65.741

Procedure for and effect of administrative revocation

65.744

Appeal from administrative revocation

65.747

Reinstatement following administrative revocation

(Judicial Revocation of Authority) 65.751

Grounds for judicial revocation

65.754

Procedure for judicial revocation of authority

65.757

Judgment of revocation

RECORDS AND REPORTS (Records) 65.771

Corporate records

65.774

Inspection of records by members

65.777

Scope of inspection right

65.781

Court-ordered inspection; attorney fees

65.782

Limitations on use of membership list

(Reports) 65.784

Report to members and other persons of indemnification

65.787

Annual report

TRANSFER OF ASSETS OF HOSPITAL

65.800

Definitions for ORS 65.803 to 65.815

65.803

Hospitals operated by nonprofit corporation; transfer of assets; approval by Attorney General

65.805

Notice to Attorney General; fee; trade secrets

65.807

Public hearing; waiver; notice

65.809

Time for Attorney General decision; nature of decision; appeal

65.811

Disapproval of proposed transfer of assets

65.813

Consultants; cost; rules; fee

65.815

Rules

CEMETERIES AND CREMATORIES 65.855

Lands of cemetery or crematory corporation; exemption from execution, taxation and condemnation

65.860

Revenues; restrictions on uses of revenue

65.865

Selling land unsuited for burials

65.870

Burial lots or space; use, exemption from taxation, execution and liens; lien for purchase price of gravestone

65.875

Recording plan; power to improve and regulate grounds

MISCELLANEOUS 65.951

Short title

65.954

Reservation of power to amend or repeal

65.957

Application to existing domestic corporations; exemptions

65.959

Application to corporations relating to condominiums, planned communities or timeshare estates

65.961

Application to qualified foreign corporations

65.964

Saving provisions

65.967

Severability

PENALTY 65.990

Penalty for signing false document

GENERAL PROVISIONS (Definitions) 65.001 Definitions. As used in this chapter, unless otherwise specifically provided: (1) “Anniversary” means that day each year exactly one or more years after the date of filing by the Office of the Secretary of State of the articles of incorporation in the case of a domestic corporation or the date of filing by the Office of the Secretary of State of an application for authority to transact business in the case of a foreign corporation. An event that would otherwise cause an anniversary to fall on February 29 shall be deemed to have occurred on February 28.

(2) “Approved by the members” or “approval by the members” means approved or ratified by the members entitled to vote on the issue through either: (a) The affirmative vote of a majority of the votes of such members represented and voting at a duly held meeting at which a quorum is present or the affirmative vote of such greater proportion including the votes of any required proportion of the members of any class as the articles, bylaws or this chapter may provide for specified types of member action; or (b) A written ballot or written consent in conformity with this chapter.

(3) “Articles of incorporation” or “articles” include amended and restated articles of incorporation and articles of merger, and corrections thereto.

(4) “Board” or “board of directors” means the individual or individuals vested with overall management of the affairs of the domestic or foreign corporation, irrespective of the name by which the individual or individuals are designated, except that no individual or group of individuals are the board of directors because of powers delegated to that individual or group pursuant to ORS 65.301.

(5) “Bylaws” means the code or codes of rules, other than the articles adopted pursuant to this chapter or the laws governing a foreign corporation, for the regulation or management of the affairs of the domestic or foreign corporation, irrespective of the name or names by which such rules are designated.

(6) “Class” means a group of memberships that have the same rights with respect to voting, dissolution, redemption and transfer. For the purpose of this section, rights are the same if the rights are determined by a formula applied uniformly.

(7) “Contact address” means a mailing address at which a person affiliated with the organization will receive and transmit to the organization notices intended for the foreign or domestic corporation either when sending such notices to the registered agent is not practical or when a duplicate notice is desirable. The contact address may be the principal place of business, if any, or the business or residence address of any person associated with the corporation or foreign corporation who has consented to serve, but shall not be the address of the registered agent.

(8) “Corporation” or “domestic corporation” means a nonprofit corporation that is not a foreign corporation, and that is incorporated under or subject to the provisions of this chapter.

(9) “Delegates” means those persons elected or appointed to vote in a representative assembly for the election of a director or directors or on other matters.

(10) “Deliver” includes mail.

(11) “Directors” means individuals designated in the articles or bylaws or elected by the incorporators to act as members of the board, and their successors.

(12) “Distribution” means the payment of a dividend or any part of the income or profit of a corporation to the corporation’s members, directors or officers, other than payment of value for property received or services performed or payment of benefits in furtherance of the corporation’s purposes.

(13) “Domestic business corporation” means a for profit corporation incorporated under ORS chapter 60.

(14) “Domestic limited liability company” means an entity that is an unincorporated association having one or more members and that is organized under ORS chapter 63.

(15) “Domestic professional corporation” means a corporation organized under ORS chapter 58 for the purpose of rendering professional services and for the purposes provided under ORS chapter 58.

(16) “Effective date of notice” has the meaning given that term in ORS 65.034.

(17) “Employee” includes an officer or director who is employed by the corporation with compensation for services beyond those encompassed by board membership.

(18) “Entity” includes a corporation, foreign corporation, business corporation and foreign business corporation, profit and nonprofit unincorporated association, corporation sole, business trust, partnership, two or more persons having a joint or common economic interest, any state, the United States, a federally recognized Native American or American Indian tribal government and any foreign government.

(19) “File,” “filed” or “filing” means reviewed, accepted and entered in the Office of the Secretary of State.

(20) “Foreign business corporation” means a for profit corporation incorporated under laws other than the laws of this state.

(21) “Foreign corporation” means a corporation organized under laws other than the laws of this state that would be a nonprofit corporation if formed under the laws of this state.

(22) “Foreign limited liability company” means an entity that is an unincorporated association organized under laws other than the laws of this state and that is organized under a statute under which an association may be formed that affords to each of the entity’s members limited liability with respect to liabilities of the entity.

(23) “Foreign professional corporation” means a professional corporation organized under laws other than the laws of this state.

(24) “Governmental subdivision” includes an authority, county, district and municipality.

(25) “Includes” denotes a partial definition.

(26) “Individual” means a natural person and includes the guardian of an incompetent individual.

(27) “Means” denotes an exhaustive definition.

(28)(a) “Member” means a person or persons entitled, pursuant to a domestic or foreign corporation’s articles or bylaws, without regard to what the person is called in the articles or bylaws, to vote on more than one occasion for the election of a director or directors. (b) A person is not a member by virtue of any of the following rights the person has: (A) As a delegate; (B) To designate or appoint a director or directors; (C) As a director; or (D) As a holder of an evidence of indebtedness issued or to be issued by the corporation. (c) Notwithstanding the provisions of paragraph (a) of this subsection, a person is not a member if the person’s membership rights have been eliminated as provided in ORS 65.164 or 65.167.

(29) “Membership” refers to the rights and obligations a member has under this chapter.

(30) “Mutual benefit corporation” means a domestic corporation that is formed as a mutual benefit corporation pursuant to ORS 65.044 to 65.067, is designated a mutual benefit corporation by a statute or does not come within the definition of public benefit or religious corporation.

(31) “Nonprofit corporation” means mutual benefit corporations, public benefit corporations and religious corporations.

(32) “Notice” has the meaning given that term in ORS 65.034.

(33) “Office” when used to refer to the administrative unit directed by the Secretary of State, means the Office of the Secretary of State.

(34) “Person” includes any individual or entity.

(35) “Principal office” means the place in or out of this state so designated in the most recent annual report filed pursuant to ORS 65.787 or, if no annual report is on file, as designated in the articles of incorporation or the application for authority to transact business in this state, that is the place where the principal executive offices of a domestic or foreign corporation are located or, if none, the contact address.

(36) “Proceeding” includes civil, criminal, administrative and investigatory action.

(37) “Public benefit corporation” means a domestic corporation that: (a) Is formed as a public benefit corporation pursuant to ORS 65.044 to 65.067, is designated as a public benefit corporation by a statute, is recognized as tax exempt under section 501 (c) (3) of the Internal Revenue Code of 1986 or is otherwise organized for a public or charitable purpose; (b) Is restricted so that on dissolution the corporation must distribute the corporation’s assets to an organization organized for a public or charitable purpose, a religious corporation, the United States, a state or a person that is recognized as exempt under section 501 (c) (3) of the Internal Revenue Code of 1986; and (c) Does not come within the definition of “religious corporation.”

(38) “Record date” means the date established under ORS 65.131 to 65.177 or 65.201 to 65.254 on which a corporation determines the identity of the corporation’s members and their membership rights for the purposes of this chapter. The determinations shall be made as of the time of close of transactions on the record date unless another time for doing so is specified at the time the record date is fixed.

(39) “Religious corporation” means a domestic corporation that is formed as a religious corporation pursuant to ORS 65.044 to 65.067, is designated a religious corporation by a statute or is organized primarily or exclusively for religious purposes.

(40) “Secretary,” when used in the context of a corporate official, means the corporate officer to whom the board of directors has delegated responsibility under ORS 65.371 for preparing the minutes of the directors’ and members’ meetings and for authenticating the records of the corporation.

(41) “State” when referring to a part of the United States, includes a state, commonwealth, territory and insular possession of the United States and the agencies and governmental subdivisions of the state, commonwealth, territory or insular possession.

(42) “Uncompensated officer” means an individual who serves in an office without compensation for personal service. For purposes of this subsection, payment solely for actual expenses in performing duties of the officer or a stipend that is paid only to compensate the average expenses the individual incurs over the course of a year is not compensation.

(43) “United States” includes district, authority, bureau, commission, department and any other agency of the United States.

(44) “Vote” includes authorization by written ballot and written consent, where permitted.

(45) “Voting power” means the total number of votes entitled to be cast on the issue at the time the determination of voting power is made, excluding a vote that is contingent upon the happening of a condition or event that has not occurred at the time. When a class is entitled to vote as a class for directors, the determination of voting power of the class shall be based on the percentage of the number of directors the class is entitled to elect out of the total number of authorized directors. [1989 c.1010 §14; 1991 c.231 §1; 2001 c.315 §35; 2005 c.107 §4; 2009 c.14 §4; 2009 c.294 §7]

(Filing Documents) 65.004 Filing requirements. (1) A document must satisfy the requirements of this section, except as any other provision of this chapter modifies these requirements, to be entitled to filing by the Secretary of State under authority of this chapter.

(2) The document must be one required or permitted to be filed in the Office of the Secretary of State.

(3) The document shall contain the information required by this chapter. It may contain other information as well.

(4) The document must be legible.

(5) The document must be written in the alphabet used to write the English language, but may include Arabic or Roman numerals and incidental punctuation. The certificate of existence required of foreign corporations need not be in English if accompanied by a reasonably authenticated English translation.

(6) The document must be executed: (a) By a fiduciary, receiver or trustee, if the corporation is in the hands of a receiver, trustee or other court-appointed fiduciary; (b) By an incorporator, if directors have not been selected or its execution is before the organizational meeting; (c) By the person specified in any section of this chapter that required the document be filed; or (d) By the chairperson of the board of directors of a domestic or foreign corporation, its president or otherwise by another of its officers.

(7) The document shall state beneath or opposite the signature the name of the person and the capacity in which the person signs. The document may, but is not required to, contain: (a) The corporate seal; (b) An attestation by the secretary or an assistant secretary; or (c) An acknowledgment, verification or proof.

(8) If the Secretary of State has prescribed a mandatory form for a document under ORS 65.016, the document must be in or on the prescribed form.

(9) The document must be delivered to the Office of the Secretary of State for filing and must be accompanied by the correct filing fee.

(10) A document is deemed filed or effective only as provided in ORS 56.080, 65.001, 65.011, 65.014 and 65.017. [Amended by 1999 c.486 §10] 65.007 Filing, service, copying and certification fees. The Secretary of State shall collect the fees described in ORS 56.140 for each document delivered for filing under this chapter and for process served on the secretary under this chapter. The secretary may collect the fees described in ORS 56.140 for copying any public record under this chapter, certifying the copy or certifying to other facts of record under this chapter. [1989 c.1010 §§5,5a; 1991 c.132 §5; 1999 c.652 §12] 65.011 Effective time and date of document. (1) Except as provided in subsection (2) of this section, ORS 56.080 and 65.014, a document accepted for filing after review is effective: (a) On the date it is filed by the Secretary of State; and (b) At the time, if any, specified in the document as its effective time or at 12:01 a.m. on that date if no effective time is specified.

(2) If a document specifies a delayed effective time and date, the document becomes effective at the time and date specified. If a document specifies a delayed effective date but no time, the document becomes

effective at 12:01 a.m. on that date. A delayed effective date for a document may not be later than the 90th day after the date it is filed. [1989 c.1010 §6] 65.014 Correcting filed document. (1) A domestic or foreign corporation may correct a document filed by the Secretary of State other than an annual report, if the document: (a) Contains an incorrect statement; or (b) Was defectively executed, attested, sealed, verified or acknowledged.

(2) Errors in annual reports may be corrected as provided in ORS 65.787.

(3) A domestic or foreign corporation seeking to correct a document shall deliver the articles of correction to the Office of the Secretary of State for filing. The articles shall include the following: (a) A description of the incorrect document, including its filing date or a copy of the document; (b) A description of the incorrect statement and the reason it is incorrect or a description of the manner in which the execution, attestation, seal, verification or acknowledgment is defective; and (c) A correction of the incorrect statement or defective execution, attestation, seal, verification or acknowledgment.

(4) Articles of correction are effective on the effective date of the document they correct except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, articles of correction are effective when filed by the Secretary of State.

(5) An incorrect document with a delayed effective date may also be corrected by withdrawal and new filing pursuant to the provisions of ORS 56.080. [1989 c.1010 §7] 65.016 Forms; rules. Upon request, the Secretary of State may furnish forms for documents required or permitted to be filed by this chapter. The Secretary of State may by rule require the use of the forms. [1989 c.1010 §4; 1995 c.215 §13] 65.017 Filing duty of Secretary of State. (1) If a document delivered to the Office of the Secretary of State for filing satisfies the requirements of ORS 65.004, the Secretary of State shall file it.

(2) The Secretary of State files a document by indicating thereon that it has been filed by the Secretary of State and the date of filing. The time of filing shall be deemed to be 12:01 a.m. on that date. After filing a document, except those referred to in ORS 65.114, 65.671, 65.674, 65.724 and 65.787, the Secretary of State shall return an acknowledgment of filing to the domestic or foreign corporation or its representative.

(3) If the Secretary of State refuses to file a document, the Secretary of State shall return it to the domestic or foreign corporation or its representative within 10 business days after the document was received by the Office of the Secretary of State, together with a brief written explanation of the reason or reasons for the refusal.

(4) The Secretary of State’s duty to file documents under this section is ministerial. The Secretary of State is not required to verify or inquire into the legality or truth of any matter included in any document delivered to the Office of the Secretary of State for filing. Except as provided elsewhere in this chapter, the Secretary of State’s filing or refusing to file a document does not: (a) Affect the validity or invalidity of the document in whole or in part except as provided in ORS 65.051; or (b) Relate to the correctness or incorrectness of information contained in the document.

(5) The Secretary of State’s refusal to file a document does not create a presumption that the document is invalid or that information contained in the document is incorrect. [1989 c.1010 §8; 1999 c.486 §11]

65.021 Appeal from Secretary of State’s refusal to file document. If the Secretary of State refuses to file a document delivered to the Office of Secretary of State for filing, the domestic or foreign corporation, in addition to any other legal remedy which may be available, shall have the right to appeal from such final order pursuant to the provisions of ORS 183.484. [1989 c.1010 §9] 65.024 Evidentiary effect of certified copy of filed document or secretary’s certificate. (1) A certificate bearing the Secretary of State’s signature, which may be in facsimile, and attached to a copy of a document is conclusive evidence that the original document or a facsimile thereof is on file with the Office of the Secretary of State.

(2) The following shall be received in all courts, public offices and official bodies of this state as prima facie evidence of the facts stated therein, unless a greater evidentiary effect is provided in ORS 65.027 and 65.051 or elsewhere in this chapter or it is shown that the document was thereafter corrected or withdrawn from the files of the Office of the Secretary of State: (a) All facts stated in certificates issued by the Office of the Secretary of State with respect to its business registry functions including a certificate of compliance or noncompliance of a document with filing requirements or other provisions of law administered by the Office of the Secretary of State, or a certificate as to the existence or nonexistence of facts which would appear from presence or absence of documents in the files of the Office of the Secretary of State; and (b) All facts stated in documents certified as filed by the Office of the Secretary of State, but only to the extent the specific items were required to be included in the document by this chapter or ORS chapter 61 (1987 Replacement Part). [1989 c.1010 §10] 65.027 Certificate of existence or authorization. (1) Anyone may apply to the Office of the Secretary of State to furnish a certificate of existence for a domestic corporation or a certificate of authorization for a foreign corporation.

(2) A certificate of existence or authorization, when issued, means that: (a) The domestic corporation’s corporate name or the foreign corporation’s corporate name is of active record in this state; (b) The domestic corporation is duly incorporated under the law of this state or the foreign corporation is authorized to transact business in this state; (c) All fees payable to the Secretary of State under this chapter have been paid, if nonpayment affects the existence or authorization of the domestic or foreign corporation; (d) An annual report if required by ORS 65.787 has been filed by the Secretary of State within the preceding 14 months; and (e) Articles of dissolution or an application for withdrawal have not been filed by the Secretary of State.

(3) A person may apply to the Secretary of State to issue a certificate covering any fact of record.

(4) Subject to any qualification stated in the certificate, a certificate of existence or authorization issued by the Secretary of State may be relied upon as conclusive evidence that the domestic or foreign corporation is in existence or is authorized to transact business in this state. [1989 c.1010 §11] (Secretary of State) 65.031 Powers. The Secretary of State has the power reasonably necessary to perform the duties required of the Office of the Secretary of State by this chapter. [1989 c.1010 §13] (Notice)

65.034 Notice. (1) Notice may be oral or written unless otherwise specified for a particular kind of notice.

(2) Notice may be communicated in person, by telephone, telegraph, teletype or other form of wire or wireless communication, or by mail or private carrier, including publication in a newsletter or similar document mailed to a member’s or director’s address. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where the meeting is to be held, or by radio, television or other form of public broadcast communication.

(3) Written notice by a domestic or foreign corporation to its member, if in a comprehensible form, is effective when mailed if it is mailed postpaid and is correctly addressed to the member’s address shown in the corporation’s current records of members.

(4) Oral notice is effective when communicated if communicated in a comprehensible manner.

(5) Except as provided in subsection (3) of this section, personal written notice, if in a comprehensible form, is effective at the earliest of the following: (a) When received; (b) Five days after its postmark, if mailed by United States mail correctly addressed and with first class postage affixed; (c) On the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; (d) Thirty days after its deposit in the United States mail if mailed correctly addressed and with other than first class, registered or certified postage affixed; or (e) The date specified by the articles of incorporation or bylaws with respect to notice to directors.

(6)(a) Written notice is correctly addressed to a member of a domestic or foreign corporation if addressed to the member’s address shown in the corporation’s current list of members. (b) A written notice or report delivered as part of a newsletter, magazine or other publication sent to members shall constitute a written notice or report if addressed or delivered to the member’s address shown in the corporation’s current list of members, or in the case of members who are residents of the same household and who have the same address in the corporation’s current list of members, if addressed or delivered to one of such members, at the address appearing on the current list of members. (c) Written notice is correctly addressed to a domestic or foreign corporation authorized to transact business in this state, other than in its capacity as a member, if addressed to its registered agent or, if none is of record, to its principal office shown in its most recent annual report or, if none, in the articles of incorporation or its application for a certificate of authority to do business.

(7) If ORS 65.214 or any other provision of this chapter prescribes different notice requirements for particular circumstances, those requirements govern. If articles or bylaws prescribe different notice requirements, not less stringent than the provisions of this section or other provisions of this chapter, those requirements govern. [1989 c.1010 §15] (Private Foundations) 65.036 Private foundations. Except where otherwise determined by a court of competent jurisdiction, a corporation which is a private foundation as defined in section 509 of the Internal Revenue Code of 1986 shall: (1) Distribute such amounts for each taxable year at such time and in such manner as not to subject the corporation to tax under section 4942 of the Internal Revenue Code of 1986;

(2) Not engage in any act of self-dealing as defined in section 4941(d) of the Internal Revenue Code of 1986; (3) Not retain any excess business holdings as defined in section 4943(c) of the Internal Revenue Code of 1986; (4) Not make any investments in such a manner as to subject the corporation to taxes on investments which jeopardize charitable purposes as provided in section 4944 of the Internal Revenue Code of 1986; and (5) Not make any taxable expenditures as defined in section 4945(d) of the Internal Revenue Code of 1986. [1989 c.1010 §16] (Judicial Relief) 65.038 Judicial relief. (1) If for any reason it is impractical or impossible for any corporation to call or conduct a meeting of its members, delegates or directors, or otherwise obtain their consent in the manner prescribed by its articles, bylaws or this chapter, then upon petition of a director, officer, delegate, member or the Attorney General, the circuit court for the State of Oregon for the county in which the principal office designated on the last filed annual report, articles or application for authority to transact business is located, or if none, within Oregon, Marion County, may order that such a meeting be called. The court may also order that a written ballot or other form of obtaining the vote of members, delegates or directors be authorized, in such a manner as the court finds fair and equitable under the circumstances.

(2) The court shall, in an order issued pursuant to this section, provide for a method of notice reasonably designed to give actual notice to all persons who would be entitled to notice of a meeting held pursuant to the articles, bylaws and this chapter, whether or not the method results in actual notice to all such persons or conforms to the notice requirements that would otherwise apply. In a proceeding under this section, the court may determine who are the members or directors.

(3) The order issued pursuant to this section may for good cause shown dispense with any requirement relating to the holding of or voting at meetings or obtaining votes, including any requirement that would otherwise be imposed by the articles, bylaws or this chapter as to quorum or as to the number or percentage of votes needed for approval of an act.

(4) Whenever practical, any order issued pursuant to this section shall limit the subject matter of meetings or other forms of consent judicially authorized to those items, including amendments to the articles or bylaws, the resolution of which will or may enable the corporation to continue managing its affairs without further resort to this section. An order under this section may also authorize the obtaining of whatever votes and approvals are necessary for the dissolution, merger or sale of assets.

(5) Any meeting or other method of obtaining the vote of members, delegates or directors conducted pursuant to an order issued under this section, and which complies with all the provisions of such order, is for all purposes a valid meeting or vote, as the case may be, and shall have the same force and effect as if it complied with every requirement imposed by the articles, bylaws and this chapter. [1989 c.1010 §17] (Attorney General) 65.040 Notice to Attorney General; effect of failure to notify. (1) The Attorney General shall be given notice of the commencement of any proceeding which ORS 65.038, 65.084, 65.207, 65.327, 65.661 or 65.751 or any other provision of this chapter authorize the Attorney General to bring but which has been commenced by another person.

(2) Whenever any provision of this chapter requires that notice be given to the Attorney General before or after commencing a proceeding or permits the Attorney General to commence a proceeding:

(a) If no proceeding has been commenced, the Attorney General may take appropriate action including, but not limited to, seeking injunctive relief; or (b) If a proceeding has been commenced by a person other than the Attorney General, the Attorney General, as of right, may intervene in such proceeding. [1989 c.1010 §18] (Religious Corporations) 65.042 Religious corporations; constitutional protections. If religious doctrine or practice governing the affairs of a religious corporation is inconsistent with the provisions of this chapter on the same subject, the religious doctrine or practice shall control to the extent required by the Constitution of the United States or the Constitution of this state, or both. [1989 c.1010 §19] INCORPORATION 65.044 Incorporators. One or more individuals 18 years of age or older, a domestic or foreign corporation, a partnership or an association may act as incorporators of a corporation by delivering articles of incorporation to the Secretary of State for filing. [1989 c.1010 §20] 65.047 Articles of incorporation. (1) The articles of incorporation formed pursuant to this chapter subsequent to October 3, 1989, shall set forth: (a) A corporate name for the corporation that satisfies the requirements of ORS 65.094; (b) One of the following statements or words of similar import: (A) This corporation is a public benefit corporation; (B) This corporation is a mutual benefit corporation; or (C) This corporation is a religious corporation; (c) The address, including street and number, of the corporation’s initial registered office and the name of its initial registered agent at that location; (d) The name and address of each incorporator; (e) An alternate corporate mailing address which shall be that of the principal office, as defined in ORS 65.001, to which notices, as required by this chapter, may be mailed until the principal office of the corporation has been designated by the corporation in its annual report; (f) Whether or not the corporation will have members as that term is defined in this chapter; and (g) Provisions regarding the distribution of assets on dissolution.

(2) The articles of incorporation may set forth: (a) The names and addresses of the initial directors; (b) Provisions regarding: (A) The purpose or purposes for which the corporation is organized; (B) Managing and regulating the affairs of the corporation; (C) Defining, limiting and regulating the powers of the corporation, its board of directors, and members or any class of members; and (D) The characteristics, qualifications, rights, limitations and obligations attaching to each or any class of members; (c) A provision eliminating or limiting the personal liability of a director or uncompensated officer to the corporation or its members for monetary damages for conduct as a director or officer, provided that no such provision shall eliminate or limit the liability of a director or officer for any act or omission occurring prior

to the date when such provision becomes effective, and such provision shall not eliminate or limit the liability of a director or officer for: (A) Any breach of the director’s or officer’s duty of loyalty to the corporation or its members; (B) Acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (C) Any unlawful distribution; (D) Any transaction from which the director or officer derived an improper personal benefit; and (E) Any act or omission in violation of ORS 65.361 to 65.367; and (d) Any provision that under this chapter is required or permitted to be set forth in the bylaws.

(3) The incorporator or incorporators must sign the articles and before including the name of any individual as a director shall state that they have obtained the consent of each director named to serve.

(4) The articles of incorporation need not set forth any of the corporate powers enumerated in this chapter but may restrict them in order to meet federal tax code requirements or other purposes. [1989 c.1010 §21] 65.051 Incorporation. (1) Unless a delayed effective date is specified, the corporate existence begins when the articles of incorporation are reviewed, accepted and filed by the Secretary of State.

(2) The Secretary of State’s filing of the articles of incorporation is conclusive proof that the incorporators satisfied all conditions precedent to incorporation applicable at the time of incorporation except as provided in ORS 56.080 or in a proceeding by the state to cancel or revoke the incorporation or involuntarily dissolve the corporation. [1989 c.1010 §22] 65.054 Liability for preincorporation transactions. All persons purporting to act as or on behalf of a corporation organized or subject to the authority of this chapter, knowing there was no incorporation under this chapter at the relevant time, may be held to be jointly and severally liable for all liabilities created while so acting if, under the circumstances, it is equitable to do so. [1989 c.1010 §23] 65.057 Organization of corporation. (1) After incorporation: (a) If initial directors are named in the articles of incorporation, the initial directors shall hold an organizational meeting at the call of a majority of the directors, with notice as provided in ORS 65.344, to complete the organization of the corporation by appointing officers, adopting bylaws and carrying on any other business brought before the meeting. (b) If initial directors are not named in the articles, the incorporator or incorporators shall hold an organizational meeting at the call of a majority of the incorporators with equivalent notice to that specified in ORS 65.344: (A) To complete the organization of the corporation and to elect directors, unless the organization is a corporation sole; or (B) To elect a board of directors which shall complete the organization of the corporation.

(2) Action required or permitted by this chapter to be taken by incorporators or directors at an organizational meeting may be taken without a meeting if the action taken is evidenced by one or more written consents describing the action taken and signed by each incorporator or director, in accordance with the procedures of ORS 65.341.

(3) An organizational meeting may be held in or out of this state. [1989 c.1010 §24] 65.061 Bylaws. (1) The incorporators or board of directors of a corporation, whichever completes the organization of the corporation at its organizational meeting, shall adopt initial bylaws for the corporation.

(2) The bylaws may contain any provision for managing and regulating the affairs of the corporation that is not inconsistent with law or the articles of incorporation. [1989 c.1010 §25] 65.064 Emergency bylaws and powers. (1) Unless the articles provide otherwise, the board of directors of a corporation may adopt, amend or repeal bylaws to be effective only in an emergency as defined in subsection (4) of this section. The emergency bylaws, which are subject to amendment or repeal by the members, may provide special procedures necessary for managing the corporation during the emergency, including: (a) Procedures for calling a meeting of the board of directors; (b) Quorum requirements for the meeting; and (c) Designation of additional or substitute directors.

(2) All provisions of the regular bylaws consistent with the emergency bylaws remain effective during the emergency. The emergency bylaws are not effective after the emergency ends.

(3) Corporate action taken in good faith in accordance with the emergency bylaws binds the corporation.

A corporate director, officer, employee or agent shall not be liable for deviation from normal procedures if the conduct was authorized by emergency bylaws adopted as provided in this section.

(4) An emergency exists for purposes of this section if a quorum of the corporation’s directors cannot readily be assembled because of some present or imminent catastrophic event. [1989 c.1010 §26] 65.067 Corporation sole. (1) Any individual may, in conformity with the constitution, canons, rules, regulations and disciplines of any church or religious denomination, form a corporation hereunder to be a corporation sole. Such corporation shall be a form of religious corporation and will differ from other such corporations organized hereunder only in that it shall have no board of directors, need not have officers and shall be managed by a single director who shall be the individual constituting the corporation and its incorporator or the successor of the incorporator.

(2) The name of such corporation shall be the same as the office within the church or religious denomination held by the incorporator, and shall be followed by the words “and successors, a corporation sole.”

(3) All of the provisions of ORS 65.044 to 65.067 shall apply to such corporation. If the corporation has no officers, the director may perform any act required by or permitted by an officer in the same manner and with the same effect as though such act were performed by one or more officers of the corporation. [1989 c.1010 §27] PURPOSES AND POWERS 65.074 Purposes. (1) Every corporation incorporated under this chapter has the purpose of engaging in any lawful activity unless a more limited purpose is set forth in the articles of incorporation.

(2) A corporation that is subject to regulation under another statute of this state may not be incorporated under this chapter if such organization is required to be organized under such other statute. [1989 c.1010 §28] 65.077 General powers. Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs, including, without limitation, power to: (1) Sue and be sued, complain and defend in its corporate name.

(2) Have a corporate seal, which may be altered at will, and to use it, or a facsimile of it, by impressing or affixing or reproducing it in any other manner.

(3) Make and amend bylaws not inconsistent with its articles of incorporation or with the laws of this state, for regulating and managing the affairs of the corporation.

(4) Purchase, take by gift, devise or bequest, receive, lease or otherwise acquire, and own, hold, improve, use and otherwise deal with, real or personal property or any interest in property, wherever located.

(5) Sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property.

(6) Purchase, receive, subscribe for or otherwise acquire, own, hold, vote, use, sell, mortgage, lend, pledge or otherwise dispose of and deal in or with shares or other interests in or obligations of any other entity.

(7) Make contracts and guarantees, incur liabilities, borrow money, issue notes, bonds and other obligations, and secure any of its obligations by mortgage or pledge of any of its property, franchises or income.

(8) Lend money, invest and reinvest its funds, and receive and hold real and personal property as security for repayment, except as limited by ORS 65.364.

(9) Be a promoter, partner, member, associate or manager of any partnership, joint venture, trust or other entity.

(10) Conduct its activities, locate offices and exercise the powers granted by this chapter within or without this state.

(11) Elect or appoint directors, officers, employees, and agents of the corporation, define their duties and fix their compensation, if any.

(12) Pay pensions and establish pension plans, pension trusts and other benefit and incentive plans for any or all of its current or former directors, officers, employees and agents.

(13) Unless otherwise provided in the articles of incorporation, make donations not inconsistent with law for the public welfare or for charitable, benevolent, religious, scientific or educational purposes and for other purposes that further the corporate interest.

(14) Impose dues, assessments, admission and transfer fees upon its members.

(15) Establish conditions for admission of members, admit members and issue memberships.

(16) Carry on a business.

(17) Do any other act, not inconsistent with law, that furthers the activities and affairs of the corporation.

(18) Dissolve, merge or reorganize as provided in this chapter. [1989 c.1010 §29] 65.081 Emergency powers. (1) During an emergency defined in subsection (4) of this section, the board of directors or a corporation may: (a) Modify lines of succession to accommodate the incapacity of any director, officer, employee or agent; or (b) Relocate the principal office, designate alternative principal offices or regional offices or authorize the officers to do so.

(2) During an emergency defined in subsection (4) of this section, unless emergency bylaws provide otherwise: (a) Notice of a meeting of the board of directors need be given only to those directors whom it is practicable to reach and may be given in any practicable manner, including by publication or radio; and

(b) One or more officers of the corporation present at a meeting of the board of directors may be deemed to be directors for purposes of the meeting, in order of the officer’s rank, and within the same rank in order of seniority, as necessary to achieve a quorum.

(3) Corporate action taken in good faith under this section to further the affairs of the corporation during an emergency binds the corporation. A corporate director, officer, employee or agent shall not be liable for deviation from normal procedures if the conduct was authorized by emergency powers provided in this chapter.

(4) An emergency exists for purposes of this section if a quorum of the corporation’s directors cannot readily be assembled because of some present or imminent catastrophic event. [1989 c.1010 §30] 65.084 Challenge of corporate authority; remedy. (1) Except as provided in subsection (2) of this section, the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act.

(2) A corporation’s power to act may be challenged: (a) In a proceeding by a member or members, a director or the Attorney General against the corporation to enjoin the act; (b) In a proceeding by the corporation, directly, derivatively or through a receiver, a trustee or other legal representative, including the Attorney General in the case of a public benefit corporation, against an incumbent or former director, officer, employee or agent of the corporation; or (c) In a proceeding under ORS 65.664.

(3) In a proceeding under subsection (2)(a) of this section to enjoin an unauthorized corporate act, the court may enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award damages for loss other than anticipated profits suffered by the corporation or another party because of enjoining the unauthorized act. [1989 c.1010 §31] NAME 65.094 Corporate name. (1) A corporate name may not contain language stating or implying that the corporation is organized for a purpose other than that permitted by ORS 65.074 and the articles of incorporation.

(2) A corporate name shall not contain the word “cooperative” or the phrase “limited partnership.”

(3) A corporate name shall be written in the alphabet used to write the English language but may include Arabic and Roman numerals and incidental punctuation.

(4) Except as authorized by subsection (5) of this section, a corporate name shall be distinguishable upon the records of the Office of the Secretary of State from any other corporate name, professional corporate name, business corporate name, cooperative name, limited partnership name, business trust name, reserved name, registered corporate name or assumed business name of active record with the Office of the Secretary of State.

(5) The corporate name need not satisfy the requirement of subsection (4) of this section if the applicant delivers to the Office of the Secretary of State a certified copy of a final judgment of a court of competent jurisdiction that finds that the applicant has a prior or concurrent right to use the corporate name in this state.

(6) The provisions of this section do not prohibit a corporation from transacting business under an assumed business name.

(7) The provisions of this section do not: (a) Abrogate or limit the law governing unfair competition or unfair trade practices; or

(b) Derogate from the common law, the principles of equity or the statutes of this state or of the United States with respect to the right to acquire and protect trade names. [1989 c.1010 §32] 65.097 Reserved name. (1) A person may apply to the Office of the Secretary of State to reserve a corporate name. The application must set forth the name and address of the applicant and the name proposed to be reserved.

(2) If the Secretary of State finds that the corporate name applied for conforms to ORS 65.094, the Secretary of State shall reserve the name for the applicant for a 120-day period, following which the applicant may reapply for it on the same basis as other applicants.

(3) A person may transfer the reservation of a corporate name to another person by delivering to the Office of the Secretary of State a notice of the transfer executed by the person for whom the name was reserved and specifying the name and address of the transferee. [1989 c.1010 §33] 65.101 Registered name. (1) A foreign corporation may apply to the Office of the Secretary of State to register its corporate name.

(2) The application must set forth the corporate name, the state or country of its incorporation, the date of its incorporation, a brief description of the nature of the activities in which it is engaged and a statement that it is not carrying on or doing business in the State of Oregon. The application must be accompanied by a certificate of existence or a document of similar import current within 60 days of delivery, duly authenticated by the official having custody of corporate records in the state or country under whose law it is incorporated.

(3) If the Secretary of State finds that the name conforms to ORS 65.094, the Secretary of State shall register the name effective for one year.

(4) A foreign corporation whose registration is effective may renew it for successive years by delivering to the Secretary of State for filing a renewal application which complies with the requirements of this section prior to the lapse of the previous registration. Filing of the renewal application renews the registration for an additional year from its prior expiration.

(5) A foreign corporation whose registration is effective may thereafter qualify to do business in this state as a foreign corporation under that name or transfer the registered name to another applicant for the name by the procedures provided in ORS 65.097 (3) with respect to reserved names. Filing of such a consent terminates the prior registration and operates as a reservation in the name of the transferee, if it does not simultaneously file under that name. [1989 c.1010 §34] OFFICE AND AGENT 65.111 Registered office and registered agent. Each corporation shall continuously maintain in this state both: (1) A registered agent, who shall be: (a) An individual who resides in this state; (b) A corporation, domestic business corporation, domestic limited liability company or domestic professional corporation with an office in this state; or (c) A foreign corporation, foreign business corporation, foreign limited liability company or foreign professional corporation authorized to transact business in this state with an office in this state; and (2) A registered office of the corporation, which shall be the residence or office address of the registered agent. [1989 c.1010 §35; 2001 c.315 §29]

65.114 Change of registered office or registered agent. (1) A corporation may change its registered office or registered agent by delivering to the Office of the Secretary of State for filing a statement of change that sets forth: (a) The name of the corporation; (b) If the current registered office is to be changed, the address, including the street and number, of the new registered office; (c) If the current registered agent is to be changed, the name of the new registered agent and a statement that the new agent has consented to the appointment; and (d) A statement that after the change or changes are made, the street addresses of its registered office and the office or residence address of its registered agent will be identical.

(2) If the registered agent changes the street address of the agent’s designated office or residence, the registered agent shall change the street address of the registered office of any corporation for which the registered agent is the registered agent by notifying the corporation in writing of the change and by signing, either manually or in facsimile, and delivering to the Office of the Secretary of State for filing a statement that complies with the requirements of subsection (1) of this section and recites that the corporation has been notified of the change.

(3) The filing by the Secretary of State of a statement submitted under this section shall terminate the existing registered office or agent, or both, on the effective date of the filing and establish the newly appointed registered office or agent, or both, as that of the corporation. [1989 c.1010 §36] 65.117 Resignation of registered agent. (1) A registered agent may resign as registered agent upon delivering a signed statement to the Office of the Secretary of State and giving notice in the form of a copy of the statement to the corporation for filing. The statement may include a statement that the registered office is also discontinued.

(2) Upon delivery of the signed statement, the Secretary of State shall file the resignation statement. The copy of the statement given to the corporation under subsection (1) of this section shall be addressed to the corporation at its principal office as shown in the most recent annual report filed pursuant to ORS 65.787 or if none, the address specified in the articles of incorporation.

(3) The agency appointment is terminated, and the registered office discontinued if so provided, on the 31st day after the date on which the statement was filed by the Secretary of State, unless the corporation shall sooner appoint a successor registered agent as provided in ORS 65.114 thereby terminating the capacity of the prior agent. [1989 c.1010 §37; 1993 c.190 §5] 65.121 Service on the corporation. The provisions of ORS 60.121 shall apply to corporations organized under or subject to the provisions of this chapter. [1989 c.1010 §38; 1991 c.67 §12] MEMBERS AND MEMBERSHIPS (Admission of Members) 65.131 Admission. (1) The articles or bylaws may establish criteria or procedures for admission of members.

(2) No person shall be admitted as a member without consent of the person, express or implied. [1989 c.1010 §39]

65.134 Consideration. Except as provided in its articles or bylaws, a corporation may admit members for no consideration or for such consideration as is determined by the board. [1989 c.1010 §40] 65.137 No requirement for members. A corporation is not required to have members. A corporation shall have no members if its articles of incorporation or bylaws include a statement that “the corporation shall have no members” or words of similar import. [1989 c.1010 §41] (Members’ Rights and Obligations) 65.144 Differences in rights and obligations of members. All members shall have the same rights and obligations with respect to voting, dissolution, redemption and transfer, unless the articles or bylaws establish classes of membership with different rights or obligations. All members shall have the same rights and obligations with respect to any other matters, except as set forth in or authorized by the articles or bylaws. [1989 c.1010 §42] 65.147 Transfers. (1) Except as provided in ORS 65.231 pertaining to proxies or as set forth in or authorized by the articles or bylaws, no member may transfer a membership or any right arising therefrom.

(2) No member of a public benefit or religious corporation may transfer for value a membership or any right arising therefrom, unless the transferring member is a public benefit or religious corporation.

(3) Where transfer rights have been provided, no restriction on them shall be binding with respect to a member holding a membership issued prior to the adoption of the restriction unless the restriction is approved by the members and the affected member. [1989 c.1010 §43] 65.151 Member’s liability to third parties. A member of a corporation is not personally liable for the acts, debts, liabilities or obligations of the corporation merely by reason of being a member. [1989 c.1010 §44] 65.154 Member’s liability for dues, assessments and fees. A member may become liable to the corporation for dues, assessments or fees. An article or bylaw provision or a resolution adopted by the board authorizing or imposing dues, assessments or fees does not, of itself, create liability to pay the obligation, but nonpayment may constitute grounds for expelling or suspending the member or suspending or terminating the membership. [1989 c.1010 §45] 65.157 Creditor’s action against member. (1) No proceeding may be brought by a creditor to reach the liability, if any, of a member to the corporation arising from membership unless final judgment has been rendered in favor of the creditor against the corporation and execution has been returned unsatisfied in whole or in part or unless obtaining such judgment and execution would be useless.

(2) All creditors of the corporation, with or without reducing their claims to judgment, may intervene in any creditor’s proceeding brought under subsection (1) of this section to reach and apply unpaid amounts due the corporation. Any or all members who owe amounts to the corporation arising from membership may be joined in such proceeding. [1989 c.1010 §46] (Resignation and Termination) 65.164 Resignation. (1) A member may resign at any time.

(2) The resignation of a member does not relieve the member from any obligations the member may have to the corporation as a result of obligations incurred or commitments made prior to resignation. [1989 c.1010 §47] 65.167 Termination, expulsion or suspension. (1) No member of a public benefit or mutual benefit corporation may be expelled or suspended, and no membership or memberships in such corporations may be terminated or suspended, except pursuant to a procedure that is fair and reasonable and is carried out in good faith.

(2) A procedure is fair and reasonable when either: (a) The articles or bylaws set forth a procedure that provides: (A) Not less than 15 days’ prior written notice of the expulsion, suspension or termination and the reasons therefor; and (B) An opportunity for the member to be heard, orally or in writing, not less than five days before the effective date of the expulsion, suspension or termination by a person or persons authorized to decide that the proposed expulsion, termination or suspension not take place; or (b) It is fair and reasonable taking into consideration all of the relevant facts and circumstances.

(3) Any written notice given by mail must be given by first class or certified mail sent to the last address of the member shown on the corporation’s records.

(4) Any proceeding challenging an expulsion, suspension or termination, including a proceeding in which defective notice is alleged, must be commenced within one year after the effective date of the expulsion, suspension or termination.

(5) A member who has been expelled or suspended, or whose membership has been suspended or terminated, may be liable to the corporation for dues, assessments or fees as a result of obligations incurred by the member prior to expulsion, suspension or termination. [1989 c.1010 §48; 2005 c.22 §44] 65.171 Acquiring memberships. (1) A public benefit or religious corporation may not acquire for value any of its memberships or any right arising therefrom, unless the member is a public benefit or religious corporation.

(2) A mutual benefit corporation may acquire the membership of a member who resigns or whose membership is terminated for the amount and pursuant to the conditions set forth in or authorized by its articles or bylaws.

(3) No acquisition of memberships shall be made in violation of ORS 65.551 or 65.554. [1989 c.1010 §49] (Derivative Suits) 65.174 Derivative suits. (1) A proceeding may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor by: (a) Any member or members having two percent or more of the voting power or by 20 members, whichever is less; or (b) Any director.

(2) In any such proceeding, each member complainant shall have been a member when the transaction complained of occurred.

(3) A complaint in a proceeding brought in the right of a corporation must allege with particularity the demand made, if any, to obtain action by the board of directors and either that the demand was refused or ignored or why a demand was not made. Whether or not a demand for action was made, if the corporation

commences an investigation of the charges made in the demand or complaint, the court may stay any proceeding until the investigation is completed.

(4) The complainants shall notify the Attorney General within 10 days after commencing any proceeding under this section if the proceeding involves a public benefit corporation or assets held in charitable trust by a mutual benefit corporation.

(5) A proceeding commenced under this section may not be discontinued or settled without the court’s approval. If the court determines that a proposed discontinuance or settlement will substantially affect the interest of the corporation’s members or a class of members, the court shall direct that notice be given the members affected. [1989 c.1010 §50] (Delegates) 65.177 Delegates. (1) A corporation may provide in its articles or bylaws for delegates having some or all of the authority of members.

(2) The articles or bylaws may set forth provisions relating to: (a) The characteristics, qualifications, rights, limitations and obligations of delegates including their selection and removal; (b) Providing notice to and calling, holding and conducting meetings of delegates; and (c) Carrying on corporate activities during and between meetings of delegates. [1989 c.1010 §51] MEMBERSHIP MEETINGS AND VOTING (Meetings and Action Without Meetings) 65.201 Annual and regular meetings. (1) A corporation with members shall hold a membership meeting annually at a time stated in or fixed in accordance with the bylaws.

(2) A corporation with members may hold regular membership meetings at the times stated in or fixed in accordance with the bylaws.

(3) Annual and regular membership meetings may be held in or out of this state at the place stated in or fixed in accordance with the bylaws. If no place is stated in or fixed in accordance with the bylaws, annual and regular meetings shall be held at the corporation’s principal office.

(4) At the annual meeting: (a) The president, and any other officer the board of directors or the president may designate, shall report on the activities and financial condition of the corporation; and (b) The members shall consider and act upon such other matters as may be raised consistent with the notice requirements of ORS 65.214.

(5) At regular meetings the members shall consider and act upon such matters as may be raised consistent with the notice requirements of ORS 65.214.

(6) The failure to hold an annual or regular meeting at a time stated in or fixed in accordance with a corporation’s bylaws does not affect the validity of any corporate action. [1989 c.1010 §52] 65.204 Special meeting. (1) A corporation with members shall hold a special meeting of members: (a) On call of its board of directors or the person or persons authorized to do so by the articles of incorporation or bylaws; or

(b) Except as provided in the articles or bylaws, if the holders of at least five percent of the voting power of any corporation sign, date and deliver to the corporation’s secretary one or more written demands for the meeting describing the purpose or purposes for which it is to be held.

(2) If not otherwise fixed under ORS 65.207 or 65.221, the record date for members entitled to demand a special meeting is the date the first member signs the demand.

(3) If a notice for a special meeting demanded under subsection (1)(b) of this section is not given pursuant to ORS 65.214 within 30 days after the date the written demand or demands are delivered to the corporation’s secretary then, regardless of the requirements of subsection (4) of this section, a person signing the demand or demands may set the time and place of the meeting and give notice pursuant to ORS 65.214.

(4) Special meetings of members may be held in or out of this state at the place stated in or fixed in accordance with the bylaws. If no place is stated or fixed in accordance with the bylaws, special meetings shall be held at the corporation’s principal office.

(5) Only matters within the purpose or purposes described in the meeting notice required by ORS 65.214 may be conducted at a special meeting of members. [1989 c.1010 §53] 65.207 Court-ordered meeting; attorney fees. (1) The circuit court of the county where a corporation’s principal office is located, or, if the principal office is not in this state, where the registered office of the corporation is or was last located, may summarily order a meeting to be held: (a) On application of any member or other person entitled to participate in an annual or regular meeting or, in the case of a public benefit corporation, the Attorney General, if an annual meeting was not held within the earlier of six months after the end of the corporation’s fiscal year or 15 months after its last annual meeting; (b) On application of any member or other person entitled to participate in a regular meeting or, in the case of a public benefit corporation, the Attorney General, if a regular meeting is not held within 40 days after the date it was required to be held; or (c) On application of a member who signed a demand for a special meeting valid under ORS 65.204, a person or persons entitled to call a special meeting or, in the case of a public benefit corporation, the Attorney General, if notice of the special meeting was not given within 30 days after the date the demand was delivered to the corporation’s secretary or the special meeting was not held in accordance with the notice.

(2) The court may fix the time and place of the meeting, determine the members entitled to participate in the meeting, specify a record date for determining members entitled to notice of and to vote at the meeting, prescribe the form and content of the meeting notice, fix the quorum required for specific matters to be considered at the meeting or direct that the votes represented at the meeting constitute a quorum for action on those matters, and enter other orders necessary to accomplish the purpose or purposes of the meeting.

(3)(a) Except as provided in paragraph (b) of this subsection, the court may award reasonable attorney fees to the prevailing party in an action under this section. (b) The court may not award attorney fees to the state or a political subdivision of the state if the state or political subdivision prevails in an action under this section.

(4) The request shall be set for hearing at the earliest possible time and shall take precedence over all matters, except matters of the same character and hearings on preliminary injunctions under ORCP 79 B(3).

No order shall be issued by the court under this section without notice to the corporation at least five days in advance of the time specified for the hearing unless a different period is fixed by order of the court. [1989 c.1010 §54; 1995 c.696 §14]

65.211 Action without meeting. (1) Unless the articles of incorporation or bylaws provide otherwise, action required or permitted by this chapter to be taken at a members’ meeting may be taken without a meeting if the action is taken by all the members entitled to vote on the action. The action must be evidenced by one or more written consents describing the action taken, signed by all the members entitled to vote on the action, and delivered to the corporation for inclusion in the minutes or filing with the corporate records. Action taken under this section is effective when the last member signs the consent, unless the consent specifies an earlier or later effective date.

(2) If not otherwise determined under ORS 65.207 or 65.221, the record date for determining members entitled to take action without a meeting is the date the first member signs the consent under subsection (1) of this section.

(3) A consent signed under this section has the effect of a meeting vote and may be described as such in any document. [1989 c.1010 §55] 65.214 Notice of meeting. (1) A corporation shall give notice consistent with its bylaws of meetings of members in a fair and reasonable manner. The corporation is required to give notice to members entitled to vote at the meeting and to any other person specified in this chapter, the articles of incorporation or the bylaws.

(2) Any notice which conforms to the requirements of subsection (3) of this section is fair and reasonable, but other means of giving notice may also be fair and reasonable when all the circumstances are considered, provided, however, that notice of matters referred to in subsection (3)(b) of this section must be given as provided in subsection (3) of this section.

(3) Notice is fair and reasonable if: (a) The corporation notifies its members of the place, date and time of each annual, regular and special meeting of members no fewer than seven days, or if notice is mailed by other than first class or registered mail, no fewer than 30 nor more than 60 days before the meeting; (b) Notice of an annual or regular meeting includes a description of any matter or matters which must be approved by the members under ORS 65.361, 65.404, 65.414 (1)(a), 65.437, 65.464, 65.487, 65.534 or 65.624; and (c) Notice of a special meeting includes a description of the purpose or purposes for which the meeting is called.

(4) Unless the bylaws require otherwise, if an annual, regular or special meeting of members is adjourned to a different date, time or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be fixed under ORS 65.221, however, notice of the adjourned meeting must be given under this section to the persons who are members as of the new record date. [1989 c.1010 §56; 1991 c.231 §2] 65.217 Waiver of notice. (1) A member may at any time waive any notice required by this chapter, the articles or bylaws. The waiver must be in writing, be signed by the member entitled to the notice and be delivered to the corporation for inclusion in the minutes or filing with the corporate records.

(2) A member’s attendance at a meeting waives objection to: (a) Lack of notice or defective notice of the meeting, unless the member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (b) Consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the member objects to considering the matter when it is presented.

[1989 c.1010 §57]

65.221 Record date. (1) The bylaws may fix or provide the manner of fixing the record date in order to determine the members entitled to notice of a members’ meeting, to demand a special meeting, to vote or to take any other lawful action. If the bylaws do not fix or provide for fixing such a record date, the board of directors may fix a future date as the record date. If no such record date is fixed, then: (a) To determine the members entitled to notice of a members’ meeting, the record date shall be the day before the day on which first notice is mailed or otherwise transmitted to members in accordance with ORS 65.034, or if notice is waived, the day preceding the day on which the meeting is held. (b) To determine the members entitled to demand a special meeting, the record date shall be as set forth in ORS 65.204 (2). (c) To determine the members entitled to take action without a meeting, the record date shall be as set forth in ORS 65.211 (2). (d) To determine the members entitled to vote at a members’ meeting, the record date shall be the date of the meeting. (e) To determine the members entitled to exercise any rights in respect to any other lawful action, the record date shall be the day on which the board adopts the resolution relating thereto, or the 60th day prior to the date of such other action, whichever is later.

(2) A record date fixed under this section may not be more than 70 days before the meeting or action requiring the determination of members.

(3) A determination of members entitled to notice of or to vote at a membership meeting is effective for any adjournment of the meeting unless the board fixes a new record date, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.

(4) If a court orders a meeting adjourned to a date more than 120 days after the date fixed for the original meeting, it may provide that the original record date continues in effect or it may fix a new record date. [1989 c.1010 §58] 65.222 Action by written ballot. (1) Unless prohibited or limited by the articles or bylaws, any action which may be taken at any annual, regular or special meeting of members may be taken without a meeting if the corporation delivers a written ballot to every member entitled to vote on the matter.

(2) A written ballot shall: (a) Set forth each proposed action; and (b) Provide an opportunity to vote for or against each proposed action.

(3) Approval by written ballot pursuant to this section shall be valid only when the number of votes cast by ballot equals or exceeds any quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.

(4) All solicitations for votes by written ballot shall: (a) Indicate the number of responses needed to meet the quorum requirements; (b) State the percentage of approvals necessary to approve each matter other than election of directors; and (c) Specify a reasonable time by which a ballot must be received by the corporation in order to be counted.

(5) Except as otherwise provided in the articles or bylaws, a written ballot may not be revoked. [1989 c.1010 §59] (Voting)

65.224 Members’ list for meeting; attorney fees. (1) A corporation shall prepare an alphabetical list of the names, addresses and membership dates of all its members. If there are classes of members, the list must show the address and number of votes each member is entitled to vote at the meeting. The corporation shall prepare on a current basis through the time of the membership meeting a list of members, if any, who are entitled to vote at the meeting, but are not part of the main list of members.

(2) The list of members must be available for inspection by any member for the purpose of communication with other members concerning the meeting, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the corporation’s principal office or at a reasonable place identified in the meeting notice in the city or other location where the meeting will be held. A member, the member’s agent or the member’s attorney is entitled, on written demand setting forth a proper purpose, to inspect and, subject to the requirements of ORS 65.774 and 65.782, to copy the list at a reasonable time and at the member’s expense, during the period it is available for inspection.

(3) The corporation shall make the list of members available at the meeting, and any member, the member’s agent or the member’s attorney is entitled to inspect the list for any proper purpose at any time during the meeting or any adjournment.

(4) If the corporation refuses to allow a member, the member’s agent or the member’s attorney to inspect the list of members before or at the meeting or copy the list as permitted by subsection (2) of this section, on application of the member, the circuit court of the county where the corporation’s principal office, or if the principal office is not in this state, where its registered office is or was last located, may enter a temporary restraining order or preliminary injunction pursuant to ORCP 79 ordering the inspection or copying at the corporation’s expense and may postpone the meeting for which the list was prepared until the inspection or copying is complete. The court may award reasonable attorney fees to the prevailing party in an action under this subsection. The party initiating such a proceeding shall not be required to post an undertaking pursuant to ORCP 82 A. (5) Refusal or failure to prepare or make available the membership list does not affect the validity of action taken at the meeting.

(6) The articles or bylaws of a religious corporation may limit or abolish the rights of a member under this section to inspect and copy any corporate record.

(7) The articles of a public benefit corporation organized primarily for political or social action, including but not limited to political or social advocacy, education, litigation or a combination thereof, may limit or abolish the right of a member or the member’s agent or attorney to inspect or copy the membership list if the corporation provides a reasonable means to mail communications to the other members through the corporation at the expense of the member making the request. [1989 c.1010 §60; 1995 c.618 §41; 2005 c.22 §45] 65.227 Voting entitlement of members. (1) Unless the articles or bylaws provide otherwise, each member is entitled to one vote on each matter voted on by the members, including each matter on which a member is entitled to vote under this chapter or the articles or bylaws. Except as expressly prohibited in this chapter, the articles or bylaws may provide for different allocations of votes among member classes or exclude the members or some or all member classes from voting on any issue on which they would otherwise be entitled to vote under this chapter. Persons not retaining a right to vote on more than one occasion for the election of a director or directors shall not be deemed members.

(2) Unless the articles or bylaws provide otherwise, if a membership stands of record in the names of two or more persons, their acts with respect to voting shall have the following effect:

(a) If only one votes, such act binds all; and (b) If more than one votes, the vote shall be divided on a pro rata basis. [1989 c.1010 §61; 1991 c.231 §3] 65.231 Proxies. (1) Unless the articles or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form either personally or by the member’s attorney-in-fact.

(2) An appointment of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. An appointment is valid for 11 months unless a different period is expressly provided in the appointment form.

(3) An appointment of a proxy is revocable by the member.

(4) The death or incapacity of the member appointing a proxy does not affect the right of the corporation to accept the proxy’s authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises authority under the appointment.

(5) Appointment of a proxy is revoked by the person appointing the proxy: (a) Attending any meeting and voting in person; or (b) Signing and delivering to the secretary or other officer or agent authorized to tabulate proxy votes either a writing stating that the appointment of the proxy is revoked or a subsequent appointment form.

(6) Subject to ORS 65.237 and any express limitation on the proxy’s authority appearing on the face of the appointment form, a corporation is entitled to accept the proxy’s vote or other action as that of the member making the appointment. [1989 c.1010 §64] 65.234 Adjournment. Unless otherwise provided in the articles of incorporation or bylaws, a majority of votes represented at a meeting of members, whether or not a quorum, may adjourn the meeting from time to time to a different time and place without further notice to any member of any adjournment, except as such notice may be required by ORS 65.214 (4). At the adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted at the meeting originally held. [1989 c.1010 §68] 65.237 Corporation’s acceptance of votes. (1) If the name signed on a vote, consent, waiver or proxy appointment corresponds to the name of a member, the corporation, if acting in good faith, is entitled to accept the vote, consent, waiver or proxy appointment and give it effect as the act of the member.

(2) If the name signed on a vote, consent, waiver or proxy appointment does not correspond to the record name of a member, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver or proxy appointment and give it effect as the act of the member if: (a) The member is an entity and the name signed purports to be that of an officer or agent of the entity; (b) The name signed purports to be that of an attorney-in-fact of the member and if the corporation requests, evidence acceptable to the corporation of the signatory’s authority to sign for the member has been presented with respect to the vote, consent, waiver or proxy appointment; (c) Two or more persons hold the membership as cotenants or fiduciaries and the name signed purports to be the name of at least one of the coholders and the person signing appears to be acting on behalf of all the coholders; or (d) In the case of a mutual benefit corporation: (A) The name signed purports to be that of an administrator, executor, guardian or conservator representing the member and, if the corporation requests, evidence of fiduciary status acceptable to the corporation has been presented with respect to the vote, consent, waiver or proxy appointment; or

(B) The name signed purports to be that of a receiver or trustee in bankruptcy of the member, and, if the corporation requests, evidence of this status acceptable to the corporation has been presented with respect to the vote, consent, waiver or proxy appointment.

(3) The corporation is entitled to reject a vote, consent, waiver or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the member.

(4) The corporation and its officer or agent who accepts or rejects a vote, consent, waiver or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the member for the consequences of the acceptance or rejection.

(5) Corporate action based on the acceptance or rejection of a vote, consent, waiver or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise. [1989 c.1010 §67] 65.241 Quorum requirements. (1) Unless the articles or bylaws provide for a higher quorum, those votes represented at a meeting of members shall constitute a quorum.

(2) An amendment to the articles or bylaws to decrease the quorum for any member action may be approved by the members, or, unless prohibited by the articles or bylaws, by the board.

(3) An amendment to the articles or bylaws to increase the quorum required for any member action must be approved by the members. [1989 c.1010 §62] 65.244 Voting requirements. (1) Unless this chapter, the articles or the bylaws require a greater vote or voting by class, if a quorum is present, the affirmative vote of a majority of the votes represented and voting is the act of the members.

(2) An amendment to the articles or bylaws to add to, change or delete the vote required for any member action must be approved by the members. [1989 c.1010 §63] 65.247 Cumulative voting for directors. (1) If the articles or bylaws provide for cumulative voting by members, members may so vote, by multiplying the number of votes the members are entitled to cast by the number of directors for whom they are entitled to vote, and cast the product for a single candidate or distribute the product among two or more candidates.

(2) Cumulative voting is not authorized at a particular meeting unless: (a) The meeting notice or statement accompanying the notice states that cumulative voting will take place; or (b) A member gives notice during the meeting and before the vote is taken of the member’s intent to cumulate votes, and if one member gives this notice all other members participating in the election are entitled to cumulate their votes without giving further notice.

(3) A director elected by cumulative voting may be removed by the members without cause if the requirements of ORS 65.324 are met unless the votes cast against removal, or not consenting in writing to such removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes were cast or, if such action is taken by written ballot, all memberships entitled to vote were voted and the entire number of directors authorized at the time of the director’s most recent election were then being elected.

(4) Members may not cumulatively vote if the directors and members are identical. [1989 c.1010 §65] 65.251 Other methods of electing directors. A corporation may provide in its articles or bylaws for election of directors by members or delegates:

(1) On the basis of chapter or other organizational unit; (2) By region or other geographic unit; (3) By preferential voting; or (4) By any other reasonable method. [1989 c.1010 §66] (Voting Agreements) 65.254 Voting agreements. (1) Two or more members may provide for the manner in which they will vote by signing an agreement for that purpose. Such agreements may be valid for a period of up to 10 years.

For public benefit corporations such agreements must have a reasonable purpose not inconsistent with the corporation’s public or charitable purposes.

(2) A voting agreement created under this section is specifically enforceable. [1989 c.1010 §69] DIRECTORS AND OFFICERS (Board of Directors) 65.301 Requirement for and duties of board. (1) Each corporation shall have a board of directors.

(2) All corporate powers shall be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, the board of directors, subject to any limitation set forth in the articles of incorporation and except as provided in subsection (3) of this section.

(3) The articles of incorporation may authorize a person or persons, or the manner of designating a person or persons, authorized to exercise some or all of the powers which would otherwise be exercised by a board. To the extent so authorized any such person or persons shall have the duties and responsibilities of the directors, and the directors shall be relieved to that extent from such duties and responsibilities. [1989 c.1010 §70] 65.304 Qualifications of directors. All directors must be individuals. The articles of incorporation or bylaws may prescribe other qualifications for directors. [1989 c.1010 §71] 65.307 Number of directors. (1) A board of directors must consist of one or more individuals for a mutual benefit or religious corporation and three or more individuals for a public benefit corporation, with the number specified or fixed in accordance with the articles of incorporation or bylaws.

(2) The articles of incorporation or bylaws may establish a variable range for the size of the board of directors by fixing a minimum and maximum number of directors. If a variable range is established, the number of directors may be fixed or changed periodically, within the minimum and maximum, by the members or the board of directors. If the articles of incorporation establish a fixed or a variable range for the size of the board of directors and the corporation has members entitled to vote for directors, then only the members may change the range for the size of the board or change from a fixed or a variable-range size board. [1989 c.1010 §72] 65.311 Election, designation and appointment of directors. (1) If the corporation has members entitled to vote for directors, all the directors, except the initial directors, shall be elected at the first annual meeting of members, and at each annual meeting thereafter, unless the articles or bylaws provide some other time or method of election, or provide that some of the directors are appointed by some other person or are designated.

(2) If the corporation does not have members entitled to vote for directors, all the directors, except the initial directors, shall be elected, appointed or designated as provided in the articles or bylaws. If no method of election, appointment or designation is set forth in the articles or bylaws, the directors, other than the initial directors, shall be elected by the board. [1989 c.1010 §73] 65.314 Terms of directors generally. (1) The articles or bylaws may specify the terms of directors.

Except for designated or appointed directors, the terms of directors may not exceed five years. In the absence of any term specified in the articles or bylaws, the term of each director shall be one year. Directors may be elected for successive terms.

(2) A decrease in the number of directors or term of office does not shorten an incumbent director’s term.

(3) Except as provided in the articles or bylaws: (a) The term of a director filling a vacancy in the office of an elected director expires at the next election of directors; and (b) The term of a director filling any other vacancy expires at the end of the unexpired term which such director is filling.

(4) Despite the expiration of a director’s term, the director continues to serve until the director’s successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors. [1989 c.1010 §74] 65.317 Staggered terms for directors. The articles or bylaws may provide for staggering the terms of directors by dividing the total number of directors into groups. The terms of office of the several groups need not be uniform. [1989 c.1010 §75] 65.321 Resignation of directors. (1) A director may resign at any time by delivering written notice to the board of directors, its presiding officer or to the president or secretary.

(2) A resignation is effective when the notice is effective under ORS 65.034 unless the notice specifies a later effective date.

(3) Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the board of directors. [1989 c.1010 §76] 65.324 Removal of directors elected by members or directors. (1) The members may remove one or more directors elected by them with or without cause unless the articles of incorporation provide that directors may be removed only for cause.

(2) If a director is elected by a class, chapter or other organizational unit or by region or other geographic grouping, only the members of that class, chapter, unit or grouping entitled to vote may participate in the vote to remove the director.

(3) Except as provided in subsection (9) of this section, a director may be removed under subsection (1) or (2) of this section only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.

(4) If cumulative voting is authorized, a director may not be removed if the number of votes, or if the director was elected by a class, chapter, unit or grouping of members, the number of votes of that class, chapter, unit or grouping, sufficient to elect the director under cumulative voting is voted against the director’s removal.

(5) An elected director may be removed by the members only at a meeting called for the purpose of removing the director and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the director.

(6) In computing whether a director is protected from removal under subsections (2) to (4) of this section, it should be assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of that director’s election.

(7) An entire board of directors may be removed under subsections (1) to (5) of this section.

(8) A director elected by the board of directors may be removed with or without cause, unless the articles of incorporation or bylaws provide that directors may be removed only for cause, by the vote of two-thirds of the directors then in office or such greater number as is set forth in the articles or bylaws.

However, a director elected by the board to fill the vacancy of a director elected by the members may be removed by the members, but not the board.

(9) If at the beginning of a director’s term on the board, the articles or bylaws provide that the director may be removed for reasons set forth in the articles or bylaws, the board may remove the director for such reasons. The director may be removed only if a majority of the directors then in office vote for the removal.

(10) The articles or bylaws of a religious corporation may: (a) Limit the application of this section; and (b) Set forth the vote and procedures by which the board or any person may remove with or without cause a director elected by the members or the board. [1989 c.1010 §77] 65.327 Removal of directors by judicial proceeding. (1) The circuit court of the county where a corporation’s principal office is located, or if the principal office is not in this state where its registered office was last located, may remove any director of the corporation from office in a proceeding commenced either by the corporation, at least 10 percent of the members of any class entitled to vote for directors, or the Attorney General in the case of a public benefit corporation if the court finds that: (a) The director engaged in fraudulent or dishonest conduct, or gross abuse of authority or discretion, with respect to the corporation, or the director has violated a duty set forth in ORS 65.357 to 65.367; and (b) Removal is in the best interest of the corporation.

(2) The court that removes a director may bar the director from serving on the board for a period prescribed by the court.

(3) If members or the Attorney General commence a proceeding under subsection (1) of this section, the corporation shall be made a party defendant.

(4) A public benefit corporation or its members who commence a proceeding under subsection (1) of this section shall give the Attorney General written notice of the proceeding.

(5) The articles or bylaws of a religious corporation may limit or prohibit the application of this section.

[1989 c.1010 §79] 65.331 Removal of designated or appointed directors. (1) A designated director may be removed by an amendment to the articles or bylaws deleting or changing the designation.

(2) If a director is appointed: (a) Except as otherwise provided in the articles or bylaws, the director may be removed with or without cause by the person appointing the director; (b) The person removing the director shall do so by giving written notice of the removal to the director and either the presiding officer of the board or the corporation’s president or secretary; and (c) A removal is effective when the notice is effective under ORS 65.034 unless the notice specifies a future effective date. [1989 c.1010 §78]

65.334 Vacancy on board. (1) Unless the articles or bylaws provide otherwise, and except as provided in subsections (2) and (3) of this section, if a vacancy occurs on a board of directors, including a vacancy resulting from an increase in the number of directors: (a) The members entitled to vote for directors, if any, may fill the vacancy. If the vacant office was held by a director elected by a class, chapter or other organizational unit or by region or other geographic grouping, only members of the class, chapter, unit or grouping are entitled to vote to fill the vacancy if it is filled by the members; (b) The board of directors may fill the vacancy; or (c) If the directors remaining in office constitute fewer than a quorum of the board of directors, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office.

(2) Unless the articles or bylaws provide otherwise, if a vacant office was held by an appointed director, only the person who appointed the director may fill the vacancy.

(3) If a vacant office was held by a designated director, the vacancy shall be filled as provided in the articles or bylaws. In the absence of an applicable article or bylaw provision, the vacancy may not be filled by the board.

(4) A vacancy that will occur at a specific later date, by reason of a resignation effective at a later date under ORS 65.321 (2) or otherwise, may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs. [1989 c.1010 §80] 65.335 Compensation of directors. Unless the articles or bylaws provide otherwise, the board of directors may fix the compensation of directors. [1989 c.1010 §81] (Meetings and Action of Board) 65.337 Regular and special meetings. (1) If the time and place of a director’s meeting is fixed by the bylaws or is regularly scheduled by the board of directors, the meeting is a regular meeting. All other meetings are special meetings.

(2) The board of directors may hold regular or special meetings in or out of this state.

(3) Unless the articles or bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through, use of any means of communication by which either of the following occurs: (a) All directors participating may simultaneously hear or read each other’s communications during the meeting; or (b) All communications during the meeting are immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors.

(4) If a meeting is conducted through the use of any means described in subsection (3) of this section: (a) All participating directors shall be informed that a meeting is taking place at which official business may be transacted; and (b) A director participating in the meeting by this means is deemed to be present in person at the meeting. [1989 c.1010 §82; 2005 c.161 §1] 65.341 Action without meeting. (1) As used in this section: (a) “Electronic” has the meaning given that term in ORS 84.004. (b) “Electronic signature” has the meaning given that term in ORS 84.004. (c) “Sign” includes an electronic signature.

(d) “Written” includes a communication that is transmitted or received by electronic means.

(2) Unless the articles or bylaws provide otherwise, action required or permitted by this chapter to be taken at the board of directors’ meeting may be taken without a meeting if the action is taken by all members of the board of directors. The action shall be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes or filed with the corporate records reflecting the action taken.

(3) Action taken under this section is effective when the last director signs the consent, unless the consent specifies an earlier or later effective date.

(4) A consent signed under this section has the effect of a meeting vote and may be described as such in any document. [1989 c.1010 §83; 2005 c.161 §2] 65.344 Call and notice of meetings. (1) Unless the articles, bylaws or this chapter provide otherwise, regular meetings of the board may be held without notice of the date, time, place or purpose of the meeting.

(2) Unless the articles of incorporation or bylaws provide for a longer or shorter period, special meetings of the board must be preceded by at least two days’ notice to each director of the date, time and place of the meeting. Unless this chapter provides otherwise, the notice need not describe the purposes of the special meeting unless required by the articles of incorporation or bylaws.

(3) Unless the articles or bylaws provide otherwise, the presiding officer of the board, the president or 20 percent of the directors then in office may call and give notice of a meeting of the board. [1989 c.1010 §84] 65.347 Waiver of notice. (1) A director may at any time waive any notice required by this chapter, the articles of incorporation or bylaws. Except as provided in subsection (2) of this section, the waiver must be in writing, must be signed by the director entitled to the notice, must specify the meeting for which notice is waived and must be filed with the minutes or the corporate records.

(2) A director’s attendance at or participation in a meeting waives any required notice to the director of the meeting unless the director, at the beginning of the meeting, or promptly upon the director’s arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to any action taken at the meeting. [1989 c.1010 §85] 65.351 Quorum and voting. (1) Unless the articles of incorporation or bylaws require a greater number or a lesser number as authorized under subsection (2) of this section, a quorum of a board of directors consists of: (a) If the corporation has a fixed board size, a majority of the fixed number of directors; or (b) If the corporation has a variable-range size board, a majority of the number of directors prescribed, or if no number is prescribed, a majority of the number in office immediately before the meeting begins.

(2) The articles of incorporation or bylaws may authorize a quorum of a board of directors to consist of no fewer than one-third of the fixed or prescribed number of directors determined under subsection (1) of this section.

(3) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present when the act is taken is the act of the board of directors unless the articles of incorporation or bylaws require the vote of a greater number of directors. A director is considered present regardless of whether the director votes or abstains from voting.

(4) A director who is present at a meeting of the board of directors or a committee of the board of directors when corporate action is taken is deemed to have assented to the action taken unless:

(a) The director objects at the beginning of the meeting, or promptly upon the director’s arrival, to holding the meeting or transacting the business at the meeting; (b) The director’s dissent or abstention from the action taken is entered in the minutes of the meeting; or (c) The director delivers written notice of dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. [1989 c.1010 §86; 1991 c.231 §4] 65.354 Committees. (1) Unless the articles or bylaws provide otherwise, a board of directors may create one or more committees of the board of directors which exercise the authority of the board of directors and appoint members of the board to serve on them or designate the method of selecting committee members.

Each committee shall consist of two or more directors, who serve at the pleasure of the board of directors.

(2) The creation of a committee and appointment of directors to the committee or designation of a method of selecting committee members must be approved by the greater of: (a) A majority of all the directors in office when the action is taken; or (b) The number of directors required by the articles or bylaws to take action under ORS 65.351.

(3) ORS 65.337 to 65.351, governing meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the board of directors, apply to committees and their members as well.

(4) Except as provided in subsection (5) of this section, to the extent specified by the board of directors or in the articles or bylaws, each committee of the board may exercise the authority of the board of directors.

(5) A committee of the board may not: (a) Authorize distributions; (b) Approve or recommend to members dissolution, merger or the sale, pledge or transfer of all or substantially all of the corporation’s assets; (c) Elect, appoint or remove directors or fill vacancies on the board or on any of its committees; or (d) Adopt, amend or repeal the articles or bylaws.

(6) The creation of, delegation of authority to, or action by a committee does not alone constitute compliance by a director with the standards of conduct described in ORS 65.357. [1989 c.1010 §87] (Standards of Conduct) 65.357 General standards for directors. (1) A director shall discharge the duties of a director, including the director’s duties as a member of a committee: (a) In good faith; (b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and (c) In a manner the director reasonably believes to be in the best interests of the corporation.

(2) In discharging the duties of a director, a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by: (a) One or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented; (b) Legal counsel, public accountants or other persons as to matters the director reasonably believes are within the person’s professional or expert competence;

(c) A committee of the board of which the director is not a member, as to matters within its jurisdiction, if the director reasonably believes the committee merits confidence; or (d) In the case of religious corporations, religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented.

(3) A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (2) of this section unwarranted.

(4) A director is not liable to the corporation, any member or any other person for any action taken or not taken as a director, if the director acted in compliance with this section. The liability of a director for monetary damages to the corporation and its members may be eliminated or limited in the corporation’s articles to the extent provided in ORS 65.047 (2)(c).

(5) A director shall not be deemed to be a trustee with respect to the corporation or with respect to any property held or administered by the corporation, including without limit, property that may be subject to restrictions imposed by the donor or transferor of such property. [1989 c.1010 §88] 65.361 Director conflict of interest. (1) A conflict of interest transaction is a transaction with the corporation in which a director of the corporation has a direct or indirect interest. A conflict of interest transaction is not voidable or the basis for imposing liability on the director if the transaction is fair to the corporation at the time it was entered into or is approved as provided in subsection (2) or (3) of this section.

(2) A transaction in which a director of a public benefit or religious corporation has a conflict of interest may be approved: (a) By the vote of the board of directors or a committee of the board of directors if the material facts of the transaction and the director’s interest are disclosed or known to the board of directors or committee of the board of directors; or (b) By obtaining approval of the: (A) Attorney General; or (B) The circuit court in an action in which the Attorney General is joined as party.

(3) A transaction in which a director of a mutual benefit corporation has a conflict of interest may be approved: (a) In advance by the vote of the board of directors or a committee of the board of directors if the material facts of the transaction and the director’s interest were disclosed or known to the board of directors or a committee of the board of directors; or (b) If the material facts of the transactions and the director’s interest were disclosed or known to the members and they authorized, approved or ratified the transaction.

(4) For the purposes of this section, a director of the corporation has an indirect interest in a transaction if: (a) Another entity in which the director has a material interest or in which the director is a general partner is a party to the transaction; or (b) Another entity of which the director is a director, officer or trustee is a party to the transaction, and the transaction is or should be considered by the board of directors of the corporation.

(5) For purposes of subsections (2) and (3) of this section, a conflict of interest transaction is authorized, approved or ratified if it receives the affirmative vote of a majority of the directors on the board of directors or on the committee who have no direct or indirect interest in the transaction. A transaction may not be authorized, approved or ratified under this section by a single director. If a majority of the directors who have no direct or indirect interest in the transaction votes to authorize, approve or ratify the transaction, a quorum is present for the purpose of taking action under this section. The presence of, or a vote cast by, a

director with a direct or indirect interest in the transaction does not affect the validity of any action taken under subsection (2)(a) or (3)(a) of this section if the transaction is otherwise approved as provided in subsection (2) or (3) of this section.

(6) For purposes of subsection (3)(b) of this section, a conflict of interest transaction is authorized, approved or ratified by the members if it receives a majority of the votes entitled to be counted under this subsection. Votes cast by or voted under the control of a director who has a direct or indirect interest in the transaction, and votes cast by or voted under the control of an entity described in subsection (4) of this section may be counted in a vote of members to determine whether to authorize, approve or ratify a conflict of interest transaction under subsection (3)(b) of this section. A majority of the members, whether or not present, that are entitled to be counted in a vote on the transaction under this subsection constitutes a quorum for the purpose of taking action under this section.

(7) The articles, bylaws or a resolution of the board may impose additional requirements on conflict of interest transactions. [1989 c.1010 §89] 65.364 Loans to or guarantees for directors and officers. (1) Public benefit and religious corporations may not make a loan, guarantee an obligation or modify a preexisting loan or guarantee to or for the benefit of a director or officer of the corporation, except as stated in this section. Unless prohibited by its articles or bylaws, a public benefit or religious corporation may make a loan, guarantee an obligation or modify a preexisting loan or guarantee to or for the benefit of a director or officer as part of a recruitment package, for a total period not to exceed three years, provided that: (a) Approval of the loan, guarantee or modification is obtained in the manner provided in ORS 65.361 (2) and (5) for approval of issues involving director conflicts of interest; (b) Notice of the loan, guarantee or modification is given to the members of the corporation in the manner provided in ORS 65.784 for notice of certain acts of indemnification; and (c) Twenty or more days before the loan, guarantee or modification is to become binding on the corporation, written notice has been given to the Attorney General of the proposed recruitment package for the director or officer, including identification of the amount and character of all items of compensation and a separate statement of the amount and terms of any such loan, guarantee or modification.

(2) A mutual benefit corporation may not lend money to or guarantee the obligation of a director of the corporation unless: (a) The particular loan or guarantee is approved by a majority of the votes of members entitled to vote, excluding the votes of members under the control of the benefited director; or (b) The corporation’s board of directors determines that the loan or guarantee benefits the corporation and either approves the specific loan or guarantee or a general plan authorizing the loans and guarantees.

(3) The fact that a loan or guarantee is made in violation of this section does not affect the borrower’s liability on the loan. [1989 c.1010 §90; 1991 c.231 §6] 65.367 Liability for unlawful distributions. (1) Unless a director complies with the applicable standards of conduct described in ORS 65.357, a director who votes for or assents to a distribution made in violation of this chapter or the articles of incorporation is personally liable to the corporation for the amount of the distribution that exceeds what could have been distributed without violating this chapter.

(2) A director held liable for an unlawful distribution under subsection (1) of this section is entitled to contribution: (a) From every other director who voted for or assented to the distribution without complying with the applicable standards of conduct described in ORS 65.357; and

(b) From each person who received an unlawful distribution for the amount of the distribution whether or not the person receiving the distribution knew it was made in violation of this chapter or the articles of incorporation. [1989 c.1010 §91] 65.369 Liability of qualified directors. (1) The civil liability of a qualified director for the performance or nonperformance of the director’s duties shall be limited to gross negligence or intentional misconduct.

(2) This section does not affect the civil liability of the entity which a qualified director serves.

(3) For the purposes of this section, “qualified director” means a person who serves without compensation for personal services as: (a) A member of a board or commission of the state or a governmental subdivision for the purpose of setting policy and controlling or otherwise overseeing the activities or functional responsibilities of the board or commission but, notwithstanding ORS 30.265 (2), the entity is not thereby rendered immune from liability; (b) An officer, director or member of an executive board for the purpose of setting policy and controlling or otherwise overseeing the activities or functional responsibilities of a nonprofit corporation, unincorporated association or nonprofit cooperative corporation that has as its primary purpose: (A) Religion; (B) Charity; (C) Benevolence; (D) Providing goods or services at no charge to the general public; (E) Education; (F) Scientific activity; (G) Medical or hospital services at reduced costs; or (H) Engaging in activities of the nature specified in section 501 of the Internal Revenue Code of 1986, as amended; (c) A director for the purpose of setting policy and controlling or otherwise overseeing the activities or functional responsibilities of an organization which acts as an advocate for its members and which has as its members individuals or organizations that are: (A) Members of a particular trade or industry; or (B) Members of the business community of a particular municipality or area of the state; or (d) An officer, director or member of an executive board for the purpose of setting policy and controlling or otherwise overseeing the activities or functional responsibilities of a nonprofit corporation, unincorporated association or nonprofit cooperative corporation composed of owners or lessees of units or interests in any condominium submitted to the provisions of ORS 100.005 to 100.625, any planned community as defined in ORS 94.550, any timeshare property as defined in ORS 94.803, any residential cooperative community or any other residential or commercial common interest real estate community.

(4) An otherwise qualified director shall not be considered to be compensated for personal services if the director receives payment only for actual expenses incurred in attending meetings or performing a director’s duties or receives a stipend which is paid only to compensate the director for average expenses incurred over the course of a year. [1989 c.1010 §§92,92a; 1991 c.64 §4; 1991 c.81 §1; 1991 c.231 §5; 1999 c.677 §64] (Officers) 65.371 Required officers. (1) A corporation shall have a president, a secretary and such other officers as are elected or appointed by the board or by any other person as may be authorized in the articles or

bylaws, provided that the articles of incorporation or bylaws may designate other titles in lieu of president and secretary.

(2) The bylaws or the board shall delegate to one of the officers responsibility for preparing minutes of the directors’ and members’ meetings and for authenticating records of the corporation.

(3) The same individual may simultaneously hold more than one office in a corporation. [1989 c.1010 §93; 1991 c.231 §7] 65.374 Duties and authority of officers. Each officer has the authority and shall perform the duties set forth in the bylaws or, to the extent consistent with the bylaws, the duties and authority prescribed by the board of directors or by direction of an officer authorized by the board of directors to prescribe the duties of other officers. [1989 c.1010 §94] 65.377 Standards of conduct for officers. (1) An officer shall discharge the officer’s duties: (a) In good faith; (b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and (c) In a manner the officer reasonably believes to be in the best interests of the corporation.

(2) In discharging the duties of an officer, an officer is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by: (a) One or more officers or employees of the corporation whom the officer reasonably believes to be reliable and competent in the matters presented; (b) Legal counsel, public accountants or other persons as to matters the officer reasonably believes are within the person’s professional or expert competence; or (c) In the case of religious corporations, religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the officer believes justify reliance and confidence and whom the officer believes to be reliable and competent in the matters presented.

(3) An officer is not acting in good faith if the officer has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (2) of this section unwarranted.

(4) An officer is not liable to the corporation, any member or other person for any action taken or not taken as an officer if the officer acted in compliance with this section. The liability of the officer for monetary damages to the corporation and its members may be eliminated or limited in the corporation’s articles to the extent provided in ORS 65.047 (2)(c). [1989 c.1010 §95] 65.381 Resignation and removal of officers. (1) An officer may resign at any time by delivering notice to the corporation. A resignation is effective when the notice is effective under ORS 65.034 unless the notice specifies a later effective date. If a resignation is made effective at a later date and the corporation accepts the later effective date, its board of directors or any other person as authorized under the articles or bylaws may fill the pending vacancy before the effective date if the board or any other person provides that the successor does not take office until the effective date.

(2) A board of directors or any other person authorized under the articles or bylaws to elect or appoint an officer may remove any officer the board or any other person is entitled to elect or appoint, at any time with or without cause.

(3) Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the board of directors. [1989 c.1010 §96; 1991 c.231 §8]

65.384 Contract rights of officers. (1) The appointment of an officer does not itself create contract rights.

(2) Removal or resignation of an officer does not affect the contract rights, if any, of the corporation or the officer. [1989 c.1010 §97] (Indemnification) 65.387 Definitions for ORS 65.387 to 65.414. As used in ORS 65.387 to 65.414: (1) “Corporation” includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor’s existence ceased upon consummation of the transaction.

(2) “Director” means an individual who is or was a director of a corporation or an individual who, while a director of a corporation, is or was serving at the corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic business or nonprofit corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. A director is considered to be serving an employee benefit plan at the corporation’s request if the director’s duties to the corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. “Director” includes, unless the context requires otherwise, the estate or personal representative of a director.

(3) “Expenses” include attorney fees.

(4) “Liability” means the obligation to pay a judgment, settlement, penalty, fine, including an excise tax assessed with respect to an employee benefit plan, or reasonable expenses actually incurred with respect to a proceeding.

(5) “Officer” means an individual who is or was an officer of a corporation or an individual who, while an officer of a corporation, is or was serving at the corporation’s request as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. An officer is considered to be serving an employee benefit plan at the corporation’s request if the officer’s duties to the corporation also impose duties on or include services by the officer to the employee benefit plan or to participants in or beneficiaries of the plan. “Officer” includes, unless the context requires otherwise, the estate or personal representative of an officer.

(6) “Party” includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding.

(7) “Proceeding” means any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative and whether formal or informal. [1989 c.1010 §98] 65.391 Authority to indemnify. (1) Except as provided in subsection (4) of this section, a corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (a) The conduct of the individual was in good faith; (b) The individual reasonably believed that the individual’s conduct was in the best interests of the corporation, or at least not opposed to its best interests; and (c) In the case of any criminal proceeding, the individual had no reasonable cause to believe the conduct of the individual was unlawful.

(2) A director’s conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirements of subsection (1)(b) of this section.

(3) The termination of a proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this section.

(4) A corporation may not indemnify a director under this section: (a) In connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (b) In connection with any other proceeding charging improper personal benefit to the director in which the director was adjudged liable on the basis that personal benefit was improperly received by the director.

(5) Indemnification permitted under this section in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. [1989 c.1010 §99] 65.394 Mandatory indemnification. Unless limited by its articles of incorporation, a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because of being a director of the corporation, against reasonable expenses actually incurred by the director in connection with the proceeding. [1989 c.1010 §100; 2005 c.22 §46] 65.397 Advance for expenses. (1) A corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (a) The director furnishes the corporation a written affirmation of the director’s good faith belief that the director has met the standard of conduct described in ORS 65.391; and (b) The director furnishes the corporation a written undertaking, executed personally or on the director’s behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct.

(2) The undertaking required by subsection (1)(b) of this section must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment.

(3) Any authorization of payments under this section may be made by provision in the articles of incorporation or bylaws, by a resolution of the members or board of directors or by contract. [1989 c.1010 §101] 65.401 Court-ordered indemnification. Unless the corporation’s articles of incorporation provide otherwise, a director of the corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification in the amount it considers proper if it determines: (1) The director is entitled to mandatory indemnification under ORS 65.394, in which case the court shall also order the corporation to pay the director’s reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in ORS 65.391 (1) or was adjudged liable as described in ORS 65.391 (4), whether the liability is based on a judgment, settlement or proposed settlement or otherwise. [1989 c.1010 §102] 65.404 Determination and authorization of indemnification. (1) A corporation may not indemnify a director under ORS 65.391 unless authorized in the specific case after a determination has been made that

indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in ORS 65.391.

(2) A determination that indemnification of a director is permissible shall be made: (a) By the board of directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; (b) If a quorum cannot be obtained under paragraph (a) of this subsection, by a majority vote of a committee duly designated by the board of directors, consisting solely of two or more directors not at the time parties to the proceeding; (c) By special legal counsel selected by the board of directors or its committee in the manner prescribed in paragraph (a) or (b) of this subsection or, if a quorum of the board cannot be obtained under paragraph (a) of this subsection and a committee cannot be designated under paragraph (b) of this subsection, the special legal counsel shall be selected by majority vote of the full board of directors including directors who are parties to the proceeding; or (d) By the members of a mutual benefit corporation, but directors who are at the time parties to the proceeding may not vote on the determination.

(3) Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection (2)(c) of this section to select counsel.

(4) A director of a public benefit corporation may not be indemnified until 20 days after the effective date of written notice to the Attorney General of the proposed indemnification. [1989 c.1010 §103] 65.407 Indemnification of officers, employees and agents. Unless a corporation’s articles of incorporation provide otherwise: (1) An officer of the corporation is entitled to mandatory indemnification under ORS 65.394, and is entitled to apply for court-ordered indemnification under ORS 65.401 in each case, to the same extent as a director under ORS 65.394 and 65.401.

(2) The corporation may indemnify and advance expenses under ORS 65.387 to 65.411 an officer, employee or agent of the corporation who is not a director to the same extent as to a director. [1989 c.1010 §104] 65.411 Insurance. A corporation may purchase and maintain insurance on behalf of an individual against liability asserted against or incurred by the individual who is or was a director, officer, employee or agent of the corporation, or who, while a director, officer, employee or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic business or nonprofit corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The corporation may purchase and maintain the insurance even if the corporation has no power to indemnify the individual against the same liability under ORS 65.391 or 65.394. [1989 c.1010 §105] 65.414 Application of ORS 65.387 to 65.411. (1) The indemnification and provisions for advancement of expenses provided by ORS 65.387 to 65.411 shall not be deemed exclusive of any other rights to which directors, officers, employees or agents may be entitled under the corporation’s articles of incorporation or bylaws, any agreement, general or specific action of its board of directors, vote of members or otherwise, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Specifically and not by way of

limitation, a corporation shall have the power to make or agree to make any further indemnification, including advancement of expenses, of: (a) Any director as authorized by the articles of incorporation, any bylaws approved, adopted or ratified by the members or any resolution or agreement approved, adopted or ratified, before or after such indemnification or agreement is made, by the members, provided that no such indemnification shall indemnify any director from or on account of acts or omissions for which liability could not be eliminated under ORS 65.047 (2)(c); and (b) Any officer, employee or agent who is not a director as authorized by its articles of incorporation or bylaws, general or specific action of its board of directors or agreement. Unless the articles of incorporation, or any such bylaws, agreement or resolution provide otherwise, any determination as to any further indemnity under this paragraph shall be made in accordance with ORS 65.404.

(2) If articles of incorporation limit indemnification or advance of expenses, any indemnification and advance of expenses are valid only to the extent consistent with the articles of incorporation.

(3) ORS 65.387 to 65.411 do not limit a corporation’s power to pay or reimburse expenses incurred by a director in connection with the director’s appearance as a witness in a proceeding at a time when the director has not been made a named defendant or respondent to a proceeding.

(4) A report of indemnification must be made in accordance with ORS 65.784. [1989 c.1010 §106; 1991 c.231 §9] AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS (Amendment of Articles of Incorporation) 65.431 Authority. (1) A corporation may amend its articles of incorporation at any time to add, change or delete any provision if the articles of incorporation as amended would be permitted under ORS 65.431 to 65.467 as of the effective date of the amendment.

(2) A corporation designated on the records of the Office of the Secretary of State as a public benefit or religious corporation may amend or restate its articles of incorporation so that it becomes designated as a mutual benefit corporation only if notice, including a copy of the proposed amendment or restatement, has been delivered to the Attorney General at least 20 days before consummation of the amendment or restatement. [1989 c.1010 §107] 65.434 Amendment by directors. (1) Unless the articles provide otherwise, a corporation’s board of directors may adopt one or more amendments to the corporation’s articles without member approval: (a) To extend the duration of the corporation if it was incorporated at a time when limited duration was required by law; (b) To delete the names and addresses of the initial directors and incorporators; (c) To delete the name and address of the initial registered agent or registered office, if a statement of change is on file with the Office of the Secretary of State; (d) To delete the mailing address if an annual report has been filed with the Office of the Secretary of State; (e) To change the corporate name by adding, changing or deleting the word “corporation,” “incorporated,” “company,” “limited” or the abbreviation “corp.,” “inc.,” “co.” or “ltd.,” for a similar word or abbreviation in the name, or by adding, deleting or changing a geographical attribution to the name; (f) To include a statement of whether the corporation is a public benefit, mutual benefit or religious corporation; or

(g) To make any other change expressly permitted by this chapter to be made by director action.

(2) If a corporation has no members entitled to vote on articles, its incorporators, until directors have been chosen, and thereafter its board of directors, may adopt one or more amendments to the corporation’s articles subject to any approval required pursuant to ORS 65.467. The corporation shall provide notice of any meeting at which an amendment is to be voted upon. The notice shall be in accordance with ORS 65.344 (2). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider a proposed amendment to the articles and contain or be accompanied by a copy or summary of the amendment or state the general nature of the amendment. Unless the articles or bylaws require a greater vote or the board of directors requires a greater vote, the amendment must be approved by a majority of the directors in office at the time the amendment is adopted. Any number of amendments may be submitted and voted upon at any one meeting. [1989 c.1010 §108; 1991 c.231 §10] 65.437 Amendment by board of directors and members. (1) Unless this chapter, the articles, bylaws, the members, acting pursuant to subsection (2) of this section, or the board of directors acting pursuant to subsection (3) of this section, require a greater vote or voting by class, an amendment to a corporation’s articles to be adopted must be approved: (a) By the board if the corporation is a public benefit or religious corporation and the amendment does not relate to the number of directors, the composition of the board, the term of office of directors or the method or way in which directors are elected or selected; (b) Except as provided in ORS 65.434 (1), by the members entitled to vote on articles by at least twothirds of the votes cast or a majority of the voting power, whichever is less; and (c) In writing by any person or persons whose approval is required for an amendment to the articles as authorized by ORS 65.467.

(2) The members entitled to vote on articles may condition the amendment’s adoption on receipt of a higher percentage of affirmative votes or on any other basis.

(3) If the board initiates an amendment to the articles or board approval is required by subsection (1) of this section to adopt an amendment to the articles, the board may condition the amendment’s adoption on receipt of a higher percentage of affirmative votes or on any other basis. For the amendment to be adopted, the board of directors shall, except in those cases described in subsection (1)(a) of this section, adopt a resolution setting forth the proposed amendment and directing that it be submitted to a vote at a meeting of members, which may be either an annual or special meeting.

(4) If the board or the members entitled to vote on articles seek to have the amendment approved by such members at a membership meeting, the corporation shall give notice to such members of the proposed membership meeting in writing in accordance with ORS 65.214. The notice must state that the purpose, or one of the purposes, of the meeting is to consider the proposed amendment and contain or be accompanied by a copy or summary of the amendment.

(5) If the board or the members entitled to vote on articles seek to have the amendment approved by such members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the amendment. [1989 c.1010 §109] 65.441 Class voting by members on amendments. (1) In a public benefit corporation the members of a class entitled to vote on articles are entitled to vote as a class on a proposed amendment to the articles if the amendment would affect the rights of that class as to voting in a manner different than the amendment would affect another class or members of another class.

(2) In a mutual benefit corporation the members of a class entitled to vote on articles are entitled to vote as a class on a proposed amendment to the articles if the amendment would:

(a) Affect the rights, privileges, preferences, restrictions or conditions of that class as to voting, dissolution, redemption or transfer of memberships in a manner different than such amendment would affect another class; (b) Change the rights, privileges, preferences, restrictions or conditions of that class as to voting, dissolution, redemption or transfer by changing the rights, privileges, preferences, restrictions or conditions of another class; (c) Increase or decrease the number of memberships authorized for that class; (d) Increase the number of memberships authorized for another class; (e) Effect an exchange, reclassification or termination of the memberships of that class; or (f) Authorize a new class of memberships.

(3) In a religious corporation the members of a class entitled to vote on articles are entitled to vote as a class on a proposed amendment to the articles only if a class vote is provided for in the articles or bylaws.

(4) If a class is to be divided into two or more classes as a result of an amendment to the articles of a public benefit or mutual benefit corporation, the amendment must be approved by the members of each class entitled to vote on articles that would be created by the amendment.

(5) Except as provided in the articles or bylaws of a religious corporation, if a class vote is required to approve an amendment to the articles of a corporation, the amendment must be approved by the members of the class entitled to vote on articles by two-thirds of the votes cast by the class or a majority of the voting power of the class, whichever is less.

(6) A class of members of a public benefit or mutual benefit corporation is entitled to the voting rights granted by this section although the articles and bylaws provide that the class may not vote on the proposed amendment. [1989 c.1010 §110] 65.447 Articles of amendment. A corporation amending its articles shall deliver for filing to the Office of the Secretary of State articles of amendment setting forth: (1) The name of the corporation.

(2) The text of each amendment adopted.

(3) The date of each amendment’s adoption.

(4) If approval of members was not required, a statement to that effect and a statement that the amendment was approved by a sufficient vote of the board of directors or incorporators.

(5) If approval by members entitled to vote on articles was required: (a) The designation and number of members of, and number of votes entitled to be cast by, each class entitled to vote separately on the amendment; and (b) The total number of votes cast for and against the amendment by each class entitled to vote separately on the amendment.

(6) If approval of the amendment by some person or persons other than the members entitled to vote on articles, the board or the incorporators is required pursuant to ORS 65.467, a statement that the approval was obtained. [1989 c.1010 §111] 65.451 Restated articles of incorporation. (1) A corporation’s board of directors may restate its articles of incorporation at any time with or without approval by the members entitled to vote on articles or any other person.

(2) The restatement may include one or more amendments to the articles. If the restatement includes an amendment requiring approval by the members entitled to vote on articles or any other person, it must be adopted as provided in ORS 65.437.

(3) If the board seeks to have the restatement approved by the members entitled to vote on articles at a membership meeting, the corporation shall give written notice to the members entitled to vote on articles of the proposed membership meeting in accordance with ORS 65.214. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the proposed restatement and contain or be accompanied by a copy or summary of the restatement that identifies any amendments or other change it would make in the articles.

(4) If the board seeks to have the restatement approved by the members entitled to vote on articles by written ballot or written consent, the material soliciting the approval shall contain or be accompanied by a copy or summary of the restatement that identifies any amendments or other change it would make in the articles.

(5) A restatement requiring approval by the members entitled to vote on articles must be approved by the same vote as an amendment to articles under ORS 65.437.

(6) A corporation restating its articles of incorporation shall deliver to the Office of the Secretary of State for filing articles of restatement setting forth the name of the corporation and the text of the restated articles of incorporation together with a certificate setting forth: (a) Whether the restatement contains an amendment to the articles requiring approval by the members entitled to vote on articles or any other person other than the board of directors and, if it does not, that the board of directors adopted the restatement, or if the restatement contains an amendment to the articles requiring approval by the members entitled to vote on articles, the information required by ORS 65.447; and (b) If the restatement contains an amendment to the articles requiring approval by a person whose approval is required pursuant to ORS 65.467, a statement that such approval was obtained.

(7) Restated articles of incorporation shall include all statements required to be included in original articles of incorporation except that no statement is required to be made with respect to: (a) The names and addresses of the incorporators or the initial or present registered office or agent; or (b) The mailing address of the corporation if an annual report has been filed with the Office of the Secretary of State.

(8) Duly adopted restated articles of incorporation supersede the original articles of incorporation and all amendments to them.

(9) The Secretary of State may certify restated articles of incorporation, as the articles of incorporation currently in effect, without including the certificate information required by subsection (6) of this section.

[1989 c.1010 §112; 2005 c.22 §47] 65.454 Amendment pursuant to court order. (1) A corporation’s articles may be amended without board approval or approval by the members entitled to vote on articles, or approval required pursuant to ORS 65.467: (a) To carry out a plan of reorganization ordered or decreed by a court of competent jurisdiction under federal statute; or (b) In a proceeding brought by the Attorney General in the Circuit Court for Marion County to correct the statement in the articles of incorporation or the annual report with regard to whether the corporation is a public benefit or mutual benefit corporation or, subject to the provisions of ORS 65.042, a religious corporation.

(2) The articles after amendment shall contain only provisions required or permitted by ORS 65.047.

(3) The individual or individuals designated by the court in a reorganization proceeding, or the Attorney General in a proceeding brought by the Attorney General, shall deliver to the Office of the Secretary of State for filing articles of amendment setting forth: (a) The name of the corporation;

(b) The text of each amendment approved by the court; (c) The date of the court’s order or decree approving the articles of amendment; (d) The title of the proceeding in which the order or decree was entered; and (e) A statement whether the court had jurisdiction of the proceeding under federal statute or under subsection (1)(b) of this section.

(4) This section does not apply after entry of a final decree in the reorganization proceeding even though the court retains jurisdiction of the proceeding for limited purposes unrelated to consummation of the reorganization plan. [1989 c.1010 §113] 65.457 Effect of amendment and restatement. An amendment to articles of incorporation does not affect a cause of action existing against or in favor of the corporation, a proceeding to which the corporation is a party, any requirement or limitation imposed upon the corporation or any property held by it by virtue of any trust upon which such property is held by the corporation or the existing rights of persons other than members of the corporation. An amendment changing a corporation’s name does not abate a proceeding brought by or against the corporation in its former name. [1989 c.1010 §114] (Amendment of Bylaws) 65.461 Amendment by directors. Unless otherwise provided in its articles or bylaws, a corporation with no members with the power to vote on bylaws shall amend its bylaws as provided in this section. The corporation’s incorporators, until directors have been chosen, and thereafter its board of directors may adopt one or more amendments to the corporation’s bylaws subject to any approval required pursuant to ORS 65.467. The corporation shall provide notice of any meeting of directors at which an amendment is to be approved. The notice shall be in accordance with ORS 65.344 (2). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider a proposed amendment to the bylaws and contain or be accompanied by a copy or summary of the amendment or state the general nature of the amendment. [1989 c.1010 §115] 65.464 Amendment by directors and members. (1) A corporation’s board of directors may amend or repeal the corporation’s bylaws unless: (a) The articles of incorporation or this chapter reserve this power exclusively to the members, or to a party authorized under ORS 65.467, or both, in whole or in part; or (b) The members entitled to vote on bylaws, in amending or repealing a particular bylaw, provide expressly that the board of directors may not amend or repeal that bylaw.

(2) A corporation’s members entitled to vote on bylaws, subject to ORS 65.467, may amend or repeal the corporation’s bylaws even though the bylaws may also be amended or repealed by its board of directors.

[1989 c.1010 §116] 65.467 Approval by third persons. The articles may require an amendment to the articles or bylaws to be approved in writing by a specified person or persons other than the board. Such an article provision may not be amended without the approval in writing of such person or persons. [1989 c.1010 §117] MERGER

65.481 Approval of plan of merger. (1) Subject to the limitations set forth in ORS 65.484, one or more nonprofit corporations may merge with a business or nonprofit corporation, if the plan of merger is approved as provided in ORS 65.487.

(2) The plan of merger must set forth: (a) The name of each business or nonprofit corporation planning to merge and the name of the surviving corporation into which each other corporation plans to merge; (b) The terms and conditions of the merger; (c) The manner and basis, if any, of converting the memberships of each public benefit or religious corporation into memberships of the surviving corporation; and (d) If the merger involves a mutual benefit or business corporation, the manner and basis, if any, of converting the memberships or shares of each merging corporation into memberships, obligations, shares or other securities of the surviving or any other corporation or into cash or other property in whole or part.

(3) The plan of merger may set forth: (a) Amendments to the articles of incorporation of the surviving corporation; and (b) Other provisions relating to the merger. [1989 c.1010 §118] 65.484 Limitations on mergers by public benefit or religious corporations. (1) Without the prior written consent of the Attorney General or the prior approval of the circuit court of the county where the corporation’s principal office is located or, if the principal office is not in this state, where the registered office of the corporation is or was last located, in a proceeding in which the Attorney General has been given written notice, a public benefit or religious corporation may merge only with: (a) A public benefit or religious corporation; (b) A foreign corporation which would qualify under this chapter as a public benefit or religious corporation; (c) A wholly owned foreign or domestic business or mutual benefit corporation, provided the public benefit or religious corporation is the surviving corporation and continues to be a public benefit or religious corporation after the merger; or (d) A foreign or domestic business or mutual benefit corporation, provided that: (A) On or prior to the effective date of the merger, assets with a value equal to the greater of the fair market value of the net tangible and intangible assets, including goodwill, of the public benefit or religious corporation or the fair market value of the public benefit or religious corporation if it were to be operated as a business concern are transferred or conveyed to one or more persons who would have received its assets under ORS 65.637 (1)(e) and (f) had it dissolved; (B) It shall return, transfer or convey any assets held by it upon condition requiring return, transfer or conveyance, which condition occurs by reason of the merger, in accordance with such condition; and (C) The merger is approved by a majority of directors of the public benefit or religious corporation who are not and will not become members or shareholders in, or officers, employees, agents or consultants of, the surviving corporation.

(2) Notice, including a copy of the proposed plan of merger, must be delivered to the Attorney General at least 20 days before consummation of any merger of a public benefit corporation or a religious corporation pursuant to subsection (1)(d) of this section.

(3) Without the prior written consent of the Attorney General or the prior approval of the court specified in subsection (1) of this section in a proceeding in which the Attorney General has been given written notice, no member of a public benefit or religious corporation may receive or keep anything as a result of a merger other than a membership in the surviving public benefit or religious corporation. Where approval or

consent is required by this section, it shall be given if the transaction is consistent with the purposes of the public benefit or religious corporation or is otherwise in the public interest. [1989 c.1010 §119] 65.487 Action on plan by board, members and third persons. (1) Unless this chapter, the articles, bylaws or the board of directors or members, acting pursuant to subsection (3) of this section, require a greater vote or voting by class, adoption of a plan of merger requires, with respect to each corporation party to the merger, approval: (a) By the board; (b) By the members entitled to vote on the merger, if any, by at least two-thirds of the votes cast or a majority of the voting power, whichever is less; and (c) In writing, by any person or persons whose approval is required for an amendment to the articles or bylaws by a provision of the articles, as authorized by ORS 65.467.

(2) If the corporation does not have members entitled to vote on the merger, the merger must be approved by a majority of the directors in office at the time the merger is approved. In addition, the corporation shall provide notice of any directors’ meeting at which such approval is to be obtained in accordance with ORS 65.344 (2). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the proposed merger.

(3) The board of directors may condition its submission of the proposed merger to a vote of members, and the members entitled to vote on the merger may condition their approval of the merger, on receipt of a higher percentage of affirmative votes or on any other basis.

(4) If the board seeks to have the plan approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with ORS 65.214. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger and contain or be accompanied by a copy or summary of the plan. The copy or summary of the plan for members of the surviving corporation shall include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision. The copy or summary of the plan for members of each disappearing corporation shall include a copy or summary of the articles and bylaws which will be in effect immediately after the merger takes effect.

(5) If the board seeks to have the plan approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the plan. The copy or summary of the plan for members of the surviving corporation shall include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision. The copy or summary of the plan for members of each disappearing corporation shall include a copy or summary of the articles and bylaws which will be in effect immediately after the merger takes effect.

(6) Voting by a class of members is required on a plan of merger if the plan contains a provision that, if contained in a proposed amendment to the articles of incorporation, would entitle the class of members to vote as a class on the proposed amendment under ORS 65.441. The plan is approved by a class of members by two-thirds of the votes cast by the class or a majority of the voting power of the class, whichever is less.

(7) After a merger is adopted, and at any time before articles of merger are filed, the planned merger may be abandoned, subject to any contractual rights, without further action by members or other persons who approved the plan, in accordance with the procedure set forth in the plan of merger or, if none is set forth, in the manner determined by the board of directors. [1989 c.1010 §120]

65.491 Articles of merger. (1) After a plan of merger is approved by the board of directors of each merging corporation and, if required by ORS 65.487, by the members and any other persons, the surviving corporation shall deliver to the Office of the Secretary of State for filing articles of merger setting forth: (a) The plan of merger. (b) If approval of members was not required, a statement to that effect and a statement that the plan was approved by a sufficient vote of the board of directors of each corporation. (c) If approval by the members of one or more corporations was required: (A) The designation and number of members of, and number of votes entitled to be cast by, each class entitled to vote separately on the plan; and (B) The total number of votes cast for and against the plan by each class entitled to vote separately on the plan. (d) If approval of the plan by some person or persons other than the members or the board is required pursuant to ORS 65.487 (1)(c), a statement that the approval was obtained.

(2) Unless a delayed effective date is specified, a merger takes effect when the articles of merger are filed. [1989 c.1010 §121] 65.494 Effect of merger. When a merger takes effect: (1) Every other corporation party to the merger merges into the surviving corporation and the separate existence of every corporation except the surviving corporation ceases; (2) The title to all real estate and other property owned by each corporation party to the merger is vested in the surviving corporation without reversion or impairment subject to any and all conditions to which the property was subject prior to the merger; (3) The surviving corporation has all liabilities and obligations of each corporation party to the merger; (4) A proceeding pending against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation whose existence ceased; (5) The articles of incorporation and bylaws of the surviving corporation are amended to the extent provided in the plan of merger; and (6) The memberships or shares of each nonprofit or business corporation party to the merger that are to be converted into memberships, obligations, shares or other securities of the surviving or any other corporation or into cash or other property are converted and the former holders of the memberships or shares are entitled only to the rights provided in the articles of merger. [1989 c.1010 §122] 65.497 Merger with foreign corporation. (1) Except as provided in ORS 65.484, one or more foreign business or nonprofit corporations may merge with one or more domestic nonprofit corporations if: (a) The merger is permitted by the law of the state or country under whose law each foreign business or nonprofit corporation is incorporated and each foreign business or nonprofit corporation complies with that law in effecting the merger; (b) The foreign business or nonprofit corporation complies with ORS 65.491 if it is the surviving corporation of the merger; and (c) Each domestic nonprofit corporation complies with the applicable provisions of ORS 65.481 to 65.487 and, if it is the surviving corporation of the merger, with ORS 65.491.

(2) Upon the merger taking effect, a surviving foreign business or nonprofit corporation is deemed to have irrevocably appointed the Secretary of State as its agent for service of process in any proceeding brought against it. [1989 c.1010 §123]

65.501 Effect of merger on bequests, devises and gifts. Any bequest, devise, gift, grant or promise contained in a will or other instrument of donation, subscription or conveyance, which is made to a constituent corporation and which takes effect or remains payable after the merger, inures to the surviving corporation unless the will or other instrument otherwise specifically provides. [1989 c.1010 §124] 65.504 Merger with business corporation. Any domestic business corporation which is a party to a merger with a nonprofit corporation pursuant to this chapter shall comply with all applicable requirements of the Oregon Business Corporation Act relating to mergers except when inconsistent with this chapter. If a domestic business corporation is the survivor of a merger with a nonprofit corporation, following the merger it shall be subject to the Oregon Business Corporation Act. [1989 c.1010 §125] SALE OF ASSETS 65.531 Sale of assets in regular course of activities; mortgage of assets. (1) A corporation may, on the terms and conditions and for the consideration determined by the board of directors: (a) Sell, lease, exchange or otherwise dispose of all or substantially all of its property in the usual and regular course of its activities; or (b) Mortgage, pledge, dedicate to the repayment of indebtedness, whether with or without recourse, or otherwise encumber any or all of its property whether or not in the usual and regular course of its activities.

(2) Unless required by the articles of incorporation, approval by the members or any other person of a transaction described in subsection (1) of this section is not required. [1989 c.1010 §126] 65.534 Sale of assets other than in regular course of activities. (1) A corporation may sell, lease, exchange or otherwise dispose of all or substantially all of its property, with or without the goodwill, other than in the usual and regular course of its activities, on the terms and conditions and for the consideration determined by the corporation’s board of directors if the proposed transaction is authorized by subsection (2) of this section.

(2) Unless this chapter, the articles, bylaws or the board of directors or members, acting pursuant to subsection (4) of this section, require a greater vote or voting by class, the proposed transaction to be authorized must be approved: (a) By the board; (b) By the members entitled to vote on the transaction by at least two-thirds of the votes cast or a majority of the voting power, whichever is less; and (c) In writing by any person or persons whose approval is required for an amendment to the articles or bylaws by a provision of the articles as authorized by ORS 65.467.

(3) If the corporation does not have members entitled to vote on the transaction, the transaction must be approved by a majority of the directors in office at the time the transaction is approved. In addition, the corporation shall provide notice of any directors’ meeting at which such approval is to be obtained in accordance with ORS 65.344 (2). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the sale, lease, exchange or other disposition of all or substantially all of the property of the corporation and contain or be accompanied by a description of the transaction.

(4) The board of directors may condition its submission of the proposed transaction to a vote of members, and the members entitled to vote on the transaction may condition their approval of the transaction, on receipt of a higher percentage of affirmative votes or on any other basis.

(5) If the board seeks to have the transaction approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with ORS

65.214. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the sale, lease, exchange or other disposition of all or substantially all of the property of the corporation and contain or be accompanied by a description of the transaction.

(6) If the board seeks to have the transaction approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a description of the transaction.

(7) A public benefit or religious corporation must give written notice to the Attorney General 20 days before it sells, leases, exchanges or otherwise disposes of all or substantially all of its property unless the transaction is in the usual and regular course of its activities or the Attorney General has given the corporation a written waiver of this notice requirement.

(8) After a sale, lease, exchange or other disposition of property is authorized, the transaction may be abandoned, subject to any contractual rights, without further action by the members or any other person who approved the transaction, in accordance with the procedure set forth in the resolution proposing the transaction or, if none is set forth, in the manner determined by the board of directors. [1989 c.1010 §127; 2005 c.22 §48] DISTRIBUTIONS 65.551 Prohibited distributions. Except as authorized by ORS 65.554, a corporation shall not make any distributions. [1989 c.1010 §128] 65.554 Authorized distributions. Unless prohibited by its articles or bylaws: (1) A mutual benefit corporation may purchase its memberships and, under the circumstances indicated in ORS 65.147 and 65.171, a public benefit or religious corporation may purchase its memberships, if after the purchase is completed: (a) The corporation would be able to pay its debts as they become due in the usual course of its activities; and (b) The corporation’s total assets would at least equal the sum of its total liabilities.

(2) A corporation may make distributions upon dissolution in conformity with ORS 65.621 to 65.674.

(3) A corporation may make distributions to a member which is a religious or public benefit corporation or a foreign nonprofit corporation which, if incorporated in this state, would qualify as a religious or public benefit corporation. [1989 c.1010 §129] DISSOLUTION (Voluntary Dissolution) 65.621 Dissolution by incorporators. (1) A majority of the incorporators of a corporation that has no members and that does not yet have initial directors may, subject to any approval required by the articles or bylaws, dissolve the corporation by delivering articles of dissolution to the Office of the Secretary of State for filing.

(2) The corporation shall give the incorporators notice equivalent to that specified in ORS 65.344 (2), of any meeting at which dissolution will be considered. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolution of the corporation.

(3) The incorporators in approving dissolution shall adopt a plan of dissolution indicating to whom the assets owned or held by the corporation will be distributed after all creditors have been paid. [1989 c.1010 §130] 65.624 Dissolution by directors, members and third persons. (1) Unless this chapter, the articles, bylaws or the board of directors or members, acting pursuant to subsection (3) of this section, require a greater vote or voting by class, dissolution is authorized if it is approved: (a) By the board; (b) By the members entitled to vote on dissolution, if any, by at least two-thirds of the votes cast or a majority of the voting power, whichever is less; and (c) In writing, by any person or persons whose approval is required for an amendment of the articles or bylaws, as authorized by ORS 65.467, or for dissolution.

(2) If the corporation does not have members entitled to vote on dissolution, dissolution must be approved by a vote of a majority of the directors in office at the time the transaction is approved. In addition, the corporation shall provide notice of any meeting of the board of directors at which such approval is to be considered in accordance with ORS 65.344 (2). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolution of the corporation and contain or be accompanied by a copy or summary of the plan of dissolution.

(3) The board may condition its submission of the proposed dissolution to a vote of members, and the members may condition their approval of the dissolution on receipt of a higher percentage of affirmative votes or on any other basis.

(4) If the board seeks to have dissolution approved by the members at a membership meeting, the corporation shall give all members, whether or not entitled to vote, notice of the proposed membership meeting in accordance with ORS 65.214. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolving the corporation and contain or be accompanied by a copy or summary of the plan of dissolution.

(5) If the board seeks to have dissolution approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the plan of dissolution.

(6) The plan of dissolution shall indicate to whom the assets owned or held by the corporation will be distributed after all creditors have been paid. [1989 c.1010 §131; 1991 c.231 §11] 65.627 Notices to Attorney General. (1) A public benefit or religious corporation shall give the Attorney General written notice that it intends to dissolve at or before the time it delivers articles of dissolution to the Secretary of State. The notice shall include a copy or summary of the plan of dissolution.

(2) No assets shall be transferred or conveyed by a public benefit or religious corporation as part of the dissolution process until 20 days after it has given the written notice required by subsection (1) of this section to the Attorney General or until the Attorney General has consented in writing, or indicated in writing, that the Attorney General will take no action in respect to the transfer or conveyance, whichever is earlier.

(3) When all or substantially all of the assets of a public benefit corporation have been transferred or conveyed following approval of dissolution, the board shall deliver to the Attorney General a list showing those, other than creditors, to whom the assets were transferred or conveyed. The list shall indicate the addresses of each person, other than creditors, who received assets and indicate what assets each received.

[1989 c.1010 §132]

65.631 Articles of dissolution. (1) At any time after dissolution is authorized, the corporation may dissolve by delivering to the Office of the Secretary of State for filing, articles of dissolution setting forth: (a) The name of the corporation; (b) The date dissolution was authorized; (c) A statement that dissolution was approved by a sufficient vote of the board; (d) If approval of members was not required, a statement to that effect and a statement that dissolution was approved by a sufficient vote of the board of directors or incorporators; (e) If approval by members entitled to vote was required: (A) The designation and number of members of, and number of votes entitled to be cast by, each class entitled to vote separately on dissolution; and (B) The total number of votes cast for and against dissolution by each class entitled to vote separately on dissolution; (f) If approval of dissolution by some person or persons other than the members entitled to vote on dissolution, the board or the incorporators is required pursuant to ORS 65.624 (1)(c), a statement that the approval was obtained; and (g) If the corporation is a public benefit or religious corporation, that the notice to the Attorney General required by ORS 65.627 (1) has been given.

(2) A corporation is dissolved upon the effective date of its articles of dissolution. [1989 c.1010 §133] 65.634 Revocation of dissolution. (1) A corporation may revoke its dissolution within 120 days of its effective date.

(2) Revocation of dissolution must be authorized in the same manner as the dissolution was authorized unless that authorization of dissolution permits revocation by action of the board of directors alone. If the authorization of dissolution permits revocation by action of the board of directors alone, the board of directors may revoke the dissolution without action by the members or any other person.

(3) After the revocation of dissolution is authorized, the corporation may revoke the dissolution by delivering to the Office of Secretary of State for filing, articles of revocation of dissolution that set forth: (a) The name of the corporation; (b) The effective date of the dissolution that was revoked; (c) The date that the revocation of dissolution was authorized; (d) If the corporation’s board of directors or incorporators revoked the dissolution, a statement to that effect; (e) If the corporation’s board of directors revoked a dissolution authorized by the members alone or in conjunction with another person or persons, a statement that revocation was permitted by action by the board of directors alone pursuant to that authorization; and (f) If member or third-person action was required to revoke the dissolution, the information required by ORS 65.631 (1)(e) and (f).

(4) Unless a delayed effective date is specified, revocation of dissolution is effective when articles of revocation of dissolution are filed.

(5) When the revocation of dissolution is effective, it relates back to and takes effect as of the effective date of the dissolution and the corporation resumes carrying on its activities as if dissolution had never occurred. [1989 c.1010 §134] 65.637 Effect of dissolution. (1) A dissolved corporation continues its corporate existence but may not carry on any activities except those appropriate to wind up and liquidate its affairs, including: (a) Preserving and protecting its assets and minimizing its liabilities;

(b) Discharging or making provision for discharging its liabilities and obligations; (c) Disposing of its properties that will not be distributed in kind; (d) Returning, transferring or conveying assets held by the corporation upon a condition requiring return, transfer or conveyance, which condition occurs by reason of the dissolution, in accordance with such condition; (e) Transferring, subject to any contractual or legal requirements, its assets as provided in or authorized by its articles of incorporation or bylaws; (f) If the corporation is a public benefit or religious corporation, and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring, subject to any contractual or legal requirement, its assets to one or more persons described in ORS 65.001 (37)(b); (g) If the corporation is a mutual benefit corporation and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring, subject to any contractual or legal requirements, its assets to its members or, if it has no members, to those persons whom the corporation holds itself out as benefiting or serving; and (h) Doing every other act necessary to liquidate its assets and wind up its affairs.

(2) Dissolution of a corporation does not: (a) Transfer title to the corporation’s property; (b) Subject its directors or officers to standards of conduct different from those prescribed in ORS 65.301 to 65.414; (c) Change quorum or voting requirements for its board or members, change provisions for selection, resignation or removal of its directors or officers, or both, or change provisions for amending its bylaws; (d) Prevent commencement of a proceeding by or against the corporation in its corporate name; (e) Abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution; or (f) Terminate the authority of the registered agent of the corporation. [1989 c.1010 §135; 2001 c.315 §53] 65.641 Known claims against dissolved corporation. (1) A corporation electing to dispose of known claims pursuant to this section shall notify its known claimants in writing of the dissolution at any time after its effective date. The written notice must: (a) Describe information that must be included in a claim; (b) Provide a mailing address where a claim may be sent; (c) State the deadline, which may not be fewer than 120 days from the effective date of the written notice, by which the dissolved corporation must receive the claim; and (d) State that the claim will be barred if not received by the deadline.

(2) A claim against the dissolved corporation is barred: (a) If a claimant who was given written notice under subsection (1) of this section does not deliver the claim to the dissolved corporation by the deadline; and (b) If a claimant whose claim was rejected by the dissolved corporation does not commence a proceeding to enforce the claim within 90 days from the effective date of the rejection notice.

(3) For purposes of this section, “claim” does not include a contingent liability or a claim based on an event occurring after the effective date of dissolution. [1989 c.1010 §136] 65.644 Unknown claims against dissolved corporation. (1) A dissolved corporation may publish notice of its dissolution and request that persons with claims against the corporation present them in accordance with the notice.

(2) The notice must: (a) Be published at least one time in a newspaper of general circulation in the county where the dissolved corporation’s principal office is located, or if the principal office is not in this state, where its registered office is or was last located; (b) Describe the information that must be included in a claim and provide a mailing address where the claim may be sent; and (c) State that a claim against the corporation will be barred unless a proceeding to enforce the claim is commenced within five years after publication of the notice.

(3) If the dissolved corporation publishes a newspaper notice in accordance with subsection (2) of this section, the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within five years after the publication date of the newspaper notice: (a) A claimant who did not receive written notice under ORS 65.641; (b) A claimant whose claim was sent in a timely manner to the dissolved corporation but not acted on; or (c) A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.

(4) A claim may be enforced under this section: (a) Against the dissolved corporation, to the extent of its undistributed assets; or (b) Against any person, other than a creditor of the corporation, to whom the corporation distributed its property in liquidation subject to the following: (A) If the distributee received a pro rata share of a distribution, the distributee’s liability will not exceed the same pro rata share of the claim; and (B) The distributee’s total liability for all claims under this section may not exceed the total amount of assets distributed to the distributee, less any liability of the corporation paid on behalf of the corporation by that distributee after the date of distribution. [1989 c.1010 §137] (Administrative Dissolution) 65.647 Grounds for administrative dissolution. The Secretary of State may commence a proceeding under ORS 65.651 to administratively dissolve a corporation if: (1) The corporation does not pay when due any fees imposed by this chapter; (2) The corporation does not deliver its annual report to the Secretary of State when due; (3) The corporation is without a registered agent or registered office in this state; (4) The corporation does not notify the Secretary of State that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or (5) The corporation’s period of duration, if any, stated in its articles of incorporation expires. [1989 c.1010 §138] 65.651 Procedure for and effect of administrative dissolution. (1) If the Secretary of State determines that one or more grounds exist under ORS 65.647 for dissolving a corporation, the Secretary of State shall give the corporation written notice of that determination.

(2) If the corporation does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the Secretary of State, within 45 days after notice is given that each ground determined by the Secretary of State does not exist, the Secretary of State shall administratively dissolve the corporation, and in the case of a public benefit corporation shall notify the Attorney General in writing.

(3) A corporation administratively dissolved continues its corporate existence but may not carry on any activities except those necessary to wind up and liquidate its affairs under ORS 65.637 and notify its claimants under ORS 65.641 and 65.644.

(4) The administrative dissolution of a corporation does not terminate the authority of its registered agent. [1989 c.1010 §139; 1993 c.190 §6] 65.654 Reinstatement following administrative dissolution. (1) A corporation administratively dissolved under ORS 65.651 may apply to the Secretary of State for reinstatement within five years from the date of dissolution. The application must: (a) State the name of the corporation and the effective date of its administrative dissolution; and (b) State that the ground or grounds for dissolution either did not exist or have been eliminated.

(2) If the Secretary of State determines that the application contains the information required by subsection (1) of this section, that the information is correct, and that the corporation’s name satisfies the requirements of ORS 65.094, the Secretary of State shall reinstate the corporation.

(3) When reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its activities as if the administrative dissolution had never occurred.

(4) The Secretary of State may waive the requirement under subsection (1) of this section that the corporation apply for reinstatement within five years after the date of dissolution if the corporation requests the waiver and shows good cause for the corporation’s failure to apply for reinstatement as provided in subsection (1) of this section. [1989 c.1010 §140; 1995 c.215 §14; 2009 c.339 §1] 65.657 Appeal from denial of reinstatement. (1) If the Secretary of State denies a corporation’s application for reinstatement following administrative dissolution, the Secretary of State shall give written notice to the corporation that explains the reason or reasons for denial.

(2) Such denial of reinstatement shall be reviewable pursuant to ORS 183.484 and shall not constitute a contested case order. [1989 c.1010 §141] (Judicial Dissolution) 65.661 Grounds for judicial dissolution. (1) The circuit courts may dissolve a corporation: (a) In a proceeding by the Attorney General if it is established that: (A) The corporation obtained its articles of incorporation through fraud; (B) The corporation has exceeded or abused the authority conferred upon it by law; (C) The corporation has fraudulently solicited money or has fraudulently used the money solicited; (D) The corporation is a public benefit corporation and the corporate assets are being misapplied or wasted; or (E) The corporation is a public benefit corporation and is no longer able to carry out its purposes; (b) Except as provided in the articles or bylaws of a religious corporation, in a proceeding by 50 members or members holding five percent or more of the voting power, whichever is less, or by a director or any person specified in the articles, if it is established that: (A) The directors are deadlocked in the management of the corporate affairs, and the members, if any, are unable to break the deadlock; (B) The directors or those in control of the corporation have acted, are acting or will act in a manner that is illegal, oppressive of fraudulent;

(C) The members are deadlocked in voting power and have failed, for a period that includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired; (D) The corporate assets are being misapplied or wasted; or (E) The corporation is a public benefit or religious corporation and is no longer able to carry out its purposes; (c) In a proceeding by a creditor if it is established that: (A) The creditor’s claim has been reduced to judgment, the execution on the judgment has been returned unsatisfied and the corporation is insolvent; or (B) The corporation has admitted in writing that the creditor’s claim is due and owing and the corporation is insolvent; or (d) In a proceeding by the corporation to have its voluntary dissolution continued under court supervision.

(2) Prior to dissolving a corporation, the court shall consider whether: (a) There are reasonable alternatives to dissolution; (b) Dissolution is in the public interest, if the corporation is a public benefit corporation; or (c) Dissolution is the best way of protecting the interests of members, if the corporation is a mutual benefit corporation. [1989 c.1010 §142] 65.664 Procedure for judicial dissolution. (1) Venue for a proceeding by the Attorney General to dissolve a corporation lies in Marion County. Venue for a proceeding brought by any other party named in ORS 65.661 lies in the county where a corporation’s principal office is located or, if the principal office is not in this state, where its registered office is or was last located.

(2) It is not necessary to make directors or members parties to a proceeding to dissolve a corporation unless relief is sought against them individually.

(3) A court in a proceeding brought to dissolve a corporation may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets wherever located, and carry on the activities of the corporation until a full hearing can be held.

(4) A person other than the Attorney General who brings an involuntary dissolution proceeding for a public benefit or religious corporation shall forthwith give written notice of the proceeding to the Attorney General who may intervene. [1989 c.1010 §143] 65.667 Receivership or custodianship. (1) A court in a judicial proceeding brought to dissolve a public benefit or mutual benefit corporation may appoint one or more receivers to wind up and liquidate the affairs of the corporation, or one or more custodians to manage the affairs of the corporation. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver or custodian. The court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all its property wherever located.

(2) The court may appoint an individual or a domestic or foreign business or nonprofit corporation, authorized to transact business in this state, as a receiver or custodian. The court may require the receiver or custodian to post bond, with or without sureties, in an amount the court directs.

(3) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended periodically. Among other powers: (a) The receiver: (A) May dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court, provided, however, that the receiver’s power to dispose of the assets

of the corporation is subject to any trust and other restrictions that would be applicable to the corporation; and (B) May sue and defend in the receiver’s own name as receiver of the corporation in all courts of this state. (b) The custodian may exercise all of the powers of the corporation, through or in place of its board of directors or officers, to the extent necessary to manage the affairs of the corporation in the best interests of its members and creditors.

(4) The court during a receivership may redesignate the receiver a custodian, and during a custodianship may redesignate the custodian a receiver, if doing so is in the best interest of the corporation, its members and creditors.

(5) The court periodically during the receivership or custodianship may order compensation paid and expense disbursements or reimbursements made to the receiver or custodian and the receiver’s or custodian’s attorney from the assets of the corporation or proceeds from the sale of the assets. [1989 c.1010 §144] 65.671 Judgment of dissolution. (1) If after a hearing the court determines that one or more grounds for judicial dissolution described in ORS 65.661 exist, it may enter a judgment dissolving the corporation and specifying the effective date of the dissolution. The clerk of the court shall deliver a certified copy of the judgment to the Office of the Secretary of State for filing.

(2) After entering the judgment of dissolution, the court shall direct the winding up and liquidation of the corporation’s affairs in accordance with ORS 65.637 and the notification of claimants in accordance with ORS 65.641 and 65.644. [1989 c.1010 §145; 2003 c.576 §329] (Disposition of Assets) 65.674 Deposit with Department of State Lands. Assets of a dissolved corporation which should be transferred to a creditor, claimant or member of the corporation who cannot be found or who is not competent to receive them shall be reduced to cash unless they are subject to known trust restrictions and deposited with the Department of State Lands for safekeeping. However, in the discretion of the Director of the Department of State Lands, property of unusual historic or aesthetic interest may be received and held in kind. The receiver or other liquidating agent shall prepare in duplicate and under oath a statement containing the names and last-known addresses of the persons entitled to such funds. One of the statements shall be filed with the Department of State Lands and another shall be delivered to the Secretary of State for filing.

The funds shall then escheat to and become the property of the State of Oregon and shall become part of the Common School Fund of the state. The owner, heirs or personal representatives of the owner, may reclaim any funds so deposited in the manner provided for estates which have escheated to the state. [1989 c.1010 §146] FOREIGN CORPORATIONS (Authority to Transact Business) 65.701 Authority to transact business required. (1) A foreign corporation may not transact business in this state until it has been authorized to do so by the Secretary of State.

(2) The following activities, among others, do not constitute transacting business within the meaning of subsection (1) of this section:

(a) Maintaining, defending or settling any proceeding. (b) Holding meetings of the board of directors or members or carrying on other activities concerning internal corporate affairs. (c) Maintaining bank accounts. (d) Maintaining offices or agencies for the transfer, exchange and registration of the corporation’s own memberships or securities or maintaining trustees or depositaries with respect to those securities. (e) Selling through independent contractors. (f) Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts. (g) Creating or acquiring indebtedness, mortgages and security interests in real or personal property. (h) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts. (i) Owning, without more, real or personal property. (j) Conducting an isolated transaction that is completed within 30 days and that is not one in the course of repeated transactions of a like nature. (k) Transacting business in interstate commerce.

(L) Soliciting funds.

(3) The list of activities in subsection (2) of this section is not exhaustive. [1989 c.1010 §147] 65.704 Consequences of transacting business without authority. (1) A foreign corporation transacting business in this state without authorization from the Secretary of State may not maintain a proceeding in any court in this state until it obtains authorization from the Secretary of State to transact business in this state.

(2) The successor to or assignee of a foreign corporation that transacted business in this state without authority to do so may not maintain a proceeding on its cause of action in any court in this state until the foreign corporation or its successor obtains authorization from the Secretary of State to transact business in this state.

(3) A court may stay a proceeding commenced by a foreign corporation, its successor or assignee until it determines whether the foreign corporation or its successor requires authorization from the Secretary of State to transact business in this state. If it so determines, the court may further stay the proceeding until the foreign corporation or its successor obtains the authorization.

(4) A foreign corporation that transacts business in this state without authority shall be liable to this state for the years or parts thereof during which it transacted business in this state without authority in an amount equal to all fees that would have been imposed by this chapter upon such corporation had it duly applied for and received authority to transact business in this state as required by this chapter and thereafter filed all reports required by this chapter.

(5) Notwithstanding subsections (1) and (2) of this section, the failure of a foreign corporation to obtain authority to transact business in this state does not impair the validity of its corporate acts or prevent it from defending any proceeding in this state. [1989 c.1010 §148] 65.707 Application for authority to transact business. (1) A foreign corporation may apply for authority to transact business in this state by delivering an application to the Office of the Secretary of State for filing. The application must set forth: (a) The name of the foreign corporation or, if its name is unavailable for use in this state, a corporate name that satisfies the requirements of ORS 65.717; (b) The name of the state or country under whose law it is incorporated;

(c) The date of incorporation and period of duration if not perpetual; (d) The address including street and number and mailing address, of its principal office; (e) The address, including street and number, of its registered office in this state and the name of its registered agent at that office; (f) The names and respective addresses of the president and secretary of the foreign corporation; (g) Whether the foreign corporation has members; and (h) Whether the corporation, if it had been incorporated in this state, would be a public benefit, mutual benefit or religious corporation.

(2) The foreign corporation shall deliver with the completed application a certificate of existence or a document of similar import, current within 60 days of delivery and authenticated by the official having custody of corporate records in the state or country under whose law it is incorporated.

(3) A foreign corporation shall not be denied authority to transact business in this state by reason of the fact that the laws of the state or country under which the corporation is organized governing its organization and internal affairs differ from the laws of this state. [1989 c.1010 §149] 65.711 Amendment to application for authority. (1) A foreign corporation authorized to transact business in this state shall deliver an amendment to the application for authority to transact business in this state to the Office of the Secretary of State for filing if it changes: (a) Its corporate name as shown on the records of the office; (b) The period of its duration; or (c) Its designation under ORS 65.707 as a public benefit, mutual benefit or religious corporation.

(2) The amendment to the application for authority to transact business in this state shall set forth the corporate name shown on the records of the office and the new corporate name, the new period of duration or the new designation as public benefit, mutual benefit or religious corporation. The corporate name as changed must satisfy the requirements of ORS 65.717. [1989 c.1010 §150; 1993 c.190 §7] 65.714 Effect of authority. (1) A foreign corporation authorized to transact business in this state has the same but no greater rights and enjoys the same but no greater privileges as, and except as otherwise provided by this chapter is subject to the same duties, restrictions, penalties and liabilities now or later imposed on, a domestic corporation of like character.

(2) The filing by the Secretary of State of an application or amendment to the application for authority to transact business shall constitute authorization to transact business in this state, subject to the right of the Secretary of State to revoke the authorization.

(3) This chapter does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state. [1989 c.1010 §151; 2005 c.22 §49] 65.717 Corporate name of foreign corporation. (1) Except as provided in subsection (2) of this section, the Secretary of State shall not authorize a foreign corporation to transact business in this state unless the corporate name of the corporation satisfies the requirements of ORS 65.094.

(2) If a corporate name, professional corporate name, business corporate name, cooperative name, limited partnership name, business trust name, reserved name, registered corporate name or assumed business name of active record with the office is not distinguishable on the records of the office from the corporate name of the applicant foreign corporation, the Secretary of State shall not authorize the applicant to transact business in this state unless the foreign corporation states the corporate name on the application for authority to transact business in this state under ORS 65.707 as “(name under which incorporated), a

corporation of (place of incorporation),” the entirety of which shall be the real and true name of the corporation under ORS chapter 648.

(3) If a foreign corporation authorized to transact business in this state changes its corporate name to one that does not satisfy the requirements of ORS 65.094, it shall not transact business in this state under the changed name until it adopts a name satisfying the requirements of ORS 65.094 and delivers to the Office of the Secretary of State for filing an amendment to the application for authority under ORS 65.711. [1989 c.1010 §152] 65.721 Registered office and registered agent of foreign corporation. Each foreign corporation authorized to transact business in this state shall continuously maintain in this state both: (1) A registered agent, who shall be: (a) An individual who resides in this state; (b) A corporation, domestic business corporation, domestic limited liability company or domestic professional corporation with an office in this state; or (c) A foreign nonprofit corporation, foreign business corporation, foreign limited liability company or foreign professional corporation authorized to transact business in this state with an office in this state; and (2) A registered office of the foreign corporation, which shall be the address, including street and number, of the residence or office of the registered agent. [1989 c.1010 §153; 2001 c.315 §30] 65.724 Change of registered office or registered agent of foreign corporation. (1) A foreign corporation authorized to transact business in this state may change its registered office or registered agent by delivering to the Office of the Secretary of State for filing a statement of change that sets forth: (a) The name of the foreign corporation; (b) If the current registered office is to be changed, the address, including the street and number, of the new registered office; (c) If the current registered agent is to be changed, the name of the new registered agent and a statement that the new agent has consented to the appointment; and (d) A statement that after the change or changes are made, the street addresses of its registered office and the office or residence address of its registered agent will be identical.

(2) If the registered agent changes the street address of the agent’s office or residence, the registered agent shall change the street address of the registered office of any foreign corporation for which the agent is the registered agent by notifying the corporation in writing of the change and signing, either manually or in facsimile, and delivering to the Office of the Secretary of State for filing a statement of change that complies with the requirements of subsection (1) of this section and recites that the corporation has been notified of the change.

(3) The filing of the statement under this section by the Office of the Secretary of State shall terminate the existing registered office or agent, or both, on the effective date of the filing by the Office of the Secretary of State and establish the newly appointed registered office or agent, or both, as that of the foreign corporation. [1989 c.1010 §154] 65.727 Resignation of registered agent of foreign corporation. (1) The registered agent of a foreign corporation may resign as agent by delivering a signed statement of resignation to the Office of the Secretary of State and giving notice in the form of a copy of the statement to the foreign corporation for filing. The statement of resignation may include a statement that the registered office is also discontinued.

(2) Upon receipt of the signed statement in proper form, the Secretary of State shall file the resignation statement. The copy of the statement given to the foreign corporation under subsection (1) of this section

shall be addressed to the foreign corporation at the foreign corporation’s mailing address or the foreign corporation’s principal office as shown on the records of the Office of the Secretary of State.

(3) The agency appointment is terminated, and the registered office discontinued if so provided in the signed statement under subsection (1) of this section on the 31st day after the date on which the statement was filed by the Office of the Secretary of State unless the foreign corporation sooner appoints a successor registered agent as provided in ORS 65.724, thereby terminating the capacity of the prior agent. [1989 c.1010 §155; 1993 c.190 §8] 65.731 Service on foreign corporation. The provisions of ORS 60.731, relating to service on foreign corporations, shall apply to foreign nonprofit corporations, except that for the purpose of this section the reference therein to “this chapter” means ORS chapter 65. [1989 c.1010 §156] (Withdrawal) 65.734 Withdrawal of foreign corporation. (1) A foreign corporation authorized to transact business in this state may apply to the Office of the Secretary of State to withdraw from this state. The application shall set forth: (a) The name of the foreign corporation and the name of the state or country under whose law it is incorporated; (b) That it is not transacting business in this state and that it surrenders its authority to transact business in this state; (c) That it revokes the authority of its registered agent to accept service on its behalf and appoints the Secretary of State as its agent for service of process in any proceeding based on a cause of action arising during the time it was authorized to transact business in this state; (d) A mailing address to which the person initiating any proceedings may mail to the foreign corporation a copy of any process served on the Secretary of State under paragraph (c) of this subsection; and (e) A commitment to notify the Secretary of State for a period of five years from the date of withdrawal of any change in the mailing address.

(2) Upon filing by the Office of the Secretary of State of the application to withdraw, the authority of the foreign corporation to transact business in this state shall cease. [1989 c.1010 §157] (Administrative Revocation of Authority) 65.737 Grounds for administrative revocation. The Secretary of State may commence a proceeding under ORS 65.741 to revoke the authority of a foreign corporation to transact business in this state if: (1) The foreign corporation does not deliver its annual report to the Secretary of State within the time prescribed by this chapter; (2) The foreign corporation does not pay within the time prescribed by this chapter any fees imposed by this chapter; (3) The foreign corporation has failed to appoint or maintain a registered agent or registered office in this state as prescribed by this chapter; (4) The foreign corporation does not inform the Secretary of State under ORS 65.724 or 65.727 that its registered agent or registered office has changed, that its registered agent has resigned, or that its registered office has been discontinued; or (5) The Secretary of State receives a duly authenticated certificate from the official having custody of corporate records in the state or country under whose law the foreign corporation is incorporated stating that

the foreign corporation has been dissolved or disappeared as the result of a merger. [1989 c.1010 §158; 2005 c.22 §50] 65.741 Procedure for and effect of administrative revocation. (1) If the Secretary of State determines that one or more grounds exist under ORS 65.737 for revocation of authority of a foreign corporation to transact business in this state, the Secretary of State shall give the foreign corporation written notice of that determination.

(2) If the foreign corporation does not correct each ground for revocation or demonstrate to the reasonable satisfaction of the Secretary of State, within 45 days after notice is given, that each ground for revocation determined by the Secretary of State does not exist, the Secretary of State shall administratively revoke the foreign corporation’s authority, and in the case of a foreign corporation that would have been a public benefit corporation had it been incorporated in this state, shall notify the Attorney General in writing.

(3) The authority of a foreign corporation to transact business in this state ceases as of the date of revocation of its authority to transact business in this state.

(4) The Secretary of State’s revocation of a foreign corporation’s authority to transact business in this state appoints the Secretary of State the foreign corporation’s agent for service of process in any proceeding based on a cause of action which arose during the time the foreign corporation was authorized to transact business in this state.

(5) Revocation of a foreign corporation’s authority to transact business in this state terminates the authority of the registered agent of the corporation. [1989 c.1010 §159; 1991 c.231 §12; 1993 c.190 §9] 65.744 Appeal from administrative revocation. In addition to any other legal remedy which may be available, a foreign corporation shall have the right to appeal the Secretary of State’s revocation of its authority to transact business in this state pursuant to the provisions of ORS chapter 183. Such revocation shall be reviewable pursuant to ORS 183.484 and shall not constitute a contested case order. [1989 c.1010 §160] 65.747 Reinstatement following administrative revocation. (1) A foreign corporation which has had its authority revoked under ORS 65.737 may apply to the Secretary of State for reinstatement within five years from the date of revocation. The application shall: (a) State the name of the corporation and the effective date its authority was revoked; and (b) State that the ground or grounds for revocation of authority either did not exist or have been eliminated.

(2) If the Secretary of State determines that the application contains the information required by subsection (1) of this section, that the information is correct and that the corporation’s name satisfies the requirements of ORS 65.717, the Secretary of State shall reinstate the authority.

(3) When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative revocation of authority and the corporation resumes carrying on its business as if the administrative revocation of authority had never occurred. [1989 c.1010 §160a; 1995 c.215 §15] (Judicial Revocation of Authority) 65.751 Grounds for judicial revocation. (1) The circuit courts may revoke the authority of a foreign corporation to transact business in this state: (a) In a proceeding by the Attorney General if it is established that: (A) The corporation obtained its authority to transact business in this state through fraud;

(B) The corporation has exceeded or abused the authority conferred upon it by law; (C) The corporation would have been a public benefit corporation had it been incorporated in this state and its corporate assets are being misapplied or wasted; (D) The corporation would have been a public benefit corporation had it been incorporated in this state and it is no longer able to carry out its purposes; (E) An incorporator, director, officer or agent of the corporation signed a document knowing it was false in any material respect with the intent that the document be delivered to the Office of the Secretary of State for filing; or (F) The corporation has fraudulently solicited money or has fraudulently used the money solicited. (b) Except as provided in the articles or bylaws of a foreign corporation that would have been a religious corporation had it been incorporated in this state, in a proceeding by 50 members or members holding five percent or more of the voting power, whichever is less, or by a director or any person specified in the articles, if it is established that: (A) The directors are deadlocked in the management of the corporate affairs, and the members, if any, are unable to break the deadlock; (B) The directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive or fraudulent; (C) The members are deadlocked in voting power and have failed, for a period that includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired; (D) The corporate assets are being misapplied or wasted; or (E) The corporation is a foreign corporation that would have been a public benefit or religious corporation had it been incorporated in this state, and is no longer able to carry out its purposes. (c) In a proceeding by a creditor if it is established that: (A) The creditor’s claim has been reduced to judgment, the execution on the judgment returned unsatisfied, and the corporation is insolvent; or (B) The corporation has admitted in writing that the creditor’s claim is due and owing and the corporation is insolvent.

(2) Prior to revoking a corporation’s authority, the court shall consider whether: (a) There are reasonable alternatives to revocation of authority; (b) Revocation of authority is in the public interest, if the corporation is a foreign corporation that would have been a public benefit corporation had it been incorporated in this state; or (c) Revocation of authority is the best way to protect the interests of members, if the corporation is a foreign corporation that would have been a mutual benefit corporation had it been incorporated in this state.

[1989 c.1010 §161] 65.754 Procedure for judicial revocation of authority. (1) Venue for a proceeding by the Attorney General to revoke a foreign corporation’s authority lies in Marion County. Venue for a proceeding brought by any other person named in ORS 65.751 lies in the county where a corporation’s principal Oregon office is located or where its registered office is or was last located.

(2) It is not necessary to make directors or members parties to a proceeding to revoke the authority of a corporation.

(3) A court in a proceeding brought to revoke a corporation’s authority may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets located in Oregon and carry on the corporation’s Oregon activities until a full hearing can be held.

(4) A person other than the Attorney General who brings a revocation proceeding for a foreign corporation that would have been a public benefit or religious corporation had it been incorporated in this state, shall forthwith give written notice of the proceeding to the Attorney General who may intervene.

[1989 c.1010 §162] 65.757 Judgment of revocation. (1) If after a hearing the court determines that one or more grounds for judicial revocation of authority described in ORS 65.751 exists, it may enter a judgment revoking the corporation’s authority to transact business in Oregon and specifying the effective date of the revocation.

The clerk of the court shall deliver a certified copy of the judgment to the Office of the Secretary of State for filing.

(2) The authority of a foreign corporation to transact business in Oregon ceases as of the date of the judgment of revocation.

(3) The judgment of revocation of a foreign corporation’s authority to transact business in this state appoints the Secretary of State the foreign corporation’s agent for service of process in any proceeding based on a cause of action which arose during the time the foreign corporation was authorized to transact business in this state.

(4) Revocation of a foreign corporation’s authority to transact business in this state terminates the authority of the registered agent of the corporation. [1989 c.1010 §163; 2003 c.576 §330] RECORDS AND REPORTS (Records) 65.771 Corporate records. (1) A corporation shall keep as permanent records minutes of all meetings of its members and board of directors, a record of all corporate action taken by the members or directors without a meeting, and a record of all actions taken by committees of the board of directors in place of the board of directors on behalf of the corporation.

(2) A corporation shall maintain appropriate accounting records.

(3) A corporation or its agent shall maintain a record of its members in a form that permits preparation of a list of the name and address of all members, in alphabetical order by class showing the number of votes each member is entitled to vote.

(4) A corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time.

(5) A corporation shall keep a copy of the following records for inspection: (a) Articles or restated articles of incorporation and all amendments to them currently in effect; (b) Bylaws or restated bylaws and all amendments to them currently in effect; (c) Resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations and obligations of members of any class or category of members; (d) The minutes of all meetings of members and records of all actions approved by the members for the past three years; (e) Written communications required by this chapter and those regarding general membership matters made to members within the past three years; (f) A list of the names and business or home addresses of its current directors and officers; (g) The last three annual financial statements, if any. The statements may be consolidated or combined statements of the corporation and one or more of its subsidiaries or affiliates, as appropriate, including a balance sheet and statement of operations, if any, for that year. If financial statements are prepared for the

corporation on the basis of generally accepted accounting principles, the annual financial statements must also be prepared on that basis; (h) The last three accountant’s reports if annual financial statements are reported upon by a public accountant; and (i) The most recent annual report delivered to the Secretary of State under ORS 65.787. [1989 c.1010 §164] 65.774 Inspection of records by members. (1) Subject to subsection (5) of this section and ORS 65.777 (3), a member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in ORS 65.771 (5) if the member gives the corporation written notice of the member’s demand at least five business days before the date on which the member wishes to inspect and copy.

(2) Subject to subsection (5) of this section, a member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation if the member meets the requirements of subsection (3) of this section and gives the corporation written notice of the member’s demand at least five business days before the date on which the member wishes to inspect and copy: (a) Excerpts from any records required to be maintained under ORS 65.771 (1), to the extent not subject to inspection under subsection (1) of this section; (b) Accounting records of the corporation; and (c) Subject to ORS 65.782, the membership list.

(3) A member may inspect and copy the records identified in subsection (2) of this section only if: (a) The member’s demand is made in good faith and for a proper purpose; (b) The member describes with reasonable particularity the purpose and the records the member desires to inspect; and (c) The records are directly connected with this purpose.

(4) This section does not affect: (a) The right of a member to inspect records under ORS 65.224 or, if the member is in litigation with the corporation, to the same extent as any other litigant; or (b) The power of the court, independently of this chapter, to compel the production of corporate records for examination.

(5)(a) The articles or bylaws of a religious corporation may limit or abolish the right of a member under this section to inspect and copy any corporate record. (b) The articles of a public benefit corporation organized primarily for political or social action, including but not limited to political or social advocacy, education, litigation or a combination thereof, may limit or abolish: (A) The right of a member to obtain from the corporation information as to the identity of contributors to the corporation; and (B) The right of a member or the member’s agent or attorney to inspect or copy the membership list if the corporation provides a reasonable means to mail communications to other members through the corporation at the expense of the member making the request. [1989 c.1010 §165] 65.777 Scope of inspection right. (1) A member’s agent or attorney has the same inspection and copying rights as the member the agent or attorney represents.

(2) The right to copy records under ORS 65.774 includes, if reasonable, the right to receive copies made by photographic, xerographic or other means.

(3) The corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the member. The charge may not exceed the estimated cost of production or reproduction of the records.

(4) The corporation may comply with a member’s demand to inspect the record of members under ORS 65.774 (2)(c) by providing the member with a list of its members that was compiled no earlier than the date of the member’s demand. [1989 c.1010 §166] 65.781 Court-ordered inspection; attorney fees. (1) If a corporation does not allow a member who complies with ORS 65.774 (1) to inspect and copy any records required by ORS 65.774 (1) to be available for inspection, the circuit court in the county where the corporation’s principal office, or, if none in this state, its registered office, is located may summarily order inspection and copying of the records demanded at the corporation’s expense upon application of the member.

(2) If a corporation does not within a reasonable time allow a member to inspect and copy any other record, the member who complies with ORS 65.774 (2) and (3) may apply to the circuit court in the county where the corporation’s principal office, or, if none in this state, its registered office, is located for an order to permit inspection and copying of the records demanded.

(3) The court may award reasonable attorney fees to the prevailing party in an action under this section.

(4) If the court orders inspection and copying of the records demanded, it may impose reasonable restrictions on the use or distribution of the records by the demanding member.

(5) No order shall be issued under this section without notice to the corporation at least five days in advance of the time specified for the hearing unless a different period is fixed by the court. The member’s request shall be set for hearing at the earliest possible time and shall take precedence over all matters, except matters of the same character and hearings on preliminary injunctions under ORCP 79 B(3). [1989 c.1010 §167; 1995 c.618 §42] 65.782 Limitations on use of membership list. Without consent of the board, a membership list or any part of a membership list may not be obtained or used by any person for any purpose unrelated to a member’s interest as a member. Without limiting the generality of this section, without the consent of the board, a membership list or any part thereof may not be: (1) Used to solicit money or property unless such money or property will be used solely to solicit the votes of the members in an election to be held by the corporation; (2) Used for any commercial purpose; or (3) Sold or purchased by any person. [1989 c.1010 §168] (Reports) 65.784 Report to members and other persons of indemnification. If a corporation indemnifies or advances expenses to a director under ORS 65.391 to 65.401 in connection with a proceeding by or in the right of the corporation, the corporation shall report the indemnification or advance in writing to: (1) The members with or before the notice of the next meeting of members; and (2) Any person having the right to designate or appoint the director no later than 90 days after the first indemnification or advance. [1989 c.1010 §169; 1991 c.231 §13] 65.787 Annual report. (1) Each domestic corporation, and each foreign corporation authorized to transact business in this state, shall by its anniversary deliver to the Office of the Secretary of State for filing an annual report that sets forth:

(a) The name of the corporation and the state or country under whose law it is incorporated; (b) The street address of the registered office and the name of the registered agent at that office in this state; (c) If the registered agent is changed, that the new registered agent has consented to the appointment; (d) The address including street and number and mailing address if different from its principal office; (e) The names and addresses of the president and secretary of the corporation; (f) A brief description of the nature of the activities of the corporation; (g) Whether or not it has members; (h) If it is a domestic corporation, whether it is a public benefit, mutual benefit or religious corporation; (i) If it is a foreign corporation, whether it would be public benefit, mutual benefit or religious corporation had it been incorporated in this state; and (j) Additional identifying information that the Secretary of State may require by rule.

(2) The information contained on the annual report shall be current as of 30 days before the anniversary of the corporation.

(3) The Secretary of State shall mail the annual report form to any address shown for the corporation in the current records of the office. The failure of the corporation to receive the annual report form from the Secretary of State shall not relieve the corporation of its duty to deliver an annual report to the office as required by this section.

(4) If an annual report does not contain the information required by this section, the Secretary of State shall promptly notify the reporting domestic or foreign corporation in writing and return the report to it for correction. The domestic or foreign corporation must correct the error within 45 days after the Secretary of State gives such notice.

(5) A domestic or foreign corporation may deliver to the Office of the Secretary of State for filing an amendment to the annual report if a change in the information set forth in the annual report occurs after the report is delivered to the Office of the Secretary of State for filing and before the next anniversary. This subsection applies only to a change that is not required to be made by an amendment to the articles of incorporation. The amendment to the annual report must set forth: (a) The name of the corporation as shown on the records of the Office of the Secretary of State; and (b) The information as changed.

(6) The Secretary of State may not charge a nonprofit corporation a fee to file an annual report under ORS 56.140 if the nonprofit corporation provides evidence to the Secretary of State that: (a) The purpose of the nonprofit corporation as set forth in the articles of incorporation is to maintain a historic cemetery; and (b) The historic cemetery that the nonprofit corporation maintains is listed with the Oregon Commission on Historic Cemeteries under ORS 97.782. [1989 c.1010 §170; 2007 c.186 §8; 2009 c.122 §2] TRANSFER OF ASSETS OF HOSPITAL 65.800 Definitions for ORS 65.803 to 65.815. For purposes of ORS 65.803 to 65.815: (1) “Hospital” means a hospital as defined in ORS 442.015.

(2) “Noncharitable entity” means any person or entity that is not a public benefit or religious corporation and is not wholly owned or controlled by one or more public benefit or religious corporations. [1997 c.291 §2; 2001 c.104 §20; 2009 c.595 §56; 2009 c.792 §29] 65.803 Hospitals operated by nonprofit corporation; transfer of assets; approval by Attorney General. (1) Any public benefit or religious corporation that operates a hospital must provide written notice

to, and obtain the written approval of, the Attorney General before closing any transaction to do either of the following: (a) Sell, transfer, lease, exchange, option, convey, merge or otherwise dispose of all or a significant portion of its hospital assets to a noncharitable entity or to an unrelated charitable entity. (b) Transfer control, responsibility or governance of a significant portion of the hospital assets or hospital operations of the public benefit or religious corporation to a noncharitable entity.

(2) This section does not apply to a public benefit or religious corporation if any of the following apply: (a) The transaction is in the usual and regular course of the activities of the public benefit or religious corporation. (b) The public benefit or religious corporation has furnished the Attorney General with a detailed written statement describing the proposed transaction and requesting a written waiver of the requirements imposed by this section, and the Attorney General: (A) Has given the public benefit or religious corporation a written waiver of the requirements imposed by this section as to the proposed transaction; or (B) Has not made a written determination with regard to the request within 45 days after receiving the request. (c) The Attorney General, by rule, has excepted this kind of transaction.

(3) The notice and approval required by ORS 65.800 to 65.815 are in addition to any other notice or approval required by this chapter or other applicable law.

(4) Notice and approval is not required under ORS 65.800 to 65.815 if a political subdivision of the state controls the operation of the hospital.

(5) Any person may make a written request to the Attorney General that the person be given notice of requests for approval received by the Attorney General under this section. The Attorney General shall maintain a mailing list of persons who have requested notification under this subsection and shall promptly mail a copy of any request for approval received under this section to the persons on the list. In addition, the Attorney General shall promptly mail a copy of any request for waiver received under subsection (2) of this section to the persons on the list upon receiving the request for waiver. The Attorney General may not grant a waiver under subsection (2) of this section until 14 days after the mailing required by this subsection.

[1997 c.291 §3] 65.805 Notice to Attorney General; fee; trade secrets. (1) The notice to the Attorney General required

by ORS 65.803 must be accompanied by any application fee imposed under ORS 65.813 (3) and must contain a detailed statement describing the proposed transaction along with any other information the Attorney General requires by rule.

(2)(a) Upon a showing satisfactory to the Attorney General by a party to the proposed transaction, any material required to be submitted to the Attorney General under subsection (1) of this section is a trade secret under ORS 192.501. The Attorney General shall classify the material as confidential and the material shall not be disclosed except as provided in paragraph (b) of this subsection unless the Attorney General determines that the material is necessary to the determination of an issue being considered at a public hearing as provided in ORS 65.807. (b) To the extent that the material, or any portion thereof, would otherwise qualify as a trade secret under ORS 192.501, no action taken by the Attorney General, any authorized employee of the Department of Justice or any expert or consultant employed pursuant to ORS 65.813 in inspecting or reviewing such information shall affect its status as a trade secret. [1997 c.291 §4]

65.807 Public hearing; waiver; notice. (1) Before issuing a written decision under ORS 65.809, the Attorney General shall conduct a public hearing unless the Attorney General waives the requirement of a hearing. If a hearing is held, the Attorney General shall provide at least 14 days’ notice of the time and place of the hearing in one or more newspapers of general circulation in the affected community and to the governing body of the county in which the hospital is located.

(2) Before waiving a hearing under this section, the Attorney General must mail notice of the intended waiver of public hearing to all persons on the mailing list maintained by the Attorney General under ORS 65.803 (5). The Attorney General may not take further action on the request for approval until at least 14 days after the mailing of the notice required by this subsection. [1997 c.291 §5] 65.809 Time for Attorney General decision; nature of decision; appeal. (1) Within 60 days after receipt of the notice required by ORS 65.803, the Attorney General shall notify the public benefit or religious corporation in writing of the Attorney General’s decision on the proposed transaction. The Attorney General may extend this period for an additional 45 days if the extension is necessary to obtain information as provided in ORS 65.813 (1). The period may be extended beyond 105 days only with the agreement of all parties to the transaction.

(2) The Attorney General may approve the transaction, give conditional approval to the transaction or decline to approve the transaction. If the Attorney General does not approve the proposed transaction, the Attorney General shall notify each party to the proposed transaction, in writing, specifying the reasons for the disapproval.

(3) Any party to the proposed transaction, within 60 days after receipt of the Attorney General’s final order, may appeal the order as provided in ORS chapter 183. For purposes of the judicial review, the specifications required to be set forth in the written notice from the Attorney General shall be deemed the Attorney General’s findings of fact and conclusions of law. [1997 c.291 §6] 65.811 Disapproval of proposed transfer of assets. The Attorney General shall approve any proposed transaction subject to ORS 65.803 unless the Attorney General finds any of the following: (1) The terms and conditions of the proposed transaction are not fair and reasonable to the public benefit or religious corporation.

(2) The proposed transaction will result in inurement to any private person or entity.

(3) The proposed transaction is not at fair market value.

(4) The proposed use of the proceeds from the transaction is inconsistent with any charitable trust to which the assets are subject.

(5) The proposed transaction involves or constitutes a breach of trust.

(6) The Attorney General has not been provided sufficient information to evaluate adequately the proposed transaction and the effects of the proposed transaction on the public.

(7) The proposed transaction significantly diminishes the availability or accessibility of health care services to the affected community.

(8) The proposed transaction is not in the public interest.

(9) The proposed transaction does not comply with all other legal requirements. [1997 c.291 §7] 65.813 Consultants; cost; rules; fee. (1) Within the time periods specified in ORS 65.809, and for the purpose of evaluating the factors identified in ORS 65.811, the Attorney General may do any of the following: (a) Contract with, consult with or receive advice from any state agency pursuant to those terms and conditions that the Attorney General considers appropriate.

(b) In the Attorney General’s sole discretion, contract with, consult with or receive advice from consultants to assist in the Attorney General’s review of the proposed transaction. The consultants shall be qualified and expert in the type of transactions under review. Before engaging any consultant, the Attorney General shall communicate with the parties to the proposed transaction regarding the engagement.

(2) The cost of any contract authorized under subsection (1) of this section shall be no more than is reasonably necessary to conduct the Attorney General’s review and evaluation. Any contract entered into by the Attorney General under this section shall be exempt from the requirements of ORS chapters 279A and 279B, except ORS 279B.235. All contract costs incurred by the Attorney General under this section must be paid by the party to whom the transfer is to be made as described in ORS 65.803 (1).

(3) The Attorney General, by rule, may impose an application fee for costs incurred in reviewing and evaluating the proposed transaction. The fee must be paid by the party to whom the transfer is to be made as described in ORS 65.803 (1). [1997 c.291 §8; 2003 c.794 §195] 65.815 Rules. The Attorney General may adopt such rules as are necessary to carry out the provisions of ORS 65.800 to 65.815. The Attorney General shall have the authority to ensure compliance with commitments that inure to the public interest. [1997 c.291 §9] CEMETERIES AND CREMATORIES 65.855 Lands of cemetery or crematory corporation; exemption from execution, taxation and condemnation. A nonprofit corporation organized and existing solely for the purposes of either owning and operating a cemetery or cremating dead bodies and burying and caring for incinerate remains, may purchase or take, by gift or devise, and own and hold lands for the sole purpose of either a cemetery or a crematory and burial place for incinerate remains. Such lands shall be exempt from execution, and from any appropriation for public purposes, and lots or portions of such land and space in any buildings thereon may be sold, if intended to be used exclusively for burial purposes, and in no wise with a view to the profit of the members of such corporation. The land so held for cemetery purposes shall not exceed 600 acres, but if the land already held for such purpose by the corporation is all practically used, the amount thereof may be increased by adding thereto not more than 20 acres at any one time. The land so held for the purposes of a crematory and the burial of incinerate remains shall not exceed 30 acres, but if the land already held for such purposes by the corporation is all practically used, the amount thereof may be increased by adding thereto not more than 10 acres at any one time. Lands held for the purposes described in this section shall be exempt from taxation as provided in ORS 307.150. [Formerly 61.755] 65.860 Revenues; restrictions on uses of revenue. (1) A nonprofit corporation organized or existing solely for the purposes of either owning and operating a cemetery or cremating dead bodies and burying and caring for incinerate remains may, by its bylaws, provide that a stated percentage of the money received from the sale of lots and burial space, cremation of bodies, donations, gifts or other sources of revenue shall constitute an irreducible fund. Any bylaw enacted for the creation of the irreducible fund cannot be amended to reduce the fund.

(2) The board of directors may direct the investment of the money in the irreducible fund, but all investments of money deposited in the fund on or after January 1, 1972, shall be in securities in classes and amounts approved by the State Treasurer and published in a list pursuant to ORS 97.820. If a bank or trust company qualified to engage in the trust business is directed by the board of directors to invest the money in the irreducible fund, the bank or trust company shall be governed by ORS 130.750 to 130.775 and shall not be required to invest the money according to the list approved by the State Treasurer. An officer of the

corporation shall file with the Director of the Department of Consumer and Business Services on or before April 15 of each year a verified statement in duplicate containing the same information pertaining to the irreducible fund as provided in ORS 97.810 (4) regarding endowment care funds. The director may require the corporation to file, as often as the director considers it to be necessary, a detailed report of the conditions and assets of the irreducible fund.

(3) The interest or income arising from the irreducible fund provided for in this section or by any bylaws, or so much thereof as is necessary, shall be devoted exclusively to the preservation and embellishment of the grounds, buildings and property of the corporation and the lots and space in buildings or grounds sold to the members of the corporation, or to the payment of the interest or principal of the debts authorized by subsection (5) of this section for the purchase of land, erecting buildings, and improvements.

Any surplus thereof not needed or used for such purposes shall be invested as provided in this section and shall become part of the irreducible fund.

(4) After paying for the land and the erection of the original buildings and improvements thereon, all the future receipts and income of the corporation subject to the provisions in this section relating to the creation of an irreducible fund, whether from the sale of lots and burial space, cremation of bodies, donations, gifts and other sources, shall be applied exclusively to laying out, preserving, protecting, embellishing and beautifying the cemetery or the crematory and grounds thereof, and the avenues leading thereto, and to the erection of such buildings and improvements as may be necessary or convenient for cemetery or crematory purposes, and to pay the necessary expenses of the corporation.

(5) No debts shall be contracted by such corporation in anticipation of any future receipts, except for originally purchasing the lands authorized to be purchased by it, laying out and embellishing the grounds and avenues, erecting buildings and vaults on such land, and improving them for the purposes of the corporation. The corporation may issue bonds or notes for debts so contracted and may secure them by way of mortgage upon any of its lands, buildings, property and improvements excepting lots or space conveyed to the members. [Formerly 61.760; 1995 c.144 §14; 1995 c.157 §23; 2001 c.796 §22; 2005 c.348 §124; 2007 c.661 §26] 65.865 Selling land unsuited for burials. If in the board of directors’ opinion, any portion of the lands of a nonprofit corporation organized and existing solely for the purposes of either owning or operating a cemetery or the cremation of dead bodies and the burial and care of incinerate remains is unsuitable for burial purposes or other purposes of the corporation, the board of directors may sell such portion and apply the proceeds to the general purposes of such corporation in the same proportion and manner as provided by ORS 65.855 to 65.875. [Formerly 61.765] 65.870 Burial lots or space; use, exemption from taxation, execution and liens; lien for purchase price of gravestone. Burial lots or space for burial of incinerate remains in buildings or grounds sold by a nonprofit corporation organized and existing solely for the purposes of either owning and operating a cemetery or cremating dead bodies and burying and caring for incinerate remains shall be for the sole purpose of interment or deposit and safekeeping of incinerate remains. Such lots or space shall be exempt from execution, attachment or other lien or process, if used as intended by the purchaser thereof from such corporation, or the assigns or representatives of the purchaser, exclusively for burial purposes, and in no wise with a view to profit. Such lots or space shall be exempt from taxation as provided in ORS 307.150.

The vendor of any gravestone, however, shall not be prevented from having and enforcing a lien thereon for all or part of its purchase price. If a suit is brought to enforce such a lien, the judgment therein is enforceable thereafter; and, for the purpose of enabling the lien to be had and enforced, the gravestone shall be deemed personal property and may be severed and removed, under execution and order of sale, from the lot where it

is situated and may be sold in the same manner as any other personal property. [Formerly 61.770; 2003 c.576 §331] 65.875 Recording plan; power to improve and regulate grounds. (1) As used in this section, “plan” means a document indicating the placement of lots or burial spaces, and of the niches or inurnment spaces in the buildings erected thereon, as established and authorized by the cemetery authority.

(2) A nonprofit corporation organized and existing solely for the purposes of owning and operating a cemetery or cremating dead bodies and burying and caring for incinerate remains shall cause a plan of its land and grounds and of the lots laid out by it and of the niches or burial space in the buildings erected thereon to be made and recorded in the county in which such grounds and land are located, such lots or spaces to be numbered by regular consecutive numbers. Such corporation may enclose, improve, and adorn the grounds, buildings, and avenues, prescribe rules for the designation, improvement and adorning of lots and burial spaces and for erecting monuments, and prohibit any use, division, improvement or adornment of a lot or burial space which it may deem improper. [Formerly 61.775; 1999 c.731 §9] MISCELLANEOUS 65.951 Short title. This chapter shall be known and may be cited as the Oregon Nonprofit Corporation Act. [1989 c.1010 §1; 1999 c.59 §16] 65.954 Reservation of power to amend or repeal. All or part of this chapter may be amended, repealed or modified at any time and all domestic and foreign corporations subject to this chapter are governed by the amendment, repeal or modification. [1989 c.1010 §2] 65.957 Application to existing domestic corporations; exemptions. (1) This chapter applies to all domestic corporations in existence on October 3, 1989, that were incorporated under any general statute of this state providing for incorporation of nonprofit corporations if power to amend or repeal the statute under which the corporation was incorporated was reserved.

(2) Without limitation as to any other corporations that may be outside the scope of subsection (1) of this section, this chapter does not apply to the following: (a) The Oregon State Bar and the Oregon State Bar Professional Liability Fund created under ORS 9.005 to 9.755; (b) The State Accident Insurance Fund Corporation created under ORS chapter 656; (c) The Oregon Insurance Guaranty Association and the Oregon Life and Health Insurance Guaranty Association created under ORS chapter 734; and (d) The Oregon FAIR Plan Association and the Oregon Medical Insurance Pool created under ORS chapter 735. [1989 c.1010 §172; 1997 c.249 §26; 1999 c.274 §20; 2001 c.922 §11; 2005 c.22 §51] 65.959 Application to corporations relating to condominiums, planned communities or timeshare estates. For a corporation organized under this chapter and formed pursuant to ORS chapter 100 or subject to regulation under all or part of the provisions of ORS 94.550 to 94.783 or under ORS 94.803 and 94.807 to 94.945: (1) A provision of this chapter that may be avoided by a corporation by a provision in the corporation’s articles of incorporation, bylaws or otherwise also may be avoided by a provision in the declaration, bylaws or other recorded governing document of a planned community or a condominium.

(2) In the event of a conflict between the provisions of this chapter and:

(a) The declaration and bylaws of a condominium and the provisions of ORS chapter 100, the declaration and bylaws and the provisions of ORS chapter 100 control. (b) The declaration, bylaws and other recorded governing documents of a planned community and the provisions of ORS 94.550 to 94.783, the declaration, bylaws and other governing documents and the provisions of ORS 94.550 to 94.783 control. (c) The recorded timeshare instrument of a timeshare plan and the provisions of ORS 94.803 and 94.807 to 94.945, the recorded timeshare instrument and the provisions of ORS 94.803 and 94.807 to 94.945 control. [2003 c.569 §46] 65.961 Application to qualified foreign corporations. A foreign corporation authorized to engage in activities in this state on October 3, 1989, is subject to this chapter but is not required to apply for new authority to engage in activities under this chapter. [1989 c.1010 §173] 65.964 Saving provisions. (1) Except as provided in subsections (2), (3) and (4) of this section, the repeal of a statute by chapter 1010, Oregon Laws 1989, does not affect: (a) The operation of the statute or any action taken under it before its repeal; (b) Any ratification, right, remedy, privilege, obligation or liability acquired, accrued or incurred under the statute before its repeal; (c) Any violation of the statute, or any penalty, forfeiture or punishment incurred because of the violation, before its repeal; or (d) Any proceeding, reorganization or dissolution commenced under the statute before its repeal. The proceeding, reorganization or dissolution may be completed in accordance with the statute as if it had not been repealed.

(2) The provisions of ORS 65.387 to 65.414 shall apply to all indemnification made by a corporation after October 3, 1989, and all other actions regarding indemnification taken by or on behalf of a corporation or by a court after October 3, 1989, including all indemnification made and other actions taken after October 3, 1989, with respect to claims that arose or matters that occurred prior to October 3, 1989, or pursuant to any provisions of any articles of incorporation, bylaws, resolutions or agreements in effect prior to October 3, 1989.

(3) If a penalty or punishment imposed for violation of a statute repealed by chapter 1010, Oregon Laws 1989, is reduced by this chapter, the penalty or punishment, if not already imposed, shall be imposed in accordance with this chapter.

(4) This chapter shall apply to any amendment to a corporation’s articles of incorporation filed after October 3, 1989, even if member approval of such amendment occurred prior to October 3, 1989.

(5) Except as specifically provided in this chapter, nothing in this chapter shall affect any powers the Attorney General may have under other statutes or common law. [1989 c.1010 §174] 65.967 Severability. If any provision of this chapter or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. [1989 c.1010 §175] PENALTY

65.990 Penalty for signing false document. (1) A person commits the crime of falsely signing a document for filing if the person signs a document knowing it is false in any material respect with intent that the document be delivered to the Office of the Secretary of State for filing.

(2) Violation of subsection (1) of this section is a Class B misdemeanor. [1989 c.1010 §§12,171] _______________ CHAPTER 66 [Reserved for expansion]

DEPARTMENT OF STATE LANDS

DIVISION 35 ADMINISTRATION OF ESTATES -- PROBATE 141-035-0005 Purpose The purpose of these rules is to provide a uniform procedure for the administration of estates of decedents who die intestate without known heirs or with some missing heirs and to testate estates with missing heirs or missing devisees in accordance with Oregon Revised Statutes 111 through 119. These rules shall be liberally construed to secure just, speedy determination of the assets, liabilities, net worth and disposition of the decedents' estates.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0011 Rights of Department of State Lands in Escheated Estates (1) Any portion of a net estate that is not effectively disposed of by will or by intestate succession under ORS 112-025 to 112.045 escheats to the State of Oregon. Such property vests in the State of Oregon at the time the court enters its decree or order and is subject to a condition subsequent of divestment if a qualified claimant successfully asserts a claim for recovery under

ORS 116.253 and OAR 141-030-0025. The Department of State Lands shall administer the estate or represent the interests of the State of Oregon with regard to the estate.

(2) If a devisee or a person entitled to take under intestate succession is not identified or found: (a) The share of that person escheats to the State of Oregon; (b) The Department has the same preference as the missing devisee or person for the purpose of appointment as personal representative under ORS 113.085; (c) Title to property of the decedent that would vest in the missing devisee or person under ORS 114.215 vests in the Department; and (d) The Department has all of the rights of the missing devisee or person for the purposes of ORS chapters 111, 112, 113, 114, 115, 116 and 117, including but not limited to the following: (A) The right to contest any will of the decedent under ORS 113.075; and (B) The right to information under ORS 113.145.

Stat. Auth.: ORS 273.045, ORS 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0012 Authority of Department of State Lands in Administration of Estates (1) In any estate administered by the Department pursuant to 141-035-0011, the Department may: (a) Administer the estate under the probate laws of Oregon in accordance with ORS chapters 113 to 116; (b) Administer the estate under the provisions for small estates in ORS 114.505 to 114.560; (c) Submit an affidavit and receive funds from a financial institution under ORS 708A.430; (d) Submit an affidavit to examine the contents of a safe deposit box under ORS 708A.655, 722.660 or 723.844; (e) Submit an affidavit and receive the withdrawal of value of property in accordance with ORS 722.262;

(f) Submit an affidavit and receive the moneys of the decedent on deposit with a credit union in accordance with ORS 723.466; or (g) Deposit to the Common School Fund without formal proceedings assets of a decedent which are voluntarily delivered to the Department or secured by the Department in accordance with Section 9, Chapter 395, Oregon Laws 2003. In such cases, the Department shall take reasonable steps under the circumstances to identify and notify heirs and to identify and pay from the assets received creditors of the estate.

(2) Except for expenses disallowed by the court with authority over the probate, any expenses of the Department in carrying out the authority set forth in subsection (1) of this rule shall be paid from the proceeds of the estate. Such expenses shall be calculated in the manner described in OAR 141-035-0068. The Department encourages personal representatives sending notices and documents required by statute to the Department to include a letter explaining the practical circumstances of the estate and such additional information as will assist the estate administrator in protecting the interest of the State of Oregon in the estate.

Stat. Auth.: ORS 273.045, ORS 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0013 Delivery of Information to Division (1) Upon appointment, a personal representative shall deliver or mail to an estate administrator a copy of the petition filed under ORS 113.035, and a copy of any last will of the decedent, if the personal representative has not identified and found all heirs and devisees of the decedent. The personal representative shall file an affidavit in the probate proceeding proving the delivery or mailing.

(2) If at any time after the appointment of a personal representative it appears that any heir or devisee of the decedent cannot be identified and found, the personal representative shall promptly deliver or mail to an estate administrator a notice indicating that an heir or devisee cannot be identified and found. The personal representative shall file an affidavit in the probate proceeding proving the delivery or mailing.

(3) A personal representative who files a report under ORS 116.203 that shows that payment or delivery of property cannot be made to a distributee entitled to the property shall provide to the Department of State Lands: (a)A copy of the order of escheat;

(b) The property; (c) The name of the person entitled to the property; and (d) The relationship of the devisee or heir to the decedent.

Stat. Auth.: ORS 273.045, ORS 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0015 Master Index The Department shall maintain in its office an index of the names of persons who die intestate without heirs. The index shall contain the number assigned to the file, name of the decedent, county of probate, and estimated estate value. Upon notification of a new probate case, the Department shall add the decedent's name and file number to the index. When the Director has been appointed as personal representative or when the Department files a Small Estates Affidavit, the Department shall include the county of probate and estimated value of the estate.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0016 Notice to Department of Decedent Who Died Without Known Heirs (1) Any person who has knowledge that a decedent died wholly intestate, that the decedent owned property subject to probate in Oregon and that the decedent died without a known heir shall give notice of the death within 48 hours after acquiring that knowledge to an estate administrator of the Department of State Lands.

(2) Except as provided by ORS 708A.430, 722.262 and 723.466, a person may not dispose of or diminish any assets of the estate of a decedent who has died wholly intestate, who owned property subject to probate in Oregon and who died without a known heir unless the person has prior written approval of an estate administrator of the Department of State Lands. The prohibition of this subsection: (a) Applies to a guardian or conservator for the decedent; and

(b) Does not apply to a personal representative appointed under ORS 113.085(3) or to an affiant authorized under 114.520 to file an affidavit under 114.515.

(3) For purposes of this rule, "person" includes, but is not limited to friends, neighbors, care centers, nursing homes, hospitals, banking institutions, attorneys, guardians and conservators, and nursing homes.

Stat. Auth.: ORS 273.045, ORS 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0018 Taking Custody of Property; Payment of Expenses of Estate (1) An estate administrator of the Department of State Lands may take custody of the property of a decedent who died owning property subject to probate in Oregon upon the estate administrator receiving notice that: (a) The decedent died wholly intestate and without a known heir; or (b) The decedent left a valid will, but no devisee has been identified and found.

(2) For any estate described in subsection (1) of this section, an estate administrator of the Department of State Lands may: (a) Incur expenses for the funeral, burial or other disposition of the remains of the decedent in a manner suitable to the condition in life of the decedent; (b) Incur expenses for the protection of the property of the estate; (c) Incur expenses searching for a will or for heirs or devisees of the decedent; (d) Have access to the property and records of the decedent other than records that are made confidential or privileged by statute; (e) With proof of the death of the decedent, have access to all financial records of accounts or safe deposit boxes of the decedent at banks or other financial institutions; and (f) Sell perishable property of the estate.

(3) The reasonable funeral and administrative expenses of the Department of State Lands incurred under this section, including a reasonable attorney fee, shall be paid from the assets of the estate with the same priority as funeral and administration expenses under ORS 115.125.

(4) When the Department receives notice of a person who has died and for whom it appears there are no known heirs to inherit and no known will, the Estate Administrator shall immediately take steps to ensure the protection of assets of the decedent. The Estate Administrator shall complete a discovery form, which shall include, but need not be limited to, the following information: (a) Name of decedent, address, Social Security number, date of death, place of death, and date of birth, if known; (b) Source of information, for example, friend, funeral director, sheriff's office, county coroner, medical examiner; (c) Funeral home where the body has been taken, name of the director or principal; (d) Information relative to assets belonging to the decedent, for example, real property, personal and household property, stocks, savings accounts, bank accounts, cash; (e) Names, addresses and phone numbers of friends and neighbors who can lend assistance in trying to establish identity of nearest of kin; and (f) The names and any available information concerning relatives of the decedent, whether or not they may be heirs, and all records supporting the relationships or providing information concerning the relatives or which would assist in locating them.

Stat. Auth.: ORS 273.045, ORS 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0020 Initial Proceedings (1) Pursuant to ORS 113.085, if it appears that the decedent died wholly intestate and without known heirs, the Court shall appoint the Department of State Lands personal representative or small estates affiant. The Department of Justice shall represent the Department of State Lands in the administration of the estate.

(2) The court may appoint a person other than the Department of State Lands to administer the estate of a decedent who died wholly intestate and without known heirs if the person filing a petition under ORS 113.035 attaches written authorization from an estate administrator approving the filing of the petition by the person. Except as provided in subsection (3) of this rule, an estate administrator may consent to the appointment of another person to act as personal representative only if it appears after investigation that the estate is insolvent.

(3) Any person who wishes to petition the court for appointment as a personal representative for the estate of a decedent who died wholly intestate and without known heirs shall submit a written request to the Department. The estate administrator may authorize the appointment of another person to act as personal representative if: (a) After investigation, the estate administrator determines the estate is insolvent; or (b) The estate administrator determines that the appointment is the most cost-effective method to administer the estate and protect the assets of the estate.

(4) A creditor of an estate shall give written notice to the Department informing the Director that the creditor intends to file a Small Estates Affidavit. The Department shall investigate the assets and liabilities of the estate, and within 30 days after receipt of the notice, either: (a) Give written authorization to the creditor to file the Small Estates Affidavit; or (b) Inform the creditor that the Department will file a Small Estates Affidavit, and include the creditor as an interested person.

Stat. Auth.: ORS 273.045, ORS 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0025 Funeral Arrangements (1) If the body is delivered to a funeral home and it appears the decedent has died intestate and without known heirs, the funeral director shall contact the Estate Administrator within two working days after receipt of the body. The Department must approve all funeral arrangements.

(2) Either the funeral director or the Estate Administrator after consultation with the funeral director shall complete applications for Social Security, Veterans Administration, and other available death benefits.

(3) The Estate Administrator and the funeral director shall negotiate appropriate funeral services and their cost subject to the following guidelines: (a) The decedent shall receive a funeral and disposition of remains in a manner suitable to the decedent's circumstances in life within the reasonable limits of the financial condition of the estate and in consideration of other available death benefits. (b) The Estate Administrator may authorize cremation if all of the following conditions are met: (A) It is apparent that there are no heirs or a properly executed disclaimer of heirs is on file pursuant to OAR 141-035-0046; (B) The estate has no assets to cover burial; and (C) The decedent's apparent religion permits cremation.

(4) The nature and cost of funeral services may be limited to those of a "plain and decent funeral," which may include: (a) Professional services; (b) First call reception of the remains; (c) Preparation of the remains as required by law; (d) Use of funeral home facilities and personnel for viewing and funeral services; (e) Delivery of the remains to a local cemetery; (f) The least expensive casket shown by the funeral home; (g) Additional essential items, which may include: (A) Newspaper notices; (B) Minister's honorarium; (C) Cemetery costs. (h) Incidental items available as appropriate, which may include: (A) Music;

(B) Flowers; (C) Clothing; (D) Extra transportation; (E) Other requested items.

(5) In determining the nature and amount of services to be rendered for a "plain and decent funeral," the Estate Administrator shall consider the amount of assets available in the estate, the expressed desires of the decedent's friends and associates concerning appropriate funeral services, the number of persons expected to attend any funeral services offered, and the prominence of the decedent in the local community.

(6) Burial and cemetery costs are considered separate from funeral costs and the amount payable is contingent upon the amount of funds available in the estate. The funeral director shall notify the Estate Administrator of the proposed cemetery and the cost estimate for burial expenses.

Expenses are limited to the available resources in the estate.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0030 Protection of Assets (1) As soon as possible but not more than five working days after the Department receives notification under OAR 141-035-0016(1) or 141-035-0025, the Estate Administrator shall travel to the decedent's residence to: (a) Inventory and, if possible, take custody of and secure all tangible and intangible assets. (b) Gather and secure all papers and records of the decedent to provide a source of information that may be reviewed to determine whether a will exists, and whether there are existing heirs as defined in ORS Chapter 111, and 112.015 to 112.055, 112.065, 112.075, 112.095, 112.105 and 112.115. (c) Contact local banks, savings and loan associations, credit unions, and other financial institutions to freeze accounts pending delivery of appropriate documents to withdraw the accounts and to obtain balances of accounts and information regarding safe deposit boxes.

(d) Contact utilities, delivery services, and postal authorities to forward billings and statements to the Department and to arrange for the termination of services if in the best interest of the estate to protect the property.

(2) The Estate Administrator may request assistance from available law enforcement personnel to provide for the security of real property, personal property, and household goods.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0035 Inventory (1) Within five working days after verifying that the decedent apparently has no legal will nor known heirs, the Estate Administrator shall compile a full and complete inventory of the assets of the decedent.

(2) The Estate Administrator shall assign an estimated value to each item of inventory. The value of investment-type assets shall be recorded at the value of the asset as of the date of death.

(3) The Estate Administrator may box miscellaneous household items or other incidental property in unit categories and inventory as a box.

(4) The Estate Administrator shall note individually on the inventory all items with commercial value including major household appliances, antiques, jewelry, vehicles, trailers, recreational vehicles, shop equipment, and real property.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0040 Administration of the Estate (1) If the value of the estate does not exceed the amounts stated in ORS 114.515 for a Small Estates Affidavit, the Department as a claiming successor of the decedent, may file an affidavit for a proceeding with the appropriate court as described in ORS 114.505 to 114.560. If the value

of the estate exceeds the limits authorized under the procedure for a Small Estate, the Estate Administrator shall file a petition with the appropriate court to be appointed personal representative and administer the estate according to ORS 111.005 through 117.095.

(2) The Estate Administrator may pay funeral and cemetery costs as soon as the Estate Administrator determines that enough funds will remain to pay administrative costs.

(3) A formal claim against the estate may be allowed, contingent on the availability of funds. If it appears there are insufficient funds to pay all claims in full, the Estate Administrator shall follow the order of payment of expenses and claims as set forth in ORS 115.125.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 3-1982, f. & ef. 6-10-82; LB 5-1989, f. & cert. ef. 11-289; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f.

12-15-03, cert. ef. 1-1-04 141-035-0045 Search for Heirs (1) The Estate Administrator shall conduct a search of records to locate any heirs that may have a legal right to inherit. The search shall include but not be limited to the following: (a) Papers, records, albums, newspaper clippings, letters, personal telephone books, etc., included in the personal effects of the decedent; (b) Friends and neighbors; (c) Employee unions, businesses or places of employment, retirement funds, insurance companies or any other association of which the decedent may have been a member; (d) Banks, credit unions and other financial institutions, savings and loan associations, mortgage and investment funds with which the decedent may have conducted financial affairs; (e) Public agencies; and (f) Paid genealogists or other heir searchers.

(2) If the Estate Administrator finds a valid will before filing a full probate or Small Estates Affidavit, the Estate Administrator shall immediately contact the personal representative named in the will. If the Estate Administrator cannot locate the personal representative, the Estate Administrator shall notify the primary beneficiary. The Department shall then make

arrangements to turn over all assets, less the Department's personal representative expenses of administration, to the appropriate individual upon proof of identity.

(3) The probate file is a public record under Oregon's public meetings and records laws.

Researching firms or heir finders must make an appointment with the Estate Administrator to view the Department files after the Department has filed the records with the probate court.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0047 When Heirs Are Discovered (1) If a person claims to be an heir of the decedent during the administration of a full probate or Small Estates Affidavit, the person must submit acceptable proof to substantiate kinship to the Estate Administrator. Acceptable proof includes, but is not limited to, certified copies of death and birth certificates, genealogical search records, obituaries, funeral notices, Baptism records, and family Bibles. The Department may continue to administer the estate until the Estate Administrator determines that evidence submitted is sufficient to prove that the person is legally entitled to the decedent's assets. If other heirs are identified but not located, the Department may continue to administer the estate in order to protect the interest of the missing heirs and the Common School Fund, or if administration of the probate is substantially complete and the Estate Administrator and the known heirs agree that it is in the best interests of the estate for the Department to complete administration of the estate.

(2) If the Department has filed a probate, and all heirs are subsequently identified and found, the heir shall file a substitution of personal representative with the probate court, and a court certified copy of the order of substitution with the Department.

(3) If the administration is by a Small Estates Affidavit, the heir shall file an amended Small Estates Affidavit with the court, which shows that the heir is taking over control and responsibility of the estate from the Department, and submit a court certified copy to the Department.

(4) Upon receipt of the court certified copy of the amended Small Estates Affidavit, the Estate Administrator shall turn over the assets, less the Department's administrative costs, to the claiming successor, including all bills and claims against the estate.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 1224-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0048 Disclaimer Of Interest In Estate (1) In accordance with ORS 105.623 to 105.649, any heir or devisee to an estate may disclaim all interest in an estate by delivering the disclaimer to the Department as personal representative of the estate, or if the Department is not serving at the time the disclaimer is made, by delivering the disclaimer: (a) If a personal representative other than the Department is presently serving, to that personal representative; or (b) If a personal representative is not serving at the time the disclaimer is made the disclaimer must be filed with a court having jurisdiction to appoint the personal representative.

(2) Upon notification to the Department of any heir or devisee who refuses to act as personal representative of the estate of a decedent, and who refuses an interest in the estate, the Department may forward a disclaimer to the disclaimant.

(3) The disclaimer shall: (a) Be in writing or otherwise recorded by inscription on a tangible medium or by storage in an electronic or other medium in a manner that allows the disclaimer to be retrieved in perceivable form; (b) Declare that the person disclaims the interest in the property or in the power of appointment; (c) Describe the interest in property or power over property that is disclaimed; (d) Be signed by the person making the disclaimer; and (e) Be delivered in the manner provided in ORS 105.642.

(4) Upon receipt of the properly executed disclaimer by the Department, the decedent shall be treated as though he or she died wholly intestate and without heirs with respect to the disclaimant, and the Estate Administrator shall petition the court to be appointed as personal representative or Small Estates Affiant to administer the estate in the usual manner.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0050 Sale of Real Property and Personal Effects (1) When serving as affiant or personal representative for an estate, the Department shall obtain the greatest cash value for all property and personal effects belonging to the decedent at the time of death.

(2) In order to obtain the greatest value for all property and personal effects belonging to the decedent at the time of death, the Estate Administrator shall dispose of such property in accordance with OAR 141-045-0185.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0055 Accounting for Funds (1) There is created within the Common School Fund a separate trust account for estate administration.

(2) All funds received by the Department in the Department's capacity of personal representative shall be deposited daily into the trust account, and credited to the appropriate subsidiary account established for each separate estate.

(3) The Estate Administrator may pay just, proper, and approved claims from an estate subsidiary account established pursuant to subsection (2) of this rule within the limits of the estate's resources in accordance with ORS 115.125 and OAR 141-035-0040(2)(c).

(4) At the end of each fiscal year, the Estate Administrator shall file a report setting forth the value of non-cash assets of each estate.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119

Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0060 Income and Inheritance Taxes The personal representative shall file and pay all taxes due on the estate. The Estate Administrator may obtain the services of a tax consultant when necessary to prepare appropriate and necessary tax returns.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0065 Closing the Estate and Escheat of Assets (1) The Department shall make every effort to close full estates admitted to probate within one year after the court appointment date. If the full probate cannot be closed within one year the Estate Administrator shall file an annual accounting with the appropriate probate court.

(2) Prior to closing, the Estate Administrator shall compute the administrative and Department of Justice expenses. If the estate was admitted to full probate, fees shall be computed in accordance with ORS 116.173. The Estate Administrator shall compute administrative expenses of the Department in the manner described in OAR 141-0350-0068 . In addition, extraordinary expenses such as special trips by the Estate Administrator, additional manpower required to inventory, transport or dispose of personal property shall be computed and included as administrative expenses in the final account submitted to the court.

(3) If the estate was filed under the Small Estates procedure, the Estate Administrator shall: (a) Complete administration and processing of claims and expenses immediately after the end of the four month period after the affidavit is filed with the probate court; and (b) Compute administrative and legal expenses as actual costs incurred in accordance with ORS 116.183. The Estate Administrator shall compute administrative expenses of the Department in the manner described in OAR 141-0350-0068 .

(4) The amount remaining after payment of expenses shall be placed in a trust fund of the Department and held on behalf of heirs for ten years from the distribution date. If heirs claim the estate during that period, Department shall apply the procedures of OAR 141-030-0025 and ORS 116.253. If an heir does not present a claim within ten years after the final distribution date, the Department shall deposit the total amount credited to the estate subsidiary account in the Common School Fund.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0068 Computation of Department Expenses (1) The Department shall recover its actual expenses incurred in administering an estate probated under ORS chapter 113 and 114, a small estate proceeding under 114.505 to 114.560, actions to recover the escheated portion of an estate under 116.203, investigation or recovery of assets under 708A.430, 708A.655, 722.262, 722.660, 723.466 or 723.844 and for any expenses incurred in securing an estate and identifying heirs when it is unknown as to whether the decedent died intestate and without known heirs.

(2) The calculation of the expenses of the Department under subsection (1) of this rule shall consist of the amount of the basic hourly rate of the employee in addition to the overhead for the time spent. As used in this subsection: (a) "Basic hourly rate" means the actual salary and other personnel expenses of the employee, divided by the annual number of hours of employment. (b) "Overhead" includes all other expenses of the agency proportionately attributable to the activities of the employee that are not separately itemized and billable as expenses.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 141-035-0070 Appeal

Any person aggrieved by a decision of the Department as personal representative or the designated Estate Administrator may request a hearing before the Director of the Department of State Lands in accordance with the applicable provisions of ORS 183.310 to 183.550 or file an objection or petition with the probate court.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 Small Estates 141-035-0075 Requirements for Small Estate (1) If it appears that a decedent died wholly intestate and without known heirs, and the value of the estate does not exceed the values established in ORS 114.515, the Department may administer the estate by filing an affidavit with the clerk of the probate court under 114.515.

(2) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor may not file an affidavit under ORS 114.515 unless the Department gives written authorization. An estate administrator shall consent to the filing of an affidavit under 114.515 by a creditor only if it appears after investigation that the estate is insolvent.

(3) A creditor of an estate who is subject to subsection (2) of this section shall submit a written notice to an estate administrator informing the estate administrator that the creditor intends to file an affidavit under ORS 114.515. Upon receiving the notice, the estate administrator shall investigate the assets and liabilities of the estate. Within 30 days after receiving the notice required by this subsection, the estate administrator shall either: (a) Give written authorization to the creditor to file an affidavit by the creditor under ORS 114.515; or (b) Inform the creditor that the Department will file an affidavit as claiming successor under ORS 114.515.

(4) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor and who files an affidavit under ORS 114.515 must notate at the top of the affidavit that the affidavit is being filed by a creditor of the estate. If the affidavit contains the notation required by this subsection, the clerk of the probate court may not accept the affidavit for filing unless there is attached to the affidavit written authorization for the filing of the affidavit by the

creditor from an estate administrator. The written authorization may be a copy of a memorandum of an interagency agreement between the Department of State Lands and another state agency.

Stat. Auth.: ORS 273.045, 111 - 119 Stats. Implemented: ORS 111 - 119 Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04 Chapter 113 — Initiation of Estate Proceedings 2009 EDITION INITIATION OF ESTATE PROCEEDINGS PROBATE LAW 113.005

Special administrators

113.015

Venue

113.025

Proceedings commenced in more than one county

113.027

Limitation on admission of will to probate

113.035

Petition for appointment of personal representative and probate of will

113.045

Information of escheat to Department of State Lands

113.055

Testimony of attesting witnesses to will

113.065

Establishing foreign wills

113.075

Contest of will

113.085

Preference in appointing personal representative

113.086

Approval of attorneys who are eligible to be personal representative for decedent who received Medicaid or other public assistance

113.087

Effect of accepting appointment as personal representative; notices to be sent to representative

113.092

Convicted felon as nominated personal representative

113.095

Persons not qualified to act as personal representatives

113.105

Necessity and amount of bond; exceptions; bond notwithstanding will

113.115

Increasing, reducing or requiring new bond

113.125

Letters testamentary or of administration

113.135

Designation of attorney to be filed

113.145

Information to devisees, heirs, interested persons, Department of Human Services and Oregon Health Authority

113.155

Publication of notice to interested persons

113.165

Filing inventory and evaluation

113.175

Property discovered after inventory filed

113.185

Appraisement; employment and appointment of appraisers

113.195

Removal of personal representative

113.205

Powers of surviving personal representative

113.215

Appointment of successor personal representative

113.225

Notice to interested persons by successor personal representative

113.235

Appointment of estate administrators by Director of Department of State Lands

113.238

Requirements and prohibitions related to certain decedents who die intestate and without heirs

113.242

Authority of estate administrator

113.005 Special administrators. (1) If, prior to appointment and qualification of a personal representative, property of a decedent is in danger of loss, injury or deterioration, or disposition of the remains of a decedent is required, the court may appoint a special administrator to take charge of the property or the remains. The petition for appointment shall state the reasons for special administration and specify the property, so far as known, requiring administration, and the danger to which it is subject.

(2) The special administrator shall qualify by filing a bond in the amount set by the court, conditioned upon the special administrator faithfully performing the duties of the trust.

(3) The special administrator may: (a) Incur expenses for the funeral, burial or other disposition of the remains of decedent in a manner suitable to the condition in life of the decedent; (b) Incur expenses for the protection of the property of the estate; and (c) Sell perishable property of the estate, whether or not listed in the petition, if necessary to prevent loss to the estate.

(4) The special administrator shall not approve or reject claims of creditors or pay claims or expenses of administration or take possession of assets of the estate other than those in danger of loss, injury or deterioration pending the appointment of a personal representative.

(5) Upon the appointment and qualification of a personal representative the powers of the special administrator shall cease. Within 30 days after the issuance of letters testamentary to a personal representative, the special administrator shall make and file an account and deliver to the personal representative the assets of the estate in the possession of the special administrator. If the personal representative objects to the account of the special administrator, the court shall hear the objections, and, whether or not objections are made, shall examine the account.

(6) To the extent approved by the court, the compensation of the special administrator and expenses properly incurred by the special administrator, including a reasonable fee of the attorney of the special administrator, shall be paid as expenses of administration. [1969 c.591 §80; 1999 c.592 §1] 113.010 [Repealed by 1969 c.591 §305] 113.015 Venue. (1) The venue for a proceeding seeking the appointment of a personal representative and for a proceeding to probate a will is: (a) In the county where the decedent had a domicile or where the decedent had a place of abode at the time of death; (b) In any county where property of the decedent was located at the time of death or is located at the time the proceeding is commenced; or (c) In the county in which the decedent died.

(2) Filing a proceeding in a county other than specified in subsection (1) of this section does not constitute a jurisdictional defect. [1969 c.591 §81] 113.020 [Repealed by 1969 c.591 §305] 113.025 Proceedings commenced in more than one county. (1) If proceedings seeking the appointment of a personal representative of the same estate or proceedings to probate a will of the same decedent are commenced in more than one county, they shall be stayed except in the county where first commenced until final determination there of venue. A proceeding is considered commenced by the filing of a petition. In determining venue, if the court finds that transfer to another county where a proceeding has been commenced is for the best interest of the estate, it may in its discretion order such transfer.

(2) If the proper venue is determined to be in another county, the clerk of the court shall transmit to the clerk of the court for the other county a transcript of the proceeding with all the original papers filed therein, and the court for the other county thereupon has exclusive jurisdiction of the proceeding to the same extent and with like effect as though the proceeding were in the court on original jurisdiction. [1969 c.591 §82] 113.027 Limitation on admission of will to probate. A will may not be admitted to probate or an estate reopened to admit a will to probate more than one year after the estate of the decedent has been administered in Oregon and closed. [1973 c.506 §21] 113.030 [Amended by 1963 c.308 §1; repealed by 1969 c.591 §305]

113.035 Petition for appointment of personal representative and probate of will. Any interested person or executor named in the will may petition for the appointment of a personal representative and for the probate of a will. The petition shall include the following information, so far as known: (1) The name, age, domicile, post-office address, date and place of death, and Social Security account number or taxpayer identification number of the decedent.

(2) Whether the decedent died testate or intestate.

(3) The facts relied upon to establish venue.

(4) The name and post-office address of the person nominated as personal representative and the facts that show the person is qualified to act.

(5) The names, relationship to the decedent and post-office addresses of persons who are or would be the heirs of the decedent upon the death of the decedent intestate, and the ages of any who are minors.

(6) A statement that reasonable efforts have been made to identify and locate all heirs of the decedent. If the petitioner knows of any actual or possible omissions from the list of heirs, the petition must include a statement indicating that there are omissions from the information relating to heirs.

(7) If the decedent died testate, the names and post-office addresses of the devisees, and the ages of any who are minors. If the will devises property to a person who did not survive the decedent or who is otherwise not entitled to receive the devise, the petition must include a statement explaining why the devise failed. If the petitioner knows of any actual or possible omissions from the list of devisees, the petition must include a statement indicating that there are omissions from the information relating to devisees.

(8) The name and post-office address of any person asserting an interest in the estate, or on whose behalf an interest has been asserted, based on a contention that: (a) The will alleged in the petition to be the will of the decedent is ineffective in whole or part; (b) There exists a will that has not been alleged in the petition to be the will of the decedent; or (c) The decedent agreed, promised or represented that the decedent would make or revoke a will or devise, or not revoke a will or devise, or die intestate.

(9) The name and post-office address of any person asserting an interest in the estate, or on whose behalf an interest has been asserted, based on a contention that a parent of the decedent willfully deserted the decedent or neglected without just and sufficient cause to provide proper care and maintenance for the decedent, as provided by ORS 112.047.

(10) Whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. If the original will is not in the possession of the court or accompanying the petition and an authenticated copy of the will probated in another jurisdiction does not accompany the petition, the petition shall also state the contents of the will and indicate that it is lost, destroyed or otherwise unavailable and that it was not revoked.

(11) A statement of the extent and nature of assets of the estate, to enable the court to set the amount of bond of the personal representative. [1969 c.591 §83; 1973 c.506 §19; 1991 c.704 §1; 2003 c.395 §10; 2005 c.741 §4] 113.040 [Amended by 1963 c.308 §2; repealed by 1969 c.591 §305] 113.045 Information of escheat to Department of State Lands. (1) Upon appointment, a personal representative shall deliver or mail to an estate administrator of the Department of State Lands appointed under ORS 113.235 a copy of the petition filed under ORS 113.035, and a copy of any last will of the decedent, if the personal representative has not identified and found all heirs and devisees of the decedent.

The personal representative shall file proof of the delivery or mailing with the court.

(2) If at any time after the appointment of a personal representative it appears that any heir or devisee of the decedent cannot be identified and found, the personal representative shall promptly deliver or mail to an estate administrator of the Department of State Lands appointed under ORS 113.235 a notice indicating that an heir or devisee cannot be identified and found. The personal representative shall file proof of the delivery or mailing with the court.

(3) This section does not affect the requirements of ORS 113.085 (2). [1969 c.591 §84; 2003 c.395 §11; 2007 c.284 §9] 113.050 [Amended by 1963 c.272 §1; repealed by 1969 c.591 §305] 113.055 Testimony of attesting witnesses to will. (1) Upon an ex parte hearing of a petition for the probate of a will, an affidavit of an attesting witness may be used instead of the personal presence of the witness in court. The witness may give evidence of the execution of the will by attaching the affidavit to the will or to a photographic or other facsimile copy of the will, and may identify the signature of the testator and witnesses to the will by use of the will or the copy. The affidavit shall be received in evidence by the court and have the same weight as to matters contained in the affidavit as if the testimony were given by the witness in open court. The affidavit of the attesting witness may be made at the time of execution of the will or at any time thereafter.

(2) However, upon motion of any person interested in the estate filed within 30 days after the order admitting the will to probate is made, the court may require that the witness making the affidavit be brought before the court. If the witness is outside the reach of a subpoena, the court may order that the deposition of the witness be taken.

(3) If the evidence of none of the attesting witnesses is available, the court may allow proof of the will by testimony or other evidence that the signature of the testator or at least one of the witnesses is genuine.

(4) In the event of contest of the will or of probate thereof in solemn form, proof of any facts shall be made in the same manner as in an action tried without a jury. [1969 c.591 §85; 1979 c.284 §105] 113.060 [Amended by 1963 c.271 §1; repealed by 1969 c.591 §305] 113.065 Establishing foreign wills. (1) The written will of a testator who died domiciled outside this state, which upon probate may operate upon property in this state, may be admitted to probate upon petition therefor, by filing a certified copy of the will and a certified copy of the order admitting the will to probate or evidencing its establishment in the jurisdiction where the testator died domiciled.

(2) A will offered for probate under this section may be contested for a cause which would be grounds for rejection of a will of a testator who died domiciled in this state. [1969 c.591 §86] 113.070 [Repealed by 1969 c.591 §305] 113.075 Contest of will. (1) Any interested person may contest the probate of the will or the validity of the will or assert an interest in the estate for the reason that: (a) The will alleged in the petition to be the will of the decedent is ineffective in whole or part; (b) There exists a will that has not been alleged in the petition to be the will of the decedent; or (c) The decedent agreed, promised or represented that the decedent would make or revoke a will or devise, or not revoke a will or devise, or die intestate.

(2) An action described in subsection (1) of this section shall be commenced by the filing of a petition in the probate proceedings, except that an action described in subsection (1)(c) of this section may be commenced by the filing of a separate action in any court of competent jurisdiction.

(3) An action described in subsection (1) of this section shall be commenced before the later of: (a) Four months after the date of delivery or mailing of the information described in ORS 113.145 if that information was required to be delivered or mailed to the person on whose behalf the petition is filed; or (b) Four months after the first publication of notice to interested persons if the person on whose behalf the petition is filed was not required to be named in the petition as an interested person.

(4) A cause of action described in subsection (1)(c) of this section shall not be presented as a claim under ORS chapter 115. [1969 c.591 §87; 1973 c.506 §23; 1991 c.704 §2] 113.080 [Repealed by 1969 c.591 §305] 113.085 Preference in appointing personal representative. (1) Except as provided in subsection (2) of this section, upon the filing of the petition, if there is no will or there is a will and it has been proved, the court shall appoint a qualified person it finds suitable as personal representative, giving preference in the following order: (a) The executor named in the will. (b) The surviving spouse of the decedent or the nominee of the surviving spouse of the decedent. (c) The nearest of kin of the decedent or the nominee of the nearest of kin of the decedent. (d) The Director of Human Services, or an attorney approved by the director under ORS 113.086, if the decedent received public assistance pursuant to ORS chapter 411 or received care at an institution described in ORS 179.321 (1), and it appears that the assistance or the cost of care may be recovered from the estate of the decedent. (e) The Director of the Oregon Health Authority, or an attorney approved by the director under ORS 113.086, if the decedent received public assistance pursuant to ORS chapter 414 or received care at an institution described in ORS 179.321 (2), and it appears that the assistance or the cost of care may be recovered from the estate of the decedent. (f) The Department of Veterans’ Affairs, if the decedent was a protected person under ORS 406.050 (8), and the department has joined in the petition for such appointment. (g) Any other person.

(2) Except as provided in subsection (3) of this section, the court shall appoint the Department of State Lands as personal representative if it appears that the decedent died wholly intestate and without known heirs. The Attorney General shall represent the Department of State Lands in the administration of the estate. Any funds received by the Department of State Lands in the capacity of personal representative may be deposited in accounts, separate and distinct from the General Fund, established with the State Treasurer.

Interest earned by such account shall be credited to that account.

(3) The court may appoint a person other than the Department of State Lands to administer the estate of a decedent who died wholly intestate and without known heirs if the person filing a petition under ORS 113.035 attaches written authorization from an estate administrator of the Department of State Lands appointed under ORS 113.235 approving the filing of the petition by the person. Except as provided by rule adopted by the Director of the Department of State Lands, an estate administrator may consent to the appointment of another person to act as personal representative only if it appears after investigation that the estate is insolvent. [1969 c.591 §88; 1971 c.421 §1; 1971 c.675 §1; 1973 c.370 §1; 1987 c.158 §17a; 1987 c.425 §1; 1989 c.966 §2; 1995 c.106 §2; 2001 c.102 §3; 2001 c.900 §15; 2003 c.395 §12; 2005 c.381 §20; 2005 c.625 §56; 2009 c.595 §76; 2009 c.602 §2; 2009 c.828 §7]

113.086 Approval of attorneys who are eligible to be personal representative for decedent who received Medicaid or other public assistance. The Director of Human Services, or the director’s designated representative, or the Director of the Oregon Health Authority, or the director’s designated representative, may approve in writing attorneys who are eligible to be appointed as personal representatives under ORS 113.085 if the decedent received public assistance pursuant to ORS chapter 411 or 414 or received care at an institution as defined in ORS 179.010, and it appears that the assistance or the cost of care may be recovered from the estate of the decedent. An attorney approved under this section does not represent the Director of Human Services or the Director of the Oregon Health Authority when appointed as a personal representative. [2009 c.262 §2; 2009 c.828 §6] 113.087 Effect of accepting appointment as personal representative; notices to be sent to representative. (1) By accepting appointment, a personal representative, whether a resident or nonresident of this state, submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person.

(2) Notice of any proceeding shall be delivered to the personal representative or mailed to the personal representative by ordinary first class mail at the address as listed in the petition for appointment or as thereafter reported to the court. If the personal representative has an address different from that listed in the petition or reported to the court, the person giving the notice shall also mail the notice to that address if it is known to the person. [1973 c.506 §22] 113.090 [Amended by 1969 c.591 §79; renumbered 112.695] 113.092 Convicted felon as nominated personal representative. (1) A person nominated as personal representative who has been convicted of a felony shall inform the court of the conviction. The conviction shall not disqualify the nominee from acting as personal representative unless the court finds that the facts underlying the conviction are substantially similar to facts which would constitute grounds for removal of a personal representative under ORS 113.195 (2), and the court has reasonable grounds to believe that such person will be unfaithful to or neglectful of the trust.

(2) A nominee who fails to inform the court of a felony conviction may be disqualified from acting as personal representative. A personal representative who so fails to inform the court may be removed. [1975 c.781 §8] 113.095 Persons not qualified to act as personal representatives. A person is not qualified to act as personal representative if the person is: (1) An incompetent.

(2) A minor.

(3) A person suspended for misconduct or disbarred from the practice of law, during the period of suspension or disbarment.

(4) A person who has resigned from the Oregon State Bar when charges of professional misconduct are under investigation or when disciplinary proceedings are pending against the person, until the person is reinstated.

(5) A licensed funeral service practitioner unless the decedent was: (a) A relative of the licensed funeral service practitioner; or

(b) A licensed funeral service practitioner who was a partner, employee or employer in the practice of the licensed funeral service practitioner who is petitioning for appointment as personal representative. [1969 c.591 §89; 1973 c.308 §1; 1973 c.506 §24; 1975 c.781 §6; 1993 c.287 §1; 2001 c.779 §11; 2003 c.14 §43] 113.105 Necessity and amount of bond; exceptions; bond notwithstanding will. (1) Unless a testator provides in a will that no bond shall be required of the executor of the estate, or unless the personal representative is the sole heir or devisee or is the Department of State Lands, the Department of Veterans’ Affairs, the Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 113.086, the personal representative may not act nor shall letters be issued to the personal representative until the personal representative files with the clerk of the court a bond. The bond shall be executed by a surety company authorized to transact surety business in this state, or by one or more sufficient personal sureties approved by the court. A personal surety must be a resident of this state. The court may, in its discretion, require a bond notwithstanding any provision in a will that no bond is required.

The bond shall be for the security and benefit of all interested persons and shall be conditioned upon the personal representative faithfully performing the duties of the trust.

(2) The amount of the bond set by the court shall be adequate to protect interested persons, but in no event shall it be less than $1,000. In setting the amount of the bond the court shall consider: (a) The nature, liquidity and apparent value of the assets of the estate. (b) The anticipated income during administration. (c) The probable indebtedness and taxes.

(3) Nothing in this section affects the provisions of ORS 709.240, relating to a trust company acting as personal representative.

(4) Notwithstanding any other provisions of this section, a court may, in its discretion, waive the requirement of a bond if all devisees and heirs known to the court agree in writing that the requirement be waived and the signed agreement is filed with the court at the time of filing of the petition for the appointment of a personal representative. [1969 c.591 §90; 1971 c.421 §2; 1973 c.369 §1; 1973 c.797 §425; 1989 c.682 §1; 2001 c.900 §16; 2003 c.395 §13; 2005 c.625 §72; 2009 c.595 §77; 2009 c.828 §8] 113.110 [Repealed by 1969 c.591 §305] 113.115 Increasing, reducing or requiring new bond. The court may increase or reduce the amount of the bond of a personal representative, or require a new bond, if it appears to the court that the bond was inadequate or excessive or a new bond is necessary. The surety on the bond may be discharged from liability by an order made pursuant to ORS 33.510 and 33.520. [1969 c.591 §91] 113.120 [Repealed by 1969 c.591 §305] 113.125 Letters testamentary or of administration. (1) Letters testamentary or letters of administration shall be issued to the personal representative appointed by the court upon the filing with the clerk of the court the bond, if any, required by the court.

(2) Letters testamentary may be in the following form: ______________________________________________________________________________ LETTERS TESTAMENTARY No. _______________

THIS CERTIFIES that the will of ____________, deceased, has been proved and ____________ has (have) been appointed and is (are) at the date hereof the duly appointed, qualified and acting __________________ (Executor(s) or Administrator(s) with the Will Annexed) of the will and estate of the decedent.

IN WITNESS WHEREOF, I, as Clerk of the Circuit Court of the State of Oregon for the County of ____________, in which proceedings for administration upon the estate are pending, do hereby subscribe my name and affix the seal of the court this ___ day of ______, 2__. ______________Clerk of the Court By __________________ Deputy (Seal) ______________________________________________________________________________ (3) Letters of administration may be in the following form: ______________________________________________________________________________ LETTERS OF ADMINISTRATION No. ____________ THIS CERTIFIES that _____ has (have) been appointed and is (are) at the date hereof the duly appointed, qualified and acting administrator(s) of the estate of _____, deceased, and that no will of the decedent has been proved in this court.

IN WITNESS WHEREOF, I, as Clerk of the Circuit Court of the State of Oregon for the County of _____, in which proceedings for administration upon the estate are pending, do hereby subscribe my name and affix the seal of the court this ___ day of _____, 2__. ______________Clerk of the Court By __________________ Deputy (Seal) ______________________________________________________________________________ [1969 c.591 §92] 113.130 [Repealed by 1969 c.591 §305] 113.135 Designation of attorney to be filed. If the personal representative has employed an attorney to represent the personal representative in the administration of the estate, the personal representative shall file in the estate proceeding the name and post-office address of the attorney unless that information appears in the petition or the order appointing the personal representative. [1969 c.591 §93] 113.140 [Repealed by 1969 c.591 §305] 113.145 Information to devisees, heirs, interested persons, Department of Human Services and Oregon Health Authority.(1) Upon appointment a personal representative shall deliver or mail to the devisees, heirs and the persons described in ORS 113.035 (8) and (9) who were required to be named in the petition for appointment of a personal representative, at the addresses therein shown, information that shall include:

(a) The title of the court in which the estate proceeding is pending and the clerk’s file number; (b) The name of the decedent and the place and date of the death of the decedent; (c) Whether or not a will of the decedent has been admitted to probate; (d) The name and address of the personal representative and the attorney of the personal representative; (e) The date of the appointment of the personal representative; (f) A statement advising the devisee, heir or other interested person that the rights of the devisee, heir or other interested person may be affected by the proceeding and that additional information may be obtained from the records of the court, the personal representative or the attorney for the personal representative; (g) If information under this section is required to be delivered or mailed to a person described in ORS 113.035 (8), a statement that the rights of the person in the estate may be barred unless the person proceeds as provided in ORS 113.075 within four months of the delivery or mailing of the information; and (h) If information under this section is required to be delivered or mailed to a person described in ORS 113.035 (9), a statement that the rights of the person in the estate may be barred unless the person proceeds as provided in ORS 112.049 within four months of the delivery or mailing of the information.

(2) If the personal representative is a devisee, heir or other interested person named in the petition the personal representative is not required to deliver or mail the information under this section to the personal representative.

(3) The failure of the personal representative to give information under this section is a breach of duty to the persons concerned, but does not affect the validity of appointment, duties or powers or the exercise of duties or powers.

(4) Within 30 days after the date of appointment a personal representative shall cause to be filed in the estate proceeding proof of the delivery or mailing required by this section or a waiver of notice as provided under ORS 111.225. The proof shall include a copy of the information delivered or mailed and the names of the persons to whom it was delivered or mailed.

(5) If before the filing of the final account the personal representative has actual knowledge that the petition did not include the name and address of any person described in ORS 113.035 (4), (5), (7), (8) or (9), the personal representative shall: (a) Make reasonable efforts under the circumstances to ascertain each of those names and addresses; (b) Promptly deliver or mail information as described in subsection (1) of this section to each of those persons located after the filing of the petition and before the filing of the final account; and (c) File in the estate proceeding, on or before filing the final account under ORS 116.083, proof of compliance with this subsection or a waiver of notice as provided under ORS 111.225.

(6) Within 30 days after the appointment of a personal representative, the personal representative must mail or deliver the information specified in subsection (1) of this section and a copy of the death certificate of the decedent to the Department of Human Services and the Oregon Health Authority. [1969 c.591 §94; 1973 c.506 §25; 1991 c.704 §3; 2001 c.620 §1; 2003 c.14 §44; 2003 c.395 §26; 2005 c.741 §5; 2007 c.284 §10; 2009 c.595 §78] 113.150 [Repealed by 1969 c.591 §305] 113.155 Publication of notice to interested persons. (1) Upon appointment a personal representative shall cause a notice to interested persons to be published once in each of three consecutive weeks in: (a) A newspaper published in the county in which the estate proceeding is pending; or (b) If no newspaper is published in the county in which the estate proceeding is pending, a newspaper designated by the court.

(2) The notice shall include:

(a) The title of the court in which the estate proceeding is pending; (b) The name of the decedent; (c) The name of the personal representative and the address at which claims are to be presented; (d) A statement requiring all persons having claims against the estate to present them, within four months after the date of the first publication of the notice to the personal representative at the address designated in the notice for the presentation of claims or they may be barred; (e) The date of the first publication of the notice; and (f) A statement advising all persons whose rights may be affected by the proceeding that additional information may be obtained from the records of the court, the personal representative or the attorney for the personal representative.

(3) The failure of the personal representative to cause a notice to be published under this section is a breach of duty to the persons concerned, but does not affect the validity of appointment, duties or powers or the exercise of duties or powers.

(4) A personal representative shall file in the estate proceeding proof of the publication of notice required by this section. The proof shall include a copy of the published notice. [1969 c.591 §95; 1973 c.506 §26; 2007 c.284 §11] 113.160 [Repealed by 1969 c.591 §305] 113.165 Filing inventory and evaluation. Within 60 days after the date of appointment, unless a longer time is granted by the court, a personal representative shall file in the estate proceeding an inventory of all the property of the estate that has come into the possession or knowledge of the personal representative. The inventory shall show the estimates by the personal representative of the respective true cash values as of the date of the death of the decedent of the properties described in the inventory. [1969 c.591 §96; 1987 c.586 §27; 1991 c.191 §2] 113.175 Property discovered after inventory filed. Whenever any property of the estate not included in the inventory comes into the possession or knowledge of the personal representative, the personal representative shall either file in the estate proceeding a supplemental inventory within 30 days after the date of receiving possession or knowledge, or include the property in the next accounting. [1969 c.591 §97] 113.185 Appraisement; employment and appointment of appraisers.(1) The personal representative may employ a qualified and disinterested appraiser to assist the personal representative in the appraisal of any property of the estate the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of property.

(2) The court in its discretion may direct that all or any part of the property of the estate be appraised by one or more appraisers appointed by the court.

(3) Property for which appraisement is required shall be appraised at its true cash value as of the date of the death of the decedent. Each appraisement shall be in writing and shall be signed by the appraiser making it.

(4) Each appraiser is entitled to be paid a reasonable fee from the estate for services and to be reimbursed from the estate for necessary expenses. [1969 c.591 §98]

113.195 Removal of personal representative. (1) When a personal representative ceases to be qualified as provided in ORS 113.095, or becomes incapable of discharging duties, the court shall remove the personal representative.

(2) When a personal representative has been unfaithful to or neglectful of the trust, the court may remove the personal representative.

(3) When a personal representative has failed to comply with ORS 113.092, the court may remove the personal representative.

(4) When grounds for removal of a personal representative appear to exist, the court, on its own motion or on the petition of any interested person, shall order the personal representative to appear and show cause why the personal representative should not be removed. A copy of the order to show cause and of the petition, if any, shall be served upon the personal representative and upon the surety of the personal representative as provided in ORS 111.215. [1969 c.591 §99; 1975 c.781 §9] 113.205 Powers of surviving personal representative. (1) Every power exercisable by copersonal representatives may be exercised by the survivors or survivor of them when the appointment of one is terminated, unless the will provides otherwise.

(2) Where one of two or more persons named as coexecutors is not appointed, those appointed may exercise all the powers incident to the office, unless the will provides otherwise. [1969 c.591 §100] 113.210 [Repealed by 1969 c.591 §305] 113.215 Appointment of successor personal representative. (1) When a personal representative dies, is removed by the court, or resigns and the resignation is accepted by the court, the court may appoint, and, if the personal representative was the sole or the last surviving personal representative and administration is not completed, the court shall appoint another personal representative in place of the personal representative.

(2) If, after a will has been proven and letters testamentary or of administration with the will annexed have been issued, the will is set aside, declared void or inoperative, the letters testamentary or of administration with the will annexed shall be revoked and letters of administration issued.

(3) If, after administration has been granted, a will of the decedent is found and proven, the letters of administration shall be revoked and letters testamentary or of administration with the will annexed shall be issued.

(4) When a successor personal representative is appointed, the successor has all the rights and powers of the predecessor or of the executor named in the will, except that the successor shall not exercise powers given in the will which by its terms are personal to the personal representative named therein. [1969 c.591 §101] 113.220 [Repealed by 1969 c.591 §305] 113.225 Notice to interested persons by successor personal representative. (1) If the personal representative dies, is removed by the court or resigns after the notice to interested persons required by ORS 113.155 has been published but before the expiration of four months from the date of first publication, the successor personal representative shall cause notice to interested persons to be published as if the successor were the original personal representative. The republished notice shall state that the original personal representative died, was removed by the court or resigned, the date of death, removal or resignation and the date of appointment of the new personal representative. It also shall state that all persons having claims

against the estate shall present them, within four months after the date of the first publication of the republished notice, to the new personal representative, at the address designated in the republished notice for the presentation of claims, or they may be barred.

(2) No notice by the successor personal representative shall be required under subsection (1) of this section if the original personal representative dies, is removed by the court, or resigns after the expiration of four months from the date of the first publication of the notice to interested persons. [1969 c.591 §102; 1977 c.187 §1] 113.230 [Repealed by 1969 c.591 §305] 113.235 Appointment of estate administrators by Director of Department of State Lands. The Director of the Department of State Lands shall appoint one or more estate administrators to act for the Department of State Lands in administration of any estate in which the Department of State Lands is appointed personal representative. An estate administrator appointed under this section is an employee of the Department of State Lands. [2003 c.395 §7] 113.238 Requirements and prohibitions related to certain decedents who die intestate and without heirs. (1) A person who has knowledge that a decedent died wholly intestate, that the decedent owned property subject to probate in Oregon and that the decedent died without a known heir shall give notice of the death within 48 hours after acquiring that knowledge to an estate administrator of the Department of State Lands appointed under ORS 113.235.

(2) Except as provided by ORS 708A.430 and 723.466, a person may not dispose of or diminish any assets of the estate of a decedent who has died wholly intestate, who owned property subject to probate in Oregon and who died without a known heir unless the person has prior written approval of an estate administrator of the Department of State Lands appointed under ORS 113.235. The prohibition of this subsection: (a) Applies to a guardian or conservator for the decedent; and (b) Does not apply to a personal representative appointed under ORS 113.085 (3) or to an affiant authorized under ORS 114.520 to file an affidavit under ORS 114.515.

(3) For purposes of this section, a known heir is an heir who has been identified and found. [2003 c.395 §8; 2009 c.541 §3] 113.240 [Repealed by 1969 c.591 §305] 113.242 Authority of estate administrator. (1) An estate administrator of the Department of State Lands appointed under ORS 113.235 may take custody of the property of a decedent who died owning property subject to probate in Oregon upon the estate administrator receiving notice that: (a) The decedent died wholly intestate and without a known heir as described in ORS 113.238 (3); or (b) The decedent left a valid will, but no devisee has been identified and found.

(2) For any estate described in subsection (1) of this section, an estate administrator of the Department of State Lands appointed under ORS 113.235 may: (a) Incur expenses for the funeral, burial or other disposition of the remains of the decedent in a manner suitable to the condition in life of the decedent; (b) Incur expenses for the protection of the property of the estate; (c) Incur expenses searching for a will or for heirs or devisees of the decedent;

(d) Have access to the property and records of the decedent other than records that are made confidential or privileged by statute; (e) With proof of the death of the decedent, have access to all financial records of accounts or safe deposit boxes of the decedent at banks or other financial institutions; and (f) Sell perishable property of the estate.

(3) The reasonable funeral and administrative expenses of the Department of State Lands incurred under this section, including a reasonable attorney fee, shall be paid from the assets of the estate with the same priority as funeral and administration expenses under ORS 115.125. [2003 c.395 §9] 113.250 [Repealed by 1969 c.591 §305] 113.260 [Repealed by 1969 c.591 §305] 113.270 [Repealed by 1969 c.591 §305] 113.280 [Repealed by 1969 c.591 §305] 113.290 [Amended by 1953 c.601 §1; repealed by 1969 c.591 §305] 113.410 [Repealed by 1969 c.591 §305] 113.420 [Repealed by 1969 c.591 §305] 113.430 [Repealed by 1969 c.591 §305] 113.440 [Repealed by 1969 c.591 §305] 113.450 [Repealed by 1969 c.591 §305] 113.510 [Repealed by 1969 c.591 §305] 113.520 [Repealed by 1969 c.591 §305] 113.530 [Repealed by 1969 c.591 §305] 113.540 [Repealed by 1969 c.591 §305] 113.610 [Repealed by 1969 c.591 §305] 113.620 [Repealed by 1969 c.591 §305] 113.630 [Repealed by 1969 c.591 §305] 113.640 [Repealed by 1969 c.591 §305] 113.650 [Repealed by 1969 c.591 §305]

113.660 [Repealed by 1969 c.591 §305] 113.670 [Repealed by 1969 c.591 §305] 113.680 [Repealed by 1969 c.591 §305] 113.690 [Repealed by 1969 c.591 §305] LAND SPECIAL ASSESSMENTS REVENUE AND TAXATION FARM USE SPECIAL ASSESSMENT (Policy) 308A.050 Legislative intent (Qualification for Farm Use Special Assessment) 308A.053 Definitions for ORS 308A.050 to 308A.128 308A.056 Definition of “farm use” 308A.059 Farm use definition; rules 308A.062 Qualification of exclusive farm use zone farmland 308A.065 County counsel review of exclusive farm use zoning ordinances; notice upon determination of unqualified land; assessment pending zone requalification 308A.068 Qualification of nonexclusive farm use zone farmland 308A.071 Income requirements for nonexclusive farm use zone farmland 308A.074 Wasteland qualifications; annual application 308A.077 Application to qualify nonexclusive farm use zone farmland 308A.080 Acquired land qualifications 308A.083 Effect of qualification generally 308A.086 Requalification generally

308A.089 Requalification of disqualified nonexclusive farm use zone farmland; fee 308A.091 Rules for farm use special assessment pursuant to remediation plan; fee; limitation (Valuation) 308A.092 Establishing value for farm use; procedure 308A.095 County board of review to advise assessor on income-approach factors 308A.098 County board of property tax appeals use of assessor’s data 308A.101 Department of Revenue declaratory rulings; judicial review 308A.104 Construction of provisions governing value for farm use 308A.107 Value for farm use; maximum assessed value and assessed value of farmland 308A.110 Real property improvements and machinery not subject to farm use special assessment (Disqualification) 308A.113 Disqualification of exclusive farm use zone farmland; reversal for remediation plan 308A.116 Disqualification of nonexclusive farm use zone farmland; reversal for remediation plan 308A.119 Abatement; termination of abatement 308A.122 Effect of requalification on abated taxes 308A.125 Historic cemeteries within exclusive farm use zones; partition; effect of disqualification 308A.128 Certain district assessments inapplicable to exclusive farm use zone farmland FARM AND FOREST HOMESITES 308A.250 Definitions for ORS 308A.250 to 308A.259 308A.253 Qualification of homesites 308A.256 Maximum assessed value and assessed value of homesites 308A.259 Disqualification of homesite OPEN SPACE LANDS

308A.300 Definitions for ORS 308A.300 to 308A.330 308A.303 Policy 308A.306 Application for open space use assessment; contents of application; filing; reapplication 308A.309 Submission of application for approval of local granting authority; grounds for denial; approval; application withdrawal 308A.312 Notice to assessor of approval or denial; recording approval; assessor to record potential additional taxes on tax roll; appeal from denial 308A.315 Determination of maximum assessed value and assessed value of open space lands; rules 308A.318 Change in use of open space land; notice to assessor; withdrawal from classification; collection of additional taxes; exception 308A.321 Withdrawal by assessor when use changed; notice; imposition of additional taxes; interest; penalty; exception 308A.324 Prepayment of additional taxes; extending taxes on tax roll; collection; distribution 308A.327 Reports from owner to assessor; effect of failure to make report upon request 308A.330 Rules RIPARIAN HABITAT EXEMPTION 308A.350 Definitions for ORS 308A.350 to 308A.383 308A.353 Policy 308A.356 Application for exemption as riparian land; contents; notice after sale or transfer 308A.359 Standards and criteria for exemption; determination; exemption limited to certain lands; application withdrawal 308A.360 City and county authorization required for exemption of riparian land within city and urban growth boundary 308A.362 Approval or disapproval of application; limitation on approval; order; notice; exemption; potential additional taxes 308A.365 Duration of exemption; change in use; withdrawal at request of owner 308A.368 Additional taxes upon withdrawal from riparian land designation; computation

308A.371 Additional taxes; payment; collection 308A.374 Reports from owners; request after exemption granted for determination of continued qualification 308A.377 Abatement of additional tax when farm, forest or open space land designated riparian 308A.380 Limitation on amount of land that may be exempt as riparian land 308A.383 Rules WILDLIFE HABITAT SPECIAL ASSESSMENT 308A.400 Findings 308A.403 Policy 308A.406 Definitions for ORS 308A.403 to 308A.430 308A.409 Wildlife habitat conservation and management plans; rules 308A.412 Plan submission and review; limitation on approval; rules 308A.415 Designation by State Fish and Wildlife Commission of land eligible for wildlife habitat special assessment 308A.418 Removal of designation upon request of city or county; requirements 308A.421 Effect of designation or removal for property tax purposes 308A.424 Application for special assessment; approval 308A.427 Valuation 308A.430 Disqualification from special assessment CONSERVATION EASEMENT 308A.450 Definitions 308A.453 Requirements 308A.456 Application for conservation easement special assessment; contents; application fee 308A.459 Valuation

308A.462 Dwellings 308A.465 Inspection by holder; disqualification; notice; requalification ADDITIONAL TAXES, PROCEDURES APPLICABLE TO CERTAIN LAND SPECIAL ASSESSMENT PROGRAMS (Additional Taxes) 308A.700 Definitions for ORS 308A.700 to 308A.733 308A.703 Additional taxes upon disqualification 308A.706 Circumstances when additional taxes are deferred; potential additional tax liability 308A.707 Additional taxes when land disqualified from small tract forestland assessment 308A.709 Circumstances when additional taxes are not imposed 308A.712 Determining amount of deferred additional taxes and period for which additional taxes are due 308A.715 Imposition of deferred additional taxes upon request of owner (Disqualification Notification Procedures) 308A.718 Assessor to send notice upon disqualification or forestland change in use; deadline; appeal; change in special assessment explanation; remediation plan notification (Change of Special Assessment) 308A.724 Application for change of special assessment following disqualification; time for meeting farm use income requirements; application due dates; limitation on special assessments for disqualified wildlife habitat and conservation easement land 308A.727 Change to open space use; additional taxes upon withdrawal; notification upon application 308A.730 Application for special assessment following acquisition of land through government exchange; amount of additional taxes following disqualification 308A.733 Withdrawal of change of special assessment application (Conservation Management; Effect on Disqualification) 308A.740 Legislative findings and declarations

308A.743 Disqualification limited when land subject to conservation and management plan, conservation easement or deed restriction; procedural requirements FARM USE SPECIAL ASSESSMENT (Policy) 308A.050 Legislative intent. The Legislative Assembly recognizes that agriculture and related land uses contribute significantly to Oregon’s character and economy. The Legislative Assembly finds that providing the means for agriculture to continue and prosper is in the interest of all citizens of this state, who benefit directly or indirectly from agricultural production and stewardship of farmlands and ranchlands.

Valuation of farm properties based upon market data from sales for investment or other purposes not connected with bona fide farm use encourages the conversion of agricultural land to other uses. The identification of agricultural land for farm use, as provided by law, substantially limits alternative uses of such land and justifies the valuation of that land based on its agricultural production capability. Therefore, it is the declared intent of the Legislative Assembly that bona fide farm properties be assessed for ad valorem property tax purposes at a value that is exclusive of values attributable to urban influences or speculative purposes. [1999 c.314 §1] (Qualification for Farm Use Special Assessment) 308A.053 Definitions for ORS 308A.050 to 308A.128. As used in ORS 308A.050 to 308A.128: (1) “Exclusive farm use zone” means a zoning district established by a county or a city under the authority granted by ORS chapter 215 or 227 that is consistent with the farm use zone provisions set forth in ORS 215.203 to 215.311, 215.438, 215.448, 215.452, 215.455 or 215.700 to 215.780.

(2) “Exclusive farm use zone farmland” means land that qualifies for special assessment under ORS 308A.062.

(3) “Homesite” means the land, including all tangible improvements to the land under and adjacent to a dwelling and other structures, if any, that are customarily provided in conjunction with a dwelling.

(4) “Nonexclusive farm use zone farmland” means land that is not within an exclusive farm use zone but that qualifies for farm use special assessment under ORS 308A.068.

(5) “Remediation plan” means a plan certified by an extension agent of the Oregon State University Extension Service to remediate or mitigate severe adverse conditions on farmland.

(6) “Severe adverse conditions on farmland” means conditions that render impracticable continued farm use and that are not due to an intentional or negligent act or omission by the owner, tenant or lessee of the farmland or the applicant for certification of a remediation plan. [1999 c.314 §2; 2003 c.539 §34; 2009 c.776 §1] 308A.056 Definition of “farm use.” (1) As used in ORS 308A.050 to 308A.128, “farm use” means the current employment of land for the primary purpose of obtaining a profit in money by: (a) Raising, harvesting and selling crops. (b) Feeding, breeding, managing or selling livestock, poultry, fur-bearing animals or honeybees or the produce thereof. (c) Dairying and selling dairy products. (d) Stabling or training equines, including but not limited to providing riding lessons, training clinics and schooling shows.

(e) Propagating, cultivating, maintaining or harvesting aquatic species and bird and animal species to the extent allowed by the rules adopted by the State Fish and Wildlife Commission. (f) On-site constructing and maintaining equipment and facilities used for the activities described in this subsection. (g) Preparing, storing or disposing of, by marketing or otherwise, the products or by-products raised for human or animal use on land described in this section. (h) Implementing a remediation plan previously presented to the assessor for the county in which the land that is the subject of the plan is located. (i) Using land described in this section for any other agricultural or horticultural use or animal husbandry or any combination thereof.

(2) “Farm use” does not include the use of land subject to timber and forestland taxation under ORS chapter 321, except land used exclusively for growing cultured Christmas trees or land described in ORS 321.267 (3) or 321.824 (3) (relating to land used to grow certain hardwood timber, including hybrid cottonwood).

(3) For purposes of this section, land is currently employed for farm use if the land is: (a) Farmland, the operation or use of which is subject to any farm-related government program; (b) Land lying fallow for one year as a normal and regular requirement of good agricultural husbandry; (c) Land planted in orchards or other perennials, other than land specified in paragraph (d) of this subsection, prior to maturity; (d) Land not in an exclusive farm use zone that has not been eligible for assessment at special farm use value in the year prior to planting the current crop and has been planted in orchards, cultured Christmas trees or vineyards for at least three years; (e) Wasteland, in an exclusive farm use zone, dry or covered with water, neither economically tillable nor grazeable, lying in or adjacent to and in common ownership with farm use land and that is not currently being used for any economic farm use; (f) Except for land under a single family dwelling, land under buildings supporting accepted farming practices, including the processing facilities allowed by ORS 215.213 (1)(u) and 215.283 (1)(r) and the processing of farm crops into biofuel as commercial activities in conjunction with farm use under ORS 215.213 (2)(c) and 215.283 (2)(a); (g) Water impoundments lying in or adjacent to and in common ownership with farm use land; (h) Any land constituting a woodlot, not to exceed 20 acres, contiguous to and owned by the owner of land specially valued for farm use even if the land constituting the woodlot is not utilized in conjunction with farm use; (i) Land lying idle for no more than one year when the absence of farming activity is the result of the illness of the farmer or a member of the farmer’s immediate family, including injury or infirmity, regardless of whether the illness results in death; (j) Land described under ORS 321.267 (3) or 321.824 (3) (relating to land used to grow certain hardwood timber, including hybrid cottonwood); (k) Land used for the primary purpose of obtaining a profit in money by breeding, raising, kenneling or training greyhounds for racing; (L) Land subject to a remediation plan previously presented to the assessor for the county in which the land that is the subject of the plan is located; or (m) Land used for the processing of farm crops into biofuel, as defined in ORS 315.141, if: (i) Only the crops of the landowner are being processed; (ii) The biofuel from all of the crops purchased for processing into biofuel is used on the farm of the landowner; or

(iii) The landowner is custom processing crops into biofuel from other landowners in the area for their use or sale.

(4) As used in this section: (a) “Accepted farming practice” means a mode of operation that is common to farms of a similar nature, necessary for the operation of these similar farms to obtain a profit in money and customarily utilized in conjunction with farm use. (b) “Cultured Christmas trees” means trees: (A) Grown on lands used exclusively for that purpose, capable of preparation by intensive cultivation methods such as plowing or turning over the soil; (B) Of a marketable species; (C) Managed to produce trees meeting U.S. No. 2 or better standards for Christmas trees as specified by the Agricultural Marketing Service of the United States Department of Agriculture; and (D) Evidencing periodic maintenance practices of shearing for Douglas fir and pine species, weed and brush control and one or more of the following practices: (i) Basal pruning; (ii) Fertilizing; (iii) Insect and disease control; (iv) Stump culture; (v) Soil cultivation; or (vi) Irrigation. [1999 c.314 §3; 2001 c.613 §21; 2003 c.454 §120; 2003 c.621 §81a; 2007 c.739 §37; 2009 c.776 §2; 2009 c.850 §13] 308A.059 Farm use definition; rules. (1) The Department of Revenue shall provide by rule for a more detailed definition of farm use, consistent with the general definition in ORS 308A.056, to be used by county assessors in determining qualification for special assessment under ORS 308A.068. The rules shall not be designed to exclude from the special assessment those lands that are in farm use as defined in ORS 308A.056 for which tax relief is intended.

(2) In determining qualification for special assessment under ORS 308A.068, the county assessor shall consider the use of the land by the owner, renter or operator thereof together with any other lands that are a part of one farming unit being operated by the owner, renter or operator. [Formerly 308.380] 308A.062 Qualification of exclusive farm use zone farmland. (1) Any land that is within an exclusive farm use zone and that is used exclusively for farm use shall qualify for farm use special assessment under ORS 308A.050 to 308A.128, unless disqualified under other provisions of law.

(2) Whether farmland qualifies for special assessment under this section shall be determined as of January 1 of the assessment year. However, if land so qualified becomes disqualified prior to July 1 of the same assessment year, the land shall be valued under ORS 308.232, at its real market value as defined by law without regard to this section, and shall be assessed at its assessed value under ORS 308.146 or as otherwise provided by law. If the land becomes disqualified on or after July 1, the land shall continue to qualify for special assessment as provided in this section for the current tax year. [1999 c.314 §5] 308A.065 County counsel review of exclusive farm use zoning ordinances; notice upon determination of unqualified land; assessment pending zone requalification. (1) Upon written request of the county assessor or county governing body, the county counsel shall review the zoning ordinances of the county that purport to establish exclusive farm use zones to determine if any zone mentioned in the ordinance is not an exclusive farm use zone. If the county counsel is in doubt as to whether a zone is an

exclusive farm use zone, the county counsel shall request the assistance of the Department of Revenue under ORS 305.110. The county counsel shall promptly notify the county assessor and county governing body by letter of the findings of the county counsel.

(2) If the assessor discovers any land that has been granted farm use special assessment under ORS 308A.062 that is not qualified for such assessment because the zone is not an exclusive farm use zone, the assessor shall immediately notify the county governing body of this fact.

(3) Within six months from the date the county governing body receives notice from the assessor or from the Land Conservation and Development Commission that a farm use zone is not an exclusive farm use zone, the county governing body shall qualify the zone as an exclusive farm use zone within the meaning of ORS 308A.062. The assessor shall continue to assess the land at the special assessment provided in ORS 308A.107 until the county governing body qualifies the zone or the land is disqualified under ORS 308A.113.

(4) Subsections (1) to (3) of this section shall provide the exclusive procedure for correcting the erroneous granting of farm use special assessment as exclusive farm use zone farmland when the zone does not meet the definition of an exclusive farm use zone under ORS 308A.053. [Formerly 308.403] 308A.068 Qualification of nonexclusive farm use zone farmland. (1) Any land that is not within an exclusive farm use zone but that is being used, and has been used for the preceding two years, exclusively for farm use shall qualify for farm use special assessment: (a) If the land meets the income requirements set forth in ORS 308A.071; and (b) Upon compliance with the application requirements set forth in ORS 308A.077.

(2)(a) The provisions of this section shall not apply to any land with respect to which the owner has granted, and has outstanding, any lease or option to buy the surface rights for other than farm use. (b) This subsection does not apply in the case of a lease or option to buy surface rights: (A)(i) For the exploration of geothermal resources, as defined by ORS 522.005, mineral resources or other subsurface resources; or (ii) For the use of land for hunting, fishing, camping or other recreational use; and (B) If the exploration, use or possession engaged in pursuant to the lease or option to buy does not interfere with the farm use of the farmland.

(3) Whether farmland qualifies for special assessment under this section shall be determined as of January 1 of the assessment year. However, if land so qualified becomes disqualified prior to July 1 of the same assessment year, the land shall be valued under ORS 308.232, at its real market value as defined by law without regard to this section, and shall be assessed at its assessed value under ORS 308.146 or as otherwise provided by law. If the land becomes disqualified on or after July 1, the land shall continue to qualify for special assessment as provided in this section for the current tax year. [1999 c.314 §7] 308A.071 Income requirements for nonexclusive farm use zone farmland. (1) For purposes of ORS 308A.050 to 308A.128, farmland or a farm parcel that is not within an area zoned for exclusive farm use is not used exclusively for farm use unless all of the prerequisites of subsections (2) to (5) of this section are met.

(2)(a) Except as provided in subsection (6) of this section, in three out of the five full calendar years immediately preceding the assessment date, the farmland or farm parcel was operated as a part of a farm unit that has produced a gross income from farm uses in the following amount for a calendar year: (A) If the farm unit consists of 6-1/2 acres or less, the gross income from farm use shall be at least $650.

(B) If the farm unit consists of more than 6-1/2 acres but less than 30 acres, the gross income from farm use shall be at least equal to the product of $100 times the number of acres and any fraction of an acre of land included.

(C) If the farm unit consists of 30 acres or more, the gross income from farm use shall be at least $3,000. (b) For purposes of determining the number of acres to be considered under paragraph (a) of this subsection, the land described in ORS 308A.056 (3) and the land, not exceeding one acre, used as a homestead shall not be included. (c) If a farm parcel is operated as part of a farm unit and the farmland of the farm unit is not all under the same ownership, the gross income requirements applicable to the farm parcel shall be as provided under paragraph (a) of this subsection. In addition, the gross income from farm use of a farm parcel described under this paragraph must be at least: (A) One-half of the gross income requirements described under paragraph (a) of this subsection that would be required if the farm parcel were the only farmland of the farm unit; or (B) A cash or net share crop rental of one-quarter of the gross income requirements described under paragraph (a) of this subsection that would be required if the farm parcel were the only farmland of the farm unit. For purposes of this subparagraph, “net share crop rental” means the value of any crop received by the owner of the farm parcel less any costs borne by the owner of the farm parcel.

(3) Excise or income tax returns are filed with the Department of Revenue for purposes of ORS chapter 316, 317 or 318 by the farmland owner or the operator of the farm unit that include a Schedule F and, if applicable, by the owner of a farm parcel that include a schedule or schedules showing rental income received by the owner of the farm parcel, during the years to which the income requirements of this section apply.

(4) Upon request, a copy of the returns or the schedules of the returns showing the gross income received from farm use is furnished by the taxpayer to the county assessor.

(5) The burden of proving the gross income of the farm unit for the years described in subsection (2) of this section is upon the person claiming special assessment for the land.

(6) The failure of a farm unit to produce the amount of gross income required by subsection (2) of this section shall not prevent the farm unit from meeting the qualifications of this section if: (a) The failure is because: (A) The effect of flooding substantially precludes normal and reasonable farming during the year; or (B) Severe drought conditions are declared under ORS 536.700 to 536.780; and (b) The farm unit produces the required amount of gross income in three out of the last five nonflood or nondrought years.

(7) As used in this section: (a) “Farm parcel” means the contiguous land under the same ownership, whether assessed as one or more than one tax lot. (b) “Gross income” includes the value of any crop or livestock that is used by the owner personally or in the farming operation of the owner, but does not include: (A) The value of any crop or livestock so used unless records accurately reflecting both value and use of the crop or livestock are kept by the owner in a manner consistent with generally accepted accounting principles; and (B) The purchase cost of livestock. (c) “Owner” or “ownership” means any person described under ORS 308A.077 (2)(b)(A), (B), (D) or (E) and spouse or other person who is also an owner as tenant in common or other joint ownership interest.

[Formerly 308.372; 2003 c.46 §22]

308A.074 Wasteland qualifications; annual application. (1) Wasteland, dry or covered with water, neither economically tillable nor grazeable, lying in or adjacent to and in common ownership with nonexclusive farm use zone farmland described in ORS 308A.068, and that is not currently being used for any economic farm use shall qualify for farm use special assessment under ORS 308A.068 if the farmland was operated as part of a farm unit that produced more than one-half of the adjusted gross income of the owner or owners in the year prior to the year an application is filed under this section.

(2)(a) An owner of wasteland shall make annual application to qualify the wasteland as nonexclusive farm use zone farmland under ORS 308A.068. (b) The application shall be filed with the county assessor on or before April 15 of each year qualification is desired. The application shall be made on forms prepared by the Department of Revenue and supplied by the county assessor and shall include any information as may be reasonably required to determine qualification, including copies of applicable state income tax returns. All information provided, including determinations made under administrative and court proceedings relating to the assessment of the wasteland, shall be confidential information of the assessor’s office and shall be used only for purposes of ORS 308A.050 to 308A.128. (c) There shall be attached to each application an affidavit or affirmation from the applicant providing that the statements contained in the application are true.

(3) For purposes of this section, “owner” or “owners” means the person or persons entitled to file for special assessment under ORS 308A.077 (2)(b). [1999 c.314 §9] 308A.077 Application to qualify nonexclusive farm use zone farmland. (1) Any owner of nonexclusive farm use zone farmland entitled to special assessment under ORS 308A.068 must, to secure the assessment, make application therefor to the county assessor on or before April 1 of the first year in which the assessment is desired.

(2)(a) The application shall be made upon forms prepared by the Department of Revenue and supplied by the county assessor and shall include any information as may reasonably be required to determine the entitlement of the applicant. (b) The application may be signed by any one of the following: (A) The owner of the farmland who holds an estate therein in fee simple or for life.

(B) Any one of tenants in common or tenants by the entirety, holding an estate in the farmland in fee simple or for life.

(C) Any person of legal age, duly authorized in writing to sign an application on behalf of any person described in subparagraph (A) or (B) of this paragraph.

(D) The guardian or conservator of an owner, or the executor or administrator of an owner’s estate.

(E) The purchaser of the fee simple or life estate of an owner under a contract of sale. (c) The assessor or the deputy of the assessor may not approve an application signed by a person whose authority to sign is not a matter of public record unless there is filed with the assessor a true copy of the deed, contract of sale, power of attorney or other appropriate instrument evidencing the signer’s interest or authority. When filed with the assessor only, such instrument shall not constitute a public record.

(3) There shall be attached to each application the affidavit or affirmation of the applicant that the statements contained therein are true. [Formerly 308.375; 2003 c.46 §23] 308A.080 Acquired land qualifications. (1) Acquired land shall qualify for farm use special assessment if: (a) The acquired land: (A) Is not in an exclusive farm use zone;

(B) Is, immediately upon acquisition, put into farm use; and (C) Is operated as part of the total farming unit with the original land; and (b) The original land: (A) Is owned by the purchaser of the acquired land; (B) Is in farm use; (C) Is assessed under ORS 308A.107; and (D) Produced gross income of at least $10,000 in the calendar year prior to acquisition.

(2) Land that qualifies for farm use special assessment under subsection (1) of this section shall, for purposes of the gross income requirement under ORS 308A.071, be added to and treated as a part of the entire farming unit upon acquisition.

(3) In order for acquired land described in this section to qualify under ORS 308A.068, an application must be filed under ORS 308A.077 on or before April 1 of the first year following acquisition in which farm use special assessment is sought for the acquired land. [Formerly 308.374] 308A.083 Effect of qualification generally. In the case of exclusive farm use zone farmland that qualifies for special assessment under ORS 308A.062 or nonexclusive farm use zone farmland that qualifies for special assessment under ORS 308A.068, the county assessor shall enter on the assessment and tax roll the notation “potential additional tax liability” until the land is disqualified under ORS 308A.113 or 308A.116. [1999 c.314 §12] 308A.086 Requalification generally. (1) Any land that has been disqualified from farm use special assessment under ORS 308A.050 to 308A.128 may requalify for special assessment under ORS 308A.050 to 308A.128 at the same time and in the same manner and under the same provisions of law as land initially qualifies for farm use special assessment under ORS 308A.050 to 308A.128.

(2) Land that requalifies under this section must meet applicable qualification requirements as of the assessment date for the tax year for which special assessment of the requalified land under ORS 308A.050 to 308A.128 is sought.

(3) This section does not apply to the requalification of land that was disqualified and that is described: (a) In the case of land in an exclusive farm use zone, under ORS 215.236 (relating to nonfarm dwellings) and ORS 308A.706 (1)(a) (relating to compatible nonuse); (b) In the case of nonexclusive farm use zone farmland, under ORS 308A.089 (relating to requalification during first year of disqualification), 308A.116 (4) (relating to subdivision), 308A.122 (relating to abatement for failure to meet income requirements) or 308A.706 (1)(a) (relating to compatible nonuse); and (c) Under ORS 308A.706 (1)(d) (relating to change in special assessment). [1999 c.314 §13] 308A.089 Requalification of disqualified nonexclusive farm use zone farmland; fee. (1) Notwithstanding ORS 308A.724, land that was nonexclusive farm use zone farmland and that has been disqualified by the county assessor from farm use special assessment for the reason that the land is no longer in farm use as described under ORS 308A.116 (1)(c) may be requalified for farm use special assessment for the first year in which the disqualification is in effect.

(2) Disqualified farmland may requalify for special assessment under this section upon compliance with the following: (a) The owner shall make application for requalification to the county assessor on or before December 15 of the tax year for which the disqualification is first in effect. (b) The application shall be made upon forms prepared by the Department of Revenue and supplied by the county assessor.

(c) The application shall contain the information necessary to determine that the property meets the requirements of ORS 308A.071 and the other requirements for property to receive a farm use special assessment under ORS 308A.050 to 308A.128. (d) The application shall be signed by the owner and shall be accompanied by a filing fee of: (A) $1 for each $1,000 (or fraction of $1,000) of real market value of the property as determined under ORS 308.232.

(B) Not less than $10 or more than $250. (e) There shall be annexed to each application for requalification the affidavit or affirmation of the applicant that the statements contained therein are true.

(3) Upon receipt of the application, the county assessor shall determine if the property meets the requirements of ORS 308A.071 and the other requirements for farm use special assessment under ORS 308A.050 to 308A.128 for the year in which the disqualification is first in effect.

(4) Upon approval of the application the county assessor shall notify the officer in charge of the assessment and tax roll of the requalification for special assessment under ORS 308A.068. The officer shall correct the current assessment and tax roll to reflect the special assessment, as provided under ORS 311.205 (1)(e).

(5) Upon disapproval of the application, the county assessor shall notify the owner of the application’s disapproval and the land’s continued disqualification. If notice of disapproval is not mailed prior to April 15 of the tax year, the application shall be considered approved.

(6) As used in this section, “owner” means the person or persons entitled to file for special assessment under ORS 308A.077 (2)(b). [Formerly 308.392] 308A.091 Rules for farm use special assessment pursuant to remediation plan; fee; limitation. (1) The Director of the Department of Revenue shall adopt rules necessary for administration of farm use special assessment pursuant to a remediation plan under ORS 308A.056.

(2) The Director of the Oregon State University Extension Service may establish by rule a fee, payable by persons seeking to implement remediation plans, in an amount necessary to reimburse the Oregon State University Extension Service for the costs of certifying the plans.

(3) Only the portions of farmland on which the remediation plan is actually implemented qualify for farm use special assessment under ORS 308A.062 and 308A.068 pursuant to a remediation plan under ORS 308A.056. [2009 c.776 §9] Note: 308A.091 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 308A or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Note: Section 10, chapter 776, Oregon Laws 2009, provides: Sec. 10. (1) Farm use special assessment pursuant to a remediation plan as defined in ORS 308A.053 may be granted for tax years beginning on or after July 1, 2007.

(2)(a) For tax years beginning before July 1, 2010: (A) Application for farm use special assessment pursuant to a remediation plan as defined in ORS 308A.053 must be filed in writing with the county assessor within 180 days after the effective date of this 2009 Act [September 28, 2009].

(B) A copy of the remediation plan must be submitted to the assessor within 270 days after the effective date of this 2009 Act.

(C) The remediation plan will be presumed to be certified unless the plan is shown to be substantially impracticable, ineffective or fraudulent. (b) Refund of property taxes under this subsection shall be made under ORS 311.806 notwithstanding the time limitations in ORS 311.806 and shall be paid without interest. [2009 c.776 §10] (Valuation) 308A.092 Establishing value for farm use; procedure. (1) This section and ORS 308A.095 set forth the procedures by which the values for farm use are established for both: (a) Exclusive farm use zone farmland that qualifies for special assessment under ORS 308A.062; and (b) Nonexclusive farm use zone farmland that qualifies for special assessment under ORS 308A.068.

(2) The values for farm use of farmland shall be determined utilizing an income approach. In utilizing the income approach, the capitalization rate shall be the effective rate of interest charged in Oregon by the Federal Farm Credit Bank system at the time of closing on loans for farm properties estimated as an average over the past five reported calendar years, plus a component for the local tax rate. The Department of Revenue annually shall determine and specify the rate according to the best information available, and shall certify the rate to the county assessors.

(3) The county assessors shall develop tables for each assessment year that reflect, for each class and area, the values determined under this section and that express the values as values per acre. [Formerly 308.345] 308A.095 County board of review to advise assessor on income-approach factors. (1) Incomeapproach factors being utilized by a county assessor in arriving at the values for farm use of farmland under ORS 308A.092 shall be submitted by the county assessor to a county board of review. The board of review shall advise the county assessor as to whether the factors being so utilized are proper under ORS 308A.092.

(2) The county board of review shall consist of: (a) Two members appointed by the county court sitting for the transaction of county business, board of county commissioners or other county governing body of the county. (b) Two members appointed by the county assessor. (c) One member appointed by the four members appointed as provided in paragraphs (a) and (b) of this subsection, who shall serve for a term of one year.

(3) Each member of the county board of review appointed under subsection (2)(a) and (b) of this section shall serve for a term ending two years after the date of the expiration of the term for which the predecessor of the member was appointed, except that a person appointed to fill a vacancy occurring prior to the expiration of the term shall be appointed for the remainder of the term.

(4) Members of the county board of review must be persons knowledgeable and experienced in farmland values.

(5) Members of the county board of review shall be reimbursed by the county for their actual and necessary expenses incurred in the performance of their functions as members. [Formerly 308.350] 308A.098 County board of property tax appeals use of assessor’s data. Data utilized by a county assessor in arriving at the values for farm use of farmland under ORS 308A.092 shall be made available by the county assessor to the county board of property tax appeals in the event of any consideration of a petition involving the assessed value of farmland by the board of property tax appeals under ORS 309.100.

[Formerly 308.355]

308A.101 Department of Revenue declaratory rulings; judicial review. Any group or organization representing owners of farm properties may petition the Department of Revenue under ORS 305.105 for a declaratory ruling with respect to rules promulgated under ORS 308A.092 and 308A.095 and may obtain judicial review of the declaratory ruling in the manner provided by ORS 305.445. [Formerly 308.360] 308A.104 Construction of provisions governing value for farm use. ORS 308A.092 and 308A.095 shall be construed liberally to effectuate their intended purpose. However, except as expressly provided and to the extent necessary to carry out their terms, nothing contained in ORS 308A.092 and 308A.095 shall be construed to alter or modify, by implication or otherwise, any of the tax laws of this state. [Formerly 308.365] 308A.107 Value for farm use; maximum assessed value and assessed value of farmland. (1) The value for farm use, maximum assessed value and assessed value shall be determined under this section for both: (a) Exclusive farm use zone farmland that qualifies for special assessment under ORS 308A.062; and (b) Nonexclusive farm use zone farmland that qualifies for special assessment under ORS 308A.068.

(2) The value for farm use for each property subject to special assessment under this section shall equal the applicable value derived from the tables created pursuant to ORS 308A.092 for the tax year multiplied by the acreage of the property within the applicable class and area.

(3)(a) The maximum assessed value for property subject to special assessment under this section shall be determined as provided in this subsection. (b) The county assessor shall develop tables for each tax year that provide, for each class and area, a maximum assessed value per acre that is equal to 103 percent of the assessed value per acre for the preceding tax year or 100 percent of the maximum assessed value per acre for the preceding tax year, whichever is greater.

(4) Property subject to special assessment under this section shall have an assessed value for the tax year equal to the acreage of the property that is within the same class and area multiplied by the lesser of the value per acre applicable to the property under subsection (2) of this section or under subsection (3) of this section.

(5) If property subject to special assessment under this section consists of different classes, the assessed value of the property shall be the sum of the assessed values computed for each applicable class under subsection (4) of this section.

(6) Property that newly qualifies for farm use special assessment shall, for the first tax year for which the special assessment applies, have: (a) A value for farm use as determined under subsection (2) of this section; (b) A maximum assessed value as determined under the tables developed under subsection (3) of this section; and (c) An assessed value as determined under subsections (4) and (5) of this section. [1999 c.314 §20; 2001 c.912 §5; 2005 c.94 §57] 308A.110 Real property improvements and machinery not subject to farm use special assessment. Except for property that is exempt or specially assessed under other provisions of law, real property improvements and machinery or other personal property on, attached to or in any other respect connected with property subject to assessment under ORS 308A.050 to 308A.128, including property used in operations that constitute farm use operations, shall have an assessed value determined under ORS

308.146. Real property improvements and machinery and personal property may not be assessed as provided in ORS 308A.050 to 308A.128. [1999 c.314 §21] (Disqualification) 308A.113 Disqualification of exclusive farm use zone farmland; reversal for remediation plan. (1) Land within an exclusive farm use zone shall be disqualified from special assessment under ORS 308A.062 by: (a) Removal of the special assessment by the assessor upon the discovery that the land is no longer being used as farmland; (b) Removal of the land from any exclusive farm use zone; or (c) Establishing a nonfarm dwelling on the land under ORS 215.236.

(2) Notwithstanding subsection (1)(a) of this section, the county assessor shall not disqualify land that has been receiving special assessment if the land is not being farmed because: (a) The effect of flooding substantially precludes normal and reasonable farming during the year; or (b) Severe drought conditions are declared under ORS 536.700 to 536.780.

(3)(a) Disqualification under subsection (1)(a) of this section is reversed if the taxpayer: (A) Notifies the assessor in writing pursuant to ORS 308A.718 of the taxpayer’s intention to seek certification for a remediation plan; and (B) Presents a certified remediation plan to the assessor within one year after the date of disqualification. (b) In addition to the grounds for disqualification under subsection (1)(a) of this section, the assessor may disqualify land granted farm use special assessment pursuant to a remediation plan upon: (A) Discovery, or notice from an extension agent of the Oregon State University Extension Service, that the plan is not being implemented substantially as certified; or (B) Discovery, or notice from the owner, tenant or lessee or from an extension agent of the Oregon State University Extension Service, that the plan as certified is no longer necessary, practicable or effective.

(4)(a) Notwithstanding ORS 308.210, 308A.062, 311.405 or 311.410, if disqualification occurs as a result of the discovery that the land is no longer in farm use, then, regardless of when during the assessment year discovery is actually made, disqualification by the county assessor shall occur as of the January 1 assessment date of the assessment year in which discovery is made. (b) Paragraph (a) of this subsection shall apply only if the notice of disqualification required under ORS 308A.718 is mailed by the county assessor prior to August 15 of the tax year for which the disqualification of the land is asserted.

(5) Upon disqualification, additional taxes shall be determined as provided in ORS 308A.700 to 308A.733. [Formerly 308.397; 2009 c.776 §3] 308A.116 Disqualification of nonexclusive farm use zone farmland; reversal for remediation plan. (1) Nonexclusive farm use zone farmland qualified for special assessment under ORS 308A.068 shall be disqualified from such special assessment upon: (a) Notification by the taxpayer to the assessor to remove the special assessment; (b) Sale or transfer to an ownership making it exempt from ad valorem property taxation; (c) Removal of the special assessment by the assessor upon the discovery that the land is no longer in farm use for failure to meet the income requirements under ORS 308A.071 or is no longer in farm use; or (d) The act of recording a subdivision plat under the provisions of ORS chapter 92.

(2) The county assessor shall not disqualify the land that has been receiving special assessment upon the sale or transfer to a new owner or transfer by reason of death of a former owner to a new owner if the land continues to be used solely for farm use.

(3) When, for any reason, the land or any portion thereof ceases to be used solely for farm use, the owner at the time of the change in use shall notify the assessor of the change prior to the next January 1 assessment date.

(4) If under subsection (1)(d) of this section, the county assessor disqualifies land for special assessment upon the act of platting the land, the land, or a part of the land, may be requalified for special assessment upon: (a) Payment of all additional tax, interest or penalty that remains due and owing on the land; (b) Submission by the owner of an application for special assessment under ORS 308A.077; (c) Meeting all of the qualifications for farm use special assessment under ORS 308A.068; and (d) Meeting the requirements, if any, of applicable local government zoning ordinances with regard to minimum lot or parcel acreage for farm use.

(5) The county assessor shall not disqualify land that has been receiving special assessment if the land is not being farmed because: (a) The effect of flooding substantially precludes normal and reasonable farming during the year; or (b) Severe drought conditions are declared under ORS 536.700 to 536.780.

(6)(a) Disqualification under subsection (1)(c) of this section is reversed if the taxpayer: (A) Notifies the assessor in writing pursuant to ORS 308A.718 of the taxpayer’s intention to seek certification for a remediation plan; and (B) Files an application for a certified remediation plan with the assessor within one year after the date of disqualification. (b) In addition to the grounds for disqualification under subsection (1)(c) of this section, the assessor may disqualify land granted farm use special assessment pursuant to a remediation plan upon: (A) Discovery, or notice from an extension agent of the Oregon State University Extension Service, that the plan is not being implemented substantially as certified; or (B) Discovery, or notice from the owner, tenant or lessee or from an extension agent of the Oregon State University Extension Service, that the plan as certified is no longer necessary, practicable or effective.

(7)(a) Notwithstanding ORS 308.210, 308A.068, 311.405 or 311.410, if disqualification occurs as a result of the discovery that the land is no longer in farm use, then, regardless of when during the assessment year discovery is actually made, disqualification by the county assessor shall occur as of the January 1 assessment date of the assessment year in which discovery is made. (b) Paragraph (a) of this subsection shall apply only if the notice of disqualification required under ORS 308A.718 is mailed by the county assessor prior to August 15 of the tax year for which the disqualification of the land is asserted.

(8) Upon disqualification, additional taxes shall be determined as provided in ORS 308A.700 to 308A.733. [Formerly 308.390; 2009 c.776 §4] 308A.119 Abatement; termination of abatement. (1) If on January 1 of any year any farmland assessed under ORS 308A.068 has become disqualified for farm use special assessment because of any gross income or other requirement of ORS 308A.071, the collection of the additional taxes under ORS 308A.700 to 308A.733 shall be deferred, but only if each year for a period of five consecutive years (or such lesser number of years in which farm use assessment was in effect prior to disqualification) beginning on January 1 of the first year the land became so disqualified, the land is used as farmland (including, for the purposes of this section, the growing of forest products). As the limited use is continued and completed each

year, additional taxes are abated on the basis of an abatement of one year’s additional tax for each year of limited use beginning with the oldest year for which additional taxes are due for up to five years (or the number of years for which farm use assessment was in effect, whichever is less). Beginning on the January 1 the land became so disqualified the land shall be assessed at its assessed value under ORS 308.146 or as otherwise provided by law without regard to any special assessment laws.

(2) If at any time prior to the expiration of the five-year (or lesser) period specified in subsection (1) of this section the land is used for a higher and better use than farmland, the abatement process shall terminate, and there shall be added to the tax extended against the land on the next general property tax roll, (to be collected and distributed in the same manner as the remainder of the real property tax) the additional taxes that still remain deferred and unabated under subsection (1) of this section.

(3) When land described in this section is used for a higher and better use than farmland during the fiveyear (or lesser) period described in subsection (1) of this section, the owner shall notify the county assessor before the following January 1 of the change in use.

(4) The amount determined to be due under this section may be paid to the tax collector prior to the completion of the next general property tax roll, pursuant to ORS 311.370. [Formerly 308.404] 308A.122 Effect of requalification on abated taxes. If during the period specified in ORS 308A.119, the farmland again meets the gross income or other requirements of ORS 308A.071, the owner may apply to the assessor on or before April 1 of the next calendar year, in the manner provided in ORS 308A.077, for farm use special assessment. If satisfied that the requirements of ORS 308A.071 have been met, the assessor shall restore farm use special assessment to the land. The potential additional taxes for all years not already abated under ORS 308A.119 shall continue as a potential liability against the land under ORS 308A.119 and 308A.706, except that each oldest year of potential liability shall abate as the total of all other years of potential additional tax liability for prior years reaches five. [Formerly 308.406] 308A.125 Historic cemeteries within exclusive farm use zones; partition; effect of disqualification. Any land that has received special assessment as exclusive farm use zone farmland, has been used as a cemetery at any time between 1810 to 1950, contains fewer than 50 marked graves, is less than one acre in size and was issued a patent, whether recorded or unrecorded, before 1900 may be partitioned from a parcel that shall continue to qualify for special assessment. The parcel that continues in special assessment and the partitioned cemetery shall not be subject to the provisions of ORS 308A.703 as a result of partitioning under this section. [Formerly 308.400] 308A.128 Certain district assessments inapplicable to exclusive farm use zone farmland. (1) Except as otherwise provided in subsection (2) of this section, the assessments and levies of the following taxing units and special districts shall not be imposed while land is qualified for special assessment as exclusive farm use zone farmland under ORS 308A.062: (a) Sanitary districts formed under ORS 450.005 to 450.245. (b) Domestic water supply districts formed under ORS chapter 264. (c) Water authorities, sanitary authorities or joint water and sanitary authorities formed under ORS 450.600 to 450.989.

(2) Subsection (1) of this section does not apply to: (a) Benefit assessments or special ad valorem tax levies imposed upon homesites situated within a parcel of farm use land. As used in this paragraph, “homesite” means not more than one acre of land upon which are constructed nonfarm dwellings and appurtenances; or

(b) Benefit assessments or special ad valorem tax levies imposed subsequent to disqualification of lands for farm use special assessment under ORS 308A.062. [Formerly 308.401] FARM AND FOREST HOMESITES 308A.250 Definitions for ORS 308A.250 to 308A.259. As used in ORS 308A.250 to 308A.259: (1) “Exclusive farm use zone” has the meaning given that term in ORS 308A.053.

(2) “Forestland” means forestland that is a parcel of land of more than 10 acres that has been zoned in the comprehensive plan for exclusive farm use, forest use or farm and forest use and that is, as of the assessment date for which value for the forest homesite is being determined: (a) Land that has as its highest and best use the growing and harvesting of trees of a marketable species; (b) Land that has been designated as forestland under ORS 321.257 to 321.390 or 321.805 to 321.855; or (c) Land that is assessed as small tract forestland under ORS 321.700 to 321.754.

(3) “Homesite” means land described in ORS 308A.253, including all tangible improvements to the land under and adjacent to a dwelling and other structures, if any, that are customarily provided in conjunction with the dwelling.

(4) “Nonexclusive farm use zone farmland” has the meaning given that term in ORS 308A.053.

(5) “Owner” or “owners” means: (a) The person who holds an estate in the homesite in fee simple or for life. (b) Any one of tenants in common or tenants by the entirety, holding an estate in the homesite in fee simple or for life. (c) Any person of legal age, duly authorized in writing to act on behalf of any person described in paragraph (a) or (b) of this subsection in filing an application for special assessment of nonexclusive farm use zone farmland. (d) The guardian or conservator of an owner, or the executor or administrator of an owner’s estate. (e) The purchaser of the fee simple or life estate of an owner under a contract of sale. [1999 c.314 §29; 2003 c.454 §§96,98; 2003 c.621 §82] 308A.253 Qualification of homesites. (1) Land under a dwelling that is used in conjunction with the activities customarily carried on in the management and operation of forestland held or used for the predominant purpose of growing and harvesting trees of a marketable species shall qualify for special assessment under ORS 308A.256.

(2) Land under dwellings located within an exclusive farm use zone and used in conjunction with farm use shall qualify for special assessment under ORS 308A.256.

(3) Land under dwellings used in conjunction with the farm use of nonexclusive farm use zone farmland shall qualify for special assessment under ORS 308A.256 if the farmland was operated as a part of a farm unit that produced more than one-half of the adjusted gross income of the owner or owners in the year prior to the year an application is filed under this section.

(4) Land under a dwelling on a lot or parcel that is specially assessed under ORS 308A.403 to 308A.430 or 308A.450 to 308A.465 shall qualify for special assessment under ORS 308A.256 if the land associated with the homesite: (a) Was the subject of an application for wildlife habitat special assessment under ORS 308A.424 or conservation easement special assessment under ORS 308A.456 and includes an existing homesite that was specially assessed under one of the special assessments listed in ORS 308A.703 (1) during the assessment year prior to application; or

(b)(A) Is zoned in the comprehensive plan for exclusive farm use, forest use or farm and forest use; and (B) The parcel has a minimum of 10 acres that meet the stocking and species requirements of land specially assessed under ORS 321.354 or 321.833.

(5) For purposes of ORS 308A.250 to 308A.259, the use of a dwelling “in conjunction with the activities customarily carried on in the management and operation of forestland” includes but is not limited to use of the dwelling under circumstances as follows: (a) The dwelling is owned and occupied by a person who is engaged in the operation of the forestland, is occupied by an employee of the owner of forestland who is employed in connection with the forest operation or is occupied by a person who is involved in the forest operation; or (b) The dwelling is owned and occupied by a person who is no longer engaged in the forest operation but: (A) Whose principal source of income is derived from the harvest of timber from the forestland on which the dwelling is located; (B) Who owned and occupied the dwelling, and was engaged in the forest operation, during the five consecutive tax years before the tax year in which engagement in the forest operation ended; and (C) Who has owned and occupied the dwelling continuously during the period since engagement in the forest operation ended. For purposes of this subparagraph, “continuous” includes any period in which the dwelling is unoccupied because of health, vacation or other reason, if during the period the dwelling is not leased or rented to another person.

(6) For purposes of ORS 308A.250 to 308A.259, the use of a dwelling “in conjunction with farm use” of farm use land includes but is not limited to use of the dwelling under circumstances as follows: (a) The dwelling is owned and occupied by a person who is engaged in the operation of the farm use land, is occupied by an employee of the owner of farm use land who is employed in connection with the farming operation or is occupied by a person who is involved in the farming operation; or (b) The dwelling is owned and occupied by a person who is no longer engaged in the farm operation on the farm use land but: (A) Whose principal source of income is from the farm operation on the farm use land on which the dwelling is located; (B) Who owned and occupied the dwelling, and was engaged in the farm operation, during the five consecutive tax years before the tax year in which engagement in the farm operation ended; and (C) Who has owned and occupied the dwelling continuously during the period since engagement in the farm operation ended. For purposes of this subparagraph, “continuous” includes any period in which the dwelling is unoccupied because of health, vacation or other reason, if during the period the dwelling is not leased or rented to another person.

(7)(a) In order for land described in subsection (3) of this section to qualify for assessment under ORS 308A.250 to 308A.259, the owner or owners shall file an application with the county assessor on or before April 15 of each year the assessment is desired. The application shall be made on forms prepared by the Department of Revenue and supplied by the assessor and shall include any information as may be reasonably required to determine the entitlement of the applicant, including copies of applicable state income tax returns. All information provided, including determinations made under administrative and court proceedings where entitlement is in issue, shall be confidential information of the assessor’s office and shall be used only for purposes of this subsection. (b) There shall be attached to each application an affidavit or affirmation from the applicant providing that the statements contained in the application are true. [Formerly 308.376; 2003 c.539 §12; 2007 c.809 §8]

308A.256 Maximum assessed value and assessed value of homesites. (1) The maximum assessed value and assessed value of a homesite shall be determined as provided in this section.

(2) A homesite shall have an assessed value for ad valorem property tax purposes for the tax year equal to the lesser of the homesite’s maximum assessed value or homesite value.

(3) The homesite value for purposes of ORS 308A.250 to 308A.259 shall equal the real market value of the bare land of the total parcel and contiguous acres under same ownership, as determined under ORS 308.205, divided by the number of acres in the total parcel and contiguous acres under the same ownership, plus the lesser of: (a) $4,000; or (b) The depreciated replacement cost of land improvements necessary to establish the homesite.

(4) For the purposes of establishing a homesite value, the value of one acre of land for each homesite, as determined in subsection (3) of this section shall be used.

(5) The homesite’s maximum assessed value shall equal 103 percent of the homesite’s assessed value for the previous tax year or 100 percent of the homesite’s maximum assessed value for the previous tax year, whichever is greater.

(6) For the first tax year for which property constitutes a homesite under this section, the homesite’s maximum assessed value shall equal the homesite’s value as determined under subsection (3) of this section multiplied by the ratio of average maximum assessed value to real market value of the residential property class in the county. [Formerly 308.377; 2003 c.169 §2] 308A.259 Disqualification of homesite. (1) A homesite shall be disqualified from assessment under ORS 308A.256 and shall be assessed at the assessed value under ORS 308.146 if the dwelling: (a) Is not being used in conjunction with the activities customarily carried on in the management and operation of forestland held or used for the predominant purpose of growing and harvesting trees of a marketable species; or (b)(A) Is not being used in conjunction with farm use; and (B) Is used for a nonfarm purpose; however, vacancy does not constitute a change in use.

(2) If a homesite becomes disqualified from special assessment under the provisions of subsection (1) of this section, except for establishing a nonfarm dwelling pursuant to ORS 215.236, no additional tax shall be imposed following disqualification. The remaining qualifying portion of the parcel shall be valued as specially assessed.

(3) If the owner establishes a nonfarm dwelling in an exclusive farm use zone under ORS 215.236, additional taxes shall be imposed as provided in ORS 308A.700 to 308A.733. [Formerly 308.378] OPEN SPACE LANDS 308A.300 Definitions for ORS 308A.300 to 308A.330. As used in ORS 308A.300 to 308A.330, unless a different meaning is required by the context: (1) “Open space land” means: (a) Any land area so designated by an official comprehensive land use plan adopted by any city or county; or (b) Any land area, the preservation of which in its present use would: (A) Conserve and enhance natural or scenic resources; (B) Protect air or streams or water supply; (C) Promote conservation of soils, wetlands, beaches or tidal marshes;

(D) Conserve landscaped areas, such as public or private golf courses, which reduce air pollution and enhance the value of abutting or neighboring property; (E) Enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries or other open space; (F) Enhance recreation opportunities; (G) Preserve historic sites; (H) Promote orderly urban or suburban development; or (I) Retain in their natural state tracts of land, on such conditions as may be reasonably required by the legislative body granting the open space classification.

(2) “Current” or “currently” means as of next January 1, on which the property is to be listed and valued by the county assessor under ORS chapter 308.

(3) “Owner” means the party or parties having the fee interest in land, except that where land is subject to a real estate sales contract, “owner” shall mean the contract vendee. [Formerly 308.740] 308A.303 Policy. The legislature hereby declares that it is in the best interest of the state to maintain, preserve, conserve and otherwise continue in existence adequate open space lands and the vegetation thereon to assure continued public health by counteracting pollutants and to assure the use and enjoyment of natural resources and scenic beauty for the economic and social well-being of the state and its citizens. The legislature further declares that it is in the public interest to prevent the forced conversion of open space land to more intensive uses as the result of economic pressures caused by the assessment thereof for purposes of property taxation at values incompatible with their preservation as such open space land, and that assessment practices must be so designed as to permit the continued availability of open space lands for these purposes, and it is the intent of ORS 308A.300 to 308A.330 to so provide. [Formerly 308.745] 308A.306 Application for open space use assessment; contents of application; filing; reapplication. An owner of land desiring current open space use assessment under ORS 308A.300 to 308A.330 shall make application to the county assessor upon forms prepared by the Department of Revenue and supplied by the county assessor. The owner shall describe the land for which classification is requested, the current open space use or uses of the land, and shall designate the paragraph of ORS 308A.300 (1) under which each such use falls. The application shall include such other information as is reasonably necessary to properly classify an area of land under ORS 308A.300 to 308A.330 with a verification of the truth thereof.

Applications shall be made to the county assessor during the calendar year preceding the first assessment year for which such classification is requested. If the ownership of all property included in the application remains unchanged, a new application is not required after the first year for which application was made and approved. [Formerly 308.750] 308A.309 Submission of application for approval of local granting authority; grounds for denial; approval; application withdrawal. (1) Within 10 days of filing in the office of the assessor, the assessor shall refer each application for classification to the planning commission, if any, of the governing body and to the granting authority, which shall be the county governing body, if the land is in an unincorporated area, or the city legislative body, if it is in an incorporated area. An application shall be acted upon in a city or county with a comprehensive plan in the same manner in which an amendment to the comprehensive plan is processed. In determining whether an application made for classification under ORS 308A.300 (1)(b) should be approved or disapproved, the granting authority shall weigh: (a) The projected costs and other consequences of extending urban services to the affected lot or parcel; (b) The value of preserving the lot or parcel as open space;

(c) The projected costs and other consequences of extending urban services beyond the affected lot or parcel; and (d) The projected costs and other consequences, including the projected costs of extending urban services, of expanding the urban growth boundary in other areas if necessary to compensate for any reduction in available buildable lands.

(2) The granting authority shall not deny the application solely because of the potential loss in revenue that may result from granting the application if the granting authority determines that preservation of the current use of the land will: (a) Conserve or enhance natural or scenic resources; (b) Protect air or streams or water supplies; (c) Promote conservation of soils, wetlands, beaches or tidal marshes; (d) Conserve landscaped areas, such as public or private golf courses, which enhance the value of abutting or neighboring property; (e) Enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations, sanctuaries, or other open spaces; (f) Enhance recreation opportunities; (g) Preserve historic sites; (h) Promote orderly urban or suburban development; or (i) Affect any other factors relevant to the general welfare of preserving the current use of the property.

(3) The granting authority may approve the application with respect to only part of the land which is the subject of the application; but if any part of the application is denied, the applicant may withdraw the entire application. [Formerly 308.755] 308A.312 Notice to assessor of approval or denial; recording approval; assessor to record potential additional taxes on tax roll; appeal from denial. (1) The granting authority shall immediately notify the county assessor and the applicant of its approval or disapproval which shall in no event be later than April 1 of the year following the year of receipt of said application. An application not denied by April 1 shall be deemed approved, and shall be considered to be land which qualifies under ORS 308A.300 to 308A.330.

(2) When the granting authority determines that land qualifies under ORS 308A.300 to 308A.330, it shall enter on record its order of approval and file a copy of the order with the county assessor within 10 days. The order shall state the open space use upon which approval was based. The county assessor shall, as to any such land, assess on the basis provided in ORS 308A.315, and each year the land is classified shall also enter on the assessment roll, as a notation, the assessed value of such land were it not so classified.

(3) Each year the assessor shall include in the certificate made under ORS 311.105 a notation of the amount of additional taxes which would be due if the land were not so classified.

(4) The additional taxes noted under subsection (3) of this section shall be deemed assessed and imposed in the year to which the additional taxes relate.

(5) On approval of an application filed under ORS 308A.306, for each year of classification the assessor shall indicate on the tax roll that the property is being specially assessed as open space land and is subject to potential additional taxes as provided by ORS 308A.318, by adding the notation “open space land (potential add’l tax).”

(6) Any owner whose application for classification has been denied may appeal to the circuit court in the county where the land is located, or if located in more than one county, in that county in which the major portion is located. [Formerly 308.760]

308A.315 Determination of maximum assessed value and assessed value of open space lands; rules. (1) The maximum assessed value and assessed value of land classified as open space land under ORS 308A.300 to 308A.330 shall be determined as provided in this section.

(2) Land classified as open space land shall have an assessed value for the tax year equal to the lesser of the land’s maximum assessed value or the land’s open space value determined under subsection (5) of this section.

(3) The land’s maximum assessed value shall equal 103 percent of the land’s assessed value for the previous tax year or 100 percent of the land’s maximum assessed value for the previous tax year, whichever is greater.

(4)(a) For the first tax year for which the land is classified as open space land, the land shall have a maximum assessed value equal to the land’s open space value determined under subsection (5) of this section multiplied by the ratio of the total maximum assessed value of all open space land within the county over the total open space value of all open space land in the county. (b) If there is an insufficient amount of land classified as open space land in a county to permit a statistically reliable ratio to be determined under paragraph (a) of this subsection, the statewide totals of maximum assessed value of open space land and open space value shall be used in determining the ratio. (c) The Department of Revenue shall prescribe rules setting forth the minimum amount of open space land in a county needed to establish a statistically reliable ratio.

(5) The open space value of land classified as such under ORS 308A.300 to 308A.330 shall be the land’s real market value under ORS 308.205: (a) Assuming the highest and best use of the land to be the current open space use, such as park, sanctuary or golf course. The assessor shall not consider alternative uses to which the land might be put. (b) Valuing the improvements on the land, if any, as required by ORS 308.205. [Formerly 308.765; 2003 c.169 §3] 308A.318 Change in use of open space land; notice to assessor; withdrawal from classification; collection of additional taxes; exception. (1) When land has once been classified under ORS 308A.300 to 308A.330, it shall remain under such classification and it shall not be applied to any other use than as open space unless withdrawn from classification as provided in subsection (2) of this section, except that if the use as open space land changes from one open space use to another open space use, such as a change from park purposes to golf course land, the owner shall notify the assessor of such change prior to the next January 1 assessment date.

(2) During any year after classification, notice of request for withdrawal may be given by the owner to the county assessor or assessors of the county or counties in which such land is situated. The county assessor or assessors, as the case may be, shall withdraw such land from such classification, and immediately shall give written notice of the withdrawal to the granting authority that classified the land; and additional real property taxes shall be collected on such land in an amount equal to the total amount of potential additional taxes computed under ORS 308A.312 (3) during each year in which the land was classified, together with interest at the rate of two-thirds of one percent a month, or fraction of a month, from the dates on which such additional taxes would have been payable had the land not been so classified, limited to a total amount not in excess of the dollar difference in the value of the land as open space land for the last year of classification and the real market value under ORS 308.205 for the year of withdrawal.

(3) If the owner fails to give the notice required under subsection (1) of this section during the period of classification, upon withdrawal under subsection (2) of this section, the assessor shall add to the tax extended against the land previously classified, an amount, if any, equal to the additional taxes that would have been collected had the assessor valued the classified land on the basis of the changed open space use,

together with interest at the rate of two-thirds of one percent a month, or fraction of a month, from the dates on which such additional taxes would have been payable.

(4) Notwithstanding subsection (2) of this section, open space lands that qualify for wildlife habitat special assessment under ORS 308A.403 to 308A.430 or conservation easement special assessment under ORS 308A.450 to 308A.465 may be disqualified from open space special assessment and qualified for wildlife habitat special assessment or conservation easement special assessment without payment of any additional tax under this section. (a) The additional tax as determined under subsection (2) of this section shall remain a potential liability notated on the assessment and tax roll, separate from and in addition to the wildlife habitat potential additional tax described in ORS 308A.427 or the conservation easement potential additional tax described in ORS 308A.459. (b) The interest as described in subsection (2) of this section shall be frozen for as long as the land remains in wildlife habitat special assessment or conservation easement special assessment. (c) If the land is disqualified from wildlife habitat special assessment or conservation easement special assessment and again becomes qualified for open space special assessment, the open space potential tax calculation shall resume as of the date of the renewed open space use special assessment qualification.

[Formerly 308.770; 2003 c.539 §15; 2007 c.809 §9] 308A.321 Withdrawal by assessor when use changed; notice; imposition of additional taxes; interest; penalty; exception. (1) When land which has been classified and assessed under ORS 308A.300 to 308A.330 as open space land is applied to some use other than as open space land, except through compliance with ORS 308A.318 (2), or except as a result of the exercise of the power of eminent domain, the owner shall within 60 days thereof notify the county assessor of such change in use. The assessor or assessors shall withdraw the land from classification and immediately shall give written notice of the withdrawal to the granting authority that classified the land; and additional real property taxes shall be imposed upon such land in an amount equal to the amount that would have been due under ORS 308A.318 if notice had been given by the owner as of the date of withdrawal, plus a penalty equal to 20 percent of the amount so determined.

(2) If no notice is given as required by subsection (1) of this section, the assessor, upon discovery of the change in use, shall compute the amount of taxes, penalty and interest described in subsection (1) of this section, as though notice had been given, and shall add thereto an additional penalty equal to 20 percent of the total amount so computed, for failure to give such notice.

(3) The limitation described in ORS 308A.318 (2) applies only to the computation of taxes and interest, and not to the penalties described in subsections (1) and (2) of this section.

(4) The provisions of subsections (1) and (2) of this section shall not apply in the event that the change in use results from the sale of a least 50 percent of such land classified under ORS 308A.300 to 308A.330 within two years after the death of the owner. [Formerly 308.775] 308A.324 Prepayment of additional taxes; extending taxes on tax roll; collection; distribution. (1) The amount determined to be due under ORS 308A.318 or 308A.321 may be paid to the tax collector prior to the completion of the next general property tax roll, pursuant to ORS 311.370.

(2) The amounts under ORS 308A.318 or 308A.321 shall be added to the tax extended against the land on the next general property tax roll, to be collected and distributed in the same manner as the remainder of the real property taxes. [Formerly 308.780]

308A.327 Reports from owner to assessor; effect of failure to make report upon request.The assessor shall at all times be authorized to demand and receive reports by registered or certified mail from owners of land classified under ORS 308A.300 to 308A.330 as to the use of the same. If the owner shall fail, after 90 days’ notice in writing by certified mail to comply with such demand, the assessor may immediately withdraw the land from classification, give written notice to the granting authority of the withdrawal, and apply the penalties provided in ORS 308A.318 and 308A.321. [Formerly 308.785] 308A.330 Rules. The Department of Revenue of the State of Oregon shall make such rules and regulations consistent with ORS 308A.300 to 308A.330 as shall be necessary or desirable to permit its effective administration. [Formerly 308.790] RIPARIAN HABITAT EXEMPTION 308A.350 Definitions for ORS 308A.350 to 308A.383. As used in ORS 308A.350 to 308A.383: (1) “Owner” means the party or parties having the fee interest in land, except that where land is subject to a real estate sales contract, “owner” means the contract vendee under a recorded contract.

(2) “Department” means the State Department of Fish and Wildlife.

(3) “Designated riparian land” means the beds of streams, the adjacent vegetation communities, and the land thereunder, which are predominantly influenced by their association with water, not to extend more than 100 feet landward of the line of nonaquatic vegetation, which are privately owned and which qualify for exemption under ORS 308A.350 to 308A.383.

(4) “Urban growth boundary” means an urban growth boundary contained in a city or county comprehensive plan that has been acknowledged by the Land Conservation and Development Commission pursuant to ORS 197.251 or an urban growth boundary that has been adopted by a metropolitan service district council under ORS 268.390 (3). [Formerly 308.792] 308A.353 Policy. The Legislative Assembly declares that it is in the best interest of the state to maintain, preserve, conserve and rehabilitate riparian lands to assure the protection of the soil, water, fish and wildlife resources of the state for the economic and social well-being of the state and its citizens. The Legislative Assembly declares that riparian habitat maintained in a healthy condition is a legitimate land use that contributes to erosion control, improved water quality and prolonged streamflow. The Legislative Assembly further declares that it is in the public interest to prevent the forced conversion of riparian environments to more intensive uses as a result of economic pressures caused by the assessment of those lands for purposes of property taxation at values incompatible with their protection as riparian lands and that tax exemption must be granted to permit the continued availability of riparian environments for these purposes, and it is the intent of ORS 308A.350 to 308A.383 to so provide. [Formerly 308.793] 308A.356 Application for exemption as riparian land; contents; notice after sale or transfer.An owner of land desiring designation and exemption of that land from ad valorem taxation as riparian land under ORS 308A.350 to 308A.383 shall make application to the county assessor upon forms prescribed by the Department of Revenue and supplied by the county assessor. The owner shall describe the land for which designation as riparian lands is requested and the current use of the land. The application shall include any other information as is reasonably necessary to properly designate an area of land as riparian land under ORS 308A.350 to 308A.383 with a verification of the truth thereof. Applications to the county assessor shall be made on or before December 31 of the calendar year preceding the first tax year for which such designation is requested. The county assessor shall notify the State Department of Fish and Wildlife if

a recorded sale or transfer of the land granted exemption under ORS 308A.350 to 308A.383 occurs for the purpose of determining continued eligibility of the land for the exemption. The State Department of Fish and Wildlife shall notify the county assessor in writing of the finding within 120 days after the date the county assessor’s notice is mailed or delivered. Failure of the assessor to notify the State Department of Fish and Wildlife shall not prevent the imposition of the additional tax prescribed by ORS 308A.368 (2).

[Formerly 308.794] 308A.359 Standards and criteria for exemption; determination; exemption limited to certain lands; application withdrawal. (1) The State Department of Fish and Wildlife shall develop standards and criteria for the designation of land as riparian. Upon the receipt of an application referred to it by the county assessor, the department shall determine if the land described in the application is qualified for designation as riparian.

(2) The department shall review riparian management plans submitted by applicants to assure compliance with the intent of ORS 308A.353. Standards and criteria to be used to determine consistency with the intent of ORS 308A.350 to 308A.383 shall be developed by the department and shall be reviewed by the department annually. These criteria shall be in addition to the following provisions limiting participation under ORS 308A.350 to 308A.383: (a)(A) Subject to subparagraph (B) of this paragraph, and except as provided in subparagraph (C) of this paragraph, only lands planned and zoned as forest or agricultural lands, including rangeland, in compliance with the statewide planning goals adopted under ORS 197.240 and outside adopted urban growth boundaries shall qualify.

(B) Lands that, as of July 1, 1997, are outside adopted urban growth boundaries and also as of that date are planned and zoned as forest or agricultural lands, including rangeland, in compliance with the statewide planning goals adopted under ORS 197.240 qualify, for tax years beginning on or after July 1, 1998, for riparian designation if they are managed in the manner provided for designated riparian lands and are otherwise eligible for riparian designation under ORS 308A.350 to 308A.383 even though the lands are no longer outside adopted urban growth boundaries or planned or zoned as forest or agriculture.

(C) Lands within the boundaries of a city and an urban growth boundary, if the city and county governing bodies have authorized the exemption under ORS 308A.360, may qualify if the lands are managed in the manner provided for riparian designation under ORS 308A.350 to 308A.383. (b) Land management activities permitted within designated riparian lands shall be consistent with the intent of ORS 308A.350 to 308A.383.

(3) Land that the State Department of Fish and Wildlife determines may qualify for designation as riparian shall be approved by the department for designation and exemption under ORS 308A.350 to 308A.383 only if the owner of the land has developed and implemented, in accordance with the standards adopted under subsections (1) and (2) of this section, adequate measures for: (a) The continued protection of the land; or (b) Techniques for rehabilitation of the riparian land and those measures or techniques are approved by the department.

(4) The department may approve the application for designation of land as riparian with respect to only part of the land that is the subject of the application, but if any part of the application is denied, the applicant may withdraw the entire application. [Formerly 308.795; 2001 c.925 §7] 308A.360 City and county authorization required for exemption of riparian land within city and urban growth boundary. (1) Land located within the boundaries of a city and an urban growth boundary is exempt from the ad valorem property taxes of the city and county in which the land is located if:

(a) The governing bodies of the city and the county in which the land is located have both adopted ordinances or resolutions: (A) Permitting the designation of land as riparian land; and (B) If possible, describing how the city or county will provide technical assistance to landowners preparing riparian management plans pursuant to ORS 308A.359 and will monitor landowner compliance with approved plans; and (b) The land qualifies for designation and exemption as riparian land under ORS 308A.350 to 308A.383.

(2) Copies of the authorizing ordinances or resolutions must be given to the county assessor and to the State Department of Fish and Wildlife. [2001 c.925 §6] 308A.362 Approval or disapproval of application; limitation on approval; order; notice; exemption; potential additional taxes. (1) The State Department of Fish and Wildlife shall immediately notify the county assessor and the applicant of its approval or disapproval of an application which shall in no event be later than April 1 of the year following the year of receipt of the application. Subject to subsection (2) of this section and the mileage limitation of ORS 308A.380, an application not denied by April 1 shall be deemed approved, and the land that is the subject of the application shall be considered to be land that qualifies under ORS 308A.359.

(2) An application for land described in ORS 308A.359 (2)(a)(B) shall be approved only if filed on or before five years after the date the land became land no longer outside adopted urban growth boundaries or planned or zoned as forest or agricultural land.

(3) An application for land described in ORS 308A.360 (1) may be approved only if ordinances or resolutions authorizing the exemption have been adopted by the city and county in which the land is located and these ordinances or resolutions are in effect on the date of application.

(4) The department may not approve more than 50 applications for land described in ORS 308A.360 (1) for any tax year. An application that is not approved because of the limitation imposed by this subsection shall be held for consideration for the next tax year.

(5)(a) When the department approves land for designation as riparian under ORS 308A.359, it shall enter an order of approval and file a copy of the order with the county assessor within 10 days. Upon receipt of the order, the county assessor shall enter a notation on the assessment roll that the land described in the order is exempt from ad valorem taxation. (b) If the land is as described in ORS 308A.360 (1), the exemption shall apply only to the ad valorem property taxes of the city and county that have authorized the exemption.

(6) On approval of an application filed under ORS 308A.356, for each year of designation the assessor shall indicate on the assessment and tax roll that the property is exempt from taxation as riparian land or, in the case of land described in ORS 308A.360 (1), partially exempt from taxation. The assessor shall also indicate on the tax roll that the land is subject to potential additional taxes as provided by ORS 308A.368, by adding the notation “designated riparian land (potential add’l tax).”

(7) Any owner whose application for designation has been denied may appeal to the department under the provisions of ORS chapter 183 governing contested cases. [Formerly 308.796; 2001 c.925 §8] 308A.365 Duration of exemption; change in use; withdrawal at request of owner. (1) When land has once been designated as riparian under ORS 308A.350 to 308A.383, it shall remain under that designation and it shall not be applied to any use other than those specifically included in the management plan or consistent with the intent of ORS 308A.350 to 308A.383 unless withdrawn from designation as provided in subsection (2) of this section.

(2) During any year after designation, notice of request for withdrawal may be given by the owner to the county assessor or assessors of the county or counties in which the land is situated. The county assessor or assessors, as the case may be, shall withdraw such land from designation as riparian and shall immediately give written notice of the withdrawal to the State Department of Fish and Wildlife. [Formerly 308.797] 308A.368 Additional taxes upon withdrawal from riparian land designation; computation. (1) When land that has been designated as exempt from taxation under ORS 308A.350 to 308A.383 as riparian is applied to some use other than that compatible with riparian use, as defined in the management plan, except through compliance with ORS 308A.365 (2), or except as a result of the exercise of the power of eminent domain, the owner shall within 60 days after the change in use notify the county assessor of the change in use. The assessor or assessors shall withdraw the land from designation and immediately give written notice of the withdrawal to the State Department of Fish and Wildlife. Thereafter, the land shall be assessed and taxed as other property similarly situated is assessed and taxed.

(2) The assessor, upon discovery of the change in use to a use other than that compatible with riparian or upon withdrawal by the owner of the land from designation, shall compute an additional tax equal to the difference between the taxes assessed against the land and the taxes that otherwise would have been assessed against the land had the land not received exemption for each of the last five years (or such lesser number of years, corresponding to the number of years of exemption under ORS 308A.350 to 308A.383 applicable to the property after its most recent change of ownership) preceding the tax year in which the land was withdrawn from designation. [Formerly 308.798] 308A.371 Additional taxes; payment; collection. (1) The amount determined to be due under ORS 308A.368 may be paid to the tax collector prior to the completion of the next general property tax roll, pursuant to ORS 311.370.

(2) The amounts under ORS 308A.368 shall be added to the tax extended against the entire parcel of land of which the riparian land is a part on the next general property tax roll, to be collected and distributed in the same manner as the remainder of the real property taxes. [Formerly 308.799] 308A.374 Reports from owners; request after exemption granted for determination of continued qualification. (1) The assessor shall at all times be authorized to demand and receive reports by registered or certified mail from owners of land designated as riparian under ORS 308A.350 to 308A.383 as to the use of the same. If the owner fails, after 90 days’ notice in writing by certified mail to comply with such demand, the assessor shall give written notice to the State Department of Fish and Wildlife and to the landowner of the assessor’s intention to withdraw the land from designation and apply the payments and penalties provided in ORS 308A.368 not less than 30 days prior to automatic withdrawal of the riparian land from designation. If, prior to the expiration of the 30-day period, the landowner fails to file the requested report, the assessor immediately shall withdraw the land from designation and apply the payments and penalties provided in ORS 308A.368.

(2) If the assessor has reason to believe that land designated as riparian land no longer qualifies for designation and special assessment, the assessor shall request the State Department of Fish and Wildlife to determine if the land continues to qualify. The request shall be in writing. Upon receipt of the request, the State Department of Fish and Wildlife shall inspect the property and may take whatever steps are necessary to determine if the land continues to qualify for special assessment. The State Department of Fish and Wildlife shall notify the assessor of the determination made pursuant to the request of the assessor within 120 days after the request is received. A determination by the State Department of Fish and Wildlife that the

property no longer qualifies shall constitute a discovery described in ORS 308A.368 (2). [Formerly 308.800] 308A.377 Abatement of additional tax when farm, forest or open space land designated riparian. (1) Land may be designated as riparian upon application and approval of the application under ORS 308A.356 and 308A.359 if the land is being assessed under any of the following special assessment programs: (a) ORS 308A.050 to 308A.128 (relating to farm use special assessment). (b) ORS 321.257 to 321.390 (relating to special assessment as designated forestland in western Oregon). (c) ORS 321.805 to 321.855 (relating to special assessment as designated forestland in eastern Oregon). (d) ORS 321.700 to 321.754 (relating to special assessment as small tract forestland). (e) ORS 308A.300 to 308A.330 (relating to classification as open space land).

(2) Notwithstanding the provisions of any of the special assessment laws listed in subsection (1) of this section, the additional taxes, penalties and interest that would be due as a result of a change of designation to riparian shall be abated and shall not be collected. [Formerly 308.801; 2003 c.454 §§100,102; 2003 c.621 §83] 308A.380 Limitation on amount of land that may be exempt as riparian land. (1)(a) For the tax years beginning prior to July 1, 2004, the department may approve for designation as riparian land not more than 200 miles of private streambank in any county. (b) The land approved for designation as riparian land under this subsection each year shall be in addition to, and not restricted by, the approval of designation of land as riparian during the previous year.

However, the department may, in addition, approve for designation as riparian land each year an amount of land equal to the amount of land withdrawn from, or disqualified for, designation as riparian land during the previous year, and, an amount of land equal to the difference between the amount of land approved for designation as riparian land during the previous years and the maximum established under paragraph (a) of this subsection.

(2) If the department receives applications for designation of land as riparian in excess of the maximum established under subsection (1) of this section, preference shall be afforded according to the date the application was filed with the county assessor. Applications which are not approved because the maximum has been reached shall be held for consideration for approval for the next tax year. [Formerly 308.802] 308A.383 Rules. The Department of Revenue and the State Department of Fish and Wildlife shall make such rules consistent with ORS 308A.350 to 308A.383 as may be necessary or desirable to permit its effective administration. [Formerly 308.803] WILDLIFE HABITAT SPECIAL ASSESSMENT 308A.400 Findings. (1) The Legislative Assembly finds that the State of Oregon has a rich diversity of plants, animals and other natural resources on private lands. Conservation and careful management of these resources is evident in Oregon’s working landscape and is essential to the economic and ecological health of Oregon.

(2) The Legislative Assembly further finds that conservation of natural resources on private lands is desirable, and nonregulatory programs that encourage and enable landowners to engage voluntarily in conservation should be available to supplement regulatory and other approaches.

(3) The Legislative Assembly further finds that to maximize voluntary landowner participation in conservation programs, conservation should be recognized as a legitimate land use and landowners should have a full range of incentive programs from which to choose.

(4) The Legislative Assembly further finds that state government should have a mechanism to coordinate, facilitate and memorialize a landowner’s compliance with regulatory requirements while simultaneously providing a means to combine or coordinate multiple incentive programs among agencies and levels of government.

(5) The Legislative Assembly further finds that efforts should be made to more effectively and efficiently target conservation programs administered by federal, state and local governments.

(6) The Legislative Assembly further finds that there should be a comprehensive review to identify and assess the state’s conservation needs and to coordinate the development, dissemination and implementation of a comprehensive statewide conservation strategy to define priorities and address ecological goals while enhancing economic and social conditions. [2003 c.539 §1] Note: 308A.400 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 308A or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

308A.403 Policy. (1) The Legislative Assembly declares that the protection and preservation of the wildlife resources of this state ought to be encouraged by recognizing wildlife habitat conservation and management as a legitimate land use.

(2) The Legislative Assembly further declares that ORS 308A.403 to 308A.430 are intended to allow for the conservation and management of wildlife habitat.

(3) The Legislative Assembly recognizes that the integration of wildlife habitat conservation and management plans with generally accepted agricultural and forestry practices is an important element in exercising good land stewardship. [2003 c.539 §3] 308A.406 Definitions for ORS 308A.403 to 308A.430. As used in ORS 308A.403 to 308A.430: (1) “Cooperating agency” means the State Department of Fish and Wildlife, the United States Fish and Wildlife Service, the Natural Resources Conservation Service of the United States Department of Agriculture, the Oregon State University Extension Service or other persons with wildlife habitat conservation and management training considered appropriate for the preparation of a wildlife habitat conservation and management plan, as established by rules adopted by the State Fish and Wildlife Commission under ORS 308A.409.

(2) “Department” means the State Department of Fish and Wildlife.

(3) “Lot” has the meaning given that term in ORS 92.010.

(4) “Parcel” has the meaning given that term in ORS 215.010.

(5) “Wildlife habitat conservation and management plan” or “plan” means a plan developed by a cooperating agency and landowner that specifies the conservation and management practices, including farm and forest uses consistent with the overall intent of the plan, that will be conducted to preserve and improve wildlife habitat on an affected lot or parcel. [2003 c.539 §4; 2005 c.94 §58] 308A.409 Wildlife habitat conservation and management plans; rules. (1)(a) The State Fish and Wildlife Commission shall adopt rules specifying the form and content of a wildlife habitat conservation and management plan that is sufficient for land that is subject to the plan to be specially assessed under ORS 308A.403 to 308A.430.

(b) The rules adopted pursuant to this section shall: (A) Specify the conservation and management practices that are appropriate to preserve and enhance wildlife common to the diverse regions of this state; and (B) Specify that wildlife habitat conservation and management plans may include those efforts that improve water quality, protect and restore fish and wildlife habitats, recover threatened or endangered species, enhance streamflows and maintain or restore long-term ecological health, diversity and productivity on a broad geographic scale.

(2) Under rules adopted pursuant to this section, the commission shall allow: (a) Accepted agricultural and forestry practices as an integral part of the wildlife habitat conservation and management practices specified in an approved plan; and (b) The lease or sale of in-stream water rights as an integral part of the wildlife habitat conservation and management practices specified in an approved plan.

(3) The rules shall be reviewed periodically by the commission and revised when considered necessary or appropriate by the commission. [2003 c.539 §5] 308A.412 Plan submission and review; limitation on approval; rules. (1) An owner of land described in ORS 308A.415 who seeks special assessment under ORS 308A.403 to 308A.430 shall first submit a proposed wildlife habitat conservation and management plan to the State Department of Fish and Wildlife for review.

(2) The department shall review each submitted plan for compliance with the standards set forth in the rules adopted under ORS 308A.409 and shall determine if the plan is being implemented.

(3) Upon completing a review of a proposed plan and determining that the plan is in compliance with the standards set forth in the rules adopted under ORS 308A.409 and is being implemented, the department shall issue to the landowner a written declaration that the land is subject to a wildlife habitat conservation and management plan approved by the department and that the landowner has begun implementing the plan.

(4) The State Fish and Wildlife Commission may establish by rule a limit on the number of plans that may be approved in each calendar year. An application that is not approved because the maximum number of plans for a year has already been approved shall be held for consideration for approval for the next year.

[2003 c.539 §6] 308A.415 Designation by State Fish and Wildlife Commission of land eligible for wildlife habitat special assessment. (1) At the request of the governing body of a county, the State Fish and Wildlife Commission may designate the following land in unincorporated areas within the county as eligible for wildlife habitat special assessment: (a) Any land that is zoned for exclusive farm use, mixed farm and forest use or forest use under a land use planning goal protecting agricultural land or forestland; or (b) Land that is clearly identifiable as containing significant wildlife habitat.

(2) At the request of the governing body of a city, the commission may designate the following land within the city as eligible for wildlife habitat special assessment: (a) Any land that is zoned for exclusive farm use, mixed farm and forest use or forest use under a land use planning goal protecting agricultural land or forestland; or (b) Land that is clearly identifiable as containing significant wildlife habitat.

(3) With the prior consent of the governing body of a city, the county in which all or a part of the city is located may apply to the commission on behalf of the city for designation of any area that is within both the city and the county as eligible for wildlife habitat special assessment.

(4) The commission may designate land described in subsection (1) or (2) of this section as eligible for wildlife habitat special assessment only if the commission finds: (a) That designation will promote the findings in ORS 308A.400 and the policy in ORS 308A.403; and (b) That the land described in subsection (1) or (2) of this section is of the nature and quality to allow for implementation of wildlife habitat conservation and management plans approved under rules adopted pursuant to ORS 308A.409.

(5) Land may not qualify for wildlife habitat special assessment under ORS 308A.424 unless the commission has determined that the land is eligible for wildlife habitat special assessment under this section. [2003 c.539 §7] 308A.418 Removal of designation upon request of city or county; requirements. (1) The governing body of the city or county that requested designation under ORS 308A.415 may request that the State Fish and Wildlife Commission remove that designation.

(2) The commission shall remove the designation if: (a) The city or county demonstrates that the designation creates an economic burden for the city or county; and (b) The commission finds that the economic burden is significant.

(3) In making its determination under subsection (2) of this section, the commission shall give significant weight to the demonstration of economic burden made by the city or county. [2003 c.539 §7a] 308A.421 Effect of designation or removal for property tax purposes. A determination by the State Fish and Wildlife Commission to designate land as eligible for wildlife habitat special assessment under ORS 308A.415 or to remove that designation under ORS 308A.418 shall for property tax purposes be effective as of the tax year beginning the July 1 immediately following the determination. [2003 c.539 §7b] 308A.424 Application for special assessment; approval. (1) When a wildlife habitat conservation and management plan is approved by the State Department of Fish and Wildlife and is being implemented, the owner of the land subject to the plan may apply to the county assessor to receive wildlife habitat special assessment.

(2) Application shall be made to the county assessor on forms prepared by the Department of Revenue and supplied by the county assessor.

(3) Applications for wildlife habitat special assessment shall be made to the county assessor on or before April 1 of the first assessment year for which the assessment is desired. The application shall include: (a) A copy of the wildlife habitat conservation and management plan. (b) A certified copy of the declaration described in ORS 308A.412 (3). (c) A description of the land that is the subject of the application that is sufficient for the county assessor to determine whether the land for which wildlife habitat special assessment is sought is within an area eligible for wildlife habitat special assessment. (d) A statement that the applicant is aware of the potential tax liability that arises under ORS 308A.703 upon disqualification from wildlife habitat special assessment. (e) An affirmation that the statements contained in the application are true.

(4) An application to the county assessor shall be deemed approved unless, before August 15 of the year in which the application was filed, the assessor notifies the applicant in writing that the application has been wholly or partially denied.

(5) Whether land that is subject to a wildlife habitat conservation and management plan qualifies for special assessment under this section shall be determined as of January 1 of the assessment year. If land so

qualified becomes disqualified prior to July 1 of the same assessment year, the land shall be valued under ORS 308.232 at its real market value as defined by law without regard to this section and shall be assessed at its assessed value under ORS 308.146 or as otherwise provided by law. If the land becomes disqualified on or after July 1, the land shall continue to qualify for special assessment as provided in this section for the current tax year. [2003 c.539 §8] 308A.427 Valuation. (1) The county assessor shall value land for wildlife habitat special assessment in accordance with this section. (a) For property that was specially assessed during the previous assessment year under a program listed in ORS 308A.706 (1)(d), the property shall continue to have a specially assessed value, a maximum assessed value and an assessed value as determined under whichever of the following was an applicable method of valuation for the previous assessment year: (A) Under ORS 308A.050 to 308A.128; or (B) Under ORS 321.354 or 321.833. (b) For property that was not specially assessed during the previous assessment year, the property shall have a specially assessed value, a maximum assessed value and an assessed value: (A) Determined under ORS 321.354 or 321.833 if, at the time of application, the land has growing upon it trees of a marketable species and in numbers sufficient to meet requirements for designated forestland under ORS 321.358 or 321.839; or (B) If the criteria set forth in subparagraph (A) of this paragraph are not satisfied, determined under ORS 308A.050 to 308A.128.

(2) For property subject to wildlife habitat special assessment, the county assessor shall enter on the assessment and tax roll the notation “potential additional tax liability” until the land is disqualified under ORS 308A.430. [2003 c.539 §9] 308A.430 Disqualification from special assessment. (1) Land subject to a wildlife habitat conservation and management plan shall be inspected by the State Department of Fish and Wildlife periodically to ensure that the land is managed in accordance with the plan. If the plan is not being implemented as approved, the department shall notify the landowner and require compliance measures to be taken within six months. If the plan is still not being implemented as required by the department at the end of the six-month period, the department shall notify the county assessor that the plan is not being implemented as approved.

(2) The county assessor shall disqualify the land from wildlife habitat special assessment upon: (a) Notice from the department as described in subsection (1) of this section; (b) Notice of request by the landowner for withdrawal of the land from wildlife habitat special assessment; (c) Sale or transfer to an ownership making the land exempt from ad valorem property taxation; (d) The land qualifying for another special assessment listed in ORS 308A.703 (1); or (e) The act of recording a subdivision plat under ORS chapter 92.

(3) If, pursuant to subsection (2)(e) of this section, the county assessor disqualifies land for wildlife habitat special assessment upon the act of recording a subdivision plat, the land may requalify for wildlife habitat special assessment upon: (a) Payment of all additional tax and interest that remains due and owing as a result of the disqualification; (b) Compliance with ORS 308A.403 to 308A.430; and (c) Submission of an application for wildlife habitat special assessment under ORS 308A.424 and approval of the application by the county assessor.

(4) Upon disqualification, additional taxes shall be determined as provided in ORS 308A.700 to 308A.733. [2003 c.539 §10] CONSERVATION EASEMENT 308A.450 Definitions. As used in ORS 308A.450 to 308A.465: (1) “Conservation easement” has the meaning given that term in ORS 271.715.

(2) “Holder” has the meaning given that term in ORS 271.715.

(3) “Internal Revenue Code” means the federal Internal Revenue Code as amended and in effect on May 1, 2009.

(4) “Lot” has the meaning given that term in ORS 92.010.

(5) “Parcel” has the meaning given that term in ORS 92.010, as further modified by ORS 215.010.

[2007 c.809 §2; 2008 c.45 §6; 2009 c.5 §16; 2009 c.909 §16] Note: The amendments to 308A.450 by section 16, chapter 909, Oregon Laws 2009, apply to tax years beginning on or after January 1, 2009. See section 45, chapter 909, Oregon Laws 2009.

308A.453 Requirements. (1) Land subject to a conservation easement that is held by one or more holders and that is managed in compliance with the terms of the easement, shall receive conservation easement special assessment for ad valorem property tax purposes.

(2) In order for land to be subject to assessment under ORS 308A.450 to 308A.465: (a) The terms of the conservation easement must be capable of meeting the requirements for being considered exclusively for conservation purposes under section 170(h) of the Internal Revenue Code if the land or easement were ever to be the subject of a contribution; (b) The conservation easement must be recorded in the records of the clerk of the county in which the land is located; and (c) A written certification must be filed with the county assessor stating that the conservation easement satisfies the requirements of paragraph (a) of this subsection. The certification must be filed by: (A) The owner of the land, if a deduction has been claimed for federal income tax purposes under section 170 of the Internal Revenue Code for a qualified conservation contribution with respect to the conservation easement; or (B) The holder, in all cases that are not described in subparagraph (A) of this paragraph. [2007 c.809 §3] 308A.456 Application for conservation easement special assessment; contents; application fee. (1) Upon satisfying the requirements of ORS 308A.453, the owner of land subject to a conservation easement may apply to the county assessor to receive conservation easement special assessment.

(2) Application shall be made to the county assessor on forms prepared by the Department of Revenue and supplied by the county assessor.

(3) Applications for conservation easement special assessment shall be made to the county assessor on or before April 1 of the first assessment year for which the assessment is desired. The application shall include: (a) A copy of the conservation easement along with the property tax account number for the land. (b) Contact information for the landowner and the holder or holders of the conservation easement. (c) Representations, along with supporting documentation, that the requirements of ORS 308A.453 have been satisfied.

(d) A statement that the applicant is aware of the potential tax liability that arises under ORS 308A.700 to 308A.733 upon disqualification from conservation easement special assessment. (e) An affirmation that the statements contained in the application are true. (f) An application fee in the amount of $250.

(4) The county assessor shall approve an application that includes all documents listed in subsection (3) of this section. The assessor shall notify the landowner and the holder of the assessor’s decision to approve or wholly or partially deny an application.

(5) Whether land subject to a conservation easement qualifies for special assessment under this section shall be determined as of January 1 of the assessment year. If land so qualified becomes disqualified prior to July 1 of the same assessment year, the land shall be valued under ORS 308.232 at its real market value as defined by law without regard to this section and shall be assessed at its assessed value under ORS 308.156 or as otherwise provided by law. If the land becomes disqualified on or after July 1, the land shall continue to qualify for special assessment as provided in this section for the current tax year.

(6) Application fees collected under this section shall be deposited in the county general fund to the credit of the county assessor. [2007 c.809 §4] 308A.459 Valuation. (1) The county assessor shall value land for conservation easement special assessment in accordance with this section.

(2) For property that was specially assessed during the previous assessment year under a special assessment law listed in ORS 308A.706 (1)(d), the property shall have a specially assessed value, a maximum assessed value and an assessed value determined under whichever of the following was an applicable method of valuation for the previous assessment year: (a) ORS 308A.050 to 308A.128; or (b) ORS 321.354 or 321.833.

(3) For property that was not specially assessed during the previous assessment year, the property shall have a specially assessed value, a maximum assessed value and an assessed value: (a) Determined under ORS 321.354 or 321.833 if, at the time of application, the land has growing upon it trees of a marketable species and in numbers sufficient to meet requirements for designated forestland under ORS 321.358 or 321.839; or (b) If the criteria set forth in paragraph (a) of this subsection are not satisfied, determined under ORS 308A.050 to 308A.128.

(4) For property subject to conservation easement special assessment, the county assessor shall enter on the assessment and tax roll the notation “potential additional tax liability” until the land is disqualified under ORS 308A.465. [2007 c.809 §5] 308A.462 Dwellings. Subject to the terms of the applicable conservation easement, new and existing dwellings may be allowed on a lot or parcel subject to conservation easement special assessment as follows: (1) Lawfully existing dwellings, pursuant to ORS 215.130 (5) to (11), may remain.

(2) For a lot or parcel without an existing dwelling, dwellings may be allowed if each dwelling for which the landowner seeks approval complies with all applicable requirements under the county’s acknowledged zoning ordinance. [2007 c.809 §6] 308A.465 Inspection by holder; disqualification; notice; requalification. (1) Land that is receiving conservation easement special assessment shall be inspected by a holder periodically to ensure that: (a) The land is managed in accordance with the terms of the conservation easement to which the land is subject;

(b) The conservation easement continues to meet the requirements of ORS 308A.453 (2)(a); and (c) The holder complies with subsection (2) of this section.

(2)(a) Every three years, or more frequently if requested in writing by the county assessor, the holder shall provide written certification to the county assessor that the land is being managed in accordance with the terms of the conservation easement to which the land is subject and that the conservation easement continues to meet the requirements of ORS 308A.453 (2)(a). (b) If, upon inspection, the holder determines that the land is not being managed in accordance with the terms of the conservation easement to which the land is subject or that the conservation easement no longer meets the requirements of ORS 308A.453 (2)(a), the holder shall notify the landowner and require compliance measures to be taken within six months or a reasonable shorter period if permitted by the terms of the conservation easement. If the plan is still not being implemented as required by the holder at the end of the six-month period or applicable shorter period, the holder shall notify the county assessor that the land is not being managed in accordance with the terms of the conservation easement to which the land is subject.

(3) If the landowner has claimed a federal income tax deduction under section 170 of the Internal Revenue Code and the claim is disallowed because the contribution on which the claim is based is not a qualified conservation contribution under section 170(h) of the Internal Revenue Code, the landowner and holder shall immediately notify the county assessor of the disallowance.

(4) The county assessor shall disqualify the land from conservation easement special assessment upon: (a) Failure of the holder to provide the certification described in subsection (2)(a) of this section within 90 days following the close of the three-year period or the date of the written request, whichever is earlier; (b) Notice from the holder as described in subsection (2)(b) of this section; (c) Notice from the landowner or holder as described in subsection (3) of this section; (d) Notice of request for withdrawal by the landowner of the land from conservation easement special assessment; (e) Sale or transfer to an ownership making the land exempt from ad valorem property taxation; (f) The land qualifying for another special assessment listed in ORS 308A.706 (1)(d); or (g) The act of recording a subdivision plat under ORS chapter 92.

(5) If, pursuant to subsection (4)(g) of this section, the county assessor disqualifies land for conservation easement special assessment upon the act of recording a subdivision plat, the land may requalify for conservation easement special assessment upon: (a) Payment of all additional tax and interest that remain due and owing as a result of the disqualification; (b) Compliance with ORS 308A.450 to 308A.465; and (c) Submission of an application for conservation easement special assessment under ORS 308A.456 and approval of the application by the county assessor.

(6) Upon disqualification, the county assessor shall compute an additional tax under ORS 308A.700 to 308A.733. [2007 c.809 §7] ADDITIONAL TAXES, PROCEDURES APPLICABLE TO CERTAIN LAND SPECIAL ASSESSMENT PROGRAMS (Additional Taxes) 308A.700 Definitions for ORS 308A.700 to 308A.733. As used in ORS 308A.700 to 308A.733:

(1) “Disqualification” includes the removal of forestland designation under ORS 321.359, 321.712, 321.716 or 321.842.

(2) “Urban growth boundary” means an urban growth boundary contained in a city or county comprehensive plan that has been acknowledged by the Land Conservation and Development Commission pursuant to ORS 197.251 or an urban growth boundary that has been adopted by a metropolitan service district under ORS 268.390 (3). [1999 c.314 §33; 2003 c.454 §§19,21; 2003 c.621 §84] 308A.703 Additional taxes upon disqualification. (1) This section applies to land upon the land’s disqualification from special assessment under any of the following sections: (a) Exclusive farm use zone farmland under ORS 308A.113; (b) Nonexclusive farm use zone farmland under ORS 308A.116; (c) Western Oregon designated forestland under ORS 321.359; (d) Eastern Oregon designated forestland under ORS 321.842; (e) Wildlife habitat special assessment under ORS 308A.430; or (f) Conservation easement special assessment under ORS 308A.465.

(2) Following a disqualification listed in subsection (1) of this section, an additional tax shall be added to the tax extended against the land on the next assessment and tax roll, to be collected and distributed in the same manner as other ad valorem property tax moneys. The additional tax shall be equal to the difference between the taxes assessed against the land and the taxes that would otherwise have been assessed against the land, for each of the number of years determined under subsection (3) of this section.

(3) The number of years for which additional taxes shall be calculated shall equal the lesser of the number of consecutive years the land had qualified for the special assessment program for which disqualification has occurred or: (a) Ten years, in the case of exclusive farm use zone farmland, but only if the land, immediately following disqualification, remains outside an urban growth boundary; (b) Ten years, in the case of wildlife habitat special assessment land within an exclusive farm use zone, but only if the land, immediately following disqualification, remains outside an urban growth boundary; (c) Ten years, in the case of conservation easement special assessment land within an exclusive farm use zone, but only if the land, immediately following disqualification, remains outside an urban growth boundary; or (d) Five years, in the case of: (A) Nonexclusive farm use zone farmland; (B) Western Oregon designated forestland; (C) Eastern Oregon designated forestland; (D) Exclusive farm use zone farmland that is not described in paragraph (a) of this subsection; (E) Wildlife habitat special assessment land that is not described in paragraph (b) of this subsection; or (F) Conservation easement special assessment land that is not described in paragraph (c) of this subsection.

(4)(a) Except as provided in paragraph (b) of this subsection, if disqualification under subsection (1)(a) or (b) of this section occurs within five years after the end of a period of farm use special assessment pursuant to a remediation plan as defined in ORS 308A.053, the number of years for which the additional tax shall be calculated shall be the number of years determined under subsection (3) of this section plus the number of years during which farm use special assessment was granted pursuant to the remediation plan. (b) Additional tax may not be collected for the number of years during which farm use special assessment was granted pursuant to the remediation plan if the plan: (A) Is implemented in good faith; and

(B) Fails to render continued farm use practicable.

(5) The additional taxes described in this section shall be deemed assessed and imposed in the year to which the additional taxes relate.

(6) If the disqualification of the land is the result of the sale or transfer of the land to an ownership making the land exempt from ad valorem property taxation, the lien for additional taxes shall attach as of the day preceding the sale or transfer.

(7) The amount determined to be due under this section may be paid to the tax collector prior to the time of the next general property tax roll, pursuant to the provisions of ORS 311.370. [1999 c.314 §34; 2001 c.114 §21; 2003 c.454 §§23,25; 2003 c.539 §16; 2003 c.621 §85; 2005 c.400 §3; 2007 c.809 §10; 2009 c.776 §5] 308A.706 Circumstances when additional taxes are deferred; potential additional tax liability. (1) Notwithstanding that land is disqualified from special assessment, the additional taxes described under ORS 308A.703 may not be imposed and shall remain a potential tax liability if, as of the date the disqualification is taken into account on the assessment and tax roll, the land is any of the following: (a) Disqualified exclusive farm use zone farmland or nonexclusive farm use zone farmland that: (A) Is not being used as farmland; and (B) Is not being used for industrial, commercial, residential or other use that is incompatible with a purpose to return the land to farm use. (b) Acquired by a governmental agency or body as a result of an exchange of the land for land of approximately equal value held by the governmental agency or body. (c) Acquired and used for natural heritage purposes and all of the following additional requirements are met: (A) The land is registered under ORS 273.581 as a state natural area; (B) The land is acquired by a private nonprofit corporation; (C) The land is retained by the corporation, or transferred to the state by the corporation, for the purpose of educational, scientific and passive recreational use consistent with conservation of the ecological values and natural heritage elements of the area; (D) If the land is retained by the corporation, it remains open to the public without charge for the uses described in subparagraph (C) of this paragraph; and (E) The land is managed pursuant to a voluntary management agreement under ORS 273.581 (5). (d) Qualified for special assessment under: (A) ORS 308A.062, relating to farm use special assessment of land in an exclusive farm use zone; (B) ORS 308A.068, relating to farm use special assessment of nonexclusive farm use zone farmland; (C) ORS 321.358, relating to classification as designated forestland in western Oregon; (D) ORS 321.839, relating to classification as designated forestland in eastern Oregon; (E) ORS 321.709, relating to qualification as small tract forestland; (F) ORS 308A.424, relating to wildlife habitat special assessment; or (G) ORS 308A.456, relating to conservation easement special assessment. (e) Disqualified nonexclusive farm use zone farmland, to the extent the additional taxes are deferred or abated as provided in ORS 308A.119.

(2) This section does not apply to the additional taxes imposed under ORS 308A.703 (4)(a) for the number of years during which farm use special assessment was granted pursuant to a remediation plan as defined in ORS 308A.053.

(3) In any case where the additional tax is deferred under the provisions of this section but may subsequently be imposed under ORS 308A.712, the county assessor shall continue to enter the notation

“potential additional tax liability” on the assessment and tax roll. [1999 c.314 §35; 2003 c.454 §§27,29; 2003 c.539 §17; 2003 c.621 §86; 2007 c.809 §11; 2009 c.217 §9; 2009 c.776 §6] 308A.707 Additional taxes when land disqualified from small tract forestland assessment.(1) Notwithstanding ORS 308A.706, additional taxes shall be imposed on land that is disqualified from small tract forestland assessment under ORS 321.712 or 321.716. If after disqualification the land remains specially assessed under a special assessment program described in ORS 308A.706 (1)(d)(A) to (D), (F) or (G), the additional taxes shall be computed under subsection (2) of this section. If after disqualification the land is not specially assessed under a program described in ORS 308A.706 (1)(d)(A) to (D), (F) or (G), the additional taxes shall be computed under subsection (3) of this section.

(2)(a) The additional taxes for disqualified small tract forestland that is qualified for special assessment under a program described in ORS 308A.706 (1)(d)(A) to (D), (F) or (G) shall be equal to the difference between the taxes assessed against the land under ORS 321.700 to 321.754 and the taxes that would have been assessed against the land: (A) Under ORS 321.257 to 321.390, if the land is located in western Oregon; or (B) Under ORS 321.805 to 321.855, if the land is located in eastern Oregon. (b) The number of years for which additional taxes shall be calculated shall equal the lesser of 10 years or the number of consecutive years the land has been assessed as small tract forestland.

(3)(a) The additional taxes for disqualified small tract forestland that is not qualified for special assessment under a program described in ORS 308A.706 (1)(d)(A) to (D), (F) or (G) shall be equal to the sum of: (A) The amount determined under subsection (2) of this section; and (B) The difference between the taxes that would have been assessed against the land under ORS 321.257 to 321.390, if located in western Oregon, or ORS 321.805 to 321.855, if located in eastern Oregon, and the taxes that would otherwise have been assessed against the land, for the lesser of the number of consecutive years the land was forestland or five years. (b) Notwithstanding paragraph (a)(B) of this subsection, if any provision of ORS 308A.700 to 308A.733 would cause the deferral or elimination of additional taxes that are imposed under ORS 308A.703 or 308A.712, that provision shall also cause the deferral or elimination of the additional taxes imposed under paragraph (a)(B) of this subsection, under the same terms, requirements and conditions that additional taxes under ORS 308A.700 to 308A.733 are deferred or eliminated.

(4) The additional taxes described in this section shall be imposed and collected at the same time and in the same manner as additional taxes described in ORS 308A.703 are imposed and collected.

(5) The additional taxes described in this section shall be deemed assessed and imposed in the year to which the additional taxes relate.

(6) The amount determined to be due under this section may be paid to the tax collector prior to the time of the next general property tax roll, pursuant to the provisions of ORS 311.370.

(7) As used in this section, “forestland,” “western Oregon” and “eastern Oregon” have the meanings given those terms in ORS 321.700. [2003 c.454 §31; 2005 c.400 §4; 2007 c.809 §19] 308A.709 Circumstances when additional taxes are not imposed. Notwithstanding that land may have been disqualified from special assessment, no additional taxes may be imposed under ORS 308A.703 if, as of the date the disqualification is taken into account on the assessment and tax roll, the land is any of the following: (1) Acquired by a governmental agency as a result of the lawful exercise of the power of eminent domain or the threat or imminence thereof.

(2) Acquired by purchase, agreement or donation under ORS 390.121 (relating to State Parks and Recreation Commission acquisitions).

(3) Acquired by a city, county, metropolitan service district created under ORS chapter 268 or park and recreation district organized under ORS chapter 266 for public recreational purposes or for the preservation of scenic or historic places.

(4) Acquired for wildlife management purposes under ORS 496.146.

(5) Public property that was leased or rented to a taxable owner as described in ORS 307.110 at the time of disqualification, and the reason for the disqualification was the termination of the lease under which the land was assessed.

(6) Land that ceases to be located within the boundaries of an exclusive farm use zone as the result of a change in the boundaries of the zone or removal of the zone following an action by the governing body of the county or city that: (a) Was not requested or initiated by the owner of the land; or (b) Was requested by: (A) The State Parks and Recreation Department for public park purposes under ORS 390.121; or (B) The State Fish and Wildlife Commission for wildlife management purposes under ORS 496.146.

(7) Forestland acquired by a federal, state or local governmental agency. In the case of an acquisition described in this subsection, a lien for additional taxes and interest may not attach on the day preceding the day of transfer of the forestland to the governmental agency. [1999 c.314 §36; 1999 c.800 §1a; 2003 c.454 §34; 2003 c.621 §87] 308A.712 Determining amount of deferred additional taxes and period for which additional taxes are due. (1) If the disqualification of land from special assessment results in the deferral of additional taxes under ORS 308A.706: (a) The amount of deferred additional taxes shall be determined as provided for in this section in lieu of ORS 308A.703; and (b) The deferred additional taxes shall be added to the assessment and tax roll for the year in which the event described in subsections (2) to (6) of this section is first taken into account for property tax purposes, to be collected and distributed in the same manner as other ad valorem property taxes.

(2) If additional taxes are deferred under ORS 308A.706 (1)(a) (relating to compatible nonuse of farmland) and subsequently the land is changed to an industrial, commercial, residential or other use incompatible with a return of the land to farm use, then: (a) The amount of additional tax due for each year to which the additional tax applies shall be the difference between the taxes assessed against the land and the taxes that would have been assessed against the land in that year had the land not been in special assessment; and (b) The number of years for which the additional tax shall be collected shall be the total number of years (whether or not continuous) that the farm use special assessment was in effect for the land, not to exceed: (A) In the case of disqualified exclusive farm use zone farmland located outside an urban growth boundary, 10 tax years, or such lesser number of years, corresponding to the number of years of farm use zoning applicable to the property; or (B) In the case of all other farmland disqualified from farm use special assessment, five tax years.

(3)(a) If additional taxes are deferred under ORS 308A.706 (1)(b) (relating to government exchange of land), additional taxes shall be collected when the land acquired as a result of the exchange is disqualified from special assessment. The additional taxes shall equal the total amount of additional taxes under ORS 308A.703 (2) attributable to the number of years the land transferred to the governmental agency or body

received the special assessment before the exchange plus the number of years, if any, the land acquired from the governmental agency or body received a special assessment after the exchange. (b) The total number of years taken into account shall not exceed the maximum number of years for which additional taxes may be collected under the provision of law applicable to either the exchanged land (immediately before the exchange) or the acquired land, whichever is greater.

(4) If additional taxes are deferred under ORS 308A.706 (1)(c) (relating to state natural areas), the additional taxes that would have been imposed under ORS 308A.703 at the time of disqualification shall be collected when the land is no longer used as described in ORS 308A.706 (1)(c).

(5) If additional taxes are deferred under ORS 308A.706 (1)(d) (relating to change in special assessment), the additional taxes that would have been collected at the time of disqualification shall be collected at the time the land is disqualified from any other special assessment law listed in ORS 308A.706 (1)(d). The total amount of additional tax shall be calculated as follows: (a) The amount of the additional tax due for each year to which the additional tax applies shall be the difference between the taxes assessed against the land and the taxes that would have been assessed against the land in that year had the land not been in special assessment; and (b) The number of years for which the additional tax shall be collected shall be the total number of continuous tax years that a special assessment listed in ORS 308A.706 (1)(d) was in effect for the land, not to exceed: (A) Five tax years; or (B) If the property had, within the past 10 tax years, been disqualified from a special assessment program described in ORS 308A.703 (3)(a) to (c) and had been continuously subject to special assessment, then 10 tax years. However, the number of continuous preceding years of special assessment under the special assessment programs listed in ORS 308A.703 (3)(d) that may be taken into consideration for purposes of computing the additional tax may not exceed five years.

(6) In determining the additional tax under subsection (5) of this section, the number of continuous preceding years of special assessment counted shall not include those years in which the land was specially assessed under any of the special assessment laws listed in ORS 308A.706 (1)(d) prior to a disqualification of the land for special assessment as exclusive farm use zone farmland under the conditions described in ORS 308A.709 (6). [1999 c.314 §37; 2003 c.454 §36; 2003 c.621 §88; 2007 c.809 §16; 2009 c.217 §10] 308A.715 Imposition of deferred additional taxes upon request of owner. (1) Notwithstanding that additional taxes otherwise due under ORS 308A.703 are deferred under ORS 308A.706, the additional taxes may be imposed at any time after disqualification of the property from special assessment if the property owner so requests.

(2) A request for imposition of tax under this section shall be made in writing to the county assessor.

(3) If the request for imposition of tax under this section is made prior to August 15 of the assessment year, the additional tax shall be added to the current general property tax roll to be collected and distributed in the same manner as other real property tax. If the request for imposition of tax is made on or after August 15 of the assessment year, the additional tax shall be added to the next general property tax roll to be collected in the same manner as other ad valorem property taxes. [1999 c.314 §38] (Disqualification Notification Procedures) 308A.718 Assessor to send notice upon disqualification or forestland change in use; deadline; appeal; change in special assessment explanation; remediation plan notification. (1) The county

assessor shall send notice as provided in this section if land is disqualified under any of the following special assessment programs: (a) Farm use special assessment under ORS 308A.050 to 308A.128. (b) Farm or forest homesite special assessment under ORS 308A.250 to 308A.259. (c) Western Oregon designated forestland special assessment under ORS 321.257 to 321.390. (d) Eastern Oregon designated forestland special assessment under ORS 321.805 to 321.855. (e) Small tract forestland special assessment under ORS 321.700 to 321.754. (f) Wildlife habitat special assessment under ORS 308A.403 to 308A.430. (g) Conservation easement special assessment under ORS 308A.450 to 308A.465.

(2) Notwithstanding that a change in use described in this section is not a disqualification, the assessor shall send notice as provided in this section when the highest and best use of land changes from forestland to a different highest and best use.

(3) Within 30 days after the date that land is disqualified from special assessment, the assessor shall notify the taxpayer in writing of the disqualification and shall state the reason for the disqualification.

(4) Following receipt of the notification, the taxpayer may appeal the assessor’s determination to the Oregon Tax Court within the time and in the manner provided in ORS 305.404 to 305.560.

(5)(a) When any land has been granted special assessment under any of the special assessment laws listed in subsection (1) of this section and the land is disqualified from such special assessment, the county assessor shall furnish the owner with a written explanation summarizing: (A) ORS 308A.706 (1)(d) (relating to change in special assessment); (B) ORS 308A.727 (relating to change in use to open space use special assessment for certain golf courses); (C) The administrative act necessary under ORS 308A.724 to change the property to another classification described in this paragraph; and (D) The imposition of any penalties that would result from the disqualification if no requalification or reclassification is made under one of the other special assessment laws listed in this paragraph. (b) The written explanation required by this subsection shall be given in conjunction either with the notice of disqualification required under this section or with an order or notice of disqualification otherwise provided by law. (c)(A) If no notice of disqualification is required to be made by this section or other provision of law, the written explanation required by this subsection shall be made by the county assessor.

(B) A written explanation made under this paragraph shall be made by the assessor within 30 days of the effective date of the disqualification.

(6) Subsections (1) to (5) of this section do not apply if the reason for the disqualification is: (a) The result of a request for disqualification by the property owner; or (b) Because the property is being acquired by a government or tax-exempt entity.

(7) Within 30 days after the date the notification required under subsection (3) of this section is mailed, a taxpayer intending to implement a remediation plan as defined in ORS 308A.053 on the disqualified land that is the subject of the notification must notify the assessor in writing of the taxpayer’s intention to seek certification for the remediation plan. [1999 c.314 §39; 2003 c.454 §38; 2003 c.539 §18; 2003 c.621 §89; 2007 c.809 §12; 2009 c.776 §7] 308A.721 [1999 c.314 §40; repealed by 2003 c.454 §81 and 2003 c.621 §49] (Change of Special Assessment)

308A.724 Application for change of special assessment following disqualification; time for meeting farm use income requirements; application due dates; limitation on special assessments for disqualified wildlife habitat and conservation easement land. (1)(a) In order for additional taxes imposed under ORS 308A.703 to be deferred under ORS 308A.706 (1)(d) (relating to change in special assessment), the owner must file an application or claim for classification under another special assessment law. (b) If the disqualification is effective prior to July 1 in any year, the owner shall file the required claim or application on or before August 1 of that year. (c) If the disqualification is effective on or after July 1 in any year, the county taxing authorities shall continue the classification on the current assessment and tax rolls, and the owner shall file the required claim or application in the next calendar year in accordance with the laws governing the particular special assessment program.

(2) If an owner of land disqualified under one of the special assessment laws listed in ORS 308A.706 (1)(d) seeks to qualify for farm use special assessment of nonexclusive farm use zone farmland under ORS 308A.068, the owner shall have five years, beginning with the first year in which application is made under this section, to qualify for the two-year farm use requirement of ORS 308A.068 and the income requirement under ORS 308A.071.

(3) Notwithstanding subsection (1) of this section, an owner may make application under this section at any time within 30 days of the date notice of disqualification is sent by the assessor under ORS 308A.718.

(4) Notwithstanding subsections (1) to (3) of this section: (a) An owner of land disqualified from wildlife habitat special assessment under ORS 308A.430 that was previously subject to ORS 215.236 (5), except for conservation easement special assessment, may not apply for another special assessment under this section without first satisfying the requirements of ORS 215.236 (5); and (b) An owner of land disqualified from conservation easement special assessment under ORS 308A.465, except for wildlife habitat special assessment, may not apply for another special assessment under this section without first satisfying the requirements of ORS 215.236 (5). [1999 c.314 §41; 2003 c.454 §40; 2003 c.539 §20; 2003 c.621 §90; 2007 c.809 §14] 308A.727 Change to open space use; additional taxes upon withdrawal; notification upon application. (1) Land specially assessed under any of the special assessment laws listed in ORS 308A.706 (1)(d) shall be changed to open space use special assessment under ORS 308A.300 to 308A.330 if: (a) Application for open space use special assessment is or has been made under ORS 308A.306; (b) The land qualifies for open space use special assessment; (c) The application for open space use special assessment is or has been approved under ORS 308A.309 and 308A.312; (d) The open space use is for a golf course open to the general public with or without payment of fee or charge; and (e) All or a portion of the land is within or is contiguous to an urban growth boundary.

(2) Land described in subsection (1) of this section shall not, upon the change from farm or forest use to open space use, be subject to any of the additional taxes ordinarily applicable when land specially assessed under one of the special assessment laws listed under ORS 308A.706 (1)(d) is disqualified, declassified or otherwise removed from such special assessment.

(3) When land that has been changed from special assessment as farm or forest land to open space use special assessment under subsections (1) and (2) of this section is later withdrawn or otherwise removed from open space use special assessment, all the provisions of ORS 308A.300 to 308A.330 shall apply except that there shall be added to the amount of additional taxes imposed under ORS 308A.318 or

308A.321 and computed under ORS 308A.312 (3), the amount of the additional taxes that, except for subsections (1) and (2) of this section, would have been added at the time of the change. However, in making the computation of the amount to be added under this subsection, the number of years specified in ORS 308A.703 shall be reduced by the number of continuous years of open space use special assessment in effect for the land pursuant to the change. At the time of the change to open space use and each year thereafter, the assessor shall determine and note upon the assessment and tax rolls the added amount of potential additional taxes, if any, that may become due under this subsection.

(4) For purposes of ORS 308A.324 and in construing any other provision of ORS 308A.300 to 308A.330, the amount of additional taxes added under subsection (3) of this section shall be treated as additional taxes imposed under ORS 308A.318 or 308A.321.

(5) Upon receipt of any application for open space use special assessment under ORS 308A.300 to 308A.330, the public official or agency shall notify the owner of the provisions of this section. [Formerly 321.795] 308A.730 Application for special assessment following acquisition of land through government exchange; amount of additional taxes following disqualification. (1) If land specially valued under ORS 308A.062, 308A.068, 321.257 to 321.390, 321.700 to 321.754 or 321.805 to 321.855 is acquired by a governmental agency or body as a result of an exchange of the land for land of approximately equal value held by the governmental agency or body and the land acquired from the governmental agency or body is not farm use land located within an exclusive farm use zone or is not land, the highest and best use of which is the growing and harvesting of trees of a marketable species, the owner shall make application for special valuation as farm or forest land in the manner provided under ORS 308A.077, 321.358, 321.706 or 321.839, whichever is applicable, as follows: (a) If the exchange takes place prior to July 1, the owner shall file the application on or before August 1. (b) If the exchange takes place on or after July 1, the owner shall file the application on or before April 1 of the following year.

(2) Failure to file an application as required under this section, or failure to otherwise meet the qualification for special valuation under the special assessment law for which application is made shall disqualify the land under ORS 308A.703. However, the amount of additional taxes imposed upon the disqualification under this subsection shall be equal to those that would have been imposed against the land transferred to the governmental agency or body on account of the exchange were it not for ORS 308A.706 (1)(b).

(3) If an application filed under this section is for classification for farm use special assessment under ORS 308A.068, the owner shall have five years beginning with the first year of classification to meet the income requirements under ORS 308.372 and need not meet the two-year farm use requirements of ORS 308A.068.

(4) This section does not apply to an exchange of forestland to which ORS 308A.706 (1)(b) (relating to governmental exchange) applies. [Formerly 308.373; 2003 c.454 §§42,44; 2003 c.621 §91] 308A.733 Withdrawal of change of special assessment application. (1) Where any property has been granted special assessment for the purposes of property taxation under any of the special assessment laws listed in subsection (2) of this section, and the owner or other qualified person applies for a change in the classification under another special assessment law, the applicant shall have 30 days thereafter within which to withdraw the application, by giving written notice to the public official or agency to whom the applicant applied for the change in classification. If no notice of withdrawal is given by the applicant, the application shall be acted upon and the change in classification made, as otherwise provided by law.

(2) This section applies to the following special assessment laws: (a) ORS 308A.050 to 308A.128 (relating to special assessment at value for farm use). (b) ORS 321.257 to 321.390 (relating to special assessment as designated forestland in western Oregon). (c) ORS 321.805 to 321.855 (relating to special assessment as designated forestland in eastern Oregon). (d) ORS 321.700 to 321.754 (relating to special assessment as small tract forestland). (e) ORS 308A.300 to 308A.330 (relating to classification as open space land). (f) ORS 308A.350 to 308A.383 (relating to designation as riparian land). (g) ORS 308A.403 to 308A.430 (relating to special assessment as wildlife habitat). (h) ORS 308A.450 to 308A.465 (relating to special assessment as conservation easement). [Formerly 308.025; 2003 c.454 §§46,48; 2003 c.621 §92; 2007 c.809 §17] (Conservation Management; Effect on Disqualification) 308A.740 Legislative findings and declarations. (1) The Legislative Assembly finds that it is in the interests of the people of this state that certain private lands be managed in a sustainable manner for the purpose of maintaining the long-term ecological, economic and social values that these lands provide.

(2) The Legislative Assembly declares that it is the policy of this state to encourage landowners to manage private lands in a sustainable manner through tax policy, land use planning, education and technical and financial incentives.

(3) The Legislative Assembly further declares that it is the policy of this state not to impose additional taxes on property, commodities or income if a landowner voluntarily forgoes, limits or postpones economic uses of private land for conservation purposes.

(4) As used in this section, “conservation” means the management of land, water and natural resources for the purpose of meeting human and ecological needs in a sustainable manner. [2001 c.708 §2] 308A.743 Disqualification limited when land subject to conservation and management plan, conservation easement or deed restriction; procedural requirements. (1) Land that is specially assessed under ORS 308A.050 to 308A.128, 308A.300 to 308A.330, 308A.403 to 308A.430, 308A.450 to 308A.465, 321.257 to 321.390, 321.700 to 321.754 or 321.805 to 321.855, or land that is exempt from property tax under ORS 308A.350 to 308A.383, may not be disqualified from the special assessment or exemption, and may not be subject to additional taxes under ORS 308A.700 to 308A.733 or other law, if the property owner has: (a) Entered into a wildlife habitat conservation and management plan, as described in ORS 308A.403 to 308A.430, approved by the State Department of Fish and Wildlife; or (b) Executed a conservation easement, as defined in ORS 271.715, or a deed restriction and the land: (A) Is managed in compliance with the conservation easement or deed restriction; and (B) Continues to meet the requirements for special assessment or exemption. The existence of the conservation easement or deed restriction may not cause the disqualification of the land from special assessment or exemption or preclude the disqualification of the land from special assessment or exemption for some other reason.

(2) A property owner who executes a conservation easement may convey the easement to a land trust or other qualified entity without a loss of benefits under this section.

(3) In order for land to be subject to this section: (a) The conservation easement, deed restriction or wildlife habitat conservation and management plan must be recorded in the records of the clerk of the county in which the land is located; and

(b) A copy of the conservation easement, deed restriction or wildlife habitat conservation and management plan, along with the property tax account number for the land, must be sent to the county assessor. [2001 c.708 §3; 2003 c.454 §§50,52; 2003 c.539 §35; 2003 c.621 §93; 2007 c.809 §15] Chapter 376 — Ways of Necessity; Special Ways; Pedestrian Malls 2009 EDITION

WAYS OF NECESSITY; SPECIAL WAYS; MALLS HIGHWAYS, ROADS, BRIDGES AND FERRIES GENERAL PROVISIONS 376.005

“County court” defined

STATUTORY WAYS OF NECESSITY 376.150

Definitions for ORS 376.150 to 376.200

376.155

Petition to establish way of necessity; contents; requirements

376.157

Continuation of preexisting sewer service

376.160

Notice to landowners; investigation of proposed way; report to county governing body

376.165

Deposit to cover county expenses

376.170

Filing of answer by landowner; reply to answer by petitioner

376.175

Order granting or denying way of necessity; contents; liability for costs; appeal

376.180

Conditions for way of necessity

376.185

Way of necessity over public land

376.190

Responsibility for maintenance of way of necessity; alteration limited

376.195

Subsequent partition of land receiving way of necessity requires government approval

376.197

Way of necessity to historic cemeteries

376.200

Transfer of jurisdiction over establishment of ways of necessity to circuit court; local court rules; procedure after transfer

FOREST ROADS 376.305

Policy and purpose of Act

376.310

Definitions for ORS 376.305 to 376.390

376.315

Application to become forest road contractor

376.320

Hearing on application; posting, publishing, serving and proof of notice

376.325

Signing and contents of notice

376.330

Order approving application; service of order

376.335

Contracting with applicant

376.340

Bond and insurance of forest road contractor

376.345

Contents of forest road contract

376.350

Filing copies of forest road contract

376.355

Limitations on using motor vehicles to transport forest products over forest road; regulations and permits for crossing state highways

376.360

Signs giving notice of certain vehicles on forest road

376.365

Persons having rights under forest road law and contract

376.370

Supervision over forest road work by roadmaster

376.375

Contract liability of forest road contractor

376.380

Assignment of forest road contract

376.385

Paying over fines, penalties and forfeited security deposits to county treasurer

376.390

Payment of taxes and fees by forest road contractor

CONDEMNATION OF LAND FOR FOREST PRODUCT WAYS 376.505

Filing statement of route and bond; right of entry

376.507

Definition of “transportation of the raw products of the forest”

376.510

Right to acquire and condemn land for logging road

376.515

Property subject to appropriation

376.520

Condemnation procedure

376.525

Assessment of damages

376.530

Fencing appropriated land

376.535

Use of appropriated property; reversion on disuse

376.540

Logging roads

MISCELLANEOUS WAYS 376.620

Skyline, logging line, ferry skyline or cable footbridge; authorization and regulation by land board

PEDESTRIAN MALLS 376.705

Definitions for ORS 376.705 to 376.825

376.710

Legislative findings; short title

376.715

Construction of Pedestrian Mall Law; validity of proceedings

376.720

Powers of city with respect to pedestrian mall

376.725

Resolution for establishment of mall; general contents of resolution

376.730

Description of proposed mall and intersecting streets

376.735

Contents of resolution when landowners to be paid for damages by assessments on benefited property

376.740

Contents of resolution when improvements are proposed

376.745

Resolution to be published and posted

376.750

Copies of resolution to be mailed to affected persons

376.755

Objections to mall; claims for damages; right to damages not created

376.760

Effect of objections by landowners

376.765

Changing boundaries when assessments to be levied under ORS 376.735; notice; objections

376.770

Allowing claims for damages; payment

376.775

Hearing objections, claims and protests; waiver; decision; continuations

376.780

Resolution after hearing; fixing boundaries

376.785

Judicial proceedings to determine unsettled claims for damages; satisfaction prior to traffic prohibition

376.790

Assessment of damages and other expenses against benefited lands

376.795

Manner of assessment; sale of bonds representing unpaid assessments

376.800

Special fund for payment of damages and expenses; use of surplus

376.805

Payment of damages and other expenses from sources other than assessments and bonds

376.810

Ordinance establishing mall; contents

376.815

Adoption of ordinance; payment of claims, damages and compensation

376.820

Jurisdiction over mall; abandonment or modification

376.825

Improvements on mall; payment of costs

PENALTIES 376.990

Penalties

GENERAL PROVISIONS 376.005 “County court” defined. As used in this chapter, unless the context requires otherwise, “county court” means the governing body of the county, whether it is a county court or board of county commissioners.

376.105 [Repealed by 1979 c.862 §12] 376.110 [Repealed by 1979 c.862 §12] 376.115 [Repealed by 1979 c.862 §12] 376.120 [Repealed by 1979 c.862 §12] 376.125 [Repealed by 1979 c.862 §12]

376.130 [Repealed by 1979 c.862 §12] 376.135 [Repealed by 1979 c.862 §12] 376.140 [Repealed by 1971 c.743 §432] 376.145 [Repealed by 1979 c.862 §12] STATUTORY WAYS OF NECESSITY 376.150 Definitions for ORS 376.150 to 376.200. As used in ORS 376.150 to 376.200: (1) “Public road” means the entire right of way of any road over which the public has the right of use or any right of way held by the state or a political subdivision of the state for road purposes that is not open for public use.

(2) “Way of necessity” means: (a) A road established under ORS 376.150 to 376.200 to provide motor vehicle access from a public road to land that would otherwise have no motor vehicle access; (b) A route established under ORS 376.150 to 376.200 to provide utility service access from an existing service location to a service point that would otherwise have no utility service access; or (c) A route established under ORS 376.150 to 376.200 to provide a continuation of preexisting sewer service to land that has access to a public road. [1979 c.862 §1; 1989 c.674 §1; 2009 c.318 §1] 376.155 Petition to establish way of necessity; contents; requirements. (1) To establish a way of necessity under ORS 376.150 to 376.200, a landowner shall file a petition with the governing body of the county in which the land is located.

(2) A petition filed under this section shall contain a drawing and a narrative statement that contain all of the following information: (a) The location and legal description of the property to be served by the proposed way of necessity. (b) The location of all public roads located in the vicinity of the property to be served by the proposed way of necessity that are capable of being used to provide access to the property. The petition shall include the location of public roads that are not open for public use. (c) A specific proposed location for the proposed way of necessity. (d) Evidence showing the necessity for the establishment of a way of necessity. (e) Evidence that either: (A) The proposed way of necessity does not connect to a public road that has access rights acquired and limited by the state or county; or (B) If the public road proposed for access by way of necessity has the limited access rights, the state or county is willing to grant permission to connect the proposed way of necessity to the public road. (f) Evidence that the proposed way of necessity may be connected to the public road safely. (g) Evidence that the specific location proposed for the way of necessity is the nearest practicable point for connection to a way of necessity to a public road. (h) The names and addresses of the persons owning the land across which the way of necessity could be located. (i) The petitioner’s proposal for the amount of compensation to persons owning land across which the way of necessity is proposed to be located.

(j) Evidence that the petitioner does not have an existing easement or right to an easement to provide access to a public road. (k) Evidence that the petitioner does not have any enforceable access to a public road.

(L) If the petition is to establish a way of necessity described in ORS 376.150 (2)(c), evidence that: (A) A publicly owned sewer line does not exist in the portion of any public road adjacent to the land; and (B) The land is located in a jurisdiction that has adopted and implemented a public sewer extension program designed to make public sewers available to land lacking access to a public sewer line in the portion of a public road adjacent to the land. [1979 c.862 §2; 1991 c.936 §2; 2009 c.318 §2] 376.157 Continuation of preexisting sewer service. (1) A way of necessity that provides a continuation of preexisting sewer service to land that has access to a public road: (a) Terminates six months after a local government, as defined in ORS 174.116, having jurisdiction over the affected land issues a notice to affected property owners declaring the completion of a public sewer line that provides direct access to the land. (b) May not be approved in circumstances where the abandonment of an existing private sewer line connection is necessitated by permitted development or redevelopment.

(2) Compensation paid by the owner of the benefited land to the owner of the land burdened by the way of necessity must reflect the temporary duration of ways of necessity approved under ORS 376.175. [2009 c.318 §4] 376.160 Notice to landowners; investigation of proposed way; report to county governing body. (1) Upon receipt of a petition for a way of necessity filed under ORS 376.155, a county governing body shall: (a) Provide for service of the petition on all persons owning land across which the way of necessity could be located; and (b) Direct the county engineer, county surveyor or other persons appointed by the governing body to investigate the proposed way of necessity and to submit a written report to the county governing body.

(2) The report under subsection (1) of this section shall include: (a) Possible alternate routes for ways of necessity to the property; (b) A determination of whether the proposed way of necessity meets the requirements under ORS 376.150 to 376.200; (c) The reasonableness of the way of necessity proposed in the petition; and (d) A recommendation for a specific location and width for a way of necessity.

(3) Upon receipt of the report under subsection (2) of this section, the county governing body shall: (a) Provide a copy of the report to the petitioner; and (b) Serve a copy of the petition and report on all persons owning land across which the way of necessity is proposed to be located under the report or the petition.

(4) Service of the petition and report under this section shall be accomplished in the manner provided for service of summons in an action at law. If the report includes a recommendation for a route different than the route proposed in the petition, service on the affected parties shall include a copy of the petition. [1979 c.862 §3] 376.165 Deposit to cover county expenses. Upon receipt of a petition for a way of necessity filed under ORS 376.155, a county governing body may require the petitioner to deposit with the county an amount of money or other security to use for payment of county expenses incurred in the procedure for establishing the way of necessity or to assure that the expenses will be paid. If a deposit of money is required by the

governing body, the deposit may be used to pay expenses and shall be deducted from the expenses ordered to be paid under ORS 376.175. [1979 c.862 §3a] 376.170 Filing of answer by landowner; reply to answer by petitioner. (1) Any person owning land across which a way of necessity is proposed to be established under ORS 376.150 to 376.200 may file an answer controverting any matter in the petition or report and alleging any new matter relevant to the proceedings. An answer filed under this subsection must be filed within 30 days after receipt of service of the petition and report. An answer shall be filed with the county governing body. The county governing body shall provide for service of the answer upon the petitioner in the manner provided for service of summons in an action at law.

(2) If an answer is filed under this section, the petitioner may file a reply controverting any matter presented in the answer. A reply filed under this section must be filed within 10 days after receipt of service of the answer by the petitioner. A reply shall be filed with the county governing body. The county governing body shall provide for service of the reply upon the person filing the answer in the manner provided for service of summons in an action at law. [1979 c.862 §4] 376.175 Order granting or denying way of necessity; contents; liability for costs; appeal. (1) Upon consideration of the matters and issues presented under ORS 376.150 to 376.200, the county governing body shall determine whether or not a need has been demonstrated for the granting of a way of necessity under ORS 376.150 to 376.200 and shall enter an order granting or denying the way of necessity.

(2) Any order entered under this section shall: (a) State whether the way of necessity is granted or denied; (b) Declare as established any way of necessity that is granted; (c) Describe the exact location and width of any way of necessity established; (d) Describe those uses that are permitted on any way of necessity established; (e) Direct the petitioner to pay costs and reasonable attorney fees incurred by each owner of land whose land was subject to the petitioner’s action for a way of necessity under ORS 376.150 to 376.200; (f) Establish the amount of compensation due to any owner of land across which any way of necessity has been established and direct the petitioner to pay the compensation; and (g) Establish the costs incurred by the county in the procedures for the way of necessity under ORS 376.150 to 376.200 and direct the petitioner to reimburse the county for those costs not already paid by petitioner.

(3) An order entered under subsections (1) and (2) of this section to provide for utility service, as set forth in ORS 376.150 (2)(b), shall conform to affected utility policy and standards.

(4) A petitioner shall pay any costs the petitioner is directed to pay under an order issued under this section within 60 days after entry of the order. The petitioner is liable for any costs not paid within the time established in this subsection. If more than one landowner joins in a petition for a way of necessity under ORS 376.155, every petitioner granted use of the way of necessity shall be jointly and severally liable for any costs ordered to be paid.

(5) Any party to the action for a way of necessity may contest any part of the order of the county governing body in an appeal filed with the circuit court within 30 days after entry of the order of the county governing body. [1979 c.862 §5; 1989 c.674 §2; 1991 c.936 §3] 376.180 Conditions for way of necessity. A way of necessity established under ORS 376.150 to 376.200 shall: (1) Be located to cause the least possible damage to land across which it is located;

(2) Be fenced or gated if required by the county governing body; (3) Not be connected to a public road in a location or manner that creates a traffic hazard or decreases the safety on the public road; (4) Be established only for uses in connection with the property for which the way of necessity is sought; (5) Not be subject to any use that is not described in the order establishing the way of necessity; (6) Not exceed 30 feet in width unless authorized by the county governing body for engineering purposes; (7) Not be connected to a public road where the rights of access to the road have been acquired by the state or a county unless the state or governing body of the county grants permission for the connection; (8) Not be established if the property for which the way of necessity is sought has an existing enforceable access to a public road; (9) Not be established if the petitioner for the way of necessity could acquire an easement for access to a public road through other legal action; (10) Not be established for land that has been subdivided or partitioned in violation of ORS chapter 92; (11) Not be established over land owned by the state or a political subdivision of the state unless permission is granted for the way of necessity under ORS 376.185; and (12) Not be established for any land if the owner of the land had knowingly eliminated access to all public roads from the land by the sale of other land owned by the landowner. [1979 c.862 §6; 1991 c.936 §5; 1993 c.18 §91] 376.185 Way of necessity over public land. (1) A way of necessity may not be established under ORS 376.150 to 376.200 across land owned by the state or a political subdivision of the state without the consent of the governing body of the political subdivision or of the appropriate agency of the state. The governing body of a political subdivision of this state and any agency of the state shall not unreasonably withhold consent required under this subsection.

(2) Whenever a way of necessity is sought over land owned by the state or a political subdivision of the state, a copy of the petition for the way of necessity, of the county report and of the notice of hearing shall be forwarded by certified mail to: (a) If the political subdivision owns the land, the governing body of the political subdivision. (b) If the state owns the land, to the Department of State Lands and to each agency of the state that has use or control of the land. [1979 c.862 §7; 1993 c.98 §17] 376.190 Responsibility for maintenance of way of necessity; alteration limited. (1) A way of necessity that is established under ORS 376.150 to 376.200 shall be maintained and kept passable by the person owning the land for which the way of necessity is established. This subsection does not require the person to provide for maintenance of the way of necessity for uses or persons not specifically provided in the order establishing the way of necessity.

(2) A way of necessity established under ORS 376.150 to 376.200 shall not be altered or vacated except by the governing body of the county in which it is located and in a manner provided by law for the alteration or vacation of a public road.

(3) No county shall be required to work, improve, maintain or repair a way of necessity. [1979 c.862 §8; 1991 c.936 §5] 376.195 Subsequent partition of land receiving way of necessity requires government approval. Land for which a way of necessity is established under ORS 376.150 to 376.200 shall not be

subsequently partitioned without the approval of the city or county governing body which has partitioning authority. [1979 c.862 §9] 376.197 Way of necessity to historic cemeteries. (1) Notwithstanding any other provision of ORS 376.150 to 376.200, a way of necessity for nonmotorized conveyance is established to any parcel that meets the criteria described in ORS 308A.125.

(2)(a) Notwithstanding any other provision of ORS 376.150 to 376.200, a way of necessity is established to a historic cemetery listed in accordance with the provisions of ORS 97.782. (b) The way of necessity established under paragraph (a) of this subsection shall: (A) Be designated by the owner of the land over which the way of necessity passes; and (B) Be accessible, at reasonable times to be designated by the property owner for visitation, maintenance or research purposes, to the owner of the historic cemetery, to descendants of those persons buried in the historic cemetery and to persons interested in historical research. The reasonableness of the times designated by the property owner shall be based on the need of the property owner to make use of the property and the need of the historic cemetery visitors for family visitation, maintenance or research access to the historic cemetery. [1999 c.314 §46; 2001 c.364 §1; 2003 c.173 §9] 376.200 Transfer of jurisdiction over establishment of ways of necessity to circuit court; local court rules; procedure after transfer. (1) Notwithstanding any provision of ORS 376.150 to 376.200, a county governing body may adopt an ordinance removing the county governing body from jurisdiction over the establishment of ways of necessity under ORS 376.150 to 376.200.

(2) If the county governing body adopts an ordinance described in subsection (1) of this section, the circuit court of that county shall have jurisdiction of the establishment of ways of necessity for that county.

Except as otherwise provided in this section, a court with jurisdiction of the establishment of ways of necessity under this section shall follow the procedures for establishment of a way of necessity provided under ORS 376.150 to 376.200. The court may adopt local court rules to supplement the procedures provided under ORS 376.150 to 376.200.

(3) Notwithstanding ORS 376.175, if jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, an appeal from the decision of the court shall be to the Court of Appeals.

(4) Notwithstanding ORS 376.160 (1), if jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, upon filing a petition the petitioner shall: (a) Provide for service of the petition on all persons owning land across which the way of necessity could be located; and (b) Post a bond or security deposit with the court clerk in an amount required by the court to pay for the cost of the investigation and report under subsection (5) of this section.

(5) If jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, upon receipt of a petition the court shall appoint a person to investigate the proposed way of necessity and submit a written report to the court and the petitioner. The cost of the investigation and report shall be charged against the bond or security deposit posted under subsection (4) of this section. If the bond or security deposit is more than the actual cost of the investigation and report, the difference shall be refunded to the petitioner. If the bond or security deposit is less than the actual cost of the investigation and report, the petitioner shall pay to the county governing body the amount of the deficiency. A judgment of the court shall not become final until the full cost of the investigation and report has been paid.

(6) Notwithstanding ORS 376.160 (3), if jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, upon receipt of the report under subsection (5) of this section,

the petitioner shall serve a copy of the petition and report on all persons owning land across which the way of necessity is proposed to be located under the petition or report. [1979 c.862 §10; 1995 c.265 §1] 376.205 [Repealed by 1981 c.153 §79] 376.210 [Repealed by 1981 c.153 §79] 376.215 [Repealed by 1981 c.153 §79] 376.220 [Repealed by 1981 c.153 §79] FOREST ROADS 376.305 Policy and purpose of Act. (1) It is declared that a substantial part of the forest resources of this state are now left unharvested and are lost by reason of the excessive cost of transportation thereof to market; that substantial forest areas can be economically managed, harvested and the products thereof transported to market only by use of certain county and public roads which the counties of this state are unable to construct, improve and maintain so as to enable their safe and economical use for such purposes.

(2) It is declared to be the public policy of this state to conserve and develop its natural resources, to encourage and facilitate the transportation of products of the forest and the salvage and utilization of such products now being wasted, and to develop and improve certain county and other public roads for such purposes.

376.310 Definitions for ORS 376.305 to 376.390. As used in ORS 376.305 to 376.390: (1) “Forest road” means any county or public road, or part thereof, outside the corporate limits of a city, which is within or extends into or toward a mountainous or timbered area, and which is under the control and supervision of a county court of this state.

(2) “Contract forest road” means a forest road improved or maintained pursuant to a contract made under ORS 376.305 to 376.390.

(3) “Logging operator” means any person having the right to cut and remove timber or forest products in this state, or who is engaged or desirous of engaging in this state in the transportation of forest products, by motor vehicle, to market or processing plant.

(4) “Forest road contractor” means a logging operator who has entered into a contract under ORS 376.305 to 376.390 to improve or maintain, or improve and maintain, a contract forest road.

(5) “Motor vehicle” includes any motor vehicle with or without a trailer or semitrailer.

(6) “Person” means any person, firm or corporation, or group or combination thereof.

376.315 Application to become forest road contractor. (1) Any logging operator desiring to become a forest road contractor may make application to the county court having jurisdiction and control over a forest road, to improve or maintain, or improve and maintain, such road.

(2) The application shall set forth: (a) A description of the road and the termini thereof. (b) If the applicant proposes to improve the road, a general statement of the improvements proposed to be made. (c) If the applicant proposes to maintain the road, a general description of the maintenance work proposed to be done.

(3) The application shall be verified and signed by the applicant and filed in the office of the county clerk, together with an affidavit showing service thereof, either personally, by registered mail or by certified mail with return receipt, on the Public Utility Commission and on the Department of Transportation.

[Amended by 1991 c.249 §29] 376.320 Hearing on application; posting, publishing, serving and proof of notice. (1) The county court shall: (a) Fix a date for hearing the application. (b) Cause a notice of the hearing to be posted at the place where the county court sessions are held and at three public places in the vicinity of the forest road specified in the application, for at least 30 days immediately prior to the date set for hearing. (c) Cause notice of the hearing to be published in a newspaper published in the county and having general circulation therein, but if there is no such newspaper published in the county, then in any newspaper having general circulation in the county, for not less than once a week for two weeks immediately prior to the date set for the hearing.

(2) A copy of the notice shall be served personally, by registered mail or by certified mail with return receipt on the Public Utility Commission and on the Department of Transportation at least 15 days prior to the date set for hearing.

(3) Proof that the notice has been posted and served shall be made by affidavit and filed in the proceeding. [Amended by 1991 c.249 §30] 376.325 Signing and contents of notice. The notice of hearing shall be signed by the county clerk and shall state: (1) The date the application was filed.

(2) The name of the applicant.

(3) The description of the forest road proposed to be improved or maintained, or both.

(4) The proposal for improvement or maintenance, or both, as set forth in the application.

(5) The time and place of hearing.

(6) That all persons interested may appear and be heard for or against the application.

376.330 Order approving application; service of order. After the hearing, the county court may, in its discretion, approve or disapprove the application. If the application is approved, a copy of the approving order together with a copy of the findings of the county court shall be served by the county clerk by registered mail or by certified mail with return receipt within 10 days after the order is made, upon the Public Utility Commission and the Department of Transportation. The county clerk shall file in the proceeding the certificate of such service. [Amended by 1991 c.249 §31] 376.335 Contracting with applicant. Any county court that has approved any such application may contract with the applicant, in accordance with ORS 376.305 to 376.390, and without advertisement for bids, for the improvement or maintenance, or both, of the forest road described in the application. The terms of the contract as to specifications of the work shall not be limited by the proposal for improvement or maintenance as contained in the application.

376.340 Bond and insurance of forest road contractor. (1) Before execution of any contract under ORS 376.305 to 376.390, the forest road contractor shall execute and file with the county clerk a performance bond in an amount to be fixed by the county court.

(2) The forest road contractor shall furnish, and have in force during the entire term of the contract, public liability and property damage insurance covering the operation and the operation of agents and subcontractors of the forest road contractor in the improvement, maintenance and use of the contract forest road in any amount that may be fixed in the contract, but the public liability insurance shall be for an amount of not less than $50,000 for bodily injuries to or death of one person and, subject to that minimum amount for each person, not less than $100,000 for bodily injuries to or death of more than one person in any one accident, and the property damage insurance shall be for an amount of not less than $5,000 for injury to or destruction of property in any one accident. [Amended by 1953 c.370 §5; 1957 c.650 §14; 1983 c.740 §121] 376.345 Contents of forest road contract. Every contract entered into pursuant to ORS 376.305 to 376.390 shall: (1) Describe the road and the termini thereof.

(2) Specify the width of the roadbed and contain reasonably complete specifications, prepared by the county roadmaster or other competent person, of the improvement and maintenance work to be done.

(3) Specify the time within which the improvement work other than maintenance shall be completed.

(4) Contain such provisions pertaining to maintenance as may be agreed upon by the parties.

(5) Obligate the forest road contractor to furnish all labor and materials required for the work the contractor has contracted to do.

(6) Provide that the same rights and privileges on the contract forest road as are available to the forest road contractor are available to any other logging operator: (a) Upon approval by the county court; (b) Upon the logging operator furnishing insurance as provided in ORS 376.340; (c) Upon the logging operator reimbursing the forest road contractor for an equitable portion of the construction costs, if any, borne by the forest road contractor; and (d) Upon the equitable sharing of the logging operator with the forest road contractor in the costs of maintaining the road, provision being made for either the specific rates therefor per 1,000 feet board measure of timber or equivalent of forest products transported over the road or, in the alternative, a formula for determining such rates with a provision for arbitration under ORS 36.600 to 36.740, in the event of disagreement between the forest road contractor and another logging operator respecting the application of the formula. [Amended by 2003 c.598 §41] 376.350 Filing copies of forest road contract. One copy of the contract shall be filed with the county clerk, one with the Public Utility Commission and one with the Department of Transportation.

376.355 Limitations on using motor vehicles to transport forest products over forest road; regulations and permits for crossing state highways. (1) During such term as may be specified in the contract, the forest road contractor and agents and subcontractors of the forest road contractor have the right and privilege to: (a) Use and operate over the contract forest road, motor vehicles limited as to wheel base, weights, dimensions, tire widths and tire surfaces only as specified in the contract. (b) Transport forest products upon such motor vehicles over the road, with loads limited as to gross weights, axle load weights, tire load weights, and load dimensions and heights only as specified in the contract.

(2) Whenever any forest road contractor operates any motor vehicle having a size or weight prohibited by or in excess of the limitations contained in any law pertaining to state highways, on a contract forest road

which crosses a state highway, the Department of Transportation may adopt rules and regulations and issue permits for said motor vehicle to cross said state highway in the use of such contract forest road. Such rules and regulations and such permits may include, but need not be limited to, provisions for reinforcing and strengthening the highway and for the installation of signs and signals, and such other requirements as the Department of Transportation may deem necessary for the preservation of the highway and for the safety and best interest of the public. All construction and installations under such permits shall be under the supervision of the Department of Transportation and at the expense of the forest road contractor. [Amended by 1953 c.370 §5] 376.360 Signs giving notice of certain vehicles on forest road. In the event the forest road contractor is authorized by the provisions of the contract to operate vehicles or combinations of vehicles, including any load thereon, of any size or description not otherwise authorized by law, the county court shall erect and maintain signs giving notice thereof in a conspicuous manner and placed at each end of the forest road or section of forest road covered by the contract, and at such other places as may be necessary to inform and warn the public.

376.365 Persons having rights under forest road law and contract. During the term of the forest road contract, all exemptions, privileges and rights granted or provided for by ORS 376.305 to 376.390, and by the provisions of the contract made pursuant thereto, are limited to the forest road contractor, the agents and subcontractors of the forest road contractor, and to such other logging operators as may meet the provisions required to be included in the contract by ORS 376.345 (6). This section does not, however, prevent the use of the forest contract road by the general public. [Amended by 1953 c.370 §5] 376.370 Supervision over forest road work by roadmaster. (1) All improvement and maintenance work done pursuant to a forest road contract shall be under the supervision of the county roadmaster of the contracting county.

(2) On request of the forest road contractor, the county roadmaster shall inspect any completed segment of the contract forest road, and if the county roadmaster determines the work to be in compliance with the contract the county roadmaster shall approve the completion in writing, deliver a copy of the approval to the contractor and file a copy with the county clerk. Except in case of fraud, the approval of the county roadmaster shall be conclusive proof that the work approved is in compliance with the contract.

376.375 Contract liability of forest road contractor. The liability of any forest road contractor for failure to improve or maintain the contract forest road or any bridge or culvert thereon in accordance with the contract is limited to the contracting county.

376.380 Assignment of forest road contract. Any forest road contractor may assign the forest road contract in its entirety, with approval of the contracting county court and not otherwise. A copy of each assignment shall be filed with the county clerk. A copy of the assignment together with a copy of the resolution of the county court approving the assignment shall be delivered or sent by registered mail or by certified mail with return receipt to the Public Utility Commission and the Department of Transportation.

[Amended by 1991 c.249 §32] 376.385 Paying over fines, penalties and forfeited security deposits to county treasurer. All fines and penalties collected, or security deposits forfeited, under ORS 376.990, shall be paid by the court or judicial officer collecting the same to the county treasurer of the county within which the violation occurred.

The county treasurer shall credit moneys so received to the county road fund of the county. [Amended by 1991 c.67 §92; 1999 c.1051 §270; 2007 c.679 §4] 376.390 Payment of taxes and fees by forest road contractor. Nothing in ORS 376.305 to 376.390 relieves the forest road contractor or agents or subcontractors of the forest road contractor from payment of any taxes or fees prescribed by law, except that, with respect to a motor vehicle operated upon a contract forest road by a forest road contractor, or agent or subcontractor of the forest road contractor, the road tax mileage fees prescribed by ORS 825.474, 825.476, 825.480 and 825.484 shall be assessed upon the declared combined weight of the motor vehicle or 76,000 pounds, whichever is less. [Amended by 1953 c.370 §5] CONDEMNATION OF LAND FOR FOREST PRODUCT WAYS 376.505 Filing statement of route and bond; right of entry. (1) Any person, firm or corporation that requires land for transportation of the raw products of the forest may file with the county clerk of the county in which the land is located: (a) A statement showing the approximate route of any proposed road or railway and a general description of the tract that the road or railway may travel. (b) At the time of filing the statement, a bond in such sum as may be fixed by order of the county court, conditioned upon the payment to the owners of the lands required for the road or railway of any and all damage that the owners may sustain by reason of entry upon the land for the survey or location of the road or way.

(2) When the bond has been filed, such person, firm or corporation shall have the right to enter upon the tract for the purpose of examining, locating or surveying the line of the road or logging railroad. [Amended by 2003 c.14 §162] 376.507 Definition of “transportation of the raw products of the forest.” As used in ORS 376.505 to 376.540 “transportation of the raw products of the forest” includes ingress to and egress from forestland solely for the purpose of management, protection, growth and conservation of forest crops by thinning, reseeding, brush control and other forest management operations. [1975 c.723 §2] 376.510 Right to acquire and condemn land for logging road. Any such person, firm or corporation has the right to acquire and own all lands reasonably necessary for the logging road or way to promote the transportation of logs or the raw products of the forest. If such person, firm or corporation is unable to agree with the owners of the land over which the logging railroad is necessary, as to the amount of compensation to be paid therefor, such person, firm or corporation has the right to condemn so much of the land necessary for the logging railroad, road or ways as may be necessary for the use thereof, and may maintain the suit for condemnation in the circuit court of the county wherein the lands are located. No land shall be taken until compensation has been assessed and tendered.

376.515 Property subject to appropriation. No more lands shall be appropriated under ORS 376.505 to 376.540 than are reasonably necessary for the purposes specified therein. No building nor the land upon which it is situated, which is exempt from execution as a homestead under the laws of the state, nor any land belonging to the homestead owner within 100 feet of the building, shall be so appropriated.

376.520 Condemnation procedure. Procedure for condemnation under ORS 376.505 to 376.540 shall be as set forth in ORS chapter 35. [Amended by 1971 c.741 §23]

376.525 Assessment of damages. In assessing damages under ORS 376.510, full compensation shall be allowed for the value of the land appropriated and all other injury and damage which the owner may suffer by reason of the appropriation of the land.

376.530 Fencing appropriated land. The person, firm or corporation appropriating land under ORS 376.505 to 376.540, and the successors and assigns of the person, firm or corporation, shall fence with a good and suitable fence both sides of the lands appropriated, in the event the lands are used for agricultural purposes, and shall take such other means and precautions reasonably necessary to protect the adjoining lands not appropriated from damage or injury by reason of the use of the lands appropriated.

376.535 Use of appropriated property; reversion on disuse. (1) Any property acquired under ORS 376.505 to 376.540 shall be used exclusively for the purposes set forth therein or such incidental purposes as may be necessary to the continued carrying out of such purposes.

(2) Whenever the use of property as contemplated in ORS 376.505 to 376.540 ceases for a period of two years, it shall revert to the original owner, or the heirs or assigns of the original owner, but in assessing damages the amount allowed shall not be in any manner lessened or decreased by reason of the possibility that the lands may so revert to their original owner.

(3) The limitations set out in this section shall not apply to or run against any interest acquired by the state.

376.540 Logging roads. Any logging road which is necessary for the transportation of a single tract of timber is within ORS 376.505 to 376.540, whether it is a common carrier or otherwise. Such road is not under the jurisdiction of the Department of Transportation unless the owners thereof declare it a common carrier. [Amended by 1997 c.275 §5] MISCELLANEOUS WAYS 376.605 [Amended by 1971 c.741 §26; repealed by 2001 c.388 §1] 376.610 [Repealed by 1981 c.153 §79] 376.615 [Repealed by 1981 c.153 §79] 376.620 Skyline, logging line, ferry skyline or cable footbridge; authorization and regulation by land board. (1) When authorized by the Department of State Lands, it is lawful for any person, firm or corporation to construct, maintain and operate a skyline, high lead logging line, ferry skyline or cable footbridge across any navigable river, bay, inlet or other navigable waters within the state, not inconsistent with any Act of Congress regulating the construction of bridges across navigable waters. The structures shall be so constructed as not to interfere unnecessarily with the navigation of such navigable waters.

(2) The Department of State Lands may make and enforce such regulations and restrictions as it deems necessary to carry out the purposes of this section and may make reasonable charges for any services rendered in connection therewith.

PEDESTRIAN MALLS

376.705 Definitions for ORS 376.705 to 376.825. Unless the context otherwise requires, the definitions contained in this section shall govern the construction of ORS 376.705 to 376.825.

(1) “City” includes every county, city, and city and county within this state. “The city” means the particular county, city, or city and county, acting pursuant to ORS 376.705 to 376.825.

(2) “Legislative body” means the legislative body of the city.

(3) “Street” as used in the definitions of the terms “city streets,” “mall intersection” and “intersecting streets,” defined in subsections (4), (6) and (7) of this section, means any public street, road, highway, alley, land, court, way or place of any nature open to the use of the public.

(4) “City street,” as used with regard to streets located within a city or city and county, means any street located within the city or city and county, except a freeway, state highway, or county highway. “City street,” as used with regard to streets located within a county, means any street, located within the county, except a throughway as defined in ORS 374.010 or state highway as defined in ORS 373.010.

(5) “Pedestrian mall” means one or more city streets, or portions thereof, on which vehicular traffic is or is to be restricted in whole or in part and which is or is to be used exclusively or primarily for pedestrian travel.

(6) “Mall intersection” means any intersection of a city street constituting a part of a pedestrian mall with any street, which intersection is itself part of the pedestrian mall.

(7) “Intersecting street” means any street which meets or crosses a pedestrian mall at a mall intersection but includes only those portions thereof on either side of a mall intersection which lie between the mall intersection and the first intersection of the intersecting street with a public street or highway open to vehicular traffic.

(8) “Assessment roll” means the assessment roll or rolls used by the county for purposes of city ad valorem taxes on real property.

(9) “Improvements” means the improvements referred to in ORS 376.720 (1). [1961 c.666 §2] 376.710 Legislative findings; short title. (1) The Legislative Assembly hereby finds and declares that in certain areas in cities, and particularly in retail shopping areas thereof, there is need to separate pedestrian travel from vehicular travel and that such separation is necessary to protect the public safety or otherwise to serve the public interest and convenience. The Legislative Assembly further finds and declares that such objective can, in part, be accomplished by the establishment of pedestrian malls pursuant to ORS 376.705 to 376.825.

(2) ORS 376.705 to 376.825 may be cited as the Pedestrian Mall Law of 1961. [1961 c.666 §§1,3] 376.715 Construction of Pedestrian Mall Law; validity of proceedings. (1) ORS 376.705 to 376.825 and all of their provisions shall be liberally construed to the end that their purpose may be effective.

(2) Any proceedings taken pursuant to ORS 376.705 to 376.825 shall not be held invalid for failure to comply with the provisions of ORS 376.705 to 376.825, if the acts done and proceedings taken are not invalid under the state or federal Constitution. [Enacted as part of 1961 c.666 §5] 376.720 Powers of city with respect to pedestrian mall. (1) The legislative body of a city shall have the power: (a) To establish pedestrian malls. (b) To prohibit, in whole or in part, vehicular traffic on a pedestrian mall. (c) To pay, from general funds of the city or other available moneys or from the proceeds of assessments levied on lands benefited by the establishment of a pedestrian mall, the damages, if any, allowed or awarded to any property owner by reason of the establishment of a pedestrian mall.

(d) To construct on city streets which have been or will be established as a pedestrian mall improvements of any kind or nature necessary or convenient to the operation of such city streets as a pedestrian mall, including but not limited to paving, sidewalks, curbs, gutters, sewers, drainage works, street lighting facilities, fire protection facilities, flood protection facilities, water distribution facilities, vehicular parking areas, retaining walls, landscaping, tree planting, child care facilities, display facilities, information booth, public assembly facilities and other structures, works or improvements necessary or convenient to serve members of the public using such pedestrian mall, including the reconstruction or relocation of existing city-owned works, improvements or facilities on such city streets. (e) To pay, from general funds of the city or other available moneys or from the proceeds of assessments levied on property benefited by any such improvements, the whole or any portion of the cost of such improvements. (f) To do any and all other acts necessary or convenient for the accomplishment of the purposes of ORS 376.705 to 376.825, including the power to rent, lease or license to any individual firm or corporation any portion of the pedestrian mall for service concessions, commercial uses or otherwise, providing that in any term of use exceeding 60 days, the city shall first advertise for bids therefor by publication not less than once a week for two consecutive weeks in a newspaper of general circulation in the city, making two publications thereof.

(2) The powers granted in ORS 376.705 to 376.825 to prohibit, in whole or in part, vehicular traffic on any city street shall be in addition to and not limited by the powers granted by any other law. [1961 c.666 §4; subsection (2) enacted as part of 1961 c.666 §5; 1971 c.506 §1] 376.725 Resolution for establishment of mall; general contents of resolution. When the legislative body shall determine that the public interest and convenience require the establishment of a pedestrian mall and that vehicular traffic will not be unduly inconvenienced thereby, it may adopt a resolution declaring its intention to establish such pedestrian mall. Such resolution shall contain: (1) The determination and declaration referred to above.

(2) A general description of the city streets, or portions thereof, which are proposed to be established as a pedestrian mall.

(3) A general description of the mall intersections.

(4) A general description of the intersecting streets.

(5) A statement that the legislative body proposes to adopt an ordinance prohibiting, in whole or in part, vehicular traffic on such pedestrian mall. If vehicular traffic is proposed to be prohibited only in part, the resolution shall also contain a general statement of the exceptions proposed to be made. Such exceptions may include exceptions in favor of public, emergency, utility and other classes of vehicles, may include exceptions in favor of all or certain classes of vehicles during certain days or during portions of days, and may include other exceptions of any kind or nature.

(6) A general statement of the source or sources of moneys proposed to be used to pay damages, if any, allowed or awarded to any property owner by reason of the establishment of the pedestrian mall.

(7) A day, hour and place for the hearing by the legislative body of protests and objections to the establishment of the proposed pedestrian mall, and a statement that any and all persons having any objection to the establishment of the proposed pedestrian mall may file a written protest with the city recorder at any time not later than the hour so fixed for the hearing.

(8) A statement that any person owning or having any legal or equitable interest in any real property which might suffer legal damage by reason of the establishment of the proposed pedestrian mall may file a written claim of damages with the city recorder at any time not later than the hour so fixed for hearing; that such written claim must describe the real property as to which the claim is made, must state the exact nature

of the claimant’s interest therein, must state the nature of the claimed damage thereto, and must state the amount of damages claimed. [1961 c.666 §6] 376.730 Description of proposed mall and intersecting streets. In such resolution any street may be described by referring thereto by its lawful or official name, or the name by which it is commonly known, and the pedestrian mall, the mall intersections and the intersecting streets may be described by reference to a map or plat thereof on file in the office of the city recorder. [1961 c.666 §7] 376.735 Contents of resolution when landowners to be paid for damages by assessments on benefited property. In such resolution the legislative body may propose to pay the whole or any part of damages based on claims filed pursuant to ORS 376.755 (2), if any, allowed or awarded to any property owner by reason of the establishment of the pedestrian mall from the proceeds of assessments levied upon lands benefited by the establishment of the pedestrian mall. In such cases the resolution shall also contain: (1) General description of the district (which may consist of noncontiguous portions) within which lie the lands deemed by the legislative body to be benefited by the establishment of the proposed pedestrian mall. Such district may be described by metes and bounds.

(2) A statement that an assessment will be levied pursuant to ORS 376.705 to 376.825 to pay the whole or a stated portion of the damages based on claims filed pursuant to ORS 376.755 (2), if any, allowed or awarded to any property owner by reason of the establishment of such pedestrian mall and the costs and expenses in connection with proceedings or actions taken pursuant to ORS 376.705 to 376.825.

(3) If bonds are to be issued, a statement that bonds to represent unpaid assessments will be issued, and the interest rate, or maximum interest rate, and term, or maximum term, of any such bonds. [1961 c.666 §8] 376.740 Contents of resolution when improvements are proposed. If, in connection with the initial establishment of a pedestrian mall, the legislative body proposes to make any improvements of the kind or type referred to in ORS 376.720 (1)(d), such resolution shall also contain: (1) A general description of the improvements proposed to be made. Such description may be made (but is not required to be made) in any manner permitted or provided in any law under which such improvements are to be made or financed.

(2) A general statement of the source or sources of moneys proposed to be used to pay the costs and expenses of such improvements. [1961 c.666 §9] 376.745 Resolution to be published and posted. (1) The resolution of intention shall be published in a newspaper of general circulation published within the county, city or city and county, as the case may be.

The first publication shall be not less than 60 days prior to the date fixed therein for hearing. In a city where no such newspaper is published, the resolution shall instead be so published in a newspaper of general circulation published in the county in which the city is located.

(2) Copies of the resolution headed “Notice of Intention to Establish a Pedestrian Mall” in letters at least one-half inch in height shall be posted not more than 300 feet apart as follows: (a) On all city streets, or portions thereof, proposed to be established as a pedestrian mall. (b) On all intersecting streets. (c) If assessments are to be levied as contemplated by ORS 376.735, then upon all open streets within the district described in the resolution pursuant to such section.

(3) Copies shall be posted not less than 60 days prior to the hearing. [1961 c.666 §§10,11; 2003 c.14 §163]

376.750 Copies of resolution to be mailed to affected persons. (1) A copy of the resolution shall be mailed, postage prepaid, not less than 60 days prior to the hearing to each person to whom any of the following described lands is assessed as shown on the last equalized assessment roll, at the address of the person as shown upon such roll, and to any person, whether owner in fee or having a lien upon, or legal or equitable interest in, any of such lands whose name and address and a designation of the land in which the person is interested is on file in the office of the city clerk or county clerk, as the case may be. Such lands are as follows: (a) All parcels of land abutting upon any portion of the pedestrian mall or any portion of any intersecting street. (b) If assessments are to be levied as contemplated by ORS 376.735, then all parcels of land within the assessment district described in the resolution pursuant to such section.

(2) The legislative body may determine that such resolution shall also be mailed to such other persons as it may specify. [1961 c.666 §12] 376.755 Objections to mall; claims for damages; right to damages not created. (1) Not later than the hour set for hearing any interested person may, severally or with others, file with the city recorder written objection to the establishment of the proposed pedestrian mall or to the extent of any district described pursuant to ORS 376.735, or both. Any protest or objection may be withdrawn at any time by written notice of such withdrawal filed with the city recorder with the same effect as if it had never been made.

(2) Not later than the hour set for hearing any person owning, or having any legal or equitable interest in, any real property which might suffer legal damage by reason of the establishment of the proposed pedestrian mall may file with the city recorder a written claim of damages. Such written claim must describe the real property as to which the claim is made, must state the exact nature of the claimant’s interest therein, must state the nature of the claimed damage thereto, and must state the amount of damages claimed. Any such claim may be withdrawn by the claimant at any time by written withdrawal with the same effect as if it had never been filed.

(3) Anything in ORS 376.705 to 376.825 to the contrary notwithstanding, nothing in ORS 376.705 to 376.825 shall be construed or interpreted as creating any right in any person to damages or compensation by reason of the establishment of a pedestrian mall, it being the intention of the Legislative Assembly in enacting ORS 376.705 to 376.825 to provide an orderly method for the determination and payment only of such damages and compensation as are required by the Constitutions of the State of Oregon and the United States of America. In this connection the Legislative Assembly hereby expressly declares that it is its intention that to the extent to which the establishment of a pedestrian mall is justifiable as an exercise of the police power for which no compensation is constitutionally required, no damages or compensation shall be allowed in any action. [1961 c.666 §§13,14,24] 376.760 Effect of objections by landowners. (1) If the owners of lands abutting on the proposed pedestrian mall representing 10 percent of the frontage on the proposed pedestrian mall have made written objection to the establishment of the proposed pedestrian mall, the legislative body shall so find and shall terminate the proceedings for such establishment. In such event no proceeding under ORS 376.705 to 376.825 for the establishment of the same or substantially the same pedestrian mall shall be commenced within one year after such termination.

(2) If assessments are to be levied as contemplated by ORS 376.735, then if the owners of more than 10 percent of the area of land included within the district described in the resolution of intention and subject to assessment have made written objection to the establishment of the proposed pedestrian mall, the legislative body shall so find and in that event the legislative body may continue with proceedings for the

establishment of the pedestrian mall but shall have no power to make any assessment upon benefited property to pay damages. In such event no proceeding under ORS 376.705 to 376.825 for the levy of assessments upon benefited property to pay damages in connection with the establishment of the same or substantially the same pedestrian mall shall be commenced within one year after such finding. [1961 c.666 §§16,17] 376.765 Changing boundaries when assessments to be levied under ORS 376.735; notice; objections. (1) If assessments are to be levied as contemplated by ORS 376.735, then at the hearing the legislative body may change the boundaries of the proposed district by adding thereto land which in its opinion will be benefited by the establishment of the pedestrian mall or by excluding from the district lands which in its opinion will not be so benefited. If the legislative body proposes any such change it shall take proceedings as required by this section and shall continue the hearing to the time fixed for hearing objections to the proposed change.

(2) No such change shall be made except after notice of intention to do so, given by at least one insertion in the newspaper in which the resolution of intention was published, describing the proposed change and specifying the time for hearing objections, which shall not be less than 30 days after publication of the notice. If the change proposed is one to include additional land in the district, a copy of such notice shall be mailed to each person to whom land proposed to be added is assessed as shown on the last equalized assessment roll, at the address of the person as shown on such roll, and to any person, whether owner in fee or having a lien upon, or legal or equitable interest in, any such lands whose name and address and a designation of the land in which the person is interested is on file in the office of the county clerk. Such notice shall be mailed at least 25 days prior to the time set for hearing objections.

(3) Written objection to any proposed changes may be filed with the city recorder at any time up to the hour fixed for hearing objections to such changes. [1961 c.666 §18] 376.770 Allowing claims for damages; payment. (1) At the hearing on the resolution of intention the legislative body may allow any claim for damages made pursuant to ORS 376.755 (2). Any such allowance shall be for the full amount of damages claimed in the written claim except that the legislative body, with the written consent of the claimant, may allow a claim for a lesser amount.

(2) The right of any claimant to payment of the amount of any allowed claim shall be contingent upon the final establishment of the pedestrian mall but all allowed claims must be paid by the city, from such source as the legislative body may determine, before vehicular traffic is prohibited, in whole or in part, on the pedestrian mall, pursuant to ORS 376.705 to 376.825. [1961 c.666 §20] 376.775 Hearing objections, claims and protests; waiver; decision; continuations. (1) At the hearing all objections and protests shall be heard and considered, and all claims shall be heard and considered.

(2) Any objections or protests, whether to the things proposed by the resolution of intention or to any changes proposed pursuant to ORS 376.765, not made at the time and in the manner provided by ORS 376.705 to 376.825 are deemed voluntarily waived, and the proceedings under ORS 376.705 to 376.825 shall not be attacked on any ground not stated in a written objection filed as provided in ORS 376.705 to 376.825.

(3) Except in the case of a majority protest, as provided in ORS 376.760, the legislative body may sustain or deny any or all objections or protests and its determination is final.

(4) The hearing may be continued from time to time by order entered on the minutes. [1961 c.666 §§15,19]

376.780 Resolution after hearing; fixing boundaries. (1) Following the conclusion of the hearing, the legislative body shall by resolution either abandon the proceeding taken pursuant to ORS 376.705 to 376.825 or determine that the pedestrian mall shall be established.

(2) If assessments are to be levied as contemplated by ORS 376.735, then in the resolution provided for in subsection (1) of this section, the legislative body shall fix and establish the boundaries of the district as finally determined. [1961 c.666 §§21,25] 376.785 Judicial proceedings to determine unsettled claims for damages; satisfaction prior to traffic prohibition. (1) If following the hearing the legislative body shall determine that the pedestrian mall shall be established, and if at that time there remain any written claims for damages which have not been allowed pursuant to ORS 376.770 or which have not been withdrawn, the legislative body shall direct that an action or actions be brought in the circuit court of the county in which the city is located in the name of the city by the city attorney, for a determination of the damages, if any, to which the claimant may legally be entitled because of the establishment of the pedestrian mall. Such action shall be in the nature of a proceeding in eminent domain for the condemnation of the right or rights in real property, the taking of which by the establishment of the pedestrian mall results in the damages claimed. In such action the amount set forth in the claim relating thereto shall not constitute a limitation upon the amount which may be pleaded, proved or recovered.

(2) Except as may otherwise be provided in ORS 376.705 to 376.825, such action and proceeding shall be governed so far as the same may be made applicable by those provisions of ORS chapter 35 relating to actions and proceedings in eminent domain. In any such action the resolution adopted under ORS 376.780 (1) shall be conclusive evidence of the public necessity of the proposed pedestrian mall; that the property or rights in property to be taken are necessary therefor, and that the pedestrian mall is planned and located in the manner which will be compatible with the greatest public good and the least private injury.

(3) The judgment in any such action shall be satisfied and a final order taken before vehicular traffic is prohibited, in whole or in part, on the pedestrian mall pursuant to ORS 376.705 to 376.825. [1961 c.666 §§22,23] 376.790 Assessment of damages and other expenses against benefited lands. After all claims for damages filed pursuant to ORS 376.755 (2) have been finally determined, by allowance by the legislative body, by withdrawal, or by a judgment in an action or actions brought pursuant to ORS chapter 35, and the full amount of damages to be paid has accordingly been finally determined, all or part of the total amount of such damages (but not exceeding such part thereof as may be specified in the resolution of intention), together with all costs and expenses incurred in connection with any proceedings or actions taken pursuant to ORS 376.705 to 376.825, may be assessed against the lands within the district and subject to assessment in proportion to the benefits to be derived from the establishment of the pedestrian mall. [1961 c.666 §26] 376.795 Manner of assessment; sale of bonds representing unpaid assessments. (1) Such assessment may be levied and bonds to represent unpaid assessments issued and sold substantially in the manner provided in ORS 223.005 to 223.105 and 223.205 to 223.930, and to the extent applicable, such law shall govern as to the preparation of the assessment, the lands subject to assessment, the hearing upon the assessment and the notice thereof, the confirmation and recordation of the assessment, the lien of the assessments, the notice of recordation, the collection of assessments, the issuance, sale and delivery of bonds upon unpaid assessments, the term of the bonds, the maximum interest rate thereon, the collection and enforcement of such bonds and all other matters to the extent applicable and except as provided in ORS 376.705 to 376.825.

(2) In so applying the provisions of ORS 223.005 to 228.105 and 223.205 to 223.930, the following provisions and exceptions shall apply: (a) The limits provided by such law on the amount of the assessment shall not apply. (b) The legislative body shall provide for the form of the bonds and of the principal and interest coupons to be attached thereto. (c) The legislative body may provide that the redemption provision of the bonds shall require the payment of such premium as the legislative body may specify. [1961 c.666 §§27,28] 376.800 Special fund for payment of damages and expenses; use of surplus. (1) All collections of assessments and all proceeds of the sale of bonds issued upon unpaid assessments shall be placed in a special fund and used exclusively for the payment of the damages, if any, and expenses for which the assessments were levied.

(2) If there is a surplus in such special fund, the legislative body may expend such surplus for the improvement or operation of the pedestrian mall. [1961 c.666 §29] 376.805 Payment of damages and other expenses from sources other than assessments and bonds. Notwithstanding the fact that the proceedings under ORS 376.705 to 376.825 have provided that assessments are to be levied as contemplated by ORS 376.735, the legislative body, at any time and either before or after the adoption of the resolution provided for in ORS 376.780 (1), may determine that such assessments shall not be levied. In lieu thereof the legislative body may provide for the payment of all or any part of the amounts referred to in ORS 376.790, out of general funds of the city or out of any other available funds. [1961 c.666 §30] 376.810 Ordinance establishing mall; contents. Following the adoption of the resolution provided for in ORS 376.780 (1), and as soon as moneys have been fully provided for the payment of all claims, if any, allowed pursuant to ORS 376.770, and for the payment of all damages and compensation, if any, awarded in any action or actions brought pursuant to ORS chapter 35, the legislative body may adopt an ordinance establishing the pedestrian mall. Such ordinance shall contain: (1) A general description of the pedestrian mall and a declaration and determination that the same is finally established. The mall as finally established shall be substantially the same as that described in the resolution of intention.

(2) Rules and regulations prohibiting vehicular traffic on such pedestrian mall subject to such exceptions as the ordinance may provide. Such rules and regulations and such exceptions shall be substantially in accordance with the statements made in the resolution of intention.

(3) Such additional rules and regulations as the legislative body may determine pertaining to the interpretation, operation and enforcement of the rules and regulations referred to in subsection (2) of this section, and otherwise pertaining to the use, operation, maintenance of the pedestrian mall.

(4) Such provisions as the legislative body may determine pertaining to the operative date or dates of any of such rules or regulations. [1961 c.666 §31] 376.815 Adoption of ordinance; payment of claims, damages and compensation. (1) Such ordinance shall be adopted and published in the manner, and shall take effect, as provided by law or charter for other ordinances of the city. Such ordinance shall be subject to referendum in the same manner as other ordinances of the city.

(2) No payment of allowed claims or damages or compensation awarded by any court shall be made until such ordinance is in effect but all such allowed claims, damages and compensation shall be paid before the rules and regulations provided in such ordinance become operative. [1961 c.666 §§32,33] 376.820 Jurisdiction over mall; abandonment or modification. (1) Proceedings under ORS 376.705 to 376.825 and the adoption of such ordinance notwithstanding, the city and its legislative body shall retain its police powers and other rights and powers relating to the city streets constituting a part of the pedestrian mall. No action taken pursuant to ORS 376.705 to 376.825 shall be interpreted or construed to be a vacation or abandonment, in whole or in part, of any city street or any right therein, it being intended that the establishment of a pedestrian mall pursuant to ORS 376.705 to 376.825 be a matter of regulation only.

(2) Nothing in ORS 376.705 to 376.825 shall be interpreted or construed to prevent the city and its legislative body, at any time subsequent to the adoption of the ordinance provided for in ORS 376.705 to 376.825, from abandoning the operation of the pedestrian mall, from changing the extent of the pedestrian mall, or from changing or repealing any of the rules and regulations pertaining to the pedestrian mall. [1961 c.666 §34] 376.825 Improvements on mall; payment of costs. (1) The city and its legislative body shall have the power to improve a pedestrian mall as provided in ORS 376.720 (1)(d), and for the accomplishment, in whole or in part, of that purpose may use ORS 223.005 to 223.105 and 223.205 to 223.930 or any similar special assessment law. Any work or improvement permitted by such statutes shall be deemed to be work or improvement permitted to be done under any such Act or law. The city may also pay the whole or any part of the cost and expenses of improving a pedestrian mall from its general funds or from any other available money and may let contracts for the work in any manner permitted by law or charter.

(2) A pedestrian mall established or to be established pursuant to ORS 376.705 to 376.825 may be so improved either concurrently with the proceedings taken under ORS 376.705 to 376.825 for the establishment of the pedestrian mall or at any time subsequent to the establishment of the city mall, but no contract for the work or improvement shall be awarded until moneys have been fully provided for the payment of all claims allowed pursuant to ORS 376.770 and for the payment of all damages and compensation, if any, awarded in any action or actions brought pursuant hereof. If in connection with the establishment of a pedestrian mall and concurrently with the proceedings taken pursuant to ORS 376.705 to 376.825, the legislative body proposes to improve the proposed pedestrian mall and for that purpose uses ORS 223.005 to 223.105 and 223.205 to 223.930 or any similar special assessment law, the legislative body may combine any part of the proceedings taken pursuant to ORS 376.705 to 376.825 with any part of the proceedings taken under any such special assessment law, to the end that duplication of ordinances, resolutions, notices, hearings and other acts or proceedings may be avoided. [1961 c.666 §§35,36] PENALTIES 376.990 Penalties. (1) Operation of a motor vehicle by any person over a contract forest road in violation of the contract provisions as to equipment, weight, width, length or height, is punishable, upon conviction, by a fine not exceeding $400 or by imprisonment in the county jail not exceeding one year, or both. The definitions in ORS 376.310 apply to this section.

(2) Violation by any person of any of the provisions of ORS 376.305 to 376.390 is punishable, upon conviction, by a fine not exceeding $400 or by imprisonment in the county jail not exceeding one year, or both. [Amended by 1971 c.743 §361]

Chapter 432 — Vital Statistics 2009 EDITION VITAL STATISTICS PUBLIC HEALTH AND SAFETY VITAL AND PUBLIC HEALTH STATISTICS SYSTEM; STATE, COUNTY AND LOCAL REGISTRARS 432.005

Definitions

432.010

Center for Health Statistics; standards

432.015

Rules

432.020

State registrar; appointment

432.025

Assistant state registrars

432.030

Duties of state registrar

432.035

County registrars

432.040

Duties of county and local registrars

432.060

Confidentiality and inadmissibility of information obtained in connection with epidemiologic morbidity and mortality studies; exceptions; nonliability of informants

432.075

Duty to furnish information to state registrar; immunity

432.080

Copy of vital records furnished without charge for use in proceeding on war veteran’s benefits

432.085

Sale of birth and death certificate copies; rules

432.090

Issuance of additional birth certificate; fee; form; distribution of funds received

432.095

Application of chapter provisions

GENERAL PROVISIONS ON CERTIFICATION AND RECORDS; FEES 432.105

Procedure for transmitting and filing certificates

432.115

Form of records and reports; status; disposition; rules

432.119

Abstracts of birth and death certificates as public records; limitations

432.121

Disclosure and certification of records and reports; rules

432.122

Verification of birth certificate and death records; rules

432.124

Disclosure of death records filed in conjunction with claims or interests in land

432.130

Compelling access to records

432.140

Application for delayed certificates

432.142

Procedure when application for delayed certificate denied

432.146

Fees

432.165

Death records

432.180

Certified copies of vital records or vital reports; evidentiary value; fraud or misrepresentation

RECORDS OF BIRTHS; CERTIFICATION OF UNRECORDED BIRTHS; VOLUNTARY ACKNOWLEDGMENT OF PATERNITY 432.206

Compulsory registration of births; rules; persons required to file

432.230

When new certificate issued; contents; amendment upon adoption; delayed certificate

432.235

Amendment of vital record or vital report; rules

432.240

Issuance of certified copy of certificate of birth to adopted persons; Contact Preference Form

432.266

Commemorative Certificate of Stillbirth; rules

432.285

Availability of voluntary acknowledgment of paternity form; responsibility of health care facility and parents

432.287

Voluntary acknowledgment of paternity form; rules; filing; when form is sworn document; copy to child support agency

432.289

Full faith and credit

DETERMINATION OF DEATH 432.300

Determination of death

DEATH CERTIFICATES; BURIAL PERMITS

432.307

Compulsory filing of death certificates; persons required to file

432.312

Death certificate fee; use; limitation

432.317

Report upon receipt of body or fetus; authorization for final disposition; rules

432.327

Extensions on certificates, reports and permits; rules

432.333

Reports on fetal deaths

432.337

Status of reports under ORS 435.496; rules

RECORDS OF MARRIAGES, DOMESTIC PARTNERSHIPS, DIVORCES, ADOPTIONS, ANNULMENTS AND CERTAIN BIRTHS 432.405

Filing of marriage record or domestic partnership registration; rules

432.408

Record of dissolution of marriage judgment or dissolution of domestic partnership judgment; rules

432.412

Marriage and divorce records subject to full disclosure; exemption

432.415

Reports on adoptions

432.420

Access to adoption records

432.430

Duty to report on child of unknown parentage; rules

CANCER AND TUMOR REGISTRY SYSTEM 432.500

Definitions

432.510

Cancer and tumor registry system; purpose; rulemaking; duties of Oregon Health Authority

432.520

Reporting requirement; review of records; special studies

432.530

Confidentiality of information

432.540

Use of confidential data; rules

432.550

Action for damages; license; disciplinary action prohibited for good faith participation in reporting of data

432.570

No requirement or prohibition regarding operation of separate cancer and tumor registry

PENALTIES 432.900

Civil penalty

432.993

Unlawful use of vital record or vital report; criminal penalty

432.995

Obstructing the keeping of vital records or vital reports; criminal penalty

VITAL AND PUBLIC HEALTH STATISTICS SYSTEM; STATE, COUNTY AND LOCAL REGISTRARS 432.005 Definitions. As used in this chapter, unless the context requires otherwise: (1) “Authority” means the Oregon Health Authority.

(2) “Dead body” means a human body or such parts of such human body from the condition of which it reasonably may be concluded that death occurred.

(3) “Director” means the Director of the Oregon Health Authority.

(4) “Divorce” means dissolution of a marriage.

(5) “Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy. The death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of the voluntary muscles.

(6) “File” means the presentation and acceptance of a vital record or vital report provided for in this chapter by the Center for Health Statistics.

(7) “Final disposition” means the burial, interment, cremation, removal from the state or other authorized disposition of a dead body or fetus, except that when removal from the state is conducted by the holder of a certificate of removal registration issued under ORS 692.270, the final disposition may not be considered complete until the certificate of death is filed.

(8) “Induced termination of pregnancy” means the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live-born infant and that does not result in a live birth.

(9) “Institution” means any establishment, public or private, that provides inpatient or outpatient medical, surgical or diagnostic care or treatment or nursing, custodial or domiciliary care, or to which persons are committed by law.

(10) “Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, that, after such expulsion or extraction, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.

(11) “Person acting as a funeral service practitioner” means: (a) A person other than a funeral service practitioner licensed under ORS 692.045, including but not limited to a relative, friend or other interested party, who performs the duties of a funeral service practitioner without payment; or (b) A funeral service practitioner who files death certificates in another state if the funeral service practitioner is employed by a funeral establishment licensed in another state and registered with the State Mortuary and Cemetery Board under ORS 692.270.

(12) “Physician” means a person authorized or licensed under the laws of this state to practice medicine, osteopathy, chiropractic or naturopathic medicine.

(13) “Registration” means the process by which vital records and vital reports are completed, filed and incorporated into the official records of the Center for Health Statistics.

(14) “State registrar” means the State Registrar of the Center for Health Statistics.

(15) “System of vital statistics” means the registration, collection, preservation, amendment and certification of vital records and vital reports; the collection of other reports required by this chapter, and activities related thereto including the tabulation, analysis, dissemination and publication of vital statistics and training in the use of health data.

(16) “Vital records” means certificates or reports of birth, death, marriage, declaration of domestic partnership, dissolution of marriage or domestic partnership and data related thereto.

(17) “Vital reports” means reports of fetal death, induced termination of pregnancy, suicide attempts by persons under 18 years of age and survey and questionnaire documents and data related thereto.

(18) “Vital statistics” means the data derived from certificates and reports of birth, death, fetal death, induced termination of pregnancy, marriage, declaration of domestic partnership, dissolution of marriage, dissolution of domestic partnership, suicide attempts by persons under 18 years of age and related reports.

[Subsections (1) and (2) enacted as 1973 c.829 §15; 1983 c.709 §1; 1997 c.783 §1; 1999 c.254 §4; 1999 c.724 §7; 2001 c.900 §154; 2007 c.99 §16; 2009 c.595 §604] 432.010 Center for Health Statistics; standards. (1) The Oregon Health Authority shall establish the Center for Health Statistics, which shall install, maintain and operate the system of vital statistics throughout this state in cooperation with appropriate units of local government. The Center for Health Statistics shall be responsible for the proper administration of the system of vital statistics and for the preservation and security of its official records.

(2) In order to promote and maintain nationwide uniformity in the system of vital statistics, the State Registrar of the Center for Health Statistics may refer to the 1992 federal revision of the Model State Vital Statistics Act and Regulations for recommendations regarding the forms of certificates and reports required by this chapter.

(3) Each certificate, report and other document required by this chapter shall be on a form or in a format prescribed by the state registrar.

(4) All vital records shall contain the date of filing.

(5) Information required in certificates, forms, records or reports authorized by this chapter may be filed, verified, registered and stored by photographic, electronic or other means as prescribed by the state registrar.

[Amended by 1983 c.709 §2; 1993 c.324 §2; 1997 c.783 §2; 2009 c.595 §605] 432.015 Rules. The State Registrar of the Center for Health Statistics, under the supervision of the Director of the Oregon Health Authority, in compliance with ORS chapter 183, shall adopt rules necessary to the installation and efficient performance of an adequate system of vital and public health statistics including rules for the return of evidence affecting delayed certificates, or affecting alteration of a certificate, after the certificate has been filed with the state registrar. [Amended by 1961 c.191 §4; 1983 c.709 §3; 1997 c.783 §3; 2009 c.595 §606] 432.020 State registrar; appointment. The Director of the Oregon Health Authority shall appoint the State Registrar of the Center for Health Statistics who shall qualify in accordance with standards of education and experience as the director shall determine. [Amended by 1973 c.829 §34; 1983 c.709 §26; 2009 c.595 §607]

432.025 Assistant state registrars. The State Registrar of the Center for Health Statistics, with the approval of the Director of the Oregon Health Authority, may appoint, when necessary, assistant state registrars who shall be assistants to the state registrar. [Amended by 1983 c.709 §27; 2009 c.595 §608] 432.030 Duties of state registrar. (1) The State Registrar of the Center for Health Statistics shall: (a) Under the supervision of the Director of the Oregon Health Authority, have charge of the Center for Health Statistics. (b) Administer and enforce the provisions of this chapter and the rules adopted pursuant thereto for the efficient administration of the system of vital statistics. (c) Direct and supervise the system of vital statistics and the Center for Health Statistics and be custodian of its records. (d) Direct, supervise and control the activities of all persons when they are engaged in activities pertaining to the operation of the system of vital statistics. (e) Conduct training programs to promote uniformity of policy and procedures throughout the state in matters pertaining to the system of vital statistics. (f) Prescribe, furnish and distribute such forms as are required by this chapter and the rules adopted pursuant thereto or prescribe other means for transmission of data to accomplish the purpose of complete and accurate reporting and registration. (g) Prepare and publish reports of vital statistics of this state and such other reports as may be required by the Oregon Health Authority. (h) Provide to local health agencies such copies of or data derived from certificates and reports required under this chapter as the state registrar shall determine are necessary for local health planning and program activities. The state registrar shall establish a schedule with each local health agency for transmittal of the copies or data. The copies or data shall remain the property of the Center for Health Statistics and the uses that may be made of them shall be determined by the state registrar. (i) Provide local health agencies training and consultation in working with health data.

(2) The state registrar may delegate such functions and duties vested in the state registrar to employees of the Center for Health Statistics and to employees of any office established or designated under ORS 432.035. [Amended by 1975 c.605 §22; 1983 c.709 §4; 1997 c.783 §4; 2009 c.595 §609] 432.035 County registrars. The State Registrar of the Center for Health Statistics shall designate for each county a county registrar. In consultation with the state registrar, the county registrar may designate one or more deputy county registrars in any county. So far as practical, a county health official shall be designated county registrar. [Amended by 1983 c.709 §5; 1985 c.207 §3; 1997 c.783 §5] 432.040 Duties of county and local registrars. The county and local registrars and their deputies shall: (1) Comply with all instructions of the State Registrar of the Center for Health Statistics.

(2) Check upon the compliance by others with the provisions of this chapter and with the rules of the state registrar.

(3) Make an immediate report to the state registrar of any violation of this chapter or of the rules of the state registrar coming to their notice by observation or upon complaint of any person, or otherwise.

[Amended by 1983 c.709 §28] 432.045 [Amended by 1971 c.16 §1; 1983 c.709 §29; repealed by 1997 c.783 §48] 432.050 [Amended by 1983 c.709 §30; repealed by 1997 c.783 §48]

432.055 [Repealed by 1973 c.829 §71] 432.060 Confidentiality and inadmissibility of information obtained in connection with epidemiologic morbidity and mortality studies; exceptions; nonliability of informants. (1)(a) All information procured by or furnished to the Oregon Health Authority, any federal public health agency or any nonprofit health agency that is exempt from taxation under the laws of this state or procured by any agency, organization or person acting jointly with or at the request of the authority, in connection with special epidemiologic morbidity and mortality studies, is confidential, nondiscoverable and inadmissible in any proceeding and is exempt from disclosure under ORS 192.410 to 192.505. A person communicating information in connection with special epidemiologic morbidity and mortality studies pursuant to this subsection may not be examined about the communication or the information. (b) Nothing in this subsection affects the confidentiality or admissibility into evidence of data not otherwise confidential or privileged that is obtained from sources other than the authority. (c) As used in this subsection, “information” includes, but is not limited to, written reports, notes, records, statements and studies.

(2) The furnishing of morbidity and mortality information to the authority or health agency, to its authorized representatives or to any other agency, organization or person cooperating in a special epidemiologic study, does not subject any hospital, sanitarium, rest home, nursing home or other organization or person furnishing such information to an action for damages.

(3) Subsection (1) of this section does not prevent the authority or a health agency from publishing: (a) Statistical compilations and reports relating to special epidemiologic morbidity and mortality studies, if such compilations and reports do not identify individual cases and sources of information. (b) General morbidity and mortality studies customarily and continuously conducted by the authority or health agency that do not involve patient identification.

(4) Nothing in this section prevents disposition of records described in subsection (1) of this section pursuant to ORS 192.105. [1961 c.191 §§2,3; 1983 c.709 §31; 2005 c.342 §1; 2009 c.595 §610] 432.075 Duty to furnish information to state registrar; immunity. (1) Any person having knowledge of the facts shall furnish all information the person may possess regarding any birth, death, fetal death, induced termination of pregnancy, marriage, dissolution of marriage or suicide attempt by a person under 18 years of age, upon demand of the State Registrar of the Center for Health Statistics.

(2) Any person or institution that in good faith provides information required by this chapter or by rules adopted pursuant thereto shall not be subject to any action for civil damages. [1983 c.709 §23; 1997 c.783 §6] 432.080 Copy of vital records furnished without charge for use in proceeding on war veteran’s benefits. Notwithstanding ORS 432.146, the State Registrar of the Center for Health Statistics or the county registrar shall furnish, without charge therefor, a certified copy of a vital record to the United States Department of Veterans Affairs, the Director of Veterans’ Affairs or any county service officer appointed under ORS 408.410 when the record is requested by the agency or officer in connection with, or for use as evidence in, any proceeding involving a claim based upon war veterans’ benefits. [1985 c.397 §1; 1991 c.67 §114; 1997 c.783 §8] Note: 432.080 and 432.085 were added to and made a part of ORS chapter 432 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

432.085 Sale of birth and death certificate copies; rules. The Oregon Health Authority shall adopt, taking into consideration local service needs and interests, rules to allow a county registrar to sell, within six months of the date of the event occurring in the county, certified copies of birth certificates and death certificates. [1985 c.397 §2; 1993 c.18 §108; 1997 c.783 §9; 2009 c.595 §611] Note: See note under 432.080.

432.090 Issuance of additional birth certificate; fee; form; distribution of funds received. (1) In addition to the original birth certificate, the State Registrar of the Center for Health Statistics shall issue upon request and upon payment of a fee in an amount set by the state registrar a birth certificate representing that the birth of the person named thereon is recorded in the office of the state registrar. The certificate issued under this section shall be in a form consistent with the need to protect the integrity of vital records but shall be suitable for display. It may bear the seal of the state printed thereon and may be signed by the Governor. It shall have the same status as evidence as the original birth certificate.

(2) Of the funds received under subsection (1) of this section, the amount needed to reimburse the state registrar for expenses incurred in administering this section shall be credited to the Public Health Account.

The remainder shall be credited to the subaccount created pursuant to section 36 (2), chapter 1084, Oregon Laws 1999, or a successor subaccount, account or fund.

(3) In setting the fee amount under subsection (1) of this section, the state registrar shall give substantial consideration to the amount suggested by the holder of the subaccount created pursuant to section 36 (2), chapter 1084, Oregon Laws 1999, or a successor subaccount, account or fund. [1985 c.549 §10; 1997 c.783 §§10,10a; 1999 c.1084 §46] 432.095 Application of chapter provisions. The provisions of this chapter regarding the copying, inspection, disclosure or furnishing of vital records and vital reports also apply to all certificates or reports of birth, death, marriage, dissolution of marriage, fetal death, induced termination of pregnancy and suicide attempt by a person under 18 years of age received prior to October 4, 1997, by the Vital Statistics Unit or in the custody of any other custodian of vital records. [1997 c.783 §44] Note: 432.095 was added to and made a part of ORS chapter 432 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

GENERAL PROVISIONS ON CERTIFICATION AND RECORDS; FEES 432.105 Procedure for transmitting and filing certificates. (1) Each local registrar shall promptly transmit each birth certificate and each death certificate filed with the local registrar to the county registrar.

The county registrar shall maintain an abstract of each death certificate and may prepare and maintain an abstract for each birth certificate as follows: (a) The abstract of death shall include the information contained on the report of death card prescribed by the State Registrar of the Center for Health Statistics. (b) The abstract of birth shall contain only the full names of the child and the parent or parents, sex of the child, the county and date of birth, the residence address of the mother, date of filing and local file number.

(2) Abstracts shall be filed and indexed in alphabetical order and safely kept by the county registrar.

[Amended by 1973 c.829 §35; 1983 c.709 §32; 1997 c.783 §11]

432.110 [Repealed by 1971 c.16 §3] 432.115 Form of records and reports; status; disposition; rules. To preserve vital records and vital reports, the State Registrar of the Center for Health Statistics is authorized to prepare typewritten, photographic, electronic or other reproductions of certificates or reports in the Center for Health Statistics.

Such reproductions when verified and approved by the state registrar shall be accepted as original records, and the documents from which permanent reproductions have been made may be disposed of as provided by rule of the state registrar, rule of the Secretary of State and ORS 192.105. [Amended by 1983 c.709 §19; 1997 c.783 §12] 432.119 Abstracts of birth and death certificates as public records; limitations. (1) Abstracts of birth and death certificates as provided in ORS 432.105 are public records and open to public inspection except as provided in this section. The county registrar shall mark the abstract of birth in a manner designated by the State Registrar of the Center for Health Statistics to indicate that the record is not to be used by any person compiling a list for publication or a business contact list under the following conditions: (a) If a birth certificate indicates any of the following: (A) The father of the child is not identified.

(B) The infant dies after birth.

(C) Congenital anomaly is reported.

(D) Maternal disability or death is indicated. (b) If the parent of the infant requests that the record not be made available for publication or business contact lists.

(2) The Oregon Health Authority or local health department, as provided in ORS 431.416, may use any birth record or abstract as a source of information for activities necessary for the preservation of health or prevention of disease. [1973 c.829 §11; 1979 c.426 §1; 1983 c.709 §33; 1997 c.783 §13; 2009 c.595 §612] 432.120 [Amended by 1983 c.709 §20; repealed by 1997 c.783 §14 (432.121 enacted in lieu of 432.120)] 432.121 Disclosure and certification of records and reports; rules. (1) To protect the integrity of vital records and vital reports, to ensure their proper use and to ensure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information from vital records or vital reports in the custody of the State Registrar of the Center for Health Statistics, county registrar or local registrar or to copy or issue a copy of all or part of any such record or report unless authorized by this chapter and by rules adopted pursuant thereto or by order of a court of competent jurisdiction. Rules adopted under this section shall provide for adequate standards of security and confidentiality of vital records and vital reports. The state registrar shall adopt rules to ensure that, for records of dissolution of marriage issued in proceedings under ORS 107.085 or 107.485, Social Security numbers of the parties are kept confidential and exempt from public inspection.

(2) The State Registrar of the Center for Health Statistics shall authorize the inspection, disclosure and copying of the information referred to in subsection (1) of this section as follows: (a) To the subject of the record; spouse, child, parent, sibling or legal guardian of the subject of the record; an authorized representative of the subject of the record, spouse, child, parent, sibling or legal guardian of the subject of the record; and, in the case of death, marriage or divorce records, to other next of kin.

(b) When a person demonstrates that a death, marriage or divorce record is needed for the determination or protection of a personal or property right. (c) When 100 years have elapsed after the date of birth or 50 years have elapsed after the date of death, marriage or divorce. (d) When the person requesting the information demonstrates that the person intends to use the information solely for research purposes. In order to receive the information, the person must submit a written request to the state registrar requesting a research agreement. The state registrar shall issue a research agreement if the person demonstrates that the information will be used only for research and will be held confidential. The research agreement shall prohibit the release by the person of any information other than that authorized by the agreement that might identify any person or institution. (e) To the federal agency responsible for national vital statistics, upon request. The copies or data may be used solely for the conduct of official duties. Before furnishing the records, reports or data, the state registrar shall enter into an agreement with the federal agency indicating the statistical or research purposes for which the records, reports or data may be used. The agreement shall also set forth the support to be provided by the federal agency for the collection, processing and transmission of the records, reports or data. Upon written request of the federal agency, the state registrar may approve, in writing, additional statistical or research uses of the records, reports or data supplied under the agreement. (f) To federal, state and local governmental agencies, upon request. The copies or data may be used solely for the conduct of official duties of the requesting governmental agency. (g) To offices of vital statistics outside this state when such records or other reports relate to residents of those jurisdictions or persons born in those jurisdictions. Before furnishing the records, reports or data, the state registrar shall enter into an agreement with the office of vital statistics. The agreement shall specify the statistical and administrative purposes for which the records, reports or data may be used and the agreement shall further provide instructions for the proper retention and disposition of the copies. Copies received by the Center for Health Statistics from offices of vital statistics in other states shall be handled in the same manner as prescribed in this section. (h) To an investigator licensed under ORS 703.430, upon request.

(3) The state registrar, upon request of a family member or legal representative, shall issue a certified copy or other copy of a death certificate containing the cause of death information as provided in subsection (2) of this section or as follows: (a) When a person has demonstrated through documented evidence a need for the cause of death to establish a legal right or claim. (b) When the request for the copy is made by or on behalf of an organization that provides benefits to the decedent’s survivors or beneficiaries.

(4) Nothing in this section prohibits the release of information or data that would not identify any person or institution named in a vital record or a vital report.

(5) Nothing in this section shall prohibit a health care provider from disclosing information contained in the provider’s records as otherwise allowed by law.

(6) Nothing in this section shall be construed to permit disclosure of information contained in the “Information for Medical and Health Use Only” section of the birth certificate, fetal death report or the “Information for Statistical Purposes Only” section or other confidential section of the application, license and record of marriage or certificate of divorce, unless specifically authorized by the state registrar for statistical or research purposes. The data shall not be subject to subpoena or court order and shall not be admissible before any court, tribunal or judicial body.

(7) All forms and procedures used in the issuance of certified copies of vital records and vital reports shall be uniform and provided by or approved by the state registrar. All certified copies issued shall have

security features that safeguard the document against alteration, counterfeiting, duplication or simulation without ready detection.

(8) Each copy issued shall show the date of filing. Copies issued from records marked “Amended” shall be similarly marked and shall show the effective date of the amendment. Copies issued from records marked “Delayed” shall be similarly marked and shall include the date of filing and a description of the evidence used to establish the delayed certificate.

(9) Any copy issued of a certificate of foreign birth shall indicate this fact and show the actual place of birth and the fact that the certificate is not proof of United States citizenship for an adoptive child.

(10) Appeals from decisions of the state registrar to refuse to disclose information or to permit inspection or copying of records as prescribed by this section and rules adopted pursuant thereto shall be made under ORS chapter 183.

(11) The state registrar shall adopt rules to implement this section in accordance with the applicable sections of ORS chapter 183.

(12) Indexes of deaths, marriages or divorces that list names, dates of events, county of events or certificate numbers may be disclosed. [1997 c.783 §15 (enacted in lieu of 432.120); 1999 c.254 §1; 1999 c.312 §3; 2001 c.838 §23; 2003 c.380 §8; 2007 c.703 §9] 432.122 Verification of birth certificate and death records; rules. To protect the integrity of vital records and to prevent the fraudulent use of birth certificates of deceased persons, the State Registrar of the Center for Health Statistics is authorized to match birth and death certificates, in accordance with rules adopted by the state registrar that require proof beyond a reasonable doubt the fact of death, and to post the facts of death to the appropriate birth certificate. Copies issued from birth certificates marked “deceased” shall be similarly marked. [1983 c.709 §24; 1997 c.783 §18] 432.124 Disclosure of death records filed in conjunction with claims or interests in land.Notwithstanding any other provision of law, all death records filed in conjunction with owning or having a claim or interest in land in the county that are in the custody of a county clerk or county recording officer are open and subject to full disclosure. [1999 c.254 §7] Note: 432.124 was added to and made a part of ORS chapter 432 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

432.125 [Repealed by 1983 c.709 §45] 432.130 Compelling access to records. Any person who is refused an inspection of any record provided for in this chapter may proceed in the manner set forth in ORS 183.480 and 183.484 to seek access to the record. [Amended by 1983 c.709 §25] 432.135 [Amended by 1983 c.709 §9; renumbered 432.142] 432.140 Application for delayed certificates. (1) When a certificate of birth of a person born in this state has not been filed within one year after the date of birth, a delayed certificate of birth may be filed in accordance with rules of the State Registrar of the Center for Health Statistics. If a hospital fails to file a certificate of birth within one year after the date of birth, a certificate of birth may be filed as provided by rule of the state registrar. No delayed certificate shall be registered until the evidentiary requirements as specified by rule have been met.

(2) A certificate of birth registered one year or more after the date of birth shall be registered on a delayed certificate of birth form and show on its face the date of filing.

(3) A summary statement of the evidence submitted in support of the delayed registration shall be indorsed on the certificate.

(4)(a) When an applicant does not submit the minimum documentation required by rule of the state registrar for delayed registration or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statement or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not register the delayed certificate of birth and shall enter an order to that effect stating the reasons for the action. The state registrar shall advise the applicant of the right to appeal under ORS 183.480 to 183.484. (b) The state registrar by rule may provide for the dismissal of an application which is not actively prosecuted. [Amended by 1983 c.709 §8; 1997 c.783 §19] 432.142 Procedure when application for delayed certificate denied. (1) If the State Registrar of the Center for Health Statistics refuses to file a delayed certificate of birth under the provisions of ORS 432.140, the applicant may file a signed and sworn petition with a court of competent jurisdiction seeking an order establishing a record of the date and place of birth and the parentage of the person whose birth is to be registered.

(2) The petition shall be made on a form prescribed and furnished or approved by the state registrar and shall allege: (a) That the person for whom a delayed certificate of birth is sought was born in this state; (b) That no certificate of birth of the person can be found in the records of the Center for Health Statistics; (c) That diligent efforts by the petitioner have failed to obtain the evidence required in accordance with ORS 432.140 and rules adopted pursuant thereto; (d) That the state registrar has refused to file a delayed certificate of birth; and (e) Such other allegations as may be required under ORS 183.480 and 183.484.

(3) The petition shall be accompanied by a statement made in accordance with ORS 432.140 and all documentary evidence which was submitted to the state registrar in support of the filing.

(4) The court shall fix a time and place for hearing the petition and shall give the state registrar notice of the hearing. The state registrar or an authorized representative may appear and testify in the proceeding.

(5) If the court finds, from the evidence presented, that the person for whom a delayed certificate of birth is sought was born in this state, it shall make findings as to the place and date of birth, parentage and such other findings as may be required and shall issue an order, on a form prescribed and furnished or approved by the state registrar, to establish a court-ordered certificate of birth. This order shall include the birth data to be registered, a description of the evidence presented and the date of the court’s action.

(6) The clerk of the court shall forward each order to the state registrar not later than the 10th day of the calendar month following the month in which it was entered. The order shall be registered by the state registrar and shall constitute the certificate of birth. [Formerly 432.135; 1997 c.783 §20] 432.145 [Amended by 1957 c.339 §1; 1971 c.16 §2; 1979 c.696 §1; 1983 c.709 §21; repealed by 1991 c.245 §1 (432.146 enacted in lieu of 432.145)] 432.146 Fees. Except as provided in ORS 432.090 and 432.312, subject to the review of the Oregon Department of Administrative Services, the Oregon Health Authority shall establish all fees for services or records provided under ORS 432.005 to 432.165. The fees and charges established under this section shall

be authorized by the Legislative Assembly for the authority’s budget, as the budget may be modified by the Emergency Board. [1991 c.245 §2; 1993 c.345 §1; 1997 c.636 §2; 2009 c.595 §613] 432.150 [Amended by 1957 c.185 §1; repealed by 1983 c.709 §45] 432.155 [Repealed by 1979 c.696 §14] 432.160 [Repealed by 1971 c.743 §432] 432.165 Death records. (1) All superintendents or managers or other persons in charge of institutions shall keep a record of personal data concerning each person admitted or confined to the institution. This record shall include information as required for the certificates of birth and death and the reports of fetal death and induced termination of pregnancy required by this chapter. The record shall be made at the time of admission from information provided by the person being admitted or confined, but when it cannot be so obtained, the information shall be obtained from relatives or other persons acquainted with the facts. The name and address of the person providing the information shall be a part of the record.

(2) When a dead body or fetus is released or disposed of by an institution, the person in charge of the institution shall keep a record showing the name of the decedent, Social Security number, if issued, date of death, name and address of the person to whom the body or fetus is released and the date of removal from the institution. If final disposition is made by the institution, the date, place and manner of disposition shall also be recorded.

(3) A funeral service practitioner, embalmer, sexton or other person who removes from the place of death, transports or makes final disposition of a dead body or fetus, in addition to filing any certificate or other report required by this chapter or rules adopted pursuant thereto, shall keep a record which shall identify the body, and information pertaining to receipt, removal, delivery, burial or cremation of the body as may be required by rules adopted by the State Registrar of the Center for Health Statistics.

(4) A medical examiner, physician or nurse practitioner authorized by law to sign a death certificate who is notified of the death of a person not under the care of institutions shall keep a record.

(5) Copies of records described in this section shall be sent to the state registrar at least monthly.

Records maintained under this section shall be retained by the institution, medical examiner, physician or nurse practitioner and the persons described in subsection (3) of this section for a period of not less than two years and shall be made available for inspection by the state registrar or a representative of the state registrar upon demand. [Amended by 1983 c.709 §22; 1985 c.207 §4; 1997 c.783 §21; 1999 c.80 §70; 2005 c.471 §4] 432.175 [Formerly 43.380; 1983 c.709 §34; 1985 c.565 §71; repealed by 1997 c.783 §48] 432.180 Certified copies of vital records or vital reports; evidentiary value; fraud or misrepresentation. (1) A certified copy of a vital record or vital report or any part thereof shall be considered for all purposes the same as the original and shall be prima facie evidence of the facts stated therein. However, the evidentiary value of a record or report filed more than one year after the event, a record or report that has been amended or a certificate of foreign birth shall be determined by the judicial or administrative body or official before whom the record or report is offered as evidence.

(2) The contents, or part of the contents, and the due execution of any certificate on file in the Center for Health Statistics may be evidenced by a copy of the material in the certificate, as certified by the State Registrar of the Center for Health Statistics.

(3) When the state registrar receives information that a certificate may have been registered through fraud or misrepresentation, the state registrar shall withhold issuance of any copy of that certificate. The state registrar shall advise the applicant of the right to appeal under ORS 183.480 to 183.484. If fraud or misrepresentation is found, the state registrar shall remove the certificate from the file. The certificate and evidence shall be retained but shall not be subject to inspection or copying except upon order of a court of competent jurisdiction or by the state registrar for purposes of administering the system of vital statistics.

(4) No person may prepare or issue any certificate that purports to be an original, certified copy or copy of a vital record or vital report except as authorized in this chapter or rules adopted pursuant thereto. No person may prepare or issue any certified copies of birth or death abstracts. [1997 c.783 §17] RECORDS OF BIRTHS; CERTIFICATION OF UNRECORDED BIRTHS; VOLUNTARY ACKNOWLEDGMENT OF PATERNITY 432.205 [Amended by 1979 c.426 §2; 1983 c.709 §6; 1995 c.514 §5; repealed by 1997 c.783 §22 (432.206 enacted in lieu of 432.205)] 432.206 Compulsory registration of births; rules; persons required to file. (1) A certificate of birth for each birth that occurs in this state shall be filed with the county registrar of the county in which the birth occurred or with the Center for Health Statistics, or as otherwise directed by the State Registrar of the Center for Health Statistics, within five days after the birth and shall be registered if the certificate has been completed and filed in accordance with this section. Any birth certificate not containing the name of the father or on which the surname of the father is at variance with that of the child, at the request of either parent, may be filed with the state registrar and not with the registrar of the county in which the birth occurred.

(2) When a birth occurs in an institution or en route thereto, the person in charge of the institution or authorized designee shall obtain the personal data, prepare the certificate, certify either by signature or by an approved electronic process that the child was born alive at the place and time and on the date stated and file the certificate as directed in subsection (1) of this section. The physician or other person in attendance shall provide the medical information required by the certificate within 72 hours after the birth.

(3) When a birth occurs outside of an institution: (a) The certificate shall be prepared and filed within five days after the birth by one of the following in the indicated order of priority, in accordance with rules adopted by the state registrar: (A) The physician in attendance at the birth or immediately after the birth, or in the absence of such a person; (B) The midwife in attendance at the birth or immediately after the birth, or in the absence of such a person; (C) Any other person in attendance at the birth or immediately after the birth, or in the absence of such a person; or (D) The father, the mother or, in the absence of the father and the inability of the mother, the person with authority over the premises where the birth occurred. (b) The state registrar shall by rule determine what evidence shall be required to establish the facts of birth.

(4) When a birth occurs on a moving conveyance: (a) Within the United States and the child is first removed from the conveyance in this state, the birth shall be registered in this state and the place where it is first removed shall be considered the place of birth.

(b) While in international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in this state, the birth shall be registered in this state but the certificate shall show the actual place of birth insofar as can be determined.

(5) If the mother is not married at the time of birth, the name of the father shall not be entered on the certificate unless: (a) The mother was married to and cohabiting with her husband at the time of conception, in which case the husband’s name shall be entered on the certificate, provided that the husband was not impotent or sterile; or (b) Both the father and mother have signed a voluntary acknowledgment of paternity form that has been executed in accordance with ORS 432.287 and filed with the registrar.

(6) In the case of a child born to a married woman as a result of artificial insemination with the consent of her husband, the husband’s name shall be entered on the certificate.

(7) If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate unless a voluntary acknowledgment of paternity form or other form prescribed under ORS 432.287 signed by the mother and the person to be named as the father is filed with the state registrar.

(8) In any case in which paternity of a child is determined by a court of competent jurisdiction, or by an administrative determination of paternity, the Center for Health Statistics shall enter the name of the father on the new certificate of birth. The Center for Health Statistics shall change the surname of the child if so ordered by the court or, in a proceeding under ORS 416.430, by the administrator as defined in ORS 25.010.

(9) If the father is not named on the certificate of birth, no other information about the father shall be entered on the legal portion of the certificate. Information pertaining to the father may be entered in the “Medical and Confidential” section of the certificate of birth.

(10) Certificates of birth filed after five days, but within one year after the date of birth, shall be registered on the standard form of birth certificate in the manner prescribed in this section. The certificates shall not be marked “Delayed.” The state registrar may require additional evidence in support of the facts of birth. [1997 c.783 §23 (enacted in lieu of 432.205); 1999 c.254 §2; 1999 c.840 §1; 2001 c.455 §24] 432.210 [Repealed by 1983 c.709 §45] 432.215 [Amended by 1983 c.709 §35; repealed by 1997 c.783 §48] 432.220 [Repealed by 1983 c.709 §45] 432.230 When new certificate issued; contents; amendment upon adoption; delayed certificate. (1) The State Registrar of the Center for Health Statistics shall establish a new certificate of birth for a person born in this state when the state registrar receives either of the following: (a) A report of adoption as provided in ORS 432.415 or a report of adoption prepared and filed in accordance with the laws of another state or foreign country, or a certified copy of the judgment of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth, except that a new certificate of birth shall not be established if so requested by the court entering the judgment of adoption, the adoptive parents or the adopted person. (b) A request that a new certificate of birth be established as prescribed by rule and the evidence required by rule of the state registrar proving that: (A) The person has been legitimated; (B) A court of competent jurisdiction has determined the paternity of the person;

(C) An administrative determination of paternity has been filed; or (D) Both parents have voluntarily acknowledged the paternity of the person and requested that the surname be changed from that shown on the original certificate.

(2) When a new certificate of birth is established, the actual city or county, or both, and date of birth shall be shown. The new certificate shall be substituted for the original certificate of birth in the files, and the original certificate of birth and the evidence of adoption, legitimation, court determination of paternity, administrative determination of paternity, voluntary acknowledgment of paternity or other form prescribed in ORS 432.287 shall not be subject to inspection except upon order of a court or as provided by rule of the state registrar.

(3) Upon receipt of a report of an amended judgment of adoption, the certificate of birth shall be amended as provided by rule of the state registrar.

(4) Upon receipt of a report or judgment of annulment of adoption, the original certificate of birth shall be restored to its place in the files and the adoption certificate and evidence shall not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule of the state registrar.

(5) Upon written request of both parents and receipt of a voluntary acknowledgment of paternity form or other form prescribed in ORS 432.287 signed by both parents of a child born out of wedlock, the state registrar shall issue a new certificate of birth to show such paternity if paternity is not already shown on the certificate of birth. Such certificate shall not be marked “Amended.”

(6) If no certificate of birth is on file for the person for whom a new birth certificate is to be established under this section, and the date and place of birth have not been determined in the adoption or paternity proceedings, a delayed certificate of birth shall be filed with the state registrar as provided in ORS 432.140 and 432.142, before a new certificate of birth is established. The new birth certificate shall be prepared on the delayed birth certificate form.

(7) When a new certificate of birth is established by the state registrar, all copies of the original certificate of birth in the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the state registrar as the state registrar shall direct.

(8) The state registrar, upon request, shall prepare and register a certificate in this state for a person born in a foreign country who is not a citizen of the United States and who was adopted through a court of competent jurisdiction in this state. The certificate shall be established upon receipt of a report of a judgment of adoption from the court, proof of the date and place of the person’s birth, and a request from the court, the adopting parents or the adopted person, if 18 years of age or over, that such a certificate be prepared. The certificate shall be labeled “Certificate of Foreign Birth” and shall show the actual country of birth. A statement shall also be included on the certificate indicating that it is not evidence of United States citizenship for the person for whom it is issued. After registration of the birth certificate in the new name of the adopted person, the state registrar shall seal the report of adoption, which shall not be subject to inspection except upon order of a court of competent jurisdiction. [1983 c.709 §11a; 1997 c.783 §24; 2003 c.576 §454] 432.235 Amendment of vital record or vital report; rules. (1) A certificate or report registered under this chapter may be amended only in accordance with this chapter and rules adopted by the State Registrar of the Center for Health Statistics to protect the integrity and accuracy of vital records and vital reports.

(2) A certificate or report that is amended under this section shall indicate that it has been amended, except as otherwise provided in ORS 432.230, this section or by rule of the state registrar. A record shall be maintained that identifies the evidence upon which the amendment was based, the date of the amendment and the identity of the person making the amendment. The state registrar shall prescribe by rule the

conditions under which additions or minor corrections may be made to certificates or reports within one year without the certificate or report indicating that it has been amended.

(3) Upon receipt of a certified copy of an order of a court changing the name of a person born in this state and upon request of such person or if the person is a minor or incompetent, the parents, guardian or legal representative of the person, the state registrar shall amend the certificate of birth to show the new name.

(4) Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual born in this state has been changed by surgical procedure and whether such individual’s name has been changed, the certificate of birth of such individual shall be amended as prescribed by rule of the state registrar.

(5) When an applicant does not submit the minimum documentation required by rule of the state registrar for amending a vital record or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statements or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not amend the vital record and shall advise the applicant of the reason for this action and shall further advise the applicant of the right of appeal under ORS 183.480 and 183.484.

(6) When a certificate or report is amended under this section by the state registrar, the state registrar shall report the amendment to any other custodian of the vital record and the record of the other custodian shall be amended accordingly.

(7) When an amendment is made to an application, license and record of marriage or to a Declaration of Domestic Partnership by the local official issuing the marriage license or registering the declaration, copies of the amendment shall be forwarded to the state registrar.

(8)(a) When a party or legal representative proposes to set aside or change any information recorded in a dissolution of marriage judgment or dissolution of domestic partnership judgment filed pursuant to ORS 432.408, the party or legal representative seeking the amendment or set aside order shall prepare a summary of the changes in the form prescribed or furnished by the state registrar and shall present the form to the clerk of the court along with the proposed supplemental judgment. In all cases the completed form shall be a prerequisite to the entry of the supplemental judgment. (b) The clerk of the court shall complete and forward to the Center for Health Statistics the records of each such supplemental judgment in the same manner prescribed by ORS 432.408. [Formerly 432.290; 1997 c.783 §25; 2003 c.576 §455; 2007 c.99 §17; 2007 c.703 §13] 432.240 Issuance of certified copy of certificate of birth to adopted persons; Contact Preference Form. (1) Upon receipt of a written application to the state registrar, any adopted person 21 years of age and older born in the State of Oregon shall be issued a certified copy of his/her unaltered, original and unamended certificate of birth in the custody of the state registrar, with procedures, filing fees, and waiting periods identical to those imposed upon nonadopted citizens of the State of Oregon pursuant to ORS 432.121 and 432.146. Contains no exceptions.

(2) A birth parent may at any time request from the State Registrar of the Center for Health Statistics or from a voluntary adoption registry a Contact Preference Form that shall accompany a birth certificate issued under subsection (1) of this section. The Contact Preference Form shall provide the following information to be completed at the option of the birth parent: ______________________________________________________________________________ (a) I would like to be contacted; (b) I would prefer to be contacted only through an intermediary; or

(c) I prefer not to be contacted at this time. If I decide later that I would like to be contacted, I will register with the voluntary adoption registry. I have completed an updated medical history and have filed it with the voluntary adoption registry. Attached is a certificate from the voluntary adoption registry verifying receipt of the updated medical history. ______________________________________________________________________________ (3) The certificate from the voluntary adoption registry verifying receipt of an updated medical history under subsection (2) of this section shall be in a form prescribed by the Oregon Health Authority and shall be supplied upon request of the birth parent by the voluntary adoption registry.

(4) When the State Registrar of the Center for Health Statistics receives a completed Contact Preference Form from a birth parent, the state registrar shall match the Contact Preference Form with the adopted person’s sealed file. The Contact Preference Form shall be placed in the adopted person’s sealed file when a match is made.

(5) A completed Contact Preference Form shall be confidential and shall be placed in a secure file until a match with the adopted person’s sealed file is made and the Contact Preference Form is placed in the adopted person’s file.

(6) Only those persons who are authorized to process applications made under subsection (1) of this section may process Contact Preference Forms. [1999 c.2; 1999 c.604 §1; 2009 c.595 §614] Note: 432.240 was adopted by the people by initiative petition but was not added to or made a part of ORS chapter 432 or any series therein. See Preface to Oregon Revised Statutes for further explanation.

432.255 [Repealed by 1983 c.709 §45] 432.260 [Amended by 1981 c.6 §1; repealed by 1983 c.709 §45] 432.265 [Repealed by 1983 c.709 §45] 432.266 Commemorative Certificate of Stillbirth; rules. (1) The State Registrar of the Center for Health Statistics shall establish a Commemorative Certificate of Stillbirth. The certificate shall be signed by the state registrar.

(2) The state registrar shall issue a Commemorative Certificate of Stillbirth for a stillbirth occurring on or after January 1, 1999, upon: (a) Request of a biological parent of the stillborn fetus; and (b) Payment of the fee adopted by the state registrar by rule.

(3) The state registrar shall adopt by rule: (a) A form for the certificate; (b) The type of information that may be included on the form; and (c) The fee required for issuance of the certificate.

(4) A certificate issued under this section is for commemorative purposes only and has no legal effect.

[2005 c.769 §1] 432.270 [Repealed by 1983 c.709 §45] 432.275 [Repealed by 1983 c.709 §45]

432.280 [Repealed by 1983 c.709 §45] 432.285 Availability of voluntary acknowledgment of paternity form; responsibility of health care facility and parents. Any health care facility as defined in ORS 442.015 shall make available to the biological parents of any child born live, or expected to be born within the health care facility, a voluntary acknowledgment of paternity form when the facility has reason to believe that the mother of the child is unmarried. The responsibility of the health care facility is limited to providing the form and submitting the form with the birth certificate to the State Registrar of the Center for Health Statistics. The biological parents are responsible for ensuring that the form is accurately completed. This form shall be as prescribed

by ORS 432.287. [1995 c.514 §3; 1997 c.783 §26] 432.287 Voluntary acknowledgment of paternity form; rules; filing; when form is sworn document; copy to child support agency. (1) The Director of the Oregon Health Authority shall adopt by rule a form of a voluntary acknowledgment of paternity that includes the minimum requirements specified by the United States Secretary of Health and Human Services. When the form is signed by both biological parents and witnessed by a third party, the form establishes paternity for all purposes when filed with the State Registrar of the Center for Health Statistics, provided there is no male parent already named on the birth certificate. Establishment of paternity under this section is subject to the provisions and the requirements in ORS 109.070. When there is no other male named as father on the child’s birth certificate, the filing of such voluntary acknowledgment of paternity form shall cause the state registrar to place the name of the male parent who has signed the voluntary acknowledgment of paternity form on the birth certificate of the child or, if appropriate, issue a new birth certificate containing the name of the child’s male parent, as that parent is named in the voluntary acknowledgment of paternity form. When signed by both parents in the health care facility of the child’s birth within five days after the birth, the voluntary acknowledgment of paternity form is not a sworn document. When thus signed, a staff member of the health care facility shall witness the signatures of the parents. In all other circumstances, the form is a sworn document. The filing of the voluntary acknowledgment of paternity form created by this section is subject to the payment of any fees that may apply.

(2) The voluntary acknowledgment of paternity form must contain: (a) A statement of rights and responsibilities including any rights afforded to a minor parent; (b) A statement of the alternatives to and consequences of signing the acknowledgment; (c) Instructions on how to file the form with the state registrar and information about any fee required; (d) Lines for the Social Security numbers and addresses of the parents; and (e) A statement that the rights, responsibilities, alternatives and consequences listed on the acknowledgment were read to the parties prior to signing the acknowledgment.

(3) Upon request, the state registrar shall provide a copy of any voluntary acknowledgment of paternity form to the state agency responsible for administration of the child support enforcement program created under Title IV-D of the Social Security Act. The duty imposed upon the state registrar by this section is limited to birth certificates executed and filed with the state registrar after October 1, 1995. [1995 c.514 §4; 1997 c.783 §27; 1999 c.80 §21; 2009 c.595 §615] 432.289 Full faith and credit. A determination of paternity by another state is entitled to full faith and credit. [1995 c.514 §4a] 432.290 [1981 c.221 §3; 1983 c.709 §18; 1995 c.514 §6; renumbered 432.235 in 1995]

DETERMINATION OF DEATH 432.300 Determination of death. (1) A person is dead if the person has sustained either: (a) Irreversible cessation of circulatory and respiratory functions; or (b) Irreversible cessation of all functions of the entire brain, including the brain stem.

(2) A determination of whether the conditions described in subsection (1)(a) or (b) of this section have occurred must be made in accordance with accepted medical standards.

(3) For purposes of this section as it relates to fetal death, heartbeats shall be distinguished from transient cardiac contractions and breathing shall be distinguished from fleeting respiratory efforts or gasps.

(4) This section may be cited as the Uniform Determination of Death Act. [1987 c.517 §2 (enacted in lieu of 146.001); 1997 c.783 §28] 432.305 [Repealed by 1963 c.200 §6] DEATH CERTIFICATES; BURIAL PERMITS 432.307 Compulsory filing of death certificates; persons required to file. (1) A certificate of death for each death that occurs in this state shall be submitted to the county registrar of the county in which the death occurred or to the Center for Health Statistics, or as otherwise directed by the State Registrar of the Center for Health Statistics, within five days after death or the finding of a dead body and prior to final disposition, and shall be registered if it has been completed and filed in accordance with this section. (a) If the place of death is unknown, but the dead body is found in this state, the certificate of death shall be completed and filed in accordance with this section. The place where the body is found shall be shown as the place of death. If the date of death is unknown, it shall be determined by approximation. If the date cannot be determined by approximation, the date the dead body is found shall be entered and identified as the date of death. (b) When death occurs in a moving conveyance: (A) In the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death.

(B) While in international waters or air space or in a foreign country or its air space and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined. (c) In all other cases, the place where death is pronounced shall be considered the place where death occurred.

(2) The funeral service practitioner or person acting as a funeral service practitioner who first assumes custody of the dead body shall submit the certificate of death. The funeral service practitioner or person acting as a funeral service practitioner shall obtain the personal data from the next of kin or the best qualified person or source available and shall obtain the medical certification from the person responsible therefor. The funeral service practitioner or person acting as a funeral service practitioner shall provide the certificate of death containing information as specified by rule to identify the decedent to the certifier within 48 hours after death.

(3) The physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677 or certified nurse practitioner, in charge of the care of the patient for the illness or condition that resulted in death shall complete, sign and return the medical certification of death to the funeral service practitioner or person acting as a funeral service practitioner within 48 hours after receipt of the certificate of death by the physician, physician assistant or nurse practitioner, except when inquiry is

required by ORS chapter 146. In the absence or inability of the physician, physician assistant or nurse practitioner, or with the approval of the physician, the medical certification of death may be completed by an associate physician, the chief medical officer of the institution in which death occurred or the physician who performed an autopsy upon the decedent, provided that the individual has access to the medical history of the case and death is due to natural causes. The person completing the medical certification of death shall attest to its accuracy either by signature or by an approved electronic process.

(4) When inquiry is required by ORS chapter 146, the medical examiner shall determine the cause of death and shall complete and sign the medical certification of death within 48 hours after taking charge of the case.

(5) If the cause of death cannot be determined within the time prescribed, the medical certification of death shall be completed as provided by rule of the state registrar. The attending physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677, nurse practitioner or medical examiner shall give the funeral service practitioner or person acting as a funeral service practitioner notice of the reason for the delay, and final disposition of the body shall not be made until authorized by the attending physician, physician assistant, nurse practitioner or medical examiner.

(6) Upon receipt of autopsy results or other information that would change the information in the “Cause of Death” section of the certificate of death from that originally reported, the certifier shall immediately file a supplemental report of cause of death with the Center for Health Statistics to amend the certificate.

(7) When a death is presumed to have occurred within this state but the body cannot be located, a certificate of death may be registered by the state registrar only upon receipt from the State Medical Examiner. Such a death certificate shall be marked “Presumptive” and shall show on its face the date of registration.

(8) When a death occurring in this state has not been registered within the time period prescribed by this section, a certificate of death may be filed in accordance with rules of the state registrar. The certificate shall be registered subject to evidentiary requirements as the state registrar by rule shall prescribe to substantiate the alleged facts of death.

(9) A certificate of death registered one year or more after the date of death or the date the dead body was found shall be marked “Delayed” and shall show on its face the date of the delayed registration.

(10) When an applicant does not submit the minimum documentation required by rule of the state registrar for delayed registration or when the state registrar has cause to question the validity or adequacy of the applicant’s sworn statement or the documentary evidence and if the deficiencies are not corrected, the state registrar shall not register the delayed certificate of death and shall advise the applicant of the right of appeal under ORS 183.480 to 183.484.

(11) A certificate of death required to be filed under this section shall contain the Social Security number of the decedent whenever the Social Security number is reasonably available from other records concerning the decedent or can be obtained from the person in charge of the final disposition of the decedent. [1963 c.200 §2; 1965 c.221 §26; 1977 c.582 §33; 1983 c.709 §12; 1985 c.207 §5; 1997 c.783 §29; 1999 c.80 §71; 1999 c.724 §1; 2001 c.357 §2; 2003 c.104 §3] 432.310 [Amended by 1959 c.629 §32; repealed by 1963 c.200 §6] 432.312 Death certificate fee; use; limitation. (1) The Oregon Health Authority shall impose and collect a filing fee of $20 for each certificate of death. Of the fee, $6 shall be deposited to the credit of the Public Health Account and used to carry out the purposes of ORS 97.170 (6) and $14 shall be deposited to

the credit of the State Mortuary and Cemetery Board Account and used in the same manner as funds credited to the account under ORS 692.375.

(2) The expenditures under ORS 97.170 (6) and 692.375 may not exceed the funds collected under subsection (1) of this section, and in no event may expenditure on the administration of the funds exceed five percent of the moneys collected. [1993 c.345 §3; 1997 c.783 §30; 2005 c.726 §3; 2009 c.132 §1; 2009 c.595 §616; 2009 c.709 §16] 432.315 [Amended by 1959 c.629 §33; repealed by 1963 c.200 §6] 432.317 Report upon receipt of body or fetus; authorization for final disposition; rules. (1) The funeral service practitioner or person acting as a funeral service practitioner who first assumes possession of a dead body or fetus shall make a written report to the county registrar in the county in which death occurred or in which the body or fetus was found within 24 hours after taking possession of the body or fetus. The report shall be on a form prescribed and furnished by the State Registrar of the Center for Health Statistics and in accordance with rules adopted by the Oregon Health Authority.

(2) Prior to final disposition of the body, the funeral service practitioner or person acting as a funeral service practitioner who first assumes custody of a dead body shall, prior to final disposition of the body, obtain written authorization for final disposition of the body from the physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677, certified nurse practitioner or medical examiner who certifies the cause of death as provided in ORS 432.307 (3) on a form prescribed and furnished by the state registrar. If the funeral service practitioner or person acting as a funeral service practitioner is unable to obtain such written authorization prior to final disposition of the body, the practitioner or person, with the oral consent of the physician, the physician assistant, the nurse practitioner, the medical examiner or a licensed health professional authorized to give such consent on behalf of the physician or medical examiner who is responsible for certifying the cause of death, may authorize final disposition of the body on a form prescribed and furnished by the state registrar.

(3) Prior to final disposition of a fetus, irrespective of the duration of pregnancy, the funeral service practitioner, the person in charge of the institution or other person assuming responsibility for final disposition of the fetus shall authorize final disposition of the fetus on a form prescribed and furnished or approved by the state registrar.

(4) With the consent of the physician, physician assistant practicing under the supervision of a person licensed to practice medicine under ORS chapter 677, nurse practitioner or medical examiner who is to certify the cause of death, a dead body may be moved from the place of death for the purpose of being prepared for final disposition.

(5) An authorization for final disposition issued under the laws of another state which accompanies a dead body or fetus brought into this state shall be authority for final disposition of the body or fetus in this state. Permits for transporting a body or fetus out of another state issued under the laws of another state shall be authority for transporting a body or fetus into Oregon.

(6) No sexton or other person in charge of any place in which interment or other disposition of dead bodies is made shall inter or allow interment or other disposition of a dead body or fetus unless it is accompanied by authorization for final disposition.

(7) Each person in charge of any place for final disposition shall include in the authorization the date of disposition and shall complete and return all authorizations to the county registrar within 10 days after the date of the disposition. When there is no person in charge of the place for final disposition, a responsible party other than the funeral service practitioner or person acting as a funeral service practitioner shall complete and return the authorization to the county registrar within 10 days after the date of disposition.

(8) Authorization for disinterment and reinterment shall be required prior to disinterment of a dead body or fetus. The authorization shall be issued by the state registrar to a licensed funeral service practitioner or person acting as a funeral service practitioner, upon proper application.

(9) Prior to removing a dead body or fetus from the State of Oregon under ORS 692.270, a person acting as a funeral service practitioner as defined in ORS 432.005 (11)(b) shall submit a written notice of removal to the county registrar in the county in which death occurred or in which the body or fetus was found. The notice shall be on a form prescribed and furnished by the State Registrar of the Center for Health Statistics and in accordance with rules adopted by the Oregon Health Authority. A copy of the written notice of removal shall serve as a transit permit for the remains of the decedent named on the notice. [1963 c.200 §3; 1983 c.709 §16; 1985 c.207 §6; 1987 c.252 §9; 1989 c.669 §2; 1997 c.783 §31; 1999 c.724 §4; 2001 c.357 §3; 2003 c.104 §4; 2009 c.595 §617] 432.320 [Repealed by 1963 c.200 §6] 432.325 [Repealed by 1963 c.200 §6] 432.327 Extensions on certificates, reports and permits; rules. Upon such conditions as the State Registrar of the Center for Health Statistics may prescribe to ensure compliance with the purposes of this chapter, by rule the state registrar may provide for the extension, not to exceed 60 days, of the periods prescribed in ORS 432.307 and 432.317 for the filing of certificates of death and fetal death reports, medical certifications of death, and for the obtaining of permits for disposition of human remains in cases where compliance with the applicable prescribed period would result in undue hardship. [1963 c.200 §4; 1983 c.709 §36; 1997 c.783 §32] 432.330 [Repealed by 1963 c.200 §6] 432.333 Reports on fetal deaths. (1) Each fetal death of 350 grams or more, or, if weight is unknown, of 20 completed weeks gestation or more, calculated from the date last normal menstrual period began to the date of delivery, that occurs in this state shall be reported within five days after delivery to the county registrar of the county in which the fetal death occurred or to the Center for Health Statistics or as otherwise directed by the State Registrar of the Center for Health Statistics. All induced terminations of pregnancy shall be reported in the manner prescribed in ORS 435.496 and shall not be reported as fetal deaths.

(2) When a fetus is delivered in an institution, the person in charge of the institution or a designated representative shall prepare and file the report.

(3) When a fetus is delivered outside an institution, the physician in attendance at or immediately after delivery shall prepare and file the report.

(4) When a fetal death required to be reported by this section occurs without attendance by a physician at or immediately after the delivery or when inquiry is required by ORS 146.003 to 146.189 and 146.710 to 146.992, the medical examiner shall investigate the cause of fetal death and shall prepare and file the report.

(5) When a fetal death occurs in a moving conveyance and the fetus is first removed from the conveyance in this state or when a fetus is found in this state and the place of fetal death is unknown, the fetal death shall be reported in this state. The place where the fetus was first removed from the conveyance or the fetus was found shall be considered the place of fetal death.

(6) All information regarding the father shall be entered on the fetal death report if the father is identified. [1983 c.709 §13; 1989 c.171 §54; 1997 c.783 §33]

432.335 [Repealed by 1963 c.200 §6] 432.337 Status of reports under ORS 435.496; rules. The reports required under ORS 435.496 are statistical reports to be used only for medical and health purposes and shall not be incorporated into the permanent official records of the system of vital statistics. A schedule for the disposition of these reports may be provided by rule of the State Registrar of the Center for Health Statistics. [1983 c.709 §15; 1997 c.783 §34] 432.340 [Repealed by 1963 c.200 §6] 432.345 [Repealed by 1983 c.709 §45] RECORDS OF MARRIAGES, DOMESTIC PARTNERSHIPS, DIVORCES, ADOPTIONS, ANNULMENTS AND CERTAIN BIRTHS 432.405 Filing of marriage record or domestic partnership registration; rules. (1) A record of each marriage performed and domestic partnership registered in this state shall be filed with the Center for Health Statistics and shall be registered if it has been completed and filed in accordance with this section and rules adopted by the State Registrar of the Center for Health Statistics.

(2) The county clerk or county official who issues the marriage license or registers the Declaration of Domestic Partnership shall prepare the record in the form prescribed or furnished by the state registrar upon the basis of information obtained from the parties.

(3) Each person who performs a marriage ceremony shall certify the fact of marriage and return the record to the official who issued the license within 10 days after the ceremony.

(4) Every official issuing marriage licenses or registering Declarations of Domestic Partnership shall complete and forward to the Center for Health Statistics on or before the 10th day of each calendar month the records of marriages returned to such official during the preceding calendar month and the records of Declarations of Domestic Partnership registered during the preceding calendar month.

(5) A marriage or domestic partnership record not filed within the time prescribed by this section may be registered in accordance with rules adopted by the state registrar. [Amended by 1983 c.709 §17; 1997 c.783 §35; 2007 c.99 §18] 432.408 Record of dissolution of marriage judgment or dissolution of domestic partnership judgment; rules. (1) A record of each dissolution of marriage judgment or dissolution of domestic partnership judgment by any court in this state shall be filed by the clerk of the court with the Center for Health Statistics and shall be registered if it has been completed and filed in accordance with this section.

The record shall be prepared by the petitioner or a legal representative of the petitioner in the form prescribed or furnished by the State Registrar of the Center for Health Statistics and shall be presented to the clerk of the court with the petition. In all cases the completed record shall be prerequisite to the entry of the judgment. The state registrar shall design the record so that, for judgments or orders issued in proceedings under ORS 107.085 or 107.485, the state registrar, county clerks, county recording officers and state courts may keep Social Security numbers confidential and exempt from public inspection.

(2) The clerk of the court shall complete and forward to the Center for Health Statistics on or before the 10th day of each calendar month the records of each dissolution of marriage judgment or dissolution of domestic partnership judgment granted during the preceding calendar month. The clerk shall comply with procedures established under ORS 107.840 to ensure that, in the records completed and forwarded under

this subsection, the Social Security numbers of parties to a proceeding under ORS 107.085 or 107.485 are kept confidential and exempt from public inspection.

(3) A dissolution of marriage record or dissolution of domestic partnership record not filed within the time prescribed by subsection (2) of this section may be registered in accordance with rules adopted by the state registrar. [1997 c.783 §37; 2003 c.380 §9; 2003 c.576 §456a; 2007 c.99 §19] 432.410 [Repealed by 1959 c.430 §5] 432.412 Marriage and divorce records subject to full disclosure; exemption. (1) Except as provided in subsection (2) of this section, notwithstanding any other provision of law, all marriage records and all divorce records in the custody of a county clerk or county recording officer and all divorce records in the custody of the state courts are open and subject to full disclosure.

(2) Divorce records in the custody of the state courts shall be completed and maintained in accordance with procedures established under ORS 107.840 to ensure that the Social Security numbers of parties to proceedings under ORS 107.085 and 107.485 are kept confidential and exempt from public inspection.

[1999 c.254 §6; 2003 c.380 §10] 432.415 Reports on adoptions. (1) For each judgment of adoption entered by a court in this state, the court shall require the preparation of a report of adoption on a form prescribed and furnished by the State Registrar of the Center for Health Statistics. The report shall: (a) Include such facts as are necessary to locate and identify the certificate of birth of the person adopted or, in the case of a person who was born in a foreign country, evidence from sources determined to be reliable by the court as to the date and place of birth of the person; (b) Provide information necessary to establish a new certificate of birth of the person adopted; and (c) Identify the order of adoption and be certified by the clerk of the court.

(2) Information necessary to prepare the report of adoption shall be furnished by each petitioner for adoption or the attorney of the petitioner. The Department of Human Services or any person having knowledge of the facts shall supply the court with such additional information as may be necessary to complete the report of adoption. The provision of such information shall be prerequisite to the issuance of a judgment of adoption.

(3) Whenever an adoption judgment is amended or annulled, the clerk of the court shall prepare a report thereof, which shall include such facts as are necessary to identify the original adoption report and the facts amended in the adoption judgment as shall be necessary to properly amend the birth record.

(4) Not later than the 10th day of each calendar month or more frequently, as directed by the state registrar, the clerk of the court shall forward to the state registrar reports of adoption, reports of annulment of adoption and amendments of judgments of adoption that were entered in the preceding month, together with such related reports as the state registrar shall require.

(5) When the state registrar receives a report of adoption, report of annulment of adoption or amendment of a judgment of adoption for a person born outside this state, the state registrar shall forward such report to the state registrar in the state of birth.

(6) If the birth occurred in a foreign country, except Canada, and the person is not a citizen of the United States at the time of birth, the state registrar shall prepare a certificate of foreign birth as provided by ORS 432.230. If the person was born in Canada, the state registrar shall forward the report of adoption, report of annulment of adoption or amendment of a judgment of adoption to the appropriate registration authority in Canada.

(7) If the person was born in a foreign country but was a citizen of the United States at the time of birth, the state registrar shall not prepare a certificate of foreign birth and shall notify the adoptive parents of the procedures for obtaining a revised birth certificate for the person through the United States Department of State. [Amended by 1959 c.430 §2; 1983 c.709 §10; 1997 c.783 §38; 2003 c.576 §457] 432.420 Access to adoption records. The documents forwarded to the State Registrar of the Center for Health Statistics or sealed under ORS 432.230 may be opened by the state registrar only upon an order of an Oregon court of competent jurisdiction or when requested by an agency operating a voluntary adoption registry as defined in ORS 109.425 for the purpose of facilitating the identification of persons registering under the provisions of ORS 109.425 and 109.435 to 109.507. [Amended by 1957 c.193 §1; 1983 c.672 §18; 1995 c.79 §221; 1995 c.730 §11; 1997 c.783 §39; 1999 c.254 §3] 432.425 [Amended by 1955 c.680 §1; repealed by 1983 c.709 §45] 432.430 Duty to report on child of unknown parentage; rules. (1) A person who assumes the custody of a child of unknown parentage shall report on a form and in a manner prescribed by the State Registrar of the Center for Health Statistics, within five days of assuming custody, to the state registrar the following information: (a) The date and the city or county, or both, where the child was found. (b) Sex and approximate birth date of child. (c) Name and address of the person or institution with whom the child has been placed for care. (d) Name given to the child by the custodian of the child. (e) Other data required by the state registrar.

(2) The place where the child was found shall be entered as the place of birth.

(3) The report registered under this section shall constitute the certificate of birth for the child.

(4) If the child is identified and a certificate of birth is found or obtained, the report registered under this section shall be placed in a sealed file and shall not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule of the state registrar. [Amended by 1983 c.709 §7; 1997 c.783 §40] CANCER AND TUMOR REGISTRY SYSTEM 432.500 Definitions. As used in ORS 432.510 to 432.550 and 432.900: (1) “Clinical laboratory” means a facility where microbiological, serological, chemical, hematological, immunohematological, immunological, toxicological, cytogenetical, exfoliative cytological, histological, pathological or other examinations are performed on material derived from the human body, for the purpose of diagnosis, prevention of disease or treatment of patients by physicians, dentists and other persons who are authorized by license to diagnose or treat humans.

(2) “Department” means the Department of Human Services or its authorized representative.

(3) “Health care facility” means a hospital, as defined in ORS 442.015, or an ambulatory surgical center, as defined in ORS 442.015.

(4) “Practitioner” means any person whose professional license allows the person to diagnose or treat cancer in patients. [1995 c.585 §1; 2001 c.104 §154; 2003 c.14 §243; 2003 c.269 §1; 2009 c.595 §618; 2009 c.792 §35]

Note: 432.500 to 432.570 and 432.900 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 432 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

432.510 Cancer and tumor registry system; purpose; rulemaking; duties of Oregon Health Authority. (1) The Oregon Health Authority shall establish a uniform, statewide, population-based registry system for the collection of information determining the incidence of cancer and benign tumors of the brain and central nervous system and related data. The purpose of the registry shall be to provide information to design, target, monitor, facilitate and evaluate efforts to determine the causes or sources of cancer and benign tumors among the residents of Oregon and to reduce the burden of cancer and benign tumors in Oregon. Such efforts may include but are not limited to: (a) Targeting populations in need of cancer screening services or evaluating screening or other cancer control services; (b) Supporting the operation of hospital registries in monitoring and upgrading the care and the end results of treatment for cancer and benign tumors; (c) Investigating suspected clusters or excesses of cancer and benign tumors both in occupational settings and in the state’s environment generally; (d) Conducting studies to identify cancer hazards to the public health and cancer hazard remedies; and (e) Projecting the benefits or costs of alternative policies regarding the prevention or treatment of cancer and benign tumors.

(2) The authority shall adopt rules necessary to carry out the purposes of ORS 432.510 to 432.550 and 432.900, including but not limited to designating which types of cancer and benign tumors of the brain and central nervous system are reportable to the statewide registry, the data to be reported, the data reporting standards and format and the effective date after which reporting by health care facilities, clinical laboratories and practitioners shall be required. When adopting rules under this subsection, the authority shall, to the greatest extent practicable, conform the rules to the standards and procedures established by the American College of Surgeons Commission on Cancer, with the goal of achieving uniformity in the collection and reporting of data.

(3) The authority shall: (a) Conduct a program of epidemiologic analyses of registry data collected under subsection (1) of this section to assess control, prevention, treatment and causation of cancer and benign tumors in Oregon; and (b) Utilize the data to promote, facilitate and evaluate programs designed to reduce the burden of cancer and benign tumors among the residents of Oregon.

(4) The authority shall: (a) Collaborate in studies of cancer and benign tumors with clinicians and epidemiologists and publish reports on the results of such studies; and (b) Cooperate with the National Institutes of Health and the Centers for Disease Control and Prevention in providing incidence data for cancer and benign tumors.

(5) The authority shall establish a training program for the personnel of participating health care facilities and a quality control program for data for cancer and benign tumors reported to the state registry.

[1995 c.585 §2; 2003 c.269 §2; 2007 c.71 §121; 2009 c.595 §619] Note: See note under 432.500.

432.520 Reporting requirement; review of records; special studies. (1) Except as provided in subsection (2) of this section, any health care facility in which patients are diagnosed or provided treatment

for cancer or benign tumors of the brain and central nervous system shall report each case of cancer or benign tumors of the brain and central nervous system to the Oregon Health Authority within a time period and in a format prescribed by the authority. The authority shall provide, at cost, reporting services to any health care facility at the option of the health care facility. Health care facilities may also purchase reporting services from another facility or commercial vendor. If a health care facility is unable to report in conformance with the format and standards prescribed by the authority, the authority may, after consultation with the health care facility, elect to activate its reporting service for the facility. When activated, the authority may enter the facility, obtain the information and report it in conformance with the appropriate format and standards. In these instances, the facility shall reimburse the authority or its authorized representative for the cost of obtaining and reporting the information.

(2) Upon application to the authority by a health care facility, the authority shall grant to the health care facility an extension of time in which to meet the reporting requirements of this section. In no event shall the extension of time exceed two years from the date of application.

(3) Any practitioner diagnosing or providing treatment to patients with cancer or benign tumors of the brain and central nervous system shall report each case to the authority or its authorized representative within a time period and in a format prescribed by the authority. Those cases diagnosed or treated at an Oregon health care facility or previously admitted to an Oregon health care facility for diagnosis or treatment of that instance of cancer or benign tumors of the brain and central nervous system shall be considered by the authority to have been reported by the health care practitioner.

(4) Any clinical laboratory diagnosing cases of cancer or benign tumors of the brain and central nervous system shall report each case to the authority or its authorized representative within a time period and in a format prescribed by the authority.

(5) For the purpose of assuring the accuracy and completeness of reported data, the authority shall have the right to periodically review all records that would: (a) Identify cases of cancer and benign tumors, the treatment of the cancer or benign tumors or the medical status of any patient identified as being treated for cancer or benign tumors; or (b) Establish characteristics of the cancer or benign tumors.

(6) The authority may conduct special studies of cancer morbidity and mortality. As part of such studies, registry personnel may obtain additional information that applies to a patient’s cancer or benign tumors and that may be in the medical record of the patient. The record holder may either provide the requested information to the registry personnel or provide the registry personnel access to the relevant portions of the patient’s medical record. Neither the authority nor the record holder shall bill the other for the cost of providing or obtaining this information. [1995 c.585 §3; 2003 c.269 §3; 2009 c.595 §620] Note: See note under 432.500.

432.530 Confidentiality of information. (1) All identifying information regarding individual patients, health care facilities and practitioners reported pursuant to ORS 432.520 shall be confidential and privileged. Except as required in connection with the administration or enforcement of public health laws or rules, no public health official, employee or agent shall be examined in an administrative or judicial proceeding as to the existence or contents of data collected under the registry system for cancer and benign tumors of the brain and central nervous system.

(2) All additional information reported in connection with a special study shall be confidential and privileged and shall be used solely for the purposes of the study, as provided by ORS 432.060. Nothing in this section shall prevent the Oregon Health Authority from publishing statistical compilations relating to morbidity and mortality studies that do not identify individual cases or prevent use of this data by third

parties to conduct research as provided by ORS 432.540 (1). [1995 c.585 §5; 2003 c.269 §4; 2009 c.595 §621] Note: See note under 432.500.

432.540 Use of confidential data; rules. (1) The Oregon Health Authority shall adopt rules under which confidential data may be used by third parties to conduct research and studies for the public good.

Research and studies conducted using confidential data from the statewide registry must be reviewed and approved by the Committee for the Protection of Human Research Subjects established in accordance with 45 C.F.R. 46.

(2) The authority may enter into agreements to exchange information with other registries for cancer and benign tumors of the brain and central nervous system in order to obtain complete reports of Oregon residents diagnosed or treated in other states and to provide information to other states regarding the residents of other states diagnosed or treated in Oregon. Prior to providing information to any other registry, the authority shall ensure that the recipient registry has comparable confidentiality protections. [1995 c.585 §6; 2003 c.269 §6; 2009 c.595 §622] Note: See note under 432.500.

432.550 Action for damages; license; disciplinary action prohibited for good faith participation in reporting of data. (1) No action for damages arising from the disclosure of confidential or privileged information may be maintained against any person, or the employer or employee of any person, who participates in good faith in the reporting of registry data for cancer or benign tumors of the brain and central nervous system or data for cancer morbidity or mortality studies in accordance with ORS 432.510 to 432.540 and 432.900.

(2) No license of a health care facility or practitioner may be denied, suspended or revoked for the good faith disclosure of confidential or privileged information in the reporting of registry data for cancer or benign tumors of the brain and central nervous system or data for cancer morbidity or mortality studies in accordance with ORS 432.510 to 432.540 and 432.900.

(3) Nothing in this section shall be construed to apply to the unauthorized disclosure of confidential or privileged information when such disclosure is due to gross negligence or willful misconduct. [1995 c.585 §7; 2003 c.269 §5] Note: See note under 432.500.

432.560 [1995 c.585 §8; repealed by 2001 c.900 §261] 432.570 No requirement or prohibition regarding operation of separate cancer and tumor registry. Nothing in ORS 432.510 to 432.550 and 432.900 shall prohibit a health care facility from operating its own registry for cancer and benign tumors of the brain and central nervous system or require a health care facility to operate its own registry for cancer and benign tumors. [1995 c.585 §9; 2003 c.269 §7] Note: See note under 432.500.

PENALTIES

432.900 Civil penalty. (1) In addition to any other liability or penalty provided by law, the Director of the Oregon Health Authority may impose a civil penalty on any person for willful failure to comply with any part of ORS 432.520. A civil penalty may be imposed against a health care facility for each day compliance is refused. The penalty shall be $50 per day for the first 30 days and $500 per day thereafter. A civil penalty of $50 may be imposed against a practitioner for each day compliance is refused.

(2) Any fines collected pursuant to subsection (1) of this section shall be paid into the State Treasury and deposited in the General Fund.

(3) Civil penalties described in subsection (1) of this section shall be imposed in the manner provided in ORS 183.745. [1995 c.585 §4; 2009 c.595 §623] Note: See note under 432.500.

432.990 [Amended by 1963 c.200 §5; 1971 c.743 §369; repealed by 1997 c.783 §48] 432.993 Unlawful use of vital record or vital report; criminal penalty. (1) A person commits the crime of unlawful use of a vital record or vital report if the person willfully and knowingly: (a) Makes any false statement in a certificate, record or report required by this chapter or in an application for an amendment thereof, or in an application for a certified copy of a vital record or vital report, or supplies false information intending that the information be used in the preparation of any certificate, record or report, or amendment thereto; (b) Without lawful authority and with intent to deceive, makes, counterfeits, alters, amends or mutilates any certificate, record or report required by this chapter or a certified copy of a certificate, record or report; (c) Obtains, possesses, uses, sells, furnishes or attempts to obtain, possess, use, sell or furnish to another, for any purpose of deception, any certificate, record or report required by this chapter or certified copy thereof so made, counterfeited, altered, amended or mutilated, or that is false in whole or in part or that relates to the birth of another person, whether living or deceased; (d) Without lawful authority, possesses any certificate, record or report required by this chapter or a copy or certified copy of a certificate, record or report that has been stolen or otherwise unlawfully obtained; or (e) As an employee of the Center for Health Statistics or of any office established pursuant to ORS 432.035, furnishes or processes a certificate of birth, knowing that the certificate or copy is to be used for the purposes of deception.

(2) Unlawful use of a vital record or vital report is a Class C felony. [1997 c.783 §42] 432.995 Obstructing the keeping of vital records or vital reports; criminal penalty. (1) A person commits the crime of obstructing the keeping of vital records or vital reports if the person knowingly and willfully: (a) Refuses to provide information required by this chapter or rules adopted thereunder; (b) Transports or accepts for transportation, interment or other disposition a dead body without an accompanying permit as provided in this chapter; or (c) Fails to perform in a timely manner any of the provisions of this chapter.

(2) The provisions of subsection (1)(c) of this section do not apply to the officers or employees of the courts of this state acting in an official capacity.

(3) Obstructing the keeping of vital records or vital reports is a Class A misdemeanor. [1997 c.783 §43]

ADMINISTRATION DIVISION 11 VITAL STATISTICS 333-011-0006 Definitions As used in OAR 333-011-0006 to 333-011-0116, unless the context denotes otherwise: (1) "Dead Body" means a human body or such parts of such human body from the condition of which it reasonably may be concluded that death recently occurred.

(2) "Division" means the Oregon Public Health Division.

(3) "Fetal Death" means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy; the death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles: (a) "Induced termination of pregnancy" means the purposeful interruption of pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus and which does not result in a live birth; (b) "Spontaneous fetal death" means the expulsion or extraction of a product of human conception resulting in other than a live birth and which is not an induced termination of pregnancy.

(4) "File" means the presentation of a vital record provided for in ORS Chapter 432 for registration by the Vital Statistics Section.

(5) "Final Disposition" means the burial, interment, cremation, removal from the state, or other authorized disposition of a dead body or fetus.

(6) "Institution" means any establishment, public or private, which provides in-patient medical, surgical, or diagnostic care or treatment or nursing, custodial, or domiciliary care, or to which persons are committed by law.

(7) "Live Birth" means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion or

extraction, breathes, or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.

(8) "Physician" means a person authorized or licensed under the laws of this state to practice medicine, osteopathy, chiropractic, or naturopathy.

(9) "Registration" means the acceptance by the Vital Statistics Section and the incorporation of vital records provided for in ORS Chapter 432 into its official records.

(10) "Search of the Files" means consultation of the file or the index to the file for the year in which the event is stated to have occurred. A consultation of the file or index to the file for two years on each side of the year in which the event is stated to have occurred will be considered a part of the same search procedure when the record is not located in the stated year.

(11) "System of Vital Statistics" means the registration, collection, preservation, amendment and certification of vital records; the collection of other reports required by ORS Chapter 432, and activities related thereto including the tabulation, analysis and publication of vital statistics.

(12) "Vital Records" means certificates or reports of birth, death, marriage, dissolution of marriage and data related thereto.

(13) "Vital Statistics" means the data derived from certificates and reports of birth, death, spontaneous fetal death, induced termination of pregnancy, marriage, dissolution of marriage and related reports.

Stat. Auth.: ORS 432.005 Stats. Implemented: ORS 432.005 Hist.: HB 169, f. & ef. 10-16-63; HB 247, f. 6-2-70; HB 286-A(2) and HB 38, f. 7-23-73, ef. 815-73; HD 24-1981, f. & ef. 11-17-81 333-011-0011 Registration District The state is hereby divided into registration districts as follows: (1) Each county shall constitute a registration district, provided that the Division may designate deputy registrars within districts where necessary to facilitate registration.

(2) The Division may combine two or more contiguous registration districts when such counties are organized to form a district health unit.

Stat. Auth.: ORS 432.035 Stats. Implemented: ORS 432.035 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81 333-011-0016 Duties of State Registrar (1) Forms. All forms, certificates, and reports used in the system of vital statistics are the property of the Public Health Division -- hereinafter referred to as "State Agency" -- and shall be surrendered to the State Registrar of Vital Statistics -- hereinafter referred to as "State Registrar" -- upon demand. The forms prescribed and distributed by the State Registrar for reporting vital statistics shall be used only for official purposes. Only those forms furnished or approved by the State Registrar shall be used in the reporting of vital statistics or in making copies thereof.

(2) Requirements for preparation of certificates. All certificates and records relating to vital statistics must either be prepared on a typewriter with a black ribbon or printed legibly in black, unfading ink. All signatures required shall be entered in black, unfading ink. Unless otherwise directed by the State Registrar, no certificate shall be complete and correct and acceptable for registration: (a) That does not have the certifier's name typed or printed legibly under his or her signature; (b) That does not supply all items of information called for thereon or satisfactorily account for their omission; (c) That contains alterations or erasures; (d) That does not contain handwritten signatures as required; (e) That is marked "copy" or "duplicate"; (f) That is a carbon copy; (g) That is prepared on an improper form; (h) That contains improper or inconsistent data; (i) That contains an indefinite cause of death which denotes only symptoms of disease or conditions resulting from disease;

(j) That is not prepared in conformity with regulations or instructions issued by the State Registrar.

Stat. Auth.: ORS 432.030 Stats. Implemented: ORS 432.030 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81 333-011-0021 Record Preservation (1) When an authorized reproduction of a vital record has been properly prepared by the State Registrar and when all steps have been taken to insure the continued preservation of the information, the record from which such authorized reproduction was made may be disposed of by the State Registrar. Such record may not be disposed of, however, until the quality of the authorized reproduction has been tested to insure that acceptable certified copies can be issued and until a security copy of such documents has been placed in a secure location removed from the building where the authorized reproduction is housed.

(2) The State Registrar shall offer the original documents from which the authorized reproductions are made to the State Archives Division. The State Archives Division may be allowed to retain permanently such records provided they adhere to the restrictions in the vital statistics law related to access to such records. If the State Archives Division does not wish to place such records in their files the State Registrar shall be authorized to destroy the documents.

Such destruction shall be by approved methods for disposition of confidential or sensitive documents.

Stat. Auth.: ORS 432.030 Stats. Implemented: ORS 432.030 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81 333-011-0043 Registering Live Births; Delayed Registration of Birth (1) Certificate to be filed within seven days. Each live birth which occurs in this State shall be registered within seven days after such birth.

(2) Registration -- Seven days to one year. Certificates of birth filed after seven days, but within one year from the date of birth, shall not be marked "Delayed." In any case where the certificate is signed by someone other than the attendant or person in charge of the institution or designee where birth occurred, a notarized statement setting forth the reason therefore must be attached to

the certificate. The State Registrar may require additional evidence in support of the facts of birth and/or an explanation of why the certificate of birth was not filed within the required seven days.

(3) Delayed Certificate of Birth Form. All certificates registered one year or more after the date of birth are to be registered on a delayed certificate of birth form prescribed by the State Registrar.

(4) Who May Request the Registration of and Sign a Delayed Certificate of Birth. Any person born in this state whose birth is not recorded in this state, or his parent, guardian, next of kin, or older person acting for the registrant and having personal knowledge of the facts of birth may request the registration of a delayed certificate of birth, subject to these regulations and instructions issued by the State Registrar. Each delayed certificate of birth shall be signed and sworn to before an official authorized to administer oaths by the person whose birth is to be registered if such person is 18 years of age or over and is competent to sign and swear to the accuracy of the facts stated therein; otherwise the certificate shall be signed and sworn to by one of the following in the indicated order of priority: (a) One of the parents of the registrant; or (b) The guardian of the registrant; or (c) The next of kin of the registrant; or (d) Any older person having personal knowledge of the facts of birth.

(5) Facts to be Established for a Delayed Registration of Birth. The minimum facts which must be established by documentary evidence shall be the following: (a) The full name of the person at the time of birth; (b) The date of birth and place of birth; (c) The full maiden name of the mother; (d) The full name of the father; except that if the mother was not married either at the time of conception or birth the name of the father shall not be entered on the delayed certificate except as provided in section (6) of this rule.

(6) Delayed Registration Following a Legal Change of Status. When evidence is presented reflecting a legal change of status by adoption, legitimation, paternity determination, or acknowledgement of paternity, a new delayed certificate may be established to reflect such

change. The existing certificate and the evidence upon which the new certificate was based shall be placed in a special file. Such file shall not be subject to inspection except upon order of a court of competent jurisdiction or by the State Registrar for purposes of properly administering the vital statistics program.

(7) Documentary Evidence -- Requirements. To be acceptable for filing, the name of the registrant and the date and place of birth entered on a delayed certificate of birth shall be supported by at least: (a) Two pieces of documentary evidence, only one of which may be an affidavit of personal knowledge, if the record is filed within seven years after the date of birth; (b) Three pieces of documentary evidence, only one of which may be an affidavit of personal knowledge, if the record is filed seven years or more after the date of birth. Facts of parentage shall be supported by at least one document which may be one of the above documents.

(8) Documentary Evidence -- Acceptability. The State Registrar may establish a priority of best evidence: (a) Documents presented, such as census, hospital, church, and school records, must be from independent sources and shall be in the form of the original record or a duly certified copy thereof or a signed statement from the custodian of the record or document; (b) All documents submitted in evidence, other than an affidavit of personal knowledge, must have been established at least ten years prior to the date of application or have been established prior to the applicant's tenth birthday; (c) An affidavit of personal knowledge, to be acceptable, must be signed before an official authorized to administer oaths. In all cases, the affiant must be at least ten years older than the applicant and have personal knowledge of the facts of birth.

(9) Abstraction of Documentary Evidence. The State Registrar, or the Registrar's designated representative, shall abstract on the delayed certificate of birth a description of each document submitted to support the facts shown on the delayed birth certificate. This description shall include: (a) The title or description of the document; (b) The name and address of the affiant, if the document is an affidavit of personal knowledge, or of the custodian, if the document is an original or certified copy of a record or a signed statement from the custodian;

(c) The date of the original filing of the document being abstracted; (d) The information regarding the birth facts contained in the document; (e) All documents submitted in support of the delayed birth registration shall be returned to the applicant after review.

(10) Certification by the State Registrar. The State Registrar, or the Registrar's designated representative, shall, by signature, certify: (a) That no prior birth certificate is on file for the person whose birth is to be recorded; (b) That he or she has reviewed the evidence submitted to establish the facts of birth; (c) That the abstract of the evidence appearing on the delayed certificate of birth accurately reflects the nature and content of the document.

(11) Dismissal After One Year. Applications for delayed certificates which have not been completed within one year from the date of application may be dismissed at the discretion of the State Registrar.

Stat. Auth.: ORS 432.140 Stats. Implemented: ORS 432.140 Hist.: HB 193, f. 11-18-66; HD 24-1981, f. & ef. 11-17-81; HD 2-1985, f. & ef. 2-19-85 333-011-0047 New Certificate of Birth Following Adoption, Legitimation, Paternity Determination, and Paternity Acknowledgement (1) Legitimation. If the natural parents marry after the birth of a child, a new certificate of birth shall be prepared by the State Registrar for a child born in this State upon receipt of a sworn acknowledgement of paternity signed by the natural parents of said child together with a certified copy of the parents' marriage record. However, if another man is shown as the father of the child on the original certificate, a new certificate may be prepared only when a determination of paternity is made by a court of competent jurisdiction or following adoption.

(2) Determination of Paternity. A new certificate of birth shall be prepared by the State Registrar for a child born in this state upon receipt of a certified copy of a court determination of paternity. If the surname of the child is not decreed by the court, the request for the new certificate shall specify the surname to be placed on the certificate.

(3) Acknowledgement of Paternity. A new certificate of birth shall be prepared by the State Registrar for a child born out of wedlock in this State upon receipt of a sworn acknowledgement of paternity signed by both parents and a written request by both parents that the child's surname be changed on the certificate. However, if another man is shown as the father of the child on the original certificate, a new certificate may be prepared only when a determination of paternity is made by a court of competent jurisdiction or following adoption.

(4) New Certificate. The new certificate of birth prepared after adoption, legitimation, determination of paternity, or acknowledgement of paternity shall be on the form in use at the time of its preparation and shall include the following items and such other information necessary to complete the certification: (a) The name of the child; (b) The date and place of birth as transcribed from the original certificate; (c) The names and personal particulars of the adoptive parents or the natural parents whichever is appropriate; (d) The name of the attendant, printed or typed; (e) The birth number assigned to the original birth certificate; (f) The original filing date; (g) The information necessary to locate the existing certificate and to complete the new certificate shall be submitted to the State Registrar on forms prescribed or approved by the State Registrar.

(5) Existing Certificate to be Placed in a Special File. After preparation of the new certificate, the existing certificate and the evidence upon which the new certificate was based are to be placed in a special file. Except as provided in subsection (5)(a) of this rule, such file shall not be subject to inspection except upon order of a court of competent jurisdiction or by the State Registrar for purposes of properly administering the vital statistics program. A court order is not required before the release of a Voluntary Acknowledgment of Paternity form to any government agency responsible for the administration of child support enforcement programs created under Title IV-D of the Social Security Act. Stat. Auth.: ORS 432.230, 432.287 & 432.289 Stats. Implemented: ORS 432.230, 432.287 & 432.289 Hist.: HD 24-1981, f. & ef. 11-17-81; PH 2-2003(Temp), f. & cert. ef. 2-20-03 thru 8-19-03; PH 11-2003, f. & cert. ef. 7-31-03

Voluntary Acknowledgement of Paternity 333-011-0048 Voluntary Acknowledgement of Paternity The following procedures are established for the voluntary acknowledgement of paternity: (1) A witnessed paternity affidavit is established for completion in a health care facility where births occur. This form will be assigned number 45-31. This form will not replace the paternity affidavit 45-21 form which has notarized signatures for the parents. The function and uses of form 45-21 remain in effect. Any voluntary acknowledgement paternity form establishes paternity, and the establishment of paternity shall be a rebuttable presumption.

(2) Form 45-31 can be used by unwed biological parents if the mother was not married to someone else at the time of birth, time of conception or any time between and if completed after the time of birth. It must be witnessed by a member of the hospital staff. It must be filed with the original birth certificate within seven days after birth. It can only be completed for filing while the mother is admitted for this birth. If it does not accompany the birth certificate, if it is not witnessed by a hospital staff member of the birth facility or if it is not complete, this form will not be accepted and the father's information will not be placed on this birth certificate.

Completion of this form and giving it to the hospital birth certificate staff for filing is the responsibility of the biological parents.

(3) A rights and responsibility statement will be part of form 45-31 in accordance with federal requirements. Language in the statement will be jointly approved by representatives of Support Enforcement and the Public Health Division. The parents signing the form will be asked to acknowledge this rights and responsibility statement.

(4) Form 45-31 will contain all information necessary to comply with existing federal and state laws and regulations for determination and recording of paternity.

(5) Within one year of filing the voluntary acknowledgement of paternity form, either party to the form may reopen the issue of paternity by requesting genetic parentage tests, but only if such tests have not previously been completed.

(6) All questions regarding acceptability of a completed form are determined by the State Registrar for Vital Statistics. Appeals of decisions of determination of the State Registrar will be made under ORS 183.480 to 183.484.

Stat. Auth.: ORS 432.206 & 432.287 Stats. Implemented: ORS 432.287 Hist.: HD 11-1995, f. & cert. ef. 11-21-95 333-011-0061 Amendment of Vital Records (1) Amendment of Minor Errors on Birth Certificates During the First Year. Amendment of obvious errors, transposition of letters in words of common knowledge, or omissions may be made by the State Registrar within one year after the date of birth either upon the State Registrar's observation or query or upon request of a person with a direct and tangible interest in the certificate as defined in OAR 333-011-0096. The certificate shall not be marked "Amended".

(2) All Other Amendments. Unless otherwise provided in these regulations or in the statute, all other amendments to vital records shall be supported by: (a) An affidavit setting forth: (A) Information to identify the certificate; (B) The incorrect data as it is listed on the certificate; (C) The correct data as it should appear. (b) One or more items of documentary evidence which support the alleged facts and which were established at least five years prior to the date of application for amendment or within seven years of the date of the event; (c) The State Registrar shall evaluate the evidence submitted in support of any amendment, and when the State Registrar finds reason to doubt its validity or adequacy the amendment may be rejected and the applicant advised of the reasons for this action.

(3) Who May Apply: (a) To amend a birth certificate, application may be made by one of the parents, the guardian, the registrant if 18 years of age or over, or the individual responsible for filing the certificate; (b) To amend a death certificate, application may be made by the next of kin or the funeral director or person acting as such who signed the death certificate. Applications to amend the medical certification of cause of death shall be made only by the physician who signed the medical certification or the medical examiner;

(c) To amend certificates of marriage and reports of dissolution of marriage a signed statement must be received from the custodian of the official record from which the report or certificate was prepared, stating in what manner such record has been amended. Those items appearing on the dissolution of marriage record which are not a part of the dissolution of marriage decree may be amended either upon query by the State Registrar or application of the parties to the dissolution of marriage or their legal representatives.

(4) Amendment of Registrant's Given Names on Birth Certificates Within the First Year. Until the registrant reaches the age of one year given names may be amended upon written request of: (a) Both parents; or (b) The mother in the case of a child born out of wedlock; or (c) The father in the case of the death or incapacity of the mother; or (d) The mother in the case of the death or incapacity of the father; or (e) The guardian or agency having legal custody of the registrant; (f) After one year from the date of birth the provisions of section (2) of this rule must be followed to amend a given name if the name was entered incorrectly on the birth certificate. A legal change of name order must be submitted from a court of competent jurisdiction to change a given name after one year from date of birth.

(5) Addition of Given Names on Birth Certificates. Until the registrant's seventh birthday, given names, for a child whose birth was recorded without given names, may be added to the certificate upon written request of: (a) Both parents; or (b) The mother in the case of a child born out of wedlock; or (c) The father in the case of the death or incapacity of the mother; or (d) The mother in the case of the death or incapacity of the father; or (e) The guardian or agency having legal custody of the registrant; (f) After seven years the provisions of section (2) of this rule must be followed to add a given name.

(6) Medical Items. All items of a medical nature may be amended only upon receipt of a signed statement from those persons responsible for the completion of such items. The State Registrar may require documentary evidence to substantiate the requested amendment.

(7) Amendment of the Same Item More Than Once. Once an amendment of a non-medical item is made on a vital record, that item shall not be amended again except upon receipt of a court order from a court of competent jurisdiction.

(8) Methods of Amending Certificates. Certificates of birth, death, and marriage and reports of dissolution of marriage may be amended by the State Registrar in the following manner: (a) Preparing a new certificate showing the correct information when the State Registrar deems that the nature of the amendment so requires: (A) The new certificate shall be prepared on the form used for registering current events at the time of amendment. Except as provided elsewhere in these regulations, the item number of the entry that was amended shall be identified on the new certificate; (B) In all cases, the new certificate shall show the date the amendment was made and be given the same state file number as the existing certificate. Signatures appearing on the existing certificate shall be typed on the new certificate. (b) Completing the item in any case where the item was left blank on the existing certificate; (c) Drawing a single line through the item to be amended and inserting the correct data immediately above or to the side thereof. The line drawn through the original entry shall not obliterate such entry; (d) Completing a special form for attachment to the original record. Such form shall include the incorrect information as it appears on the original certificate, the correct information as it should appear, an abstract of the documentation used to support the amendment, and sufficient information about the registrant to link the special form to the original record. When a copy of the original record is issued, a copy of the amendment must be attached; (e) A certificate of birth amended pursuant to the provisions of ORS 432.290(5) shall be amended by preparing a new certificate. The item numbers of the entries that were amended shall not, however, be identified on the new certificate or on any certified copies that may be issued of that certificate; (f) In all cases, there shall be inserted on the certificate a statement identifying the affidavit and documentary evidence used as proof of the correct facts, the date the amendment was made, and

the initials of the person making the change. As required by statute or regulation, the certificate shall be marked "Amended".

Stat. Auth.: ORS 432.235 Stats. Implemented: ORS 432.235 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81; HD 2-1985, f. & ef. 2-19-85 333-011-0067 Infants of Unknown Parentage; Foundling Registration The report for an infant of unknown parentage shall be registered on a regular certificate of live birth and shall: (1) Have "foundling" plainly marked in the top margin of the certificate; (2) Show the required facts as determined by approximation and have parentage data left blank; (3) Show the signature and title of the custodian in lieu of the attendant. When a report has been placed in a special file as provided by ORS 432.430(4), the State Registrar may inspect such information for purposes of properly administering the vital statistics program.

Stat. Auth.: ORS 432.230 Stats. Implemented: ORS 432.230 Hist.: HD 24-1981, f. & ef. 11-17-81 333-011-0072 Death Registration (1) Acceptance of Incomplete Death Certificate. If all the information necessary to complete a death certificate is not available within the time prescribed for filing of the certificate, the funeral director shall file the certificate completed with all information that is available. In all cases the medical certification must be signed by the person responsible for such certification. If the cause of death is unknown or undetermined, the cause of death shall be shown as such on the certificate: (a) A supplemental report providing the information missing from the original certificate shall be filed with the State Registrar as soon as possible, but in all cases within 30 days of the date the death occurred; (b) The supplemental information shall be made a part of the existing death certificate. Such report shall be considered an amendment, and the death certificate shall be marked "Amended".

(2) Hospital or Institution May Assist in Preparation of Certificate. When a death occurs in a hospital or other institution and death is not under the jurisdiction of the medical examiner, the person in charge of such institution, or that person's designated representative, may initiate the preparation of the death certificate as follows: (a) Place the full name of the decedent and the date and place of death on the death certificate and obtain from the attending physician the medical certification of cause of death and the physician's signature; (b) Present the partially completed death certificate to the funeral director or person acting as such.

Stat. Auth.: ORS 432.307 Stats. Implemented: ORS 432.307 Hist.: HD 24-1981, f. & ef. 11-17-81 333-011-0073 Delayed Registration of Death The registration of a death after the time prescribed by statute and regulations shall be registered on the regular certificate of death form in the manner prescribed below: (1) If the attending physician or medical examiner, at the time of death and the attending funeral director or person who acted as such are available to complete and sign the certificate of death, it may be completed without additional evidence and filed with the State Registrar. For those certificates filed one year or more after the date of death, the physician or medical examiner, and the funeral director or person who acted as such must state in accompanying affidavits that the information on the certificate is based on records kept in their files.

(2) In the absence of the attending physician or medical examiner, and the funeral director or person who acted as such, the certificate may be filed by the next of kin of the decedent and shall be accompanied by: (a) An affidavit of the person filing the certificate swearing to the accuracy of the information on the certificate; (b) Two documents which identify the decedent and his or her date and place of death; (c) A statement from the Office of the Medical Examiner indicating that office has reviewed the affidavit and documents;

(d) In all cases, the State Registrar may require additional documentary evidence to prove the facts of death; (e) A summary statement of the evidence submitted in support of the delayed registration shall be endorsed on the certificate.

Stat. Auth.: ORS 432.307 Stats. Implemented: ORS 432.307(8) Hist.: HD 24-1981, f. & ef. 11-17-81; HD 2-1985, f. & ef. 2-19-85 333-011-0076 Authorization for Final Disposition (1) Removal of body. Before removing a dead body or fetus from the place of death, the funeral director or person acting as such shall: (a) Obtain assurance from the attending physician that death is from natural causes and that the physician will assume responsibility for certifying to the cause of death or fetal death and receive permission to remove the body from the place of death; or (b) Notify the medical examiner, if the case comes within the medical examiner's jurisdiction and obtain authorization to remove the body.

(2) Authorization for Disinterment and Reinterment. An authorization for disinterment and reinterment of a dead body shall be issued by the State Registrar upon receipt of a written application signed by the next of kin and the person who is in charge of the disinterment or upon receipt of an order of a court of competent jurisdiction directing such disinterment: (a) Upon receipt of a court order or signed permission of the next of kin, the State Registrar may issue one authorization to permit disinterment and reinterment of all remains in a mass disinterment provided that, insofar as possible, the remains of each body be identified and the place of disinterment and reinterment specified. The authorization shall be permission for disinterment, transportation, and reinterment; (b) A dead body properly prepared by an embalmer and deposited in a receiving vault shall not be considered a disinterment when removed from the vault for final reinterment within the same cemetery.

Stat. Auth.: ORS 432.317 Stats. Implemented: ORS 432.317 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81

333-011-0096 Disclosure of Records To protect the integrity of vital records: (1) The State Registrar or other custodians of vital records shall not permit inspection of, or disclose information contained in birth or death records, or copy or issue a copy of all or part of any such record unless he or she is satisfied that the applicant has a direct and tangible interest in such record: (a) The registrant, a member of his or her immediate family, his or her guardian, or their respective legal representatives shall be considered to have a direct and tangible interest. For death records others may demonstrate a direct and tangible interest when information is needed for determination or protection of a person or property right; (b) The term "legal representative" shall include an attorney, physician, funeral director, or other authorized agent acting in behalf of the registrant or his or her family.

(2) Marriage and dissolution of marriage records shall be open to public inspection.

(3) The State Registrar may permit the use of data from vital statistics records for statistical or research purposes, subject to such conditions as the State Registrar may impose. No data shall be furnished from records for research purposes until the State Registrar has prepared in writing the conditions under which the records or data will be used and received an agreement signed by a responsible agent of the research organization agreeing to meet with and conform to such conditions.

(4) The State Registrar or the local custodian may disclose data from vital statistics records to federal, state, county, or municipal agencies of government which request such data in the conduct of their official duties.

(5) The State Registrar or local custodian shall not issue a certified copy of a record until a formal application has been received from the applicant. Whenever it shall be deemed necessary to establish an applicant's right to information from a vital record, the State Registrar or local custodian may also require identification of the applicant or a sworn statement.

(6) Nothing in this Regulation shall be construed to permit disclosure of information contained in the "Information for Medical and Health Use Only" section of the birth certificate unless specifically authorized by the State Registrar for statistical or research purposes or if authorized by a court of competent jurisdiction.

(7) When 100 years have elapsed after the date of birth or 50 years have elapsed after the date of death, marriage, or dissolution of marriage such records in the custody of the State Registrar shall become public records and any person may obtain copies of such records, upon submission of an application containing sufficient information to locate the record. For the same fee as is charged for the issuance of certified copies or a search of the file for other records in his or her possession.

Stat. Auth.: ORS 432.121 Stats. Implemented: ORS 432.121 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81; HD 2-1985, f. & ef. 2-19-85 333-011-0101 Copies of Data From Vital Records (1) Full or short form certified copies of vital records may be made by mechanical, electronic, or other reproductive processes, except that the information contained in the "Information for Medical and Health Use Only" section of the birth certificate shall not be included.

(2) When a certified copy is issued, each certification shall be certified as a true copy by the officer in whose custody the record is entrusted and shall include the date issued, the name of the issuing officer, the registrar's signature or an authorized facsimile thereof, and the seal of the issuing office.

(3) Confidential verification of the facts contained in a vital record may be furnished by the State Registrar to any federal, state, county, or municipal government agency or to any other agency representing the interest of the registrant, subject to the limitations as indicated in section (1) of this rule. Such confidential verifications shall be on forms prescribed and furnished by the State Registrar or on forms furnished by the requesting agency and acceptable to the State Registrar; or, the State Registrar may authorize the verification in other ways when it shall prove in the best interests of his or her office.

(4) When the State Registrar finds evidence that a certificate was registered through misrepresentation or fraud, he or she shall have authority to withhold the issuance of a certified copy of such certificate until a court determination of the facts has been made.

(5) The State Registrar shall determine the minimum information needed to locate and identify a particular record within the files.

(6) Subject to the penalties of ORS 432.990, no person shall photograph, photostat, duplicate, or issue what purports to be a certified copy, certification, or certificate of birth, death, or fetal

death except authorized employees of the Public Health Division, county registrars, or their deputies, acting in accordance with directives, regulations, or law governing their official duties.

(7) The county registrar may issue certified copies of completed birth and death records from the original record while in the possession of the county registrar. The county registrar shall forward the completed original birth or death record to the State Registrar on the Friday of the week following the week in which it is registered by the county registrar.

(8) When the original death record is forwarded to the State Registrar, county registrars may maintain a copy of the completed death record for a period of six months from the date of death.

County registrars may issue certified copies of the copy so maintained for a period not to exceed six months from the date of death.

(9) County registrars may apply to the State Registrar for authorization to issue certified copies of birth certificates for a period not to exceed six months from the date of birth. For approval the application must specify willingness and ability by county registrar to maintain a copy with all subsequent corrections of the upper portion of the birth record in order to issue copies.

Notification of subsequent corrections will be made to the county registrar by the State Registrar. The application shall also specify local needs and interests which the issuance would serve. The needs and interests may include, but are not limited to, an established history of birth certificate service to local public, or a specific area or subpopulation need for quick access to birth certificate copies.

Stat. Auth.: ORS 432.010, 432.085 & 432.121 Stats. Implemented: ORS 432.010, 432.085 & 432.121 Hist.: HB 169, f. & ef. 10-16-63; HD 24-1981, f. & ef. 11-17-81; HD 3-1986, f. & ef. 2-5-86 333-011-0106 Fees (1) The fee for a full certified copy of a vital statistics record or for an abbreviated birth or death certificate shall be $20. Additional copies of each record ordered at the same time shall have a fee of $15 per certificate.

(2) The fee for a Commemorative Certificate of Stillbirth shall be $20. Additional copies of each record ordered at the same time shall have a fee of $15 per certificate.

(3) The fee for any search of the files and records shall be $20. The fee shall include the issuing, when requested, of one certified copy or abbreviated certificate.

(4) The $20 fee shall cover the cost of a five year search for death, marriage and divorce records. If more than a five year search is requested, an additional fee of $1 per year shall be charged.

(5) The fee for a certified copy of a recorded court order registering an unrecorded birth under ORS 432.142, to be furnished by the Clerk of the circuit court or the State Registrar shall be $20.

(6) Overpayment of a required fee received in the office of the State Registrar shall be refunded if in excess of $6 and any overpayment less than $6 shall be refunded upon written request of the applicant within one year.

(7) A fee of $50 shall be paid to the State Registrar for the preparation of a new or supplemental birth certificate under the provisions of ORS 432.140, 432.142, 432.230 432.290 and 432.414 due to amendment, correction, adding the father's name to the birth record or filing of adoption orders and delayed and court registered birth records. The fee shall include the charge for one certified copy of the new or supplementary birth certificate. If a certified copy is not requested at the time of amendment or creation of the supplementary record, the amendment fee shall be $30. (a) The $30 amendment fee may be waived to correct an error or omission by a reporting source if a birth record is corrected within the first year from the date of the event. (b) The $30 amendment fee may be waived at any future time to correct an error on a birth certificate by a reporting source for date of birth, time of birth or gender of registrant.

(8) A fee of $50 shall be paid to the State Registrar for the preparation of an amended death certificate, if amendments are filed more than one year after the date of death. However, no fee shall be paid for amendments to the cause of death filed by the physician or medical examiner that signed the death certificate.

(9) A fee of $5.50 shall be paid to expedite the search and filling of an order for a certificate when the order is placed by telephone, fax or the internet, billed to a credit card and processed the same or the next working day. This fee is in addition to the fee charged by a subcontractor providing computer, prepayment, billing and collection services for orders processed using the subcontractor's services.

(10) A fee of $45 shall be paid for heirloom birth certificates.

(11) A fee of $5 per year shall be charged for duplicate copies of microfiche cards containing index information for death, marriage and divorce records.

(12) A fee of $8.50 per reel shall be charged for duplicate copies of microfilm containing index information of death, marriage and divorce records.

(13) Persons requesting special services or specific data sets shall be charged actual time and material costs of producing the data.

(14) The fee for certificates to be used in research approved by the State Registrar shall be $20 for quantities less than one hundred certificates. If the quantity is one hundred or more the following scale shall apply: (a) If a listing is supplied which provides year and certificate number, or name, date, and place of event, the fee shall be $10 per copy; (b) If a listing is supplied which provides name and year of event, the fee shall be $15 per copy; (c) Listings supplying less information shall be at the regular fee.

(15) A fee of $20 shall be paid for making certified copies of documents from sealed files. (a) A fee of $20 shall be paid for making certified copies of affidavits and supplemental reports. (b) A fee of $2 per page shall be charged for uncertified copies of affidavits and supplemental reports that can be issued without opening sealed files.

(16) A fee of $25 may be charged for each check returned for non-payment.

(17) A flat fee of $20 shall be paid for the replacement of certified copies when the original documents are returned within a year of issuance with an acceptable correction document and appropriate amendment fee. This fee may be waived when fewer than four certified copies are being replaced.

(18) A fee of $8 shall be paid for each manual verification of a vital event for each government agency or subdivision of a government agency requesting over ten verifications per month.

(19) A fee not to exceed $4 shall be paid for each electronic verification of a vital event. This fee is in addition to the fee charged by a subcontractor providing computer system, billing and collection services for verifications processed using the subcontractor's services.

Stat. Auth.: ORS 432.015, 432.121(2)(f), 432.146 & 432.266 Stats. Implemented: ORS 432.146 & 432.266 Hist.: HB 169, f. & ef. 10-16-63; HD 13-1979(Temp), f. & ef. 10-1-79; HD 18-1979, f. & ef.

12-12-79; HD 2-1985, f. & ef. 2-19-85; HD 1-1987, f. 1-20-87, ef. 2-2-87; HD 10-1990, f. 5-390, cert. ef. 7-1-90; HD 4-1992(Temp), f. & cert. ef. 4-28-92; HD 8-1992, f. & cert. ef. 6-22-92;

HD 19-1993(Temp), f. & cert. ef. 10-27-93; HD 21-1994, f. & cert. ef. 8-15-94; PH 17-2003, f.

10-31-03, cert. ef. 12-1-03; PH 3-2010, f. & cert. ef. 2-3-10 333-011-0110 Disposition of Reports Of Induced Termination of Pregnancy (1) Reports of induced termination of pregnancy are statistical reports only and are not to be incorporated into the official records of the Vital Statistics Section. The State Registrar is authorized to dispose of such reports when all statistical processing of the records has been accomplished. However, the State Registrar may establish a file of such records so they will be available for future statistical and research projects provided such file is not made a part of the official records and the reports are not made available for the issuance of certified copies. Such file shall be retained for as long as the State Registrar deems necessary and it shall then be destroyed. The file may be maintained by photographic, electronic, or other means as determined by the State Registrar, in which case the original report from which the photographic, electronic, or other file was made shall be destroyed.

(2) The provisions of this regulation shall also apply to all records of induced termination of pregnancy filed prior to the adoption of this regulation.

Stat. Auth.: ORS 432.337 Stats. Implemented: ORS 432.337 Hist.: HB 228, f. 11-5-69; HD 24-1981, f. & ef. 11-17-81 333-011-0116 Delayed Registration of Marriage The registration of a marriage one year or more after the time prescribed by statute shall be made on the regular certificate of marriage form in the manner prescribed below: (1) The certificate must be filed with the county clerk where the marriage license was originally issued; (2) To be acceptable for registration by the State Registrar the delayed certificate of marriage must be supported by: (a) A copy of the license or of the application for license if the license was granted; (b) A signed statement from the officiant or the custodian of the official record and from one witness to the wedding ceremony proving that a marriage ceremony was performed and the date

and place of the marriage. In all cases, the State Registrar may require additional documentary evidence to prove the facts of marriage.

Stat. Auth.: ORS 432.405 Stats. Implemented: ORS 432.405 Hist.: HD 24-1981, f. & ef. 11-17-81; HD 2-1985, f. & ef. 2-19-85 333-011-0155 Reporting Teen Suicide Attempts Hospitals will report attempted suicides by persons under 18 using the following procedures: (1) Oregon Public Health Division, Teen Suicide Attempt Report Form 45-119 will be used to report statistical data on each individual that is treated in response to an attempted suicide.

(2) Definitions: (a) Suicide attempt is self-inflicted injury or condition specified as intentional; (b) Treatment may consist of medical care or psychiatric intervention.

(3) Oregon Public Health Division, Teen Suicide Attempt: Zero Attempts Form 45-120 will be used by the hospital to inform the Center for Health Statistics that no patients were treated under ORS Chapter 189 during the current reporting period. This eliminates call-backs from the Public Health Division to verify reporting procedures.

(4) Reports should be mailed no later than the 15th of the month for the previous month's suicide attempts.

(5) The hospital administrator or designee shall designate a contact person for this reporting, and provide the name, and title to the State Registrar.

(6) Electronic reporting or transmission of the data in lieu of paper reports may be allowable with the permission of the State Registrar.

[ED. NOTE: The form(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 441.750 Stats. Implemented: ORS 441.750 Hist.: HD 27-1987, f. 12-31-87, cert. ef. 1-1-88

333-011-0200 Commemorative Certificate of Stillbirth (1) The Certificate of Stillbirth shall be suitable for display and shall feature an attractive design with calligraphy-like font, high quality paper, a State of Oregon seal, and signature of the State Registrar.

(2) Information on the Certificate of Stillbirth shall be prepared using information from the "Report of Fetal Death" filed with the Center for Health Statistics. The text of the certificate shall contain the name of the child, date and place of birth, names of parent(s), date of issuance, state file number from the fetal death certificate, and a statement that the certificate is not proof of a live birth. The word deceased would be included after the name of the child.

Stat. Auth.: ORS 432.266 Stats. Implemented: ORS 432.266 Hist.: PH 27-2006, f. 11-30-06, cert. ef. 12-1-06 Chapter 146 — Investigations of Deaths, Injuries and Missing Persons 2009 EDITION

DEATHS, INJURIES AND MISSING PERSONS PROCEDURE IN CRIMINAL MATTERS GENERALLY INVESTIGATION OF DEATHS (Definitions) 146.003

Definitions for ORS 146.003 to 146.189 and 146.710 to 146.992

(Administrative Provisions) 146.015

State Medical Examiner Advisory Board; Department of State Police rules; appointment of State Medical Examiner

146.025

Functions of board

146.035

State Medical Examiner; personnel; records; right to examine records

146.045

Duties of State Medical Examiner

146.055

Advice; autopsies; training programs; report

146.065

County and district medical examiners; appointment; Deputy State Medical Examiner

146.075

District office duties; personnel; expenses for certain duties; records and reports

146.080

Assistant district medical examiner

146.085

Deputy medical examiners

146.088

When medical examiner is officer or employee of public body

146.090

Deaths requiring investigation

146.095

Investigation; certification; report; training

146.100

Where death considered to have occurred; notification of death required

146.103

Removal of body, effects or weapons prohibited without consent

146.107

Authority to enter and secure certain premises

146.109

Notification of next of kin

146.113

Authority to order removal of body fluids

146.117

Autopsies

146.121

Disposition of body; filing; expenses

146.125

Disposition of personal property

(Inquest) 146.135

Authority to order inquest

146.145

Jury of inquest

146.155

Inquest proceedings

146.165

Verdict; findings; testimony and verdict of inquest as admissible evidence in subsequent proceedings

IDENTIFICATION OF DEAD AND MISSING PERSONS 146.171

Unidentified human remains; maintenance of records

146.174

Medical examiner to provide information about unidentified human remains; identification

146.177

Procedures for investigating missing persons

146.181

Missing persons; police report; supplementary report

146.184

Medical practitioners to provide information about missing persons

146.187

DNA sample

146.189

Use of records to identify human remains and missing persons; disposition of records

INVESTIGATIONS OF INJURIES 146.710

Definition for ORS 146.710 to 146.780

146.730

Investigation

146.740

Reports of medical examiner

146.750

Injuries to be reported to medical examiner

146.760

Immunity of participant in making of report

146.780

Confidentiality of records and reports

PENALTIES 146.992

Penalties

146.001 [Formerly 146.087; repealed by 1987 c.517 §1 (432.300 enacted in lieu of 146.001)] INVESTIGATION OF DEATHS (Definitions) 146.003 Definitions for ORS 146.003 to 146.189 and 146.710 to 146.992. As used in ORS 146.003 to 146.189 and 146.710 to 146.992, unless the context requires otherwise: (1) “Approved laboratory” means a laboratory approved by the State Medical Examiner as competent to perform the blood sample analysis required by ORS 146.113 (2).

(2) “Assistant district medical examiner” means a physician appointed by the district medical examiner to investigate and certify deaths within a county or district.

(3) “Cause of death” means the primary or basic disease process or injury ending life.

(4) “Death requiring investigation” means the death of a person occurring in any one of the circumstances set forth in ORS 146.090.

(5) “Deputy medical examiner” means a person appointed by the district medical examiner to assist in the investigation of deaths within a county.

(6) “District medical examiner” means a physician appointed by the State Medical Examiner to investigate and certify deaths within a county or district, including a Deputy State Medical Examiner.

(7) “Law enforcement agency” means a county sheriff’s office, municipal police department and the Oregon State Police.

(8) “Legal intervention” includes an execution pursuant to ORS 137.463, 137.467 and 137.473 and other legal use of force resulting in death.

(9) “Manner of death” means the designation of the probable mode of production of the cause of death, including natural, accidental, suicidal, homicidal, legal intervention or undetermined.

(10) “Medical examiner” means a physician appointed as provided by ORS 146.003 to 146.189 to investigate and certify the cause and manner of deaths requiring investigation, including the State Medical Examiner.

(11) “Pathologist” means a physician holding a current license to practice medicine and surgery and who is eligible for certification by the American Board of Pathology.

(12) “Unidentified human remains” does not include human remains that are unidentified human remains that are part of an archaeological site or suspected of being Native American and covered under ORS chapters 97 and 390 and ORS 358.905 to 358.961. [1973 c.408 §1a; 1995 c.744 §17; 2007 c.500 §1] 146.005 [1959 c.629 §8; 1965 c.221 §14; repealed by 1973 c.408 §35] 146.010 [Amended by 1959 c.629 §16; renumbered 10.810] (Administrative Provisions) 146.015 State Medical Examiner Advisory Board; Department of State Police rules; appointment of State Medical Examiner. (1) There is hereby established the State Medical Examiner Advisory Board.

(2) The advisory board shall make policies for the administration of ORS 146.003 to 146.189 and the Department of State Police shall make rules to effectuate such policies.

(3) The advisory board shall recommend the name or names of pathologists to the Superintendent of State Police from which the superintendent shall appoint the State Medical Examiner.

(4) The State Medical Examiner Advisory Board shall consist of 10 members appointed by the Governor and shall include: (a) The Chairman of the Department of Anatomic Pathology at the Oregon Health and Science University, who shall be the chairperson of the board; (b) The State Health Officer; (c) A sheriff; (d) A trauma physician recommended by the State Trauma Advisory Board; (e) A pathologist; (f) A district attorney; (g) A funeral service practitioner and embalmer licensed by the State Mortuary and Cemetery Board; (h) A chief of police; (i) A member of the defense bar; and (j) A member of the public at large.

(5) The persons described in subsection (4)(a) and (b) of this section shall serve as long as they hold their respective positions. The terms of the persons described in subsection (4)(c), (f) and (h) of this section

shall be for four years, except that they shall become vacant if the person ceases to be a sheriff, district attorney or chief of police, respectively. The terms of the other members of the board shall be four years.

(6) A member of the advisory board is entitled to compensation and expenses as provided in ORS 292.495.

(7) The advisory board shall meet annually at a time and place determined by the chairperson. The chairperson or any four members of the board may call a special meeting upon not less than one week’s notice to the members of the board.

(8) Six members of the board shall constitute a quorum. [1973 c.408 §2; 1995 c.744 §9] 146.020 [Renumbered 10.820] 146.025 Functions of board. In addition to the duties set forth in ORS 146.015 the State Medical Examiner Advisory Board shall: (1) Recommend to the Oregon Department of Administrative Services the qualifications and compensation for the positions of State Medical Examiner and Deputy State Medical Examiner.

(2) Recommend to the county courts the compensation of the district medical examiners and assistant district medical examiners.

(3) Recommend to district medical examiners and district attorneys the qualifications for deputy medical examiners.

(4) Approve or disapprove of a single district medical examiner’s office for two or more counties as provided by ORS 146.065 (5).

(5) Recommend a proposed budget for the State Medical Examiner’s office to the Department of State Police.

(6) Annually review the State Medical Examiner’s report prescribed by ORS 146.055 and report to the Superintendent of State Police and to the State Board of Health regarding the operation of the State Medical Examiner’s office. [1973 c.408 §3; 1995 c.744 §10] 146.030 [1959 c.629 §10; 1965 c.221 §15; repealed by 1973 c.408 §35] 146.035 State Medical Examiner; personnel; records; right to examine records. (1) There shall be established within the Department of State Police the State Medical Examiner’s office for the purpose of directing and supporting the state death investigation program.

(2) The State Medical Examiner shall manage all aspects of the State Medical Examiner’s program.

(3) Subject to the State Personnel Relations Law, the State Medical Examiner may employ or discharge other personnel of the State Medical Examiner’s office.

(4) The State Medical Examiner’s office shall: (a) File and maintain appropriate reports on all deaths requiring investigation. (b) Maintain an accurate list of all active district medical examiners, assistant district medical examiners and designated pathologists. (c) Transmit monthly to the Department of Transportation a report for the preceding calendar month of all information obtained under ORS 146.113.

(5) Notwithstanding ORS 192.501 (36): (a) Any parent, spouse, sibling, child or personal representative of the deceased, or any person who may be criminally or civilly liable for the death, or their authorized representatives respectively, may examine and obtain copies of any medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.

(b) The system described in ORS 192.517 (1) shall have access to reports described in this subsection as provided in ORS 192.517. [1973 c.408 §4; 1987 c.142 §1; 1995 c.504 §3; 1995 c.744 §8; 2003 c.14 §60; 2005 c.498 §1; 2009 c.222 §§3,5] 146.040 [1959 c.629 §1; repealed by 1973 c.408 §35] 146.045 Duties of State Medical Examiner. (1) After consultation with the State Medical Examiner Advisory Board, the State Medical Examiner shall appoint each Deputy State Medical Examiner.

(2) The State Medical Examiner shall: (a) Appoint and discharge each district medical examiner as provided by ORS 146.065 (2). (b) Designate those pathologists authorized to perform autopsies under ORS 146.117 (2). (c) Approve those laboratories authorized to perform the analyses required under ORS 146.113 (2).

(3) The State Medical Examiner may: (a) Assume control of a death investigation in cooperation with the district attorney. (b) Order an autopsy in a death requiring investigation. (c) Certify the cause and manner of a death requiring investigation. (d) Amend a previously completed death certificate on a death requiring investigation. (e) Order a body exhumed in a death requiring investigation. (f) Designate a Deputy State Medical Examiner as Acting State Medical Examiner. (g) After a reasonable and thorough investigation, complete and file a death certificate for a person whose body is not found.

(4) Distribution of moneys from the State Medical Examiner’s budget for partial reimbursement of each county’s autopsy expenditures shall be made subject to approval of the State Medical Examiner.

(5) Within 45 days of receipt of information that a person is missing at sea and presumed dead, the State Medical Examiner shall determine whether the information is credible and, if so, complete and file a death certificate for the person presumed dead. If the information is determined not to be credible, the State Medical Examiner may continue the death investigation. [1973 c.408 §5; 2005 c.90 §1] 146.050 [1959 c.629 §2; repealed by 1973 c.408 §35] 146.055 Advice; autopsies; training programs; report. (1) The State Medical Examiner shall assist and advise district medical examiners in the performance of their duties.

(2) The State Medical Examiner shall perform autopsies, if in the judgment of the State Medical Examiner such autopsy is necessary in any death requiring investigation, when requested by a medical examiner or district attorney.

(3) The State Medical Examiner shall regularly conduct training programs for the district medical examiners and law enforcement agencies.

(4) The State Medical Examiner shall submit an annual report to the State Medical Examiner Advisory Board detailing the activities and accomplishments of the state and each county office in the preceding year as well as a cost analysis of the office of the State Medical Examiner. [1973 c.408 §6] 146.060 [1959 c.629 §3; repealed by 1973 c.408 §35] 146.065 County and district medical examiners; appointment; Deputy State Medical Examiner. (1) In each county there shall be a medical examiner for the purpose of investigating and certifying the cause and manner of deaths requiring investigation.

(2) Each district medical examiner shall be appointed by the State Medical Examiner with approval of the appropriate board or boards of commissioners and may be discharged by the State Medical Examiner without such approval.

(3) If the position of district medical examiner is vacant, the county health officer shall temporarily act as medical examiner in cooperation with the State Medical Examiner until the vacancy is filled.

(4) If the positions of district medical examiner and county health officer are both vacant, the district attorney shall temporarily act as medical examiner in cooperation with the State Medical Examiner until the vacancy is filled.

(5) Two or more counties, with the approval of the State Medical Examiner Advisory Board and commissioners of each county, may form a district medical examiner’s office instead of an office for each such county.

(6) When a county or district has a population of 200,000 or more persons, the State Medical Examiner may, with the approval of the State Medical Examiner Advisory Board, appoint a Deputy State Medical Examiner for that county or district.

(7) The compensation of the Deputy State Medical Examiner shall be paid by the state from funds available for such purpose.

(8) The services of the Deputy State Medical Examiner may be contracted by the Department of State Police. These contracts may be terminated by either party at any time by written notice to the other party to the agreement and, upon termination, the appointment of such Deputy State Medical Examiner is terminated. [1973 c.408 §7; 1995 c.744 §11] 146.070 [1959 c.629 §4; 1969 c.314 §8; repealed by 1973 c.408 §35] 146.075 District office duties; personnel; expenses for certain duties; records and reports.(1) The district medical examiner shall serve as the administrator of the district medical examiner’s office. Subject to applicable provisions of a county personnel policy or civil service law, the district medical examiner may employ such other personnel as the district medical examiner deems necessary to operate the office.

(2) All expenses of equipping, maintaining and operating the district medical examiner’s office, including the compensation of the district medical examiner and assistant district medical examiners, shall be paid by the county or counties of the district from funds budgeted for such purpose.

(3) When a district medical examiner also serves as county health officer, the county shall separately budget the compensation and expenses to be paid for medical examiner’s duties.

(4) All expenses of death investigations shall be paid from county funds budgeted for such purpose except that, in counties under 200,000 population upon the approval of the State Medical Examiner, onehalf of the costs of autopsies ordered under ORS 146.117 shall be paid annually by the state from funds for such purpose. If funds available for this payment are insufficient to meet one-half of these costs, even proportional payments to the counties shall be made.

(5) Expenses of burial or other disposition of an unclaimed body shall be paid by the county where the death occurs, as provided by ORS 146.100 (2), in the manner provided by ORS 146.121 (4).

(6) Each district office shall maintain copies of the: (a) Reports of death investigation by the medical examiner; (b) Autopsy reports; (c) Laboratory analysis reports; and (d) Inventories of money or property of the deceased taken into custody during the investigation.

(7) Reports and inventories maintained by the district office shall be available for inspection as provided

by ORS 146.035 (5).

(8) Copies of reports of death investigations by medical examiners and autopsy reports shall be forwarded to the State Medical Examiner’s office.

(9) Each district office shall maintain current records of: (a) All assistant district medical examiners appointed. (b) Appointments of each deputy medical examiner appointed for the county or district. (c) The name, address and director of each licensed funeral home located within the county or district.

(10) Each district office shall immediately in writing notify the State Medical Examiner’s office of all appointments and resignations of their medical examiners. [1973 c.408 §8; 1987 c.142 §2] 146.080 Assistant district medical examiner. (1) Each district medical examiner may appoint one or more assistant district medical examiners.

(2) The qualifications of an assistant district medical examiner shall be prescribed by the State Medical Examiner Advisory Board.

(3) When delegated by the district medical examiner, an assistant district medical examiner shall: (a) Assist the district medical examiner in investigating and certifying deaths. (b) Have the authority and responsibility to investigate and certify deaths requiring investigation. [1973 c.408 §10] 146.085 Deputy medical examiners. (1) The district medical examiner shall appoint, subject to the approval of the district attorney and applicable civil service regulations, qualified deputy medical examiners, including the sheriff or a deputy sheriff and a member of the Oregon State Police for each county. Other peace officers may also be appointed as deputy medical examiners.

(2) The district medical examiner and the district attorney shall establish qualifications for deputy medical examiners.

(3) Each deputy medical examiner shall be individually appointed and the name of the deputy medical examiner shall be on file in the office of the district medical examiner.

(4) A deputy medical examiner shall investigate deaths subject to the control and direction of the district medical examiner or the district attorney.

(5) A deputy medical examiner may authorize the removal of the body of a deceased person from the apparent place of death.

(6) The deputy medical examiner may not authorize embalming, order a post-mortem examination or autopsy, or certify the cause and manner of death. [1973 c.408 §11] 146.087 [1975 c.565 §1; renumbered 146.001] 146.088 When medical examiner is officer or employee of public body. A district medical examiner, deputy medical examiner, assistant district medical examiner or designated pathologist is deemed to be an officer or employee of a public body for purposes of ORS 30.260 to 30.300 while acting as a district medical examiner, deputy medical examiner, assistant district medical examiner or designated pathologist.

[1995 c.744 §13] 146.090 Deaths requiring investigation. (1) The medical examiner shall investigate and certify the cause and manner of all human deaths: (a) Apparently homicidal, suicidal or occurring under suspicious or unknown circumstances; (b) Resulting from the unlawful use of controlled substances or the use or abuse of chemicals or toxic agents;

(c) Occurring while incarcerated in any jail, correction facility or in police custody; (d) Apparently accidental or following an injury; (e) By disease, injury or toxic agent during or arising from employment; (f) While not under the care of a physician during the period immediately previous to death; (g) Related to disease which might constitute a threat to the public health; or (h) In which a human body apparently has been disposed of in an offensive manner.

(2) As used in this section, “offensive manner” means a manner offensive to the generally accepted standards of the community. [1973 c.408 §12; 1979 c.744 §4; 1985 c.207 §1] 146.095 Investigation; certification; report; training. (1) The district medical examiner and the district attorney for the county where death occurs, as provided by ORS 146.100 (2), shall be responsible for the investigation of all deaths requiring investigation.

(2) The medical examiner shall certify the manner and the cause of all deaths which the medical examiner is required to investigate. The certificate of death shall be filed as required by ORS 432.307.

(3) The medical examiner shall make a report of death investigation to the State Medical Examiner as soon as possible after being notified of a death requiring investigation.

(4) Within five days after notification of a death requiring investigation, the medical examiner shall make a written report of the investigation and file it in the district medical examiner’s office.

(5) The district medical examiner shall supervise the assistant district medical examiners and deputy medical examiners in cooperation with the district attorney.

(6) The district medical examiner shall regularly conduct administrative training programs for the assistant district medical examiners, deputy medical examiners and law enforcement agencies. [1973 c.408 §9] 146.100 Where death considered to have occurred; notification of death required. (1) Death investigations shall be under the direction of the district medical examiner and the district attorney for the county where the death occurs.

(2) For purposes of ORS 146.003 to 146.189, if the county where death occurs is unknown, the death shall be deemed to have occurred in the county where the body is found, except that if in an emergency the deceased is moved by conveyance to another county and is dead on arrival, the death shall be deemed to have occurred in the county from which the body was originally removed.

(3) The district medical examiner or a designated assistant medical examiner for the county where death occurs shall be immediately notified of: (a) All deaths requiring investigation; and (b) All deaths of persons admitted to a hospital or institution for less than 24 hours, although the medical examiner need not investigate nor certify such deaths.

(4) No person having knowledge of a death requiring investigation shall intentionally or knowingly fail to make notification thereof as required by subsection (3) of this section.

(5) The district medical examiner or deputy medical examiner shall immediately notify the district attorney for the county where death occurs of all deaths requiring investigation except for those specified by ORS 146.090 (1)(d) to (g).

(6) All peace officers, health care providers as defined in ORS 192.519, supervisors of penal institutions and supervisors of hospitals or institutions caring for the ill or helpless shall cooperate with the medical examiner by providing a decedent’s medical records and tissue samples and any other material necessary to conduct the death investigation of the decedent and shall make notification of deaths as required by

subsection (3) of this section. A person who cooperates with the medical examiner in accordance with this subsection does not: (a) Waive any claim of privilege applicable to, or the confidentiality of, the materials and records provided. (b) Waive any claim that the materials and records are subject to an exemption from disclosure under ORS 192.410 to 192.505.

(7) Records or materials described in subsection (6) of this section may be released by the medical examiner only pursuant to a valid court order. [1973 c.408 §13; 1985 c.207 §22; 1995 c.744 §14; 2009 c.222 §1] 146.103 Removal of body, effects or weapons prohibited without consent. (1) In a death requiring an investigation, no person shall move a human body or body suspected of being human, or remove any of the effects of the deceased or instruments or weapons related to the death without the permission of a medical examiner, deputy medical examiner or the district attorney.

(2) No person shall move or remove any of the items specified in subsection (1) of this section if the medical examiner or district attorney objects.

(3) A medical examiner, district attorney or deputy medical examiner shall take custody of or exercise control over the body, the effects of the deceased and any weapons, instruments, vehicles, buildings or premises which the medical examiner, district attorney or deputy medical examiner has reason to believe were involved in the death, in order to preserve evidence relating to the cause and manner of death.

(4) In a death requiring investigation, no person shall undress, embalm, cleanse the surface of the body or otherwise alter the appearance or the state of the body without the permission of the medical examiner or the district attorney. [1973 c.408 §14] 146.105 [1959 c.629 §7; repealed by 1965 c.221 §7] 146.107 Authority to enter and secure certain premises. (1) A medical examiner, deputy medical examiner or district attorney may enter any room, dwelling, building or other place in which the medical examiner, deputy medical examiner or district attorney has reasonable cause to believe that a body or evidence of the circumstances of death requiring investigation may be found.

(2) If refused entry, the medical examiner, deputy medical examiner or district attorney may apply to any judge authorized to issue search warrants for an order to enter such premises, search for and seize a body or any evidence of the cause or manner of death.

(3) Upon application supported by an affidavit setting forth facts and circumstances tending to show that a body or such evidence of death is in the place to be searched, the judge shall issue such order to enter and search and seize.

(4) To preserve evidence, a medical examiner, deputy medical examiner or district attorney may: (a) Place under the custody or control of the medical examiner, deputy medical examiner or district attorney, or enclose or lock any room, dwelling, building or other enclosure for a period of not more than five days. (b) Rope off or otherwise restrict entry to any open area. (c) Forbid the entrance of any unauthorized person into the area specified under paragraphs (a) and (b) of this subsection.

(5) No person shall enter upon the enclosures or areas specified in subsection (4) of this section without the permission of the medical examiner, deputy medical examiner or district attorney. [1973 c.408 §15]

146.109 Notification of next of kin. (1) Upon identifying the body, the medical examiner shall immediately attempt to locate the next of kin or responsible friends to obtain the designation of a funeral home to which the deceased is to be taken.

(2) If unable to promptly obtain a designation of funeral home from the next of kin or responsible friends, the medical examiner or deputy medical examiner shall designate the funeral home. In designating the funeral home, the medical examiner or deputy medical examiner shall be fair and equitable among the funeral homes listed in the office of the district medical examiner. [1973 c.408 §16] 146.110 [Amended by 1959 c.629 §34; repealed by 1965 c.221 §27] 146.113 Authority to order removal of body fluids. (1) A medical examiner or district attorney may, in any death requiring investigation, order samples of blood or urine taken for laboratory analysis.

(2) When a death requiring an investigation as a result of a motor vehicle accident occurs within five hours after the accident and the deceased is over 13 years of age, a blood sample shall be taken and forwarded to an approved laboratory for analysis. Such blood or urine samples shall be analyzed for the presence and quantity of ethyl alcohol, and if considered necessary by the State Medical Examiner, the presence of controlled substances.

(3) Laboratory reports of the analysis shall be made a part of the State Medical Examiner’s and district medical examiner’s files. [1973 c.408 §17; 1979 c.744 §5] 146.115 [Amended by 1955 c.190 §1; repealed by 1965 c.221 §27] 146.117 Autopsies. (1) A medical examiner or district attorney may order an autopsy performed in any death requiring investigation. This authorization for an autopsy shall permit the pathologist to remove and retain body tissues or organs from the deceased for the purpose of the legal or medical determination of the manner or cause of death, or other purposes approved under policies established by the State Medical Examiner Advisory Board.

(2) If an autopsy is ordered, the medical examiner shall obtain the services of a pathologist authorized under ORS 146.045 (2)(b).

(3) A pathologist may not receive compensation for performing the autopsy if, as medical examiner, the pathologist ordered the autopsy. [1973 c.408 §18; 1987 c.142 §4; 1995 c.744 §15] 146.120 [Amended by 1959 c.629 §35; repealed by 1965 c.221 §27] 146.121 Disposition of body; filing; expenses. (1) No person shall bury or otherwise dispose of the body of a person whose death required investigation, without having first obtained a burial or cremation permit, or a death certificate completed and signed by a medical examiner.

(2) When a medical examiner investigates the death of a person whose body is not claimed by a friend or relative within five days of the date of death, the sheriff or, in counties having a population of 400,000 or more, the medical examiner shall dispose of the body according to the provisions of ORS 97.170 to 97.210.

(3) If the medical examiner is unable to dispose of the body of a deceased person according to subsection (2) of this section, the medical examiner may order in writing that the body be either cremated or plainly and decently buried.

(4) The sheriff or medical examiner shall file a copy of the death certificate, the order for disposition and a verified statement of the expenses of the cremation or burial with the board of county commissioners. The

board of county commissioners shall pay such expenses, or any proportion thereof as may be available, from county funds annually budgeted for this purpose. [1973 c.408 §19; 1995 c.744 §16] 146.125 Disposition of personal property. (1) The medical examiner, deputy medical examiner, district attorney or sheriff may temporarily retain possession of any property found on the body or in the possession of the deceased which in the opinion of the medical examiner, deputy medical examiner, district attorney or sheriff may be useful in establishing the cause or manner of death or may be used in further proceedings.

(2) When a medical examiner, deputy medical examiner, district attorney or sheriff assumes control or custody of money or personal property found on the body or in the possession of the deceased, the medical examiner, deputy medical examiner, district attorney or sheriff shall: (a) Make a verified inventory of such money or property. (b) File the inventory in the district medical examiner’s office. (c) Deposit the money with the county treasurer to the credit of the county general fund.

(3) If personal property is not retained by the medical examiner, deputy medical examiner, district attorney or sheriff, and is not claimed within 30 days, the inventory shall be filed with the board of county commissioners to be disposed of as follows: (a) If the property has value, the board may order it sold and after deducting the cost of sale, shall deposit the proceeds of the sale with the county treasurer to the credit of the county general fund. (b) If the property has no value in the judgment of the board, the board may order the sheriff to destroy such property.

(4) Any expenses incurred by the county in transporting or disposing of the body may be deducted from the money or proceeds of the sale of personal property before it is delivered to a claimant.

(5) If it appears that the person whose death required investigation died wholly intestate and without heirs, the county whose official has control or custody of the property shall notify an estate administrator of the Department of State Lands appointed under ORS 113.235 within 15 days after the death.

(6) If a legally qualified personal representative, spouse, or next of kin: (a) Claims the money of the deceased, the treasurer shall, subject to the provisions of subsection (4) of this section, deliver such money to the claimant. (b) Within 30 days, claims the personal property of the deceased, the property shall be delivered to such claimant subject to the provisions of subsections (1) and (5) of this section.

(7) If money of the deceased is not claimed within seven years and is presumed abandoned as provided

by ORS 98.302 to 98.436 and 98.992, the board of county commissioners shall order the money paid as required by law. [1973 c.408 §20; 1977 c.582 §5; 2003 c.395 §19] 146.130 [Amended by 1959 c.629 §36; repealed by 1965 c.221 §27] (Inquest) 146.135 Authority to order inquest. (1) The district attorney for the county where the death occurs may order an inquest to obtain a jury finding of the cause and manner of death in any case requiring investigation.

(2) For the purpose of conducting an inquest, the district attorney shall have the powers of a judicial officer as described by ORS 1.240 and 1.250.

(3) The district attorney shall advise the jury of inquest as to its duties and instruct the jury on questions of law.

(4) The district attorney shall cause a record of the inquest proceedings to be made which shall include the written order of inquest, a record of the testimony of witnesses and the written verdict of the jury.

(5) Within a reasonable time after the verdict is returned, the record of inquest shall be filed in the district medical examiner’s office for the county where the inquest was held.

(6) A copy of the order of inquest and verdict of the jury shall be filed in the State Medical Examiner’s office.

(7) The record of inquest shall be available for inspection as provided by ORS 146.035 (5). [1973 c.408 §21; 1987 c.142 §3] 146.140 [Amended by 1959 c.629 §37; repealed by 1965 c.221 §27] 146.145 Jury of inquest. (1) The district attorney shall order the inquest to be held at a specified time and place and as provided in ORS 10.810 and 10.820 shall summon a jury of inquest to inquire into the cause and manner of death.

(2) Upon receipt of a copy of the order of inquest, the sheriff shall select, as provided by law, not less than eight prospective members of the jury of inquest.

(3) The sheriff shall obtain a summons for each prospective juror selected and cause the summons to be served upon such juror.

(4) At the time and place of the inquest the sheriff shall report to the district attorney the names of all prospective jurors summoned.

(5) A prospective juror may be excused by the district attorney if the juror was related or closely associated with the deceased, was a witness to the death or shows good cause that the juror may be biased.

(6) From among the prospective jurors not excused, six members of the jury of inquest shall be drawn by lot. [1973 c.408 §22] 146.150 [Amended by 1959 c.629 §38; repealed by 1965 c.221 §27] 146.155 Inquest proceedings. (1) The six members of the jury of inquest shall be sworn by the district attorney to: (a) Inquire into who the deceased person was, when and where the deceased person came to death, the cause of death and the manner of death. (b) Give a true verdict thereof according to the evidence produced during the inquest.

(2) The district attorney shall subpoena as a witness any person who the district attorney believes has knowledge of facts relevant and material to the inquiry. The jury of inquest may request but may not require that other persons be subpoenaed.

(3) The district attorney shall examine each witness as to all facts which the district attorney deems relevant and material to the inquiry. After examination by the district attorney, the members of the jury may inquire of the witness provided that their examination is relevant and material.

(4) When the examination of witnesses is closed, the district attorney shall advise the jury as to their duty under law, and as to questions of law arising from the facts or posed by the jury.

(5) After having been advised of law, the jury shall retire to deliberate and to arrive at its verdict.

(6) The verdict shall be delivered to the district attorney. [1973 c.408 §23] 146.160 [Amended by 1959 c.629 §39; repealed by 1965 c.221 §27]

146.165 Verdict; findings; testimony and verdict of inquest as admissible evidence in subsequent proceedings. (1) The jury shall give its verdict in writing, signed by its members, setting forth its findings from the evidence produced: (a) Who the deceased person was; (b) When and where the deceased person came to death; (c) The cause of death; and (d) The manner of death.

(2) The verdict of a jury of inquest shall not preclude nor require a criminal charge by the grand jury or district attorney.

(3) The testimony of any witness before a jury of inquest shall not be admissible evidence in any civil or criminal proceeding except: (a) A criminal trial in which the witness is charged with perjury or false swearing arising from the testimony given before the jury of inquest. (b) A civil or criminal trial in which the testimony before the jury of inquest is offered as a prior inconsistent statement to impeach the same witness.

(4) The verdict of a jury of inquest shall not be admitted into evidence in any trial. [1973 c.408 §24] 146.170 [Amended by 1955 c.161 §1; 1959 c.629 §40; repealed by 1965 c.221 §27] IDENTIFICATION OF DEAD AND MISSING PERSONS 146.171 Unidentified human remains; maintenance of records. (1) The Superintendent of State Police shall establish and maintain a file of records relating to unidentified human remains found within the state and of which the Oregon State Police are notified under ORS 146.174. The records shall be maintained in order to facilitate the identification of such remains.

(2) The Superintendent of State Police shall establish the file described under subsection (1) of this section after consultation with the State Medical Examiner to determine what areas of information generally shall be requested, obtained and preserved in the file. General areas of information determined under this section shall be for the purpose of developing file format and standard forms for collecting data to aid in identifying human remains. Information having potential value in identifying human remains shall not be excluded from a file because it does not fall within a general area of information determined under this section or is not required by federal authorities.

(3) In addition to any other file it maintains, the Department of State Police shall enter appropriate information relating to unidentified human remains into any file maintained by federal authorities to facilitate the identification of such remains. The department shall conform file entries under this subsection to the format prescribed by the authorities responsible for the federal file. [Formerly 146.505] 146.174 Medical examiner to provide information about unidentified human remains; identification. (1) If a medical examiner is unable to determine the identity of human remains, the medical examiner shall, not later than 30 days after such remains are brought to the medical examiner’s attention, notify and provide to the Superintendent of State Police or the superintendent’s designee all information in the medical examiner’s records concerning the remains.

(2) The medical examiner shall make reasonable attempts to promptly identify human remains and may consider procedures consistent with current forensic autopsy performance standards of the National Association of Medical Examiners. Reasonable attempts to identify human remains include, but are not limited to, obtaining:

(a) Photographs of the remains prior to an autopsy; (b) Dental or skeletal X-rays of the remains; (c) Photographs of items found with the remains; (d) Fingerprints of the remains; and (e) Samples of tissue, bone or hair from the remains that are suitable for DNA (deoxyribonucleic acid) analysis.

(3) The medical examiner may not dispose of unidentified human remains, or take any action that materially affects the unidentified human remains, before the medical examiner completes the steps described in subsection (2) of this section. [Formerly 146.515] 146.177 Procedures for investigating missing persons. Written policies adopted by Oregon law enforcement agencies regarding missing persons shall specify the procedures for investigating missing persons in order to ensure that reported missing persons cases, particularly those involving minor children, are investigated as soon as possible, utilizing all available resources. In adopting policies under this section, Oregon law enforcement agencies may consider standards set by the Oregon Accreditation Alliance and adopt policies consistent with Oregon Accreditation Alliance standards. Policies adopted under this section should include the following: (1) Requirements for accepting missing persons reports; (2) Procedures for initial investigations; (3) Responsibility for follow-up investigations; (4) Standards for maintaining and clearing computer data of missing persons information stored in the Law Enforcement Data System and the National Crime Information Center; and (5) Initiation and activation criteria for Amber Plan alerts under ORS 181.035. [2007 c.500 §2] 146.180 [Repealed by 1965 c.221 §27] 146.181 Missing persons; police report; supplementary report. (1) When a person is reported as missing to any city, county or state police agency, the agency, within 12 hours thereafter, shall enter into state and federal records maintained for that purpose, a report of the missing person in a format and according to procedures established by the authorities responsible respectively for the state and federal records.

(2) The law enforcement agency to which the report is made: (a) May request from the person making the report information or material likely to be useful in identifying the missing person or the human remains of the missing person, including, but not limited to: (A) The name of the missing person and any alternative names the person uses; (B) The date of birth of the missing person; (C) A physical description of the missing person, including the height, weight, gender, race, eye color, current hair color and natural hair color of the missing person, any identifying marks on the missing person, any prosthetics used by, or surgical implants in, the missing person and any physical anomalies of the missing person; (D) The blood type of the missing person; (E) The driver license number of the missing person; (F) The Social Security number of the missing person; (G) A recent photograph of the missing person; (H) A description of the clothing the missing person is believed to have been wearing at the time the person disappeared;

(I) A description of items that the missing person is believed to have had with the person at the time the person disappeared; (J) Telephone numbers and electronic mail addresses of the missing person; (K) The name and address of any school the missing person attends; (L) The name and address of any employer of the missing person; (M) The name and address of the primary care physician and dentist of the missing person; (N) A description of any vehicle that the missing person might have been driving or riding in when the person disappeared; (O) The reasons why the person making the missing person report believes the person is missing; (P) Any circumstances that indicate that the missing person may be at risk of injury or death; (Q) Any circumstances that may indicate that the disappearance is not voluntary; (R) Information about a known or possible abductor or a person who was last seen with the missing person; and (S) The date of the last contact with the missing person. (b) May request in writing from any dentist, denturist, physician, optometrist or other medical practitioner possessing it such medical, dental or other physically descriptive information as is likely to be useful in identifying the missing person or the human remains of the missing person.

(3) The law enforcement agency, upon obtaining information pursuant to subsection (2) of this section, shall make a supplementary entry of that information into the state and federal records described in subsection (1) of this section. The supplementary report shall be in a format and according to procedures established by the authorities responsible respectively for the state and federal records. [Formerly 146.525] 146.184 Medical practitioners to provide information about missing persons. (1) A dentist, denturist, physician, optometrist or other medical practitioner, upon receipt of a written request from a law enforcement agency for identifying information pursuant to ORS 146.181, shall furnish to the agency such information known to the practitioner upon the request forms provided by the agency.

(2) Information obtained under this section is restricted to use for the identification of missing persons or the identification of unidentified human remains and may not be made available to the public.

(3) Compliance with a written request for information under this section by a dentist, denturist, physician, optometrist or other medical practitioner does not constitute a breach of confidentiality.

[Formerly 146.535] 146.187 DNA sample. (1) If a person who has been reported as missing has not been located within 30 days after the missing person report is made, the law enforcement agency that accepted the missing persons report shall attempt to obtain a DNA sample from the missing person or from family members of the missing person in addition to any documentation necessary to enable the agency to use the samples in conducting searches of DNA databases.

(2) A law enforcement agency shall forward a DNA sample obtained for use in a missing persons case as directed by the Department of State Police.

(3) A person, or the executor of the person’s estate, who was a missing person and who had a DNA sample obtained for use in the person’s case may request the destruction of the DNA sample, and any resultant database entries, when the missing person has been located or identified. The request shall be made in writing to the department. The department, upon confirming that the status of the missing person has been resolved, shall destroy the DNA sample and remove any database entries related to the DNA sample.

(4) As used in this section, “DNA” means deoxyribonucleic acid. [2007 c.500 §4]

146.189 Use of records to identify human remains and missing persons; disposition of records. (1) If the Superintendent of State Police is notified that a record of unidentified human remains filed by the Department of State Police under ORS 146.171 corresponds with the record of a person reported as missing, the superintendent shall immediately notify the medical examiner who reported the unidentified human remains and the law enforcement agency that filed the missing person report under ORS 146.181. If the medical examiner identifies the remains, the medical examiner shall immediately notify the superintendent and the superintendent shall cancel the report of unidentified human remains.

(2) When a person reported as missing under ORS 146.181 is found, or when the remains of the person have been discovered and identified, the law enforcement agency to which the person was reported missing shall cancel the reports to state and federal authorities under ORS 146.181. The agency shall destroy all information and material received under ORS 146.181 relating to a missing person who is discovered to be living. In the case of a missing person found to be no longer living, the agency shall seal the information and material obtained under ORS 146.181, except as otherwise may be necessary to investigate or prosecute a criminal action relating to the person’s disappearance or death. [Formerly 146.545] 146.190 [Amended by 1959 c.629 §41; repealed by 1965 c.221 §27] 146.200 [Repealed by 1965 c.221 §27] 146.210 [Amended by 1959 c.629 §42; repealed by 1965 c.221 §27] 146.220 [Repealed by 1965 c.221 §27] 146.230 [Repealed by 1965 c.221 §27] 146.240 [Repealed by 1965 c.221 §27] 146.250 [Amended by 1953 c.568 §3; repealed by 1965 c.221 §27] 146.260 [Amended by 1953 c.568 §3; repealed by 1965 c.221 §27] 146.270 [Repealed by 1965 c.221 §27] 146.280 [Repealed by 1965 c.221 §27] 146.310 [1965 c.221 §2; 1971 c.487 §3; repealed by 1973 c.408 §35] 146.315 [1971 c.487 §2; repealed by 1973 c.408 §35] 146.320 [1965 c.221 §5; repealed by 1973 c.408 §35] 146.330 [1965 c.221 §3; repealed by 1973 c.408 §35] 146.340 [1965 c.221 §4; repealed by 1973 c.408 §35] 146.350 [1965 c.221 §6; 1971 c.487 §4; repealed by 1973 c.408 §35]

146.360 [1965 c.221 §7; repealed by 1973 c.408 §35] 146.370 [1965 c.221 §8; repealed by 1973 c.408 §35] 146.410 [1959 c.629 §6; 1965 c.221 §16; repealed by 1973 c.408 §35] 146.420 [1959 c.629 §9; 1963 c.98 §1; 1965 c.91 §1; repealed by 1973 c.408 §35] 146.430 [1959 c.629 §11; 1961 c.434 §3; 1965 c.91 §2; repealed by 1973 c.408 §35] 146.440 [1959 c.629 §12; repealed by 1973 c.408 §35] 146.450 [1959 c.629 §13; repealed by 1973 c.408 §35] 146.460 [1959 c.629 §14; repealed by 1965 c.91 §3 (146.461 enacted in lieu of 146.460)] 146.461 [1965 c.91 §4 (enacted in lieu of 146.460); repealed by 1973 c.408 §35] 146.470 [1959 c.629 §15; 1961 c.434 §4; 1965 c.91 §5; repealed by 1973 c.408 §35] 146.480 [1959 c.629 §17; repealed by 1973 c.408 §35] 146.490 [1959 c.629 §18; repealed by 1973 c.408 §35] 146.500 [1959 c.629 §19; repealed by 1973 c.408 §35] 146.505 [1983 c.390 §1; renumbered 146.171 in 2007] 146.510 [1959 c.629 §20; repealed by 1973 c.408 §35] 146.515 [1983 c.390 §2; 2007 c.500 §5; renumbered 146.174 in 2007] 146.520 [1959 c.629 §21; repealed by 1973 c.408 §35] 146.525 [1983 c.390 §3; 1989 c.1059 §3; 2007 c.500 §3; renumbered 146.181 in 2007] 146.530 [1959 c.629 §22; repealed by 1973 c.408 §35] 146.535 [1983 c.390 §4; 2007 c.500 §6; renumbered 146.184 in 2007] 146.540 [1959 c.629 §23; repealed by 1973 c.408 §35] 146.545 [1983 c.390 §5; 2007 c.500 §7; renumbered 146.189 in 2007] 146.550 [1959 c.629 §24; repealed by 1973 c.408 §35]

146.560 [1959 c.629 §25; repealed by 1973 c.408 §35] 146.565 [1961 c.434 §2; 1965 c.91 §6; 1965 c.439 §4; repealed by 1973 c.408 §35] 146.570 [1959 c.629 §26; 1967 c.632 §1; repealed by 1973 c.408 §35] 146.580 [1959 c.629 §27; 1961 c.434 §5; 1967 c.632 §2; repealed by 1973 c.408 §35] 146.590 [1959 c.629 §§28,29; 1961 c.434 §6; 1967 c.632 §3; repealed by 1973 c.408 §35] 146.600 [1959 c.629 §30; repealed by 1973 c.408 §35] 146.610 [1959 c.629 §31; repealed by 1973 c.408 §35] INVESTIGATIONS OF INJURIES 146.710 Definition for ORS 146.710 to 146.780. As used in ORS 146.710 to 146.780, “injury” means: (1) A physical injury caused by a knife, gun, pistol or other dangerous or deadly weapon; or (2) A serious physical injury. [1963 c.621 §1; 1965 c.472 §1; 1967 c.545 §1; 1971 c.451 §9; 2007 c.294 §1] 146.720 [1963 c.621 §§3,4; 1965 c.221 §17; repealed by 1965 c.472 §9] 146.730 Investigation. A medical examiner or district attorney may investigate an injury whenever the injury occurred under suspicious or unknown circumstances. All authority granted to the medical examiner or district attorney by ORS 146.003 to 146.189 and 146.710 to 146.992 may be exercised in making such investigation. [1963 c.621 §2; 1965 c.221 §18; 1967 c.545 §§2,3; 1971 c.401 §7; 1971 c.451 §10; 1973 c.408 §26; 2007 c.294 §2] 146.740 Reports of medical examiner. Whenever the medical examiner concludes that a crime may have been committed by any person in causing the injury, the medical examiner shall report the conclusion to the district attorney. [1963 c.621 §§5,6; 1965 c.221 §19; 1967 c.545 §§4,5; 1971 c.401 §8; 1971 c.451 §11; 1973 c.408 §27] 146.750 Injuries to be reported to medical examiner. (1) Except as required in subsection (3) of this section, any physician, including any intern and resident, having reasonable cause to suspect that a person brought to the physician or coming before the physician for examination, care or treatment has had injury, as defined in ORS 146.710, inflicted upon the person other than by accidental means, shall report or cause reports to be made in accordance with the provisions of subsection (2) of this section.

(2) An oral report shall be made immediately by telephone or otherwise, and followed as soon thereafter as possible by a report in writing, to the appropriate medical examiner.

(3) When either an injury as defined in ORS 146.710 or abuse as defined in ORS 419B.005 occurs to an unmarried person who is under 18 years of age, the provisions of ORS 419B.005 to 419B.050 shall apply.

[1965 c.472 §§3,4; 1967 c.545 §6; 1971 c.401 §9; 1971 c.451 §12; 1973 c.408 §28; 1975 c.644 §1; 1993 c.546 §99]

146.760 Immunity of participant in making of report. Anyone participating in good faith in the making of a report pursuant to ORS 146.750 and who has reasonable grounds for the making thereof shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making of such report. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report. [1965 c.472 §5; 1971 c.451 §13; 1989 c.171 §20] 146.770 [1965 c.472 §6; 1971 c.451 §14; renumbered 418.775] 146.780 Confidentiality of records and reports. Notwithstanding the provisions of ORS 192.410 to 192.505 relating to confidentiality and accessibility for public inspection of public records, records and reports made under the provisions of ORS 146.750 are confidential and are not accessible for public inspection. [1965 c.472 §7; 1967 c.545 §7; 1971 c.401 §10; 1971 c.451 §15; 1973 c.408 §29; 1973 c.794 §15a] PENALTIES 146.990 [Subsection (1) enacted as 1959 c.629 §45; subsection (3) of 1963 Replacement Part enacted as 1963 c.621 §7; 1965 c.221 §20; 1965 c.472 §8; 1971 c.451 §16; repealed by 1973 c.408 §35] 146.992 Penalties. (1) A person who violates ORS 146.103 (1) commits a Class A misdemeanor.

(2) A person who violates ORS 146.103 (2) or (4), 146.107 (5), or 146.121 (1) commits a Class B misdemeanor.

(3) A person who violates ORS 146.100 (4) commits a Class C misdemeanor. [1973 c.408 §25]

Chapter 166 — Offenses Against Public Order; Firearms and Other Weapons; Racketeering 2009 EDITION PUBLIC ORDER OFFENSES CRIMES AND PUNISHMENTS TREASON, RIOT, DISORDERLY CONDUCT AND RELATED OFFENSES 166.005

Treason

166.015

Riot

166.023

Disorderly conduct in the first degree

166.025

Disorderly conduct in the second degree

166.065

Harassment

166.070

Aggravated harassment

166.075

Abuse of venerated objects

166.076

Abuse of a memorial to the dead

166.085

Abuse of corpse in the second degree

166.087

Abuse of corpse in the first degree

166.090

Telephonic harassment

166.095

Misconduct with emergency telephone calls

166.116

Interfering with public transportation

INTIMIDATION 166.155

Intimidation in the second degree

166.165

Intimidation in the first degree

AUTHORITY TO REGULATE FIREARMS 166.170

State preemption

166.171

Authority of county to regulate discharge of firearms

166.172

Authority of city to regulate discharge of firearms

166.173

Authority of city or county to regulate possession of loaded firearms in public places

166.174

Authority of city, county, municipal corporation or district to regulate possession or sale of firearms

166.175

Authority of city to regulate purchase of used firearms

166.176

Exception to preemption for certain county ordinances

POSSESSION AND USE OF WEAPONS 166.180

Negligently wounding another

166.190

Pointing firearm at another; courts having jurisdiction over offense

166.210

Definitions

166.220

Unlawful use of weapon

166.240

Carrying of concealed weapons

166.250

Unlawful possession of firearms

166.260

Persons not affected by ORS 166.250

166.262

Limitation on peace officer’s authority to arrest for violating ORS 166.250 or 166.370

166.263

Authority of parole and probation officer to carry firearm

166.270

Possession of weapons by certain felons

166.272

Unlawful possession of machine guns, certain short-barreled firearms and firearms silencers

166.274

Relief from prohibition against possessing or purchasing firearm

Note

Relief from certain prohibitions against transporting, shipping, possessing or receiving firearm-2009 c.826 §§5,13,14,15

166.275

Possession of weapons by inmates of institutions

166.279

Forfeiture of deadly weapons

166.282

Sale of weapons by political subdivision; disposition of proceeds

166.291

Issuance of concealed handgun license; application; fees; liability

166.292

Procedure for issuing; form of license; duration

166.293

Denial or revocation of license; review

166.295

Renewal of license

166.297

Annual report regarding revocation of licenses

166.300

Killing another as cause for loss of right to bear arms

166.320

Setting springgun or setgun

166.330

Use of firearms with other than incombustible gun wadding

166.350

Unlawful possession of armor piercing ammunition

POSSESSION OF WEAPON OR DESTRUCTIVE DEVICE IN PUBLIC BUILDING OR COURT FACILITY 166.360

Definitions for ORS 166.360 to 166.380

166.370

Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school

166.373

Possession of weapon in court facility by peace officer or federal officer

166.380

Examination of firearm by peace officer; arrest for failure to allow examination

166.382

Possession of destructive device prohibited; exceptions

166.384

Unlawful manufacture of destructive device

166.385

Possession of hoax destructive device

SALE OR TRANSFER OF FIREARMS 166.410

Manufacture, importation or sale of firearms

166.412

Definitions; firearms transaction record; criminal record check; rules

166.414

Fees for conducting criminal history record checks

166.416

Providing false information in connection with a transfer of a firearm

166.418

Improperly transferring a firearm

166.421

Stolen firearms; determination; telephone requests

166.422

Enforcement of ORS 166.412

166.425

Unlawful purchase of firearm

166.427

Register of transfers of used firearms

166.429

Firearms used in felony

166.432

Definitions for ORS 166.412 and 166.433 to 166.441

166.433

Findings regarding transfers of firearms

166.434

Application of ORS 166.412 to all firearm transfers by gun dealers; fees for criminal background checks

166.436

Firearm transfers by persons other than gun dealers; criminal background checks authorized; liability

166.438

Transfer of firearms at gun shows

166.441

Form for transfer of firearm at gun show

166.445

Short title

166.450

Obliteration or change of identification number on firearms

166.460

Antique firearms excepted

166.470

Limitations and conditions for sales of firearms

166.480

Sale or gift of explosives to children

166.490

Purchase of firearms in certain other states

DISCHARGING WEAPONS 166.630

Discharging weapon on or across highway, ocean shore recreation area or public utility facility

166.635

Discharging weapon or throwing objects at trains

166.638

Discharging weapon across airport operational surfaces

POSSESSION OF BODY ARMOR 166.641

Definitions for ORS 166.641 to 166.643

166.642

Felon in possession of body armor

166.643

Unlawful possession of body armor

MISCELLANEOUS 166.645

Hunting in cemeteries prohibited

166.649

Throwing an object off an overpass in the second degree

166.651

Throwing an object off an overpass in the first degree

166.660

Unlawful paramilitary activity

166.663

Casting artificial light from vehicle while possessing certain weapons prohibited

RACKETEERING 166.715

Definitions for ORS 166.715 to 166.735

166.720

Racketeering activity unlawful; penalties

166.725

Remedies for violation of ORS 166.720; time limitation

166.730

Authority of investigative agency; compelling compliance with subpoena

166.735

Short title; construction

TREASON, RIOT, DISORDERLY CONDUCT AND RELATED OFFENSES 166.005 Treason. (1) A person commits the crime of treason if the person levies war against the State of Oregon or adheres to its enemies, giving them aid and comfort.

(2) No person shall be convicted of treason unless upon the testimony of two witnesses to the same overt act or upon confession in open court.

(3) A person convicted of treason shall be punished by imprisonment for life. [1971 c.743 §217] 166.010 [Repealed by 1971 c.743 §432] 166.015 Riot. (1) A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm.

(2) Riot is a Class C felony. [1971 c.743 §218] 166.020 [Repealed by 1971 c.743 §432] 166.023 Disorderly conduct in the first degree. (1) A person commits the crime of disorderly conduct in the first degree if, with intent to cause public inconvenience, annoyance or alarm, or knowingly creating a risk thereof, the person initiates or circulates a report, knowing it to be false: (a) Concerning an alleged hazardous substance or an alleged or impending fire, explosion, catastrophe or other emergency; and (b) Stating that the hazardous substance, fire, explosion, catastrophe or other emergency is located in or upon a school as defined in ORS 339.315.

(2)(a) Disorderly conduct in the first degree is a Class A misdemeanor. (b) Notwithstanding paragraph (a) of this subsection, disorderly conduct in the first degree is a Class C felony if the defendant has at least one prior conviction for violating subsection (1) of this section. [2005 c.631 §3]

166.025 Disorderly conduct in the second degree. (1) A person commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person: (a) Engages in fighting or in violent, tumultuous or threatening behavior; (b) Makes unreasonable noise; (c) Disturbs any lawful assembly of persons without lawful authority; (d) Obstructs vehicular or pedestrian traffic on a public way; (e) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; (f) Initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency; or (g) Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.

(2) Disorderly conduct in the second degree is a Class B misdemeanor. [1971 c.743 §220; 1983 c.546 §5; 2001 c.104 §55; 2005 c.631 §1] 166.030 [Repealed by 1971 c.743 §432] 166.035 [1971 c.743 §221; repealed by 1975 c.715 §2] 166.040 [Repealed by 1971 c.743 §432] 166.045 [1971 c.743 §222; repealed by 1983 c.546 §3] 166.050 [Repealed by 1971 c.743 §432] 166.060 [Amended by 1959 c.436 §1; 1961 c.503 §1; repealed by 1971 c.743 §432] 166.065 Harassment. (1) A person commits the crime of harassment if the person intentionally: (a) Harasses or annoys another person by: (A) Subjecting such other person to offensive physical contact; or (B) Publicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response; (b) Subjects another to alarm by conveying a false report, known by the conveyor to be false, concerning death or serious physical injury to a person, which report reasonably would be expected to cause alarm; or (c) Subjects another to alarm by conveying a telephonic, electronic or written threat to inflict serious physical injury on that person or to commit a felony involving the person or property of that person or any member of that person’s family, which threat reasonably would be expected to cause alarm.

(2)(a) A person is criminally liable for harassment if the person knowingly permits any telephone or electronic device under the person’s control to be used in violation of subsection (1) of this section. (b) Harassment that is committed under the circumstances described in subsection (1)(c) of this section is committed in either the county in which the communication originated or the county in which the communication was received.

(3) Harassment is a Class B misdemeanor.

(4) Notwithstanding subsection (3) of this section, harassment is a Class A misdemeanor if a person violates:

(a) Subsection (1)(a)(A) of this section by subjecting another person to offensive physical contact and the offensive physical contact consists of touching the sexual or other intimate parts of the other person; or (b) Subsection (1)(c) of this section and: (A) The person has a previous conviction under subsection (1)(c) of this section and the victim of the current offense was the victim or a member of the family of the victim of the previous offense; (B) At the time the offense was committed, the victim was protected by a stalking protective order, a restraining order as defined in ORS 24.190 or any other court order prohibiting the person from contacting the victim; (C) At the time the offense was committed, the person reasonably believed the victim to be under 18 years of age and more than three years younger than the person; or (D)(i) The person conveyed a threat to kill the other person or any member of the family of the other person; (ii) The person expressed the intent to carry out the threat; and (iii) A reasonable person would believe that the threat was likely to be followed by action.

(5) As used in this section, “electronic threat” means a threat conveyed by electronic mail, the Internet, a telephone text message or any other transmission of information by wire, radio, optical cable, cellular system, electromagnetic system or other similar means. [1971 c.743 §223; 1981 c.468 §1; 1985 c.498 §1; 1987 c.806 §3; 1995 c.802 §1; 2001 c.870 §2; 2009 c.783 §1] 166.070 Aggravated harassment. (1) A person commits the crime of aggravated harassment if the person, knowing that the other person is a: (a) Staff member, knowingly propels saliva, blood, urine, semen, feces or other dangerous substance at the staff member while the staff member is acting in the course of official duty or as a result of the staff member’s official duties; or (b) Public safety officer, knowingly propels blood, urine, semen or feces at the public safety officer while the public safety officer is acting in the course of official duty or as a result of the public safety officer’s official duties.

(2) Aggravated harassment is a Class C felony. When a person is convicted of violating subsection (1)(a) of this section, in addition to any other sentence it may impose, the court shall impose a term of incarceration in a state correctional facility.

(3) As used in this section: (a) “Public safety officer” means an emergency medical technician as defined in ORS 682.025 or a fire service professional, a parole and probation officer or a police officer as those terms are defined in ORS 181.610. (b) “Staff member” has the meaning given that term in ORS 163.165. [2009 c.783 §2] Note: 166.070 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 166 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

166.075 Abuse of venerated objects. (1) A person commits the crime of abuse of venerated objects if the person intentionally abuses a public monument or structure, a place of worship or the national or state flag.

(2) As used in this section and ORS 166.085, “abuse” means to deface, damage, defile or otherwise physically mistreat in a manner likely to outrage public sensibilities.

(3) Abuse of venerated objects is a Class C misdemeanor. [1971 c.743 §224; 1995 c.261 §2]

166.076 Abuse of a memorial to the dead. (1) A person commits the crime of abuse of a memorial to the dead if the person: (a) Intentionally destroys, mutilates, defaces, injures or removes any: (A) Tomb, monument, gravestone or other structure or thing placed as or designed for a memorial to the dead; or (B) Fence, railing, curb or other thing intended for the protection or for the ornamentation of any structure or thing listed in subparagraph (A) of this paragraph; (b) Intentionally destroys, mutilates, removes, cuts, breaks or injures any tree, shrub or plant within any structure listed in paragraph (a) of this subsection; or (c) Buys, sells or transports any object listed in paragraph (a) of this subsection that was stolen from a historic cemetery knowing that the object is stolen.

(2) Abuse of a memorial to the dead is a Class A misdemeanor.

(3)(a) Notwithstanding ORS 161.635, the maximum fine that a court may impose for abuse of a memorial to the dead is $50,000 if: (A) The person violates subsection (1)(a) of this section and the object destroyed, mutilated, defaced, injured or removed is or was located in a historic cemetery; or (B) The person violates subsection (1)(c) of this section. (b) In addition to any other sentence a court may impose, if a defendant is convicted of violating this section under the circumstances described in paragraph (a)(A) of this subsection, the court shall consider ordering the defendant to pay restitution. The court shall base the amount of restitution on the historical value of the object destroyed, mutilated, defaced, injured or removed.

(4) This section does not apply to a person who is the burial right owner or that person’s representative, an heir at law of the deceased, or a person having care, custody or control of a cemetery by virtue of law, contract or other legal right, if the person is acting within the scope of the person’s legal capacity and the person’s actions have the effect of maintaining, protecting or improving the tomb, monument, gravestone or other structure or thing placed as or designed for a memorial to the dead.

(5) As used in this section, “historic cemetery” means a cemetery that is listed with the Oregon Commission on Historic Cemeteries under ORS 97.782. [1995 c.261 §1; 1999 c.731 §12; 2003 c.291 §1; 2005 c.22 §113] Note: 166.076 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 166 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

166.085 Abuse of corpse in the second degree. (1) A person commits the crime of abuse of corpse in the second degree if, except as otherwise authorized by law, the person intentionally: (a) Abuses a corpse; or (b) Disinters, removes or carries away a corpse.

(2) Abuse of corpse in the second degree is a Class C felony.

(3) As used in this section and ORS 166.087, “abuse of corpse” includes treatment of a corpse by any person in a manner not recognized by generally accepted standards of the community or treatment by a professional person in a manner not generally accepted as suitable practice by other members of the profession, as may be defined by rules applicable to the profession. [1971 c.743 §225; 1985 c.207 §2; 1993 c.294 §1]

166.087 Abuse of corpse in the first degree. (1) A person commits the crime of abuse of corpse in the first degree if the person: (a) Engages in sexual activity with a corpse or involving a corpse; or (b) Dismembers, mutilates, cuts or strikes a corpse.

(2) Abuse of corpse in the first degree is a Class B felony. [1993 c.294 §2] Note: 166.087 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 166 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

166.090 Telephonic harassment. (1) A telephone caller commits the crime of telephonic harassment if the caller intentionally harasses or annoys another person: (a) By causing the telephone of the other person to ring, such caller having no communicative purpose; (b) By causing such other person’s telephone to ring, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone; or (c) By sending to, or leaving at, the other person’s telephone a text message, voice mail or any other message, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone.

(2) Telephonic harassment is a Class B misdemeanor.

(3) It is an affirmative defense to a charge of violating subsection (1) of this section that the caller is a debt collector, as defined in ORS 646.639, who engaged in the conduct proscribed by subsection (1) of this section while attempting to collect a debt. The affirmative defense created by this subsection does not apply if the debt collector committed the unlawful collection practice described in ORS 646.639 (2)(a) while engaged in the conduct proscribed by subsection (1) of this section. [1987 c.806 §2; 1999 c.115 §1; 2005 c.752 §1] 166.095 Misconduct with emergency telephone calls. (1) A person commits the crime of misconduct with emergency telephone calls if the person: (a) Intentionally refuses to relinquish immediately a party line or public pay telephone after being informed that it is needed for an emergency call; or (b) Requests another to relinquish a party line or public pay telephone to place an emergency call with knowledge that no such emergency exists.

(2) As used in this section: (a) “Emergency call” means a telephone call to a police or fire department, or for medical aid or ambulance service, necessitated by a situation in which human life or property is in jeopardy and prompt summoning of aid is essential. (b) “Party line” means a subscriber’s line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number.

(3) Every telephone directory that is distributed to members of the general public in this state shall contain in a prominent place a notice of the offense punishable by this section.

(4) Misconduct with emergency telephone calls is a Class B misdemeanor. [1971 c.743 §288; 2005 c.22 §114] 166.110 [Amended by 1961 c.503 §2; repealed by 1971 c.743 §432] 166.115 [1981 c.783 §3; repealed by 2001 c.851 §2 (166.116 enacted in lieu of 166.115)]

166.116 Interfering with public transportation. (1) A person commits the crime of interfering with public transportation if the person: (a) Intentionally or knowingly enters or remains unlawfully in or on a public transit vehicle or public transit station; (b) Intentionally or knowingly interferes with the provision or use of public transportation services by, among other things, interfering with the movement of, or access to, public transit vehicles; (c) While in or on a public transit vehicle or public transit station, engages in disorderly conduct in the second degree as defined in ORS 166.025; or (d) Subjects a public transportation passenger, employee, agent or security officer or transit police officer to offensive physical contact.

(2) Interfering with public transportation is a Class A misdemeanor.

(3) As used in this section: (a) “Enter or remain unlawfully” has the meaning given that term in ORS 164.205. (b) “Public transit station” includes all facilities, structures, lands and rights of way that are owned, leased, held or used for the purposes of providing public transportation services. (c) “Public transit vehicle” means a vehicle that is used for public transportation or operated by or under contract to any public body in order to provide public transportation. (d) “Public transportation” means transportation provided by a city, county, special district or any other political subdivision or municipal or public corporation. [2001 c.851 §3 (enacted in lieu of 166.115); 2005 c.631 §4] 166.120 [Repealed by 1971 c.743 §432] 166.130 [Repealed by 1971 c.743 §432] 166.140 [Repealed by 1971 c.743 §432] 166.150 [Repealed by 1971 c.743 §432] INTIMIDATION 166.155 Intimidation in the second degree. (1) A person commits the crime of intimidation in the second degree if the person: (a) Tampers or interferes with property, having no right to do so nor reasonable ground to believe that the person has such right, with the intent to cause substantial inconvenience to another because of the person’s perception of the other’s race, color, religion, sexual orientation or national origin; (b) Intentionally subjects another to offensive physical contact because of the person’s perception of the other’s race, color, religion, sexual orientation or national origin; or (c) Intentionally, because of the person’s perception of race, color, religion, sexual orientation or national origin of another or of a member of the other’s family, subjects the other person to alarm by threatening: (A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the person’s family; or (B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

(2) Intimidation in the second degree is a Class A misdemeanor.

(3) For purposes of this section, “property” means any tangible personal property or real property. [1981 c.785 §1; 1983 c.521 §1; 1989 c.1029 §1; 2007 c.100 §18] 166.160 [Repealed by 1971 c.743 §432] 166.165 Intimidation in the first degree. (1) Two or more persons acting together commit the crime of intimidation in the first degree, if the persons: (a)(A) Intentionally, knowingly or recklessly cause physical injury to another person because of the actors’ perception of that person’s race, color, religion, sexual orientation or national origin; or (B) With criminal negligence cause physical injury to another person by means of a deadly weapon because of the actors’ perception of that person’s race, color, religion, sexual orientation or national origin; (b) Intentionally, because of the actors’ perception of another person’s race, color, religion, sexual orientation or national origin, place another person in fear of imminent serious physical injury; or (c) Commit such acts as would constitute the crime of intimidation in the second degree, if undertaken by one person acting alone.

(2) Intimidation in the first degree is a Class C felony. [1981 c.785 §2; 1983 c.521 §2; 1989 c.1029 §2; 1993 c.332 §1; 1995 c.79 §53; 1997 c.249 §50; 2007 c.100 §19] AUTHORITY TO REGULATE FIREARMS 166.170 State preemption. (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

(2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void. [1995 s.s. c.1 §1] 166.171 Authority of county to regulate discharge of firearms. (1) A county may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within their boundaries.

(2) Ordinances adopted under subsection (1) of this section may not apply to or affect: (a) A person discharging a firearm in the lawful defense of person or property. (b) A person discharging a firearm in the course of lawful hunting. (c) A landowner and guests of the landowner discharging a firearm, when the discharge will not endanger adjacent persons or property. (d) A person discharging a firearm on a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting. (e) A person discharging a firearm in the course of target shooting on public land that is not inside an urban growth boundary or the boundary of a city, if the discharge will not endanger persons or property. (f) An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife. [1995 s.s. c.1 §2; 2009 c.556 §1]

166.172 Authority of city to regulate discharge of firearms. (1) A city may adopt ordinances to regulate, restrict or prohibit the discharge of firearms within the city’s boundaries.

(2) Ordinances adopted under subsection (1) of this section may not apply to or affect: (a) A person discharging a firearm in the lawful defense of person or property. (b) A person discharging a firearm on a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting. (c) An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife. [1995 s.s. c.1 §3; 2009 c.556 §2] 166.173 Authority of city or county to regulate possession of loaded firearms in public places. (1) A city or county may adopt ordinances to regulate, restrict or prohibit the possession of loaded firearms in public places as defined in ORS 161.015.

(2) Ordinances adopted under subsection (1) of this section do not apply to or affect: (a) A law enforcement officer in the performance of official duty. (b) A member of the military in the performance of official duty. (c) A person licensed to carry a concealed handgun. (d) A person authorized to possess a loaded firearm while in or on a public building or court facility under ORS 166.370. (e) An employee of the United States Department of Agriculture, acting within the scope of employment, who possesses a loaded firearm in the course of the lawful taking of wildlife. [1995 s.s. c.1 §4; 1999 c.782 §8; 2009 c.556 §3] 166.174 Authority of city, county, municipal corporation or district to regulate possession or sale of firearms. Notwithstanding any other provision of law, a city, county or other municipal corporation or district may not adopt ordinances that regulate, restrict or prohibit the possession or sale of firearms in a public building that is rented or leased to a person during the term of the lease. [1995 s.s. c.1 §5] 166.175 Authority of city to regulate purchase of used firearms. (1) Notwithstanding any other provision of law, a city may continue to regulate the purchase of used firearms by pawnshops and secondhand stores.

(2) As used in this section, “secondhand store” means a store or business whose primary source of revenue is the sale of used merchandise. [1995 s.s. c.1 §6] 166.176 Exception to preemption for certain county ordinances. (1) Nothing in ORS 166.170 or 166.171 is intended to preempt, invalidate or in any way affect the operation of any provision of a county ordinance that was in effect on November 2, 1995, to the extent that the provision: (a) Established a procedure for regulating, restricting or prohibiting the discharge of firearms; or (b) Regulated, restricted or prohibited the discharge of firearms.

(2) Subsection (1) of this section does not apply to: (a) Ordinances regulating, restricting or prohibiting the discharge of firearms on a shooting range or in a shooting gallery or other area designed and built for the purpose of target shooting. (b) An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife. [1997 c.403 §1; 2009 c.556 §4]

POSSESSION AND USE OF WEAPONS 166.180 Negligently wounding another. Any person who, as a result of failure to use ordinary care under the circumstances, wounds any other person with a bullet or shot from any firearm, or with an arrow from any bow, shall be punished by imprisonment in the county jail for a period not to exceed six months, or by a fine not to exceed $500, or both. In addition, any person so convicted shall forfeit any license to hunt, obtained under the laws of this state, and shall be ineligible to obtain a license to hunt for a period of 10 years following the date of conviction. [Formerly 163.310] 166.190 Pointing firearm at another; courts having jurisdiction over offense. Any person over the age of 12 years who, with or without malice, purposely points or aims any loaded or empty pistol, gun, revolver or other firearm, at or toward any other person within range of the firearm, except in self-defense, shall be fined upon conviction in any sum not less than $10 nor more than $500, or be imprisoned in the county jail not less than 10 days nor more than six months, or both. Justice courts have jurisdiction concurrent with the circuit court of the trial of violations of this section. When any person is charged before a justice court with violation of this section, the court shall, upon motion of the district attorney, at any time before trial, act as a committing magistrate, and if probable cause be established, hold such person to the grand jury. [Formerly 163.320] 166.210 Definitions. As used in ORS 166.250 to 166.270, 166.291 to 166.295 and 166.410 to 166.470: (1) “Antique firearm” means: (a) Any firearm, including any firearm with a matchlock, flintlock, percussion cap or similar type of ignition system, manufactured in or before 1898; and (b) Any replica of any firearm described in paragraph (a) of this subsection if the replica: (A) Is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or (B) Uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade.

(2) “Corrections officer” has the meaning given that term in ORS 181.610.

(3) “Firearm” means a weapon, by whatever name known, which is designed to expel a projectile by the action of powder.

(4) “Firearms silencer” means any device for silencing, muffling or diminishing the report of a firearm.

(5) “Handgun” means any pistol or revolver using a fixed cartridge containing a propellant charge, primer and projectile, and designed to be aimed or fired otherwise than from the shoulder.

(6) “Machine gun” means a weapon of any description by whatever name known, loaded or unloaded, which is designed or modified to allow two or more shots to be fired by a single pressure on the trigger device.

(7) “Minor” means a person under 18 years of age.

(8) “Offense” has the meaning given that term in ORS 161.505.

(9) “Parole and probation officer” has the meaning given that term in ORS 181.610.

(10) “Peace officer” has the meaning given that term in ORS 133.005.

(11) “Short-barreled rifle” means a rifle having one or more barrels less than 16 inches in length and any weapon made from a rifle if the weapon has an overall length of less than 26 inches.

(12) “Short-barreled shotgun” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun if the weapon has an overall length of less than 26 inches. [Amended by 1977 c.769 §1; 1979 c.779 §3; 1989 c.839 §1; 1993 c.735 §14; 1995 c.670 §3; 1999 c.1040 §2; 2001 c.666 §§32,44; 2003 c.614 §7; 2007 c.368 §1; 2009 c.610 §4]

166.220 Unlawful use of weapon. (1) A person commits the crime of unlawful use of a weapon if the person: (a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015; or (b) Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge.

(2) This section does not apply to: (a) Police officers or military personnel in the lawful performance of their official duties; (b) Persons lawfully defending life or property as provided in ORS 161.219; (c) Persons discharging firearms, blowguns, bows and arrows, crossbows or explosive devices upon public or private shooting ranges, shooting galleries or other areas designated and built for the purpose of target shooting; (d) Persons lawfully engaged in hunting in compliance with rules and regulations adopted by the State Department of Fish and Wildlife; or (e) An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife.

(3) Unlawful use of a weapon is a Class C felony. [Amended by 1975 c.700 §1; 1985 c.543 §1; 1991 c.797 §1; 2009 c.556 §5] 166.230 [Repealed by 1979 c.779 §7] 166.240 Carrying of concealed weapons. (1) Except as provided in subsection (2) of this section, any person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot, metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor.

(2) Nothing in subsection (1) of this section applies to any peace officer as defined in ORS 133.005, whose duty it is to serve process or make arrests. Justice courts have concurrent jurisdiction to try any person charged with violating any of the provisions of subsection (1) of this section. [Amended by 1977 c.454 §1; 1985 c.543 §2; 1989 c.839 §21; 1999 c.1040 §15] 166.245 [1989 c.839 §38; repealed by 1995 s.s. c.1 §7] 166.250 Unlawful possession of firearms. (1) Except as otherwise provided in this section or ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm if the person knowingly: (a) Carries any firearm concealed upon the person; (b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or (c) Possesses a firearm and: (A) Is under 18 years of age; (B)(i) While a minor, was found to be within the jurisdiction of the juvenile court for having committed an act which, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; and

(ii) Was discharged from the jurisdiction of the juvenile court within four years prior to being charged under this section; (C) Has been convicted of a felony; (D) Was committed to the Oregon Health Authority under ORS 426.130; (E) Was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; or (F) Has been found guilty except for insanity under ORS 161.295 of a felony.

(2) This section does not prohibit: (a) A minor, who is not otherwise prohibited under subsection (1)(c) of this section, from possessing a firearm: (A) Other than a handgun, if the firearm was transferred to the minor by the minor’s parent or guardian or by another person with the consent of the minor’s parent or guardian; or (B) Temporarily for hunting, target practice or any other lawful purpose; or (b) Any citizen of the United States over the age of 18 years who resides in or is temporarily sojourning within this state, and who is not within the excepted classes prescribed by ORS 166.270 and subsection (1) of this section, from owning, possessing or keeping within the person’s place of residence or place of business any handgun, and no permit or license to purchase, own, possess or keep any such firearm at the person’s place of residence or place of business is required of any such citizen. As used in this subsection, “residence” includes a recreational vessel or recreational vehicle while used, for whatever period of time, as residential quarters.

(3) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

(4)(a) Except as provided in paragraph (b) of this subsection, a handgun is readily accessible within the meaning of this section if the handgun is within the passenger compartment of the vehicle. (b) If a vehicle has no storage location that is outside the passenger compartment of the vehicle, a handgun is not readily accessible within the meaning of this section if: (A) The handgun is stored in a closed and locked glove compartment, center console or other container; and (B) The key is not inserted into the lock, if the glove compartment, center console or other container unlocks with a key.

(5) Unlawful possession of a firearm is a Class A misdemeanor. [Amended by 1979 c.779 §4; 1985 c.543 §3; 1989 c.839 §13; 1993 c.732 §1; 1993 c.735 §12; 1999 c.1040 §1; 2001 c.666 §§33,45; 2003 c.614 §8; 2009 c.499 §1; 2009 c.595 §112] Note 1: The amendments to 166.250 by section 8a, chapter 826, Oregon Laws 2009, become operative on the date that the rule described in section 13 (1), chapter 826, Oregon Laws 2009, is adopted by the Psychiatric Security Review Board. See section 13, chapter 826, Oregon Laws 2009, as amended by section 22, chapter 826, Oregon Laws 2009 (Note 4 under 166.274). The text that is operative from the date of adoption of that rule until January 2, 2012, is set forth for the user’s convenience.

166.250. (1) Except as otherwise provided in this section or ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to 166.470 or section 5, chapter 826, Oregon Laws 2009, a person commits the crime of unlawful possession of a firearm if the person knowingly: (a) Carries any firearm concealed upon the person; (b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or (c) Possesses a firearm and: (A) Is under 18 years of age;

(B)(i) While a minor, was found to be within the jurisdiction of the juvenile court for having committed an act which, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; and (ii) Was discharged from the jurisdiction of the juvenile court within four years prior to being charged under this section; (C) Has been convicted of a felony; (D) Was committed to the Oregon Health Authority under ORS 426.130; (E) Was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; or (F) Has been found guilty except for insanity under ORS 161.295 of a felony.

(2) This section does not prohibit: (a) A minor, who is not otherwise prohibited under subsection (1)(c) of this section, from possessing a firearm: (A) Other than a handgun, if the firearm was transferred to the minor by the minor’s parent or guardian or by another person with the consent of the minor’s parent or guardian; or (B) Temporarily for hunting, target practice or any other lawful purpose; or (b) Any citizen of the United States over the age of 18 years who resides in or is temporarily sojourning within this state, and who is not within the excepted classes prescribed by ORS 166.270 and subsection (1) of this section, from owning, possessing or keeping within the person’s place of residence or place of business any handgun, and no permit or license to purchase, own, possess or keep any such firearm at the person’s place of residence or place of business is required of any such citizen. As used in this subsection, “residence” includes a recreational vessel or recreational vehicle while used, for whatever period of time, as residential quarters.

(3) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

(4)(a) Except as provided in paragraph (b) of this subsection, a handgun is readily accessible within the meaning of this section if the handgun is within the passenger compartment of the vehicle. (b) If a vehicle has no storage location that is outside the passenger compartment of the vehicle, a handgun is not readily accessible within the meaning of this section if: (A) The handgun is stored in a closed and locked glove compartment, center console or other container; and (B) The key is not inserted into the lock, if the glove compartment, center console or other container unlocks with a key.

(5) Unlawful possession of a firearm is a Class A misdemeanor.

Note 2: The amendments to 166.250 by section 11a, chapter 826, Oregon Laws 2009, become operative January 2, 2012. See section 14, chapter 826, Oregon Laws 2009, as amended by section 23, chapter 826, Oregon Laws 2009. The text that is operative on and after January 2, 2012, is set forth for the user’s convenience.

166.250. (1) Except as otherwise provided in this section or ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm if the person knowingly: (a) Carries any firearm concealed upon the person; (b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or (c) Possesses a firearm and: (A) Is under 18 years of age;

(B)(i) While a minor, was found to be within the jurisdiction of the juvenile court for having committed an act which, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; and (ii) Was discharged from the jurisdiction of the juvenile court within four years prior to being charged under this section; (C) Has been convicted of a felony; (D) Was committed to the Oregon Health Authority under ORS 426.130; (E) Was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; or (F) Has been found guilty except for insanity under ORS 161.295 of a felony.

(2) This section does not prohibit: (a) A minor, who is not otherwise prohibited under subsection (1)(c) of this section, from possessing a firearm: (A) Other than a handgun, if the firearm was transferred to the minor by the minor’s parent or guardian or by another person with the consent of the minor’s parent or guardian; or (B) Temporarily for hunting, target practice or any other lawful purpose; or (b) Any citizen of the United States over the age of 18 years who resides in or is temporarily sojourning within this state, and who is not within the excepted classes prescribed by ORS 166.270 and subsection (1) of this section, from owning, possessing or keeping within the person’s place of residence or place of business any handgun, and no permit or license to purchase, own, possess or keep any such firearm at the person’s place of residence or place of business is required of any such citizen. As used in this subsection, “residence” includes a recreational vessel or recreational vehicle while used, for whatever period of time, as residential quarters.

(3) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

(4)(a) Except as provided in paragraph (b) of this subsection, a handgun is readily accessible within the meaning of this section if the handgun is within the passenger compartment of the vehicle. (b) If a vehicle has no storage location that is outside the passenger compartment of the vehicle, a handgun is not readily accessible within the meaning of this section if: (A) The handgun is stored in a closed and locked glove compartment, center console or other container; and (B) The key is not inserted into the lock, if the glove compartment, center console or other container unlocks with a key.

(5) Unlawful possession of a firearm is a Class A misdemeanor.

166.260 Persons not affected by ORS 166.250. (1) ORS 166.250 does not apply to or affect: (a) Sheriffs, constables, marshals, parole and probation officers, police officers, whether active or honorably retired, or other duly appointed peace officers. (b) Any person summoned by any such officer to assist in making arrests or preserving the peace, while said person so summoned is actually engaged in assisting the officer. (c) The possession or transportation by any merchant of unloaded firearms as merchandise. (d) Active or reserve members of the Army, Navy, Air Force, Coast Guard or Marine Corps of the United States, or of the National Guard, when on duty. (e) Organizations which are by law authorized to purchase or receive weapons described in ORS 166.250 from the United States, or from this state. (f) Duly authorized military or civil organizations while parading, or the members thereof when going to and from the places of meeting of their organization.

(g) A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention. (h) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.

(2) It is an affirmative defense to a charge of violating ORS 166.250 (1)(c)(C) that the person has been granted relief from the disability under ORS 166.274.

(3) Except for persons who are otherwise prohibited from possessing a firearm under ORS 166.250 (1)(c) or 166.270, ORS 166.250 does not apply to or affect: (a) Members of any club or organization, for the purpose of practicing shooting at targets upon the established target ranges, whether public or private, while such members are using any of the firearms referred to in ORS 166.250 upon such target ranges, or while going to and from such ranges. (b) Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition.

(4) The exceptions listed in subsection (1)(b) to (h) of this section constitute affirmative defenses to a charge of violating ORS 166.250. [Amended by 1977 c.207 §1; 1991 c.67 §36; 1993 c.735 §1; 1995 c.670 §2; 1999 c.1040 §3; 2009 c.316 §2; 2009 c.499 §4] 166.262 Limitation on peace officer’s authority to arrest for violating ORS 166.250 or 166.370. A peace officer may not arrest or charge a person for violating ORS 166.250 (1)(a) or (b) or 166.370 (1) if the person has in the person’s immediate possession a valid license to carry a firearm as provided in ORS 166.291 and 166.292. [1999 c.1040 §5] 166.263 Authority of parole and probation officer to carry firearm. When authorized by the officer’s employer, a parole and probation officer, as defined in ORS 181.610, may carry a firearm while engaged in official duties if the officer has completed: (1) A firearms training program recognized by the Board on Public Safety Standards and Training; and (2) A psychological screening. [1995 c.670 §1] 166.270 Possession of weapons by certain felons. (1) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person’s possession or under the person’s custody or control any firearm commits the crime of felon in possession of a firearm.

(2) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person’s possession or under the person’s custody or control any instrument or weapon having a blade that projects or swings into position by force of a spring or by centrifugal force or any blackjack, slungshot, sandclub, sandbag, sap glove, metal knuckles or an Electro-Muscular Disruption Technology device as defined in ORS 165.540, or who carries a dirk, dagger or stiletto, commits the crime of felon in possession of a restricted weapon.

(3) For the purposes of this section, a person “has been convicted of a felony” if, at the time of conviction for an offense, that offense was a felony under the law of the jurisdiction in which it was committed. Such conviction shall not be deemed a conviction of a felony if: (a) The court declared the conviction to be a misdemeanor at the time of judgment; or (b) The offense was possession of marijuana and the conviction was prior to January 1, 1972.

(4) Subsection (1) of this section does not apply to any person who has been:

(a) Convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the laws of the United States, which felony did not involve criminal homicide, as defined in ORS 163.005, or the possession or use of a firearm or a weapon having a blade that projects or swings into position by force of a spring or by centrifugal force, and who has been discharged from imprisonment, parole or probation for said offense for a period of 15 years prior to the date of alleged violation of subsection (1) of this section; or (b) Granted relief from the disability under 18 U.S.C. 925(c) or ORS 166.274 or has had the person’s record expunged under the laws of this state or equivalent laws of another jurisdiction.

(5) Felon in possession of a firearm is a Class C felony. Felon in possession of a restricted weapon is a Class A misdemeanor. [Amended by 1975 c.702 §1; 1985 c.543 §4; 1985 c.709 §2; 1987 c.853 §1; 1989 c.839 §4; 1993 c.735 §2; 1995 c.518 §1; 1999 c.1040 §16; 2003 c.14 §64; 2009 c.189 §1; 2009 c.499 §3] 166.272 Unlawful possession of machine guns, certain short-barreled firearms and firearms silencers. (1) A person commits the crime of unlawful possession of a machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer if the person knowingly possesses any machine gun, shortbarreled rifle, short-barreled shotgun or firearms silencer.

(2) Unlawful possession of a machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer is a Class B felony.

(3) A peace officer may not arrest or charge a person for violating subsection (1) of this section if the person has in the person’s immediate possession documentation showing that the machine gun, shortbarreled rifle, short-barreled shotgun or firearms silencer is registered as required under federal law.

(4) It is an affirmative defense to a charge of violating subsection (1) of this section that the machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer was registered as required under federal law. [1989 c.839 §13a; 1997 c.749 §8; 1997 c.798 §1] 166.274 Relief from prohibition against possessing or purchasing firearm. (1) A person barred from possessing a firearm under ORS 166.250 (1)(c)(A) to (E) or 166.270 or barred from purchasing a firearm under ORS 166.470 (1)(a) to (g) may file a petition for relief from the bar in: (a) A justice court in the petitioner’s county of residence that is reasonably accessible to the petitioner; or (b) If no justice court is reasonably accessible, the circuit court.

(2) A person may apply once per calendar year for relief under the provisions of this section.

(3)(a) A person petitioning for relief under this section shall serve a copy of the petition on: (A) The city chief of police if the court in which the petition is filed is located in a city; or (B) The sheriff of the county in which the court is located. (b) The copy of the petition shall be served on the chief of police or sheriff at the same time the petition is filed at the court.

(4)(a) When a petition is denied, the judge shall cause that information to be entered into the Department of State Police computerized criminal history files. (b) When a petition is granted, the judge shall cause that information and a fingerprint card of the petitioner to be entered into the Department of State Police computerized criminal history files. If, after a petition is granted, the petitioner is arrested and convicted of a crime that would disqualify the petitioner from purchasing or possessing a firearm, the Department of State Police shall notify the court that granted relief under this section. The court shall review the order granting relief and determine whether to rescind the order. The Department of State Police may charge a reasonable fee, under ORS 192.440, for the entry and maintenance of information under this section.

(5) Notwithstanding the provisions of ORS 9.320, a corporation, the state or any city, county, district or other political subdivision or public corporation in this state, without appearance by attorney, may appear as a party to an action under this section.

(6) If the petitioner seeks relief from the bar on possessing or purchasing a firearm, relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.

(7) A person barred from possessing or purchasing a firearm because the person, while a minor, was found to be within the jurisdiction of the juvenile court for committing an act which, if committed by an adult, would have constituted a felony or a misdemeanor involving violence, is not eligible to petition for relief under this section until more than four years have passed since the person was discharged from the jurisdiction of the juvenile court.

(8) Petitions filed under this section shall be heard and disposed of within 15 judicial days of filing or as soon as is practicable thereafter, but not more than 30 days thereafter. The judge shall then make findings and conclusions and issue a judgment based on the findings and conclusions in accordance with the requirements of law.

(9) Filing fees shall be as for any civil action filed in the court.

(10)(a) Initial appeals of petitions shall be heard de novo. (b) Any party to a judgment under this subsection may appeal to the Court of Appeals in the same manner as for any other civil action. (c) If the governmental entity files an appeal under this subsection and does not prevail, it shall be ordered to pay the attorney fees for the prevailing party. [1989 c.839 §11; 1991 c.67 §37; 1993 c.732 §§3,4; 1995 c.518 §2; 1995 c.658 §88; 2009 c.499 §2] Note 1: The amendments to 166.274 by section 19, chapter 826, Oregon Laws 2009, become operative on the date that the rule described in section 13 (1), chapter 826, Oregon Laws 2009, is adopted by the Psychiatric Security Review Board. See section 13, chapter 826, Oregon Laws 2009, as amended by section 22, chapter 826, Oregon Laws 2009 (Note 4 under 166.274). The text that is operative from the date of adoption of that rule until January 2, 2012, is set forth for the user’s convenience.

166.274. (1) A person barred from possessing or purchasing a firearm may file a petition for relief from the bar in accordance with subsection (2) of this section if: (a) The person is barred from possessing a firearm under ORS 166.250 (1)(c)(A) to (C) or 166.270; or (b) The person is barred from purchasing a firearm under ORS 166.470 (1)(a) to (d) or (g).

(2) A petition for relief described in this section must be filed in: (a) A justice court in the petitioner’s county of residence that is reasonably accessible to the petitioner; or (b) If no justice court is reasonably accessible, the circuit court.

(3) A person may apply once per calendar year for relief under the provisions of this section.

(4)(a) A person petitioning for relief under this section shall serve a copy of the petition on: (A) The city chief of police if the court in which the petition is filed is located in a city; or (B) The sheriff of the county in which the court is located. (b) The copy of the petition shall be served on the chief of police or sheriff at the same time the petition is filed at the court.

(5)(a) When a petition is denied, the judge shall cause that information to be entered into the Department of State Police computerized criminal history files. (b) When a petition is granted, the judge shall cause that information and a fingerprint card of the petitioner to be entered into the Department of State Police computerized criminal history files. If, after a

petition is granted, the petitioner is arrested and convicted of a crime that would disqualify the petitioner from purchasing or possessing a firearm, the Department of State Police shall notify the court that granted relief under this section. The court shall review the order granting relief and determine whether to rescind the order. The Department of State Police may charge a reasonable fee, under ORS 192.440, for the entry and maintenance of information under this section.

(6) Notwithstanding the provisions of ORS 9.320, a corporation, the state or any city, county, district or other political subdivision or public corporation in this state, without appearance by attorney, may appear as a party to an action under this section.

(7) If the petitioner seeks relief from the bar on possessing or purchasing a firearm, relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.

(8) A person barred from possessing or purchasing a firearm because the person, while a minor, was found to be within the jurisdiction of the juvenile court for committing an act which, if committed by an adult, would have constituted a felony or a misdemeanor involving violence, is not eligible to petition for relief under this section until more than four years have passed since the person was discharged from the jurisdiction of the juvenile court.

(9) Petitions filed under this section shall be heard and disposed of within 15 judicial days of filing or as soon as is practicable thereafter, but not more than 30 days thereafter. The judge shall then make findings and conclusions and issue a judgment based on the findings and conclusions in accordance with the requirements of law.

(10) Filing fees shall be as for any civil action filed in the court.

(11)(a) Initial appeals of petitions shall be heard de novo. (b) Any party to a judgment under this subsection may appeal to the Court of Appeals in the same manner as for any other civil action. (c) If the governmental entity files an appeal under this subsection and does not prevail, it shall be ordered to pay the attorney fees for the prevailing party.

Note 2: The amendments to 166.274 by section 20, chapter 826, Oregon Laws 2009, become operative January 2, 2012. See section 14, chapter 826, Oregon Laws 2009, as amended by section 23, chapter 826, Oregon Laws 2009. The text that is operative on and after January 2, 2012, is set forth for the user’s convenience.

166.274. (1) A person barred from possessing a firearm under ORS 166.250 (1)(c)(A) to (E) or 166.270 or barred from purchasing a firearm under ORS 166.470 (1)(a) to (g) may file a petition for relief from the bar in: (a) A justice court in the petitioner’s county of residence that is reasonably accessible to the petitioner; or (b) If no justice court is reasonably accessible, the circuit court.

(2) A person may apply once per calendar year for relief under the provisions of this section.

(3)(a) A person petitioning for relief under this section shall serve a copy of the petition on: (A) The city chief of police if the court in which the petition is filed is located in a city; or (B) The sheriff of the county in which the court is located. (b) The copy of the petition shall be served on the chief of police or sheriff at the same time the petition is filed at the court.

(4)(a) When a petition is denied, the judge shall cause that information to be entered into the Department of State Police computerized criminal history files.

(b) When a petition is granted, the judge shall cause that information and a fingerprint card of the petitioner to be entered into the Department of State Police computerized criminal history files. If, after a petition is granted, the petitioner is arrested and convicted of a crime that would disqualify the petitioner from purchasing or possessing a firearm, the Department of State Police shall notify the court that granted relief under this section. The court shall review the order granting relief and determine whether to rescind the order. The Department of State Police may charge a reasonable fee, under ORS 192.440, for the entry and maintenance of information under this section.

(5) Notwithstanding the provisions of ORS 9.320, a corporation, the state or any city, county, district or other political subdivision or public corporation in this state, without appearance by attorney, may appear as a party to an action under this section.

(6) If the petitioner seeks relief from the bar on possessing or purchasing a firearm, relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.

(7) A person barred from possessing or purchasing a firearm because the person, while a minor, was found to be within the jurisdiction of the juvenile court for committing an act which, if committed by an adult, would have constituted a felony or a misdemeanor involving violence, is not eligible to petition for relief under this section until more than four years have passed since the person was discharged from the jurisdiction of the juvenile court.

(8) Petitions filed under this section shall be heard and disposed of within 15 judicial days of filing or as soon as is practicable thereafter, but not more than 30 days thereafter. The judge shall then make findings and conclusions and issue a judgment based on the findings and conclusions in accordance with the requirements of law.

(9) Filing fees shall be as for any civil action filed in the court.

(10)(a) Initial appeals of petitions shall be heard de novo. (b) Any party to a judgment under this subsection may appeal to the Court of Appeals in the same manner as for any other civil action. (c) If the governmental entity files an appeal under this subsection and does not prevail, it shall be ordered to pay the attorney fees for the prevailing party.

Note 3: Section 4 (22), chapter 659, Oregon Laws 2009, provides: Sec. 4. (22) In addition to the fee provided for in ORS 166.274, for the period commencing October 1, 2009, and ending June 30, 2011, the clerk of the court shall collect a surcharge of $5 for the filing of a petition for relief under ORS 166.274. [2009 c.659 §4(22)] Note 4: Sections 5, 13, 14 and 15, chapter 826, Oregon Laws 2009, provide: Sec. 5. Relief from certain prohibitions against transporting, shipping, possessing or receiving firearm. (1) A person barred from transporting, shipping, possessing or receiving a firearm may file a petition with the Psychiatric Security Review Board for relief from the bar if: (a) The person is barred from possessing a firearm under ORS 166.250 (1)(c)(D) or (E); (b) The person is barred from receiving a firearm under ORS 166.470 (1)(e) or (f); or (c) The person is barred from possessing, receiving, shipping or transporting a firearm under 18 U.S.C. 922(d)(4) or (g)(4) as the result of a state mental health determination.

(2) The petitioner shall serve a copy of the petition on: (a) The Department of Human Services and the Oregon Health Authority; and (b) The district attorney in each county in which:

(A) The person was committed by a court to the Oregon Health Authority, or adjudicated by a court as mentally ill, under ORS 426.130; (B) The person was committed by a court to the Department of Human Services, or adjudicated by a court as mentally retarded, under ORS 427.290; (C) The person was found guilty except for insanity under ORS 161.295; (D) The person was found responsible except for insanity under ORS 419C.411; or (E) The person was found by a court to lack fitness to proceed under ORS 161.370.

(3) Following receipt of the petition, the board shall conduct a contested case hearing, make written findings of fact and conclusions of law on the issues before the board and issue a final order.

(4) The state and any person or entity described in subsection (2) of this section may appear and object to and present evidence relevant to the relief sought by the petitioner.

(5) The board shall grant the relief requested in the petition if the petitioner demonstrates, based on the petitioner’s reputation, the petitioner’s record, the circumstances surrounding the firearm disability and any other evidence in the record, that the petitioner will not be likely to act in a manner that is dangerous to public safety and that granting the relief would not be contrary to the public interest.

(6) If the board grants the relief requested in the petition, the board shall provide to the Department of State Police the minimum information necessary, as defined in section 1 of this 2009 Act [181.740], to enable the department to: (a) Maintain the information and transmit the information to the federal government as required under federal law; and (b) Maintain a record of the person’s relief from the disqualification to possess or receive a firearm under ORS 166.250 (1)(c)(D) or (E) or 166.470 (1)(e) or (f).

(7) The petitioner may petition for judicial review of a final order of the board. The petition shall be filed in the circuit court of a county described in subsection (2)(b) of this section. The review shall be conducted de novo and without a jury.

(8) A petitioner may take an appeal from the circuit court to the Court of Appeals. Review by the Court of Appeals shall be conducted in accordance with ORS 183.500.

(9) A person may file a petition for relief under this section no more than once every two years.

(10) The board shall adopt procedural rules to carry out the provisions of this section.

(11) As used in this section, “state mental health determination” means: (a) A finding by a court that a person lacks fitness to proceed under ORS 161.370; (b) A finding that a person is guilty except for insanity of a crime under ORS 161.295 or responsible except for insanity of an act under ORS 419C.411 or any determination by the Psychiatric Security Review Board thereafter; (c) A commitment by a court to the Oregon Health Authority, or an adjudication by a court that a person is mentally ill, under ORS 426.130; or (d) A commitment by a court to the Department of Human Services, or an adjudication by a court that a person is mentally retarded, under ORS 427.290. [2009 c.826 §5; 2009 c.826 §§18,18a] Sec. 13. (1) When the Psychiatric Security Review Board determines that the board has received a sufficient legislative appropriation or federal funding to carry out the provisions of section 5 of this 2009 Act, the board shall adopt a rule so indicating. The board shall notify Legislative Counsel upon adoption of the rule.

(2) Section 5 of this 2009 Act and the amendments to ORS 166.250, 166.274, 166.291 and 166.470 by sections 7, 8, 8a and 19 of this 2009 Act become operative on the date the rule described in subsection (1) of this section is adopted. [2009 c.826 §13; 2009 c.826 §22] Sec. 14. (1) Sections 5 and 13 of this 2009 Act are repealed on January 2, 2012.

(2) The amendments to ORS 166.250, 166.274, 166.291 and 166.470 by sections 10, 11, 11a and 20 of this 2009 Act become operative on January 2, 2012. [2009 c.826 §14; 2009 c.826 §23] Sec. 15. (1) The repeal of section 5 of this 2009 Act by section 14 of this 2009 Act does not affect any petition for relief filed pursuant to section 5 of this 2009 Act with the Psychiatric Security Review Board before January 2, 2012. Any proceeding commenced under section 5 of this 2009 Act before January 2, 2012, shall continue to be governed by the provisions of section 5 of this 2009 Act. (2) Nothing in the repeal of section 5 of this 2009 Act by section 14 of this 2009 Act or the amendments to ORS 166.250, 166.274, 166.291 and 166.470 by sections 10, 11, 11a and 20 of this 2009 Act affects the relief granted to a person under section 5 of this 2009 Act. [2009 c.826 §15; 2009 c.826 §24] 166.275 Possession of weapons by inmates of institutions. Any person committed to any institution who, while under the jurisdiction of any institution or while being conveyed to or from any institution, possesses or carries upon the person, or has under the custody or control of the person any dangerous instrument, or any weapon including but not limited to any blackjack, slingshot, billy, sand club, metal knuckles, explosive substance, dirk, dagger, sharp instrument, pistol, revolver or other firearm without lawful authority, is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the custody of the Department of Corrections for a term not more than 20 years. [1953 c.533 §1; 1987 c.320 §88] 166.279 Forfeiture of deadly weapons. (1) Except as provided in subsection (4) of this section, ORS 131.550 to 131.600 do not apply to the forfeiture of a firearm or other deadly weapon that was possessed, used or available for use to facilitate a criminal offense.

(2) Except as provided in subsection (3) of this section, at the time of sentencing for any criminal offense in which a firearm or other deadly weapon was possessed, used or available for use to facilitate the offense, the court shall declare the weapon to be contraband and order that the weapon be forfeited.

(3) If a firearm or other deadly weapon that was possessed, used or available for use to facilitate a criminal offense was stolen from its lawful owner and was recovered from a person other than the lawful owner, the court may not order that the weapon be forfeited but shall order that the weapon be restored to the lawful owner as soon as the weapon is no longer needed for evidentiary purposes.

(4) The court shall release a firearm or other deadly weapon forfeited under subsection (2) of this section to the law enforcement agency that seized the weapon. The law enforcement agency may destroy or sell the weapon, use the weapon as a service weapon or use the weapon for training, identification or demonstration purposes. When a weapon is sold pursuant to this subsection, the law enforcement agency shall pay the proceeds from the sale, less the costs of the sale, as provided in ORS 131.594 and 131.597.

(5) As used in this section, “deadly weapon” has the meaning given that term in ORS 161.015. [2003 c.614 §4; 2005 c.830 §24] 166.280 [Amended by 1981 c.767 §1; 1993 c.625 §2; 1997 c.480 §5; 1997 c.693 §2; repealed by 2001 c.666 §56] 166.281 [2001 c.666 §52; repealed by 2003 c.614 §13] 166.282 Sale of weapons by political subdivision; disposition of proceeds. (1) A political subdivision in this state that sells a weapon described in subsection (2) of this section shall pay the proceeds from the sale of the weapon, less the costs of the sale, to the account of the police agency that received the weapon, to be used for purposes of public safety, law enforcement and crime prevention and detection.

(2) Subsection (1) of this section applies to a weapon that is donated to the police agency. [1997 c.693 §1; 2001 c.666 §§25,37; 2003 c.614 §5] 166.290 [Amended by 1973 c.391 §1; repealed by 1989 c.839 §7 (166.291 to 166.293 enacted in lieu of 166.290)] 166.291 Issuance of concealed handgun license; application; fees; liability. (1) The sheriff of a county, upon a person’s application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person: (a)(A) Is a citizen of the United States; or (B) Is a legal resident alien who can document continuous residency in the county for at least six months and has declared in writing to the United States Citizenship and Immigration Services the intent to acquire citizenship status and can present proof of the written declaration to the sheriff at the time of application for the license; (b) Is at least 21 years of age; (c) Is a resident of the county; (d) Has no outstanding warrants for arrest; (e) Is not free on any form of pretrial release; (f) Demonstrates competence with a handgun by any one of the following: (A) Completion of any hunter education or hunter safety course approved by the State Department of Fish and Wildlife or a similar agency of another state if handgun safety was a component of the course; (B) Completion of any National Rifle Association firearms safety or training course if handgun safety was a component of the course; (C) Completion of any firearms safety or training course or class available to the general public offered by law enforcement, community college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or a law enforcement agency if handgun safety was a component of the course; (D) Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, reserve law enforcement officers or any other law enforcement officers if handgun safety was a component of the course; (E) Presents evidence of equivalent experience with a handgun through participation in organized shooting competition or military service; (F) Is licensed or has been licensed to carry a firearm in this state, unless the license has been revoked; or (G) Completion of any firearms training or safety course or class conducted by a firearms instructor certified by a law enforcement agency or the National Rifle Association if handgun safety was a component of the course; (g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony; (h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application; (i) Has not been committed to the Oregon Health Authority under ORS 426.130; (j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;

(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; (L) Has not been convicted of an offense involving controlled substances or participated in a courtsupervised drug diversion program, except this disability does not operate to exclude a person if: (A) The person has been convicted only once of violating ORS 475.864 (3) and has not completed a court-supervised drug diversion program under ORS 135.907; or (B) The person has completed a court-supervised drug diversion program under ORS 135.907 and has not been convicted of violating ORS 475.864 (3); (m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738; (n) Has not received a dishonorable discharge from the Armed Forces of the United States; and (o) Is not required to register as a sex offender in any state.

(2) A person who has been granted relief under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or has had the person’s record expunged under the laws of this state or equivalent laws of other jurisdictions is not subject to the disabilities in subsection (1)(g) to (L) of this section.

(3) Before the sheriff may issue a license: (a) The application must state the applicant’s legal name, current address and telephone number, date and place of birth, hair and eye color and height and weight. The application must also list the applicant’s residence address or addresses for the previous three years. The application must contain a statement by the applicant that the applicant meets the requirements of subsection (1) of this section. The application may include the Social Security number of the applicant if the applicant voluntarily provides this number. The application must be signed by the applicant. (b) The applicant must submit to fingerprinting and photographing by the sheriff. The sheriff shall fingerprint and photograph the applicant and shall conduct any investigation necessary to corroborate the requirements listed under subsection (1) of this section. If a nationwide criminal records check is necessary, the sheriff shall request the Department of State Police to conduct the check, including fingerprint identification, through the Federal Bureau of Investigation. The Federal Bureau of Investigation shall return the fingerprint cards used to conduct the criminal records check and may not keep any record of the fingerprints. The Department of State Police shall report the results of the fingerprint-based criminal records check to the sheriff. The Department of State Police shall also furnish the sheriff with any information about the applicant that the Department of State Police may have in its possession from its central bureau of criminal identification including, but not limited to, manual or computerized criminal offender information.

(4) Application forms for concealed handgun licenses shall be supplied by the sheriff upon request. The forms shall be uniform throughout the state in substantially the following form: ______________________________________________________________________________ APPLICATION FOR LICENSE TO CARRY CONCEALED HANDGUN Date________ I hereby declare as follows: I am a citizen of the United States or a legal resident alien who can document continuous residency in the county for at least six months and have declared in writing to the United States Citizenship and Immigration Services my intention to become a citizen and can present proof of the written declaration to the sheriff at the time of this application. I am at least 21 years of age. I have been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, I was found to be within the

jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470. I have never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony in the State of Oregon or elsewhere. I have not, within the last four years, been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor. Except as provided in ORS 166.291 (1)(L), I have not been convicted of an offense involving controlled substances or completed a courtsupervised drug diversion program. There are no outstanding warrants for my arrest and I am not free on any form of pretrial release. I have not been committed to the Oregon Health Authority under ORS 426.130, nor have I been found mentally ill and presently subject to an order prohibiting me from purchasing or possessing a firearm because of mental illness. If any of the previous conditions do apply to me, I have been granted relief or wish to petition for relief from the disability under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or have had the records expunged. I am not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738. I have never received a dishonorable discharge from the Armed Forces of the United States. I am not required to register as a sex offender in any state. I understand I will be fingerprinted and photographed.

Legal name ____________ Age ______ Date of birth ________ Place of birth ____________ Social Security number ___________ (Disclosure of your Social Security account number is voluntary. Solicitation of the number is authorized under ORS 166.291. It will be used only as a means of identification.)

Proof of identification (Two pieces of current identification are required, one of which must bear a photograph of the applicant. The type of identification and the number on the identification are to be filled in by the sheriff.): 1.____________ 2.____________ Height _____ Weight _____ Hair color _____ Eye color _____ Current address ________ (List residence addresses for the past three years on the back.)

City _____ County _____ Zip _____ Phone _____ I have read the entire text of this application, and the statements therein are correct and true. (Making false statements on this application is a misdemeanor.) _______________ (Signature of Applicant) Character references. ___________________________ Name Address ___________________________

Name Address Approved ___ Disapproved ___ by ___ Competence with handgun demonstrated by _____ (to be filled in by sheriff) Date _____ Fee Paid _____ License No. _____ ______________________________________________________________________________ (5)(a) Fees for concealed handgun licenses are: (A) $15 to the Department of State Police for conducting the fingerprint check of the applicant.

(B) $50 to the sheriff for the issuance or renewal of a concealed handgun license.

(C) $15 to the sheriff for the duplication of a license because of loss or change of address. (b) The sheriff may enter into an agreement with the Department of Transportation to produce the concealed handgun license.

(6) No civil or criminal liability shall attach to the sheriff or any authorized representative engaged in the receipt and review of, or an investigation connected with, any application for, or in the issuance, denial or revocation of, any license under ORS 166.291 to 166.295 as a result of the lawful performance of duties under those sections.

(7) Immediately upon acceptance of an application for a concealed handgun license, the sheriff shall enter the applicant’s name into the Law Enforcement Data System indicating that the person is an applicant for a concealed handgun license or is a license holder.

(8) The county sheriff may waive the residency requirement in subsection (1)(c) of this section for a resident of a contiguous state who has a compelling business interest or other legitimate demonstrated need.

(9) For purposes of subsection (1)(c) of this section, a person is a resident of a county if the person: (a) Has a current Oregon driver license issued to the person showing a residence address in the county; (b) Is registered to vote in the county and has a memorandum card issued to the person under ORS 247.181 showing a residence address in the county; (c) Has documentation showing that the person currently leases or owns real property in the county; or (d) Has documentation showing that the person filed an Oregon tax return for the most recent tax year showing a residence address in the county. [1989 c.839 §8 (166.291 to 166.293 enacted in lieu of 166.290); 1991 c.67 §38; 1993 c.732 §2; 1993 c.735 §4; 1995 c.729 §6; 1999 c.1052 §6; 2001 c.104 §56; 2003 c.166 §1; 2005 c.22 §115; 2007 c.368 §2; 2009 c.595 §113] Note 1: The amendments to 166.291 by section 7, chapter 826, Oregon Laws 2009, become operative on the date that the rule described in section 13 (1), chapter 826, Oregon Laws 2009, is adopted by the Psychiatric Security Review Board. See section 13, chapter 826, Oregon Laws 2009, as amended by section 22, chapter 826, Oregon Laws 2009 (Note 4 under 166.274). The text that is operative from the date of adoption of that rule until January 2, 2012, is set forth for the user’s convenience.

166.291. (1) The sheriff of a county, upon a person’s application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person: (a)(A) Is a citizen of the United States; or (B) Is a legal resident alien who can document continuous residency in the county for at least six months and has declared in writing to the United States Citizenship and Immigration Services the intent to acquire citizenship status and can present proof of the written declaration to the sheriff at the time of application for the license;

(b) Is at least 21 years of age; (c) Is a resident of the county; (d) Has no outstanding warrants for arrest; (e) Is not free on any form of pretrial release; (f) Demonstrates competence with a handgun by any one of the following: (A) Completion of any hunter education or hunter safety course approved by the State Department of Fish and Wildlife or a similar agency of another state if handgun safety was a component of the course; (B) Completion of any National Rifle Association firearms safety or training course if handgun safety was a component of the course; (C) Completion of any firearms safety or training course or class available to the general public offered by law enforcement, community college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or a law enforcement agency if handgun safety was a component of the course; (D) Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, reserve law enforcement officers or any other law enforcement officers if handgun safety was a component of the course; (E) Presents evidence of equivalent experience with a handgun through participation in organized shooting competition or military service; (F) Is licensed or has been licensed to carry a firearm in this state, unless the license has been revoked; or (G) Completion of any firearms training or safety course or class conducted by a firearms instructor certified by a law enforcement agency or the National Rifle Association if handgun safety was a component of the course; (g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony; (h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application; (i) Has not been committed to the Oregon Health Authority under ORS 426.130; (j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; (k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; (L) Has not been convicted of an offense involving controlled substances or participated in a courtsupervised drug diversion program, except this disability does not operate to exclude a person if: (A) The person has been convicted only once of violating ORS 475.864 (3) and has not completed a court-supervised drug diversion program under ORS 135.907; or (B) The person has completed a court-supervised drug diversion program under ORS 135.907 and has not been convicted of violating ORS 475.864 (3); (m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738; (n) Has not received a dishonorable discharge from the Armed Forces of the United States; and (o) Is not required to register as a sex offender in any state.

(2) A person who has been granted relief under ORS 166.274 or 166.293 or section 5, chapter 826, Oregon Laws 2009, or 18 U.S.C. 925(c) or has had the person’s record expunged under the laws of this state

or equivalent laws of other jurisdictions is not subject to the disabilities in subsection (1)(g) to (L) of this section.

(3) Before the sheriff may issue a license: (a) The application must state the applicant’s legal name, current address and telephone number, date and place of birth, hair and eye color and height and weight. The application must also list the applicant’s residence address or addresses for the previous three years. The application must contain a statement by the applicant that the applicant meets the requirements of subsection (1) of this section. The application may include the Social Security number of the applicant if the applicant voluntarily provides this number. The application must be signed by the applicant. (b) The applicant must submit to fingerprinting and photographing by the sheriff. The sheriff shall fingerprint and photograph the applicant and shall conduct any investigation necessary to corroborate the requirements listed under subsection (1) of this section. If a nationwide criminal records check is necessary, the sheriff shall request the Department of State Police to conduct the check, including fingerprint identification, through the Federal Bureau of Investigation. The Federal Bureau of Investigation shall return the fingerprint cards used to conduct the criminal records check and may not keep any record of the fingerprints. The Department of State Police shall report the results of the fingerprint-based criminal records check to the sheriff. The Department of State Police shall also furnish the sheriff with any information about the applicant that the Department of State Police may have in its possession from its central bureau of criminal identification including, but not limited to, manual or computerized criminal offender information.

(4) Application forms for concealed handgun licenses shall be supplied by the sheriff upon request. The forms shall be uniform throughout the state in substantially the following form: ______________________________________________________________________________ APPLICATION FOR LICENSE TO CARRY CONCEALED HANDGUN Date________ I hereby declare as follows: I am a citizen of the United States or a legal resident alien who can document continuous residency in the county for at least six months and have declared in writing to the United States Citizenship and Immigration Services my intention to become a citizen and can present proof of the written declaration to the sheriff at the time of this application. I am at least 21 years of age. I have been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, I was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470. I have never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony in the State of Oregon or elsewhere. I have not, within the last four years, been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor. Except as provided in ORS 166.291 (1)(L), I have not been convicted of an offense involving controlled substances or completed a courtsupervised drug diversion program. There are no outstanding warrants for my arrest and I am not free on any form of pretrial release. I have not been committed to the Oregon Health Authority under ORS 426.130, nor have I been found mentally ill and presently subject to an order prohibiting me from purchasing or possessing a firearm because of mental illness. If any of the previous conditions do apply to me, I have been granted relief or wish to petition for relief from the disability under ORS 166.274 or 166.293 or section 5, chapter 826, Oregon Laws 2009, or 18 U.S.C. 925(c) or have had the records expunged. I am not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738. I

have never received a dishonorable discharge from the Armed Forces of the United States. I am not required to register as a sex offender in any state. I understand I will be fingerprinted and photographed.

Legal name ____________ Age ______ Date of birth ________ Place of birth ____________ Social Security number ___________ (Disclosure of your Social Security account number is voluntary. Solicitation of the number is authorized under ORS 166.291. It will be used only as a means of identification.)

Proof of identification (Two pieces of current identification are required, one of which must bear a photograph of the applicant. The type of identification and the number on the identification are to be filled in by the sheriff.): 1.____________ 2.____________ Height _____ Weight _____ Hair color _____ Eye color _____ Current address ________ (List residence addresses for the past three years on the back.)

City _____ County _____ Zip _____ Phone _____ I have read the entire text of this application, and the statements therein are correct and true. (Making false statements on this application is a misdemeanor.) _______________ (Signature of Applicant) Character references. ___________________________ Name Address ___________________________ Name Address Approved ___ Disapproved ___ by ___ Competence with handgun demonstrated by _____ (to be filled in by sheriff) Date _____ Fee Paid _____ License No. _____ ______________________________________________________________________________ (5)(a) Fees for concealed handgun licenses are: (A) $15 to the Department of State Police for conducting the fingerprint check of the applicant.

(B) $50 to the sheriff for the issuance or renewal of a concealed handgun license.

(C) $15 to the sheriff for the duplication of a license because of loss or change of address. (b) The sheriff may enter into an agreement with the Department of Transportation to produce the concealed handgun license.

(6) No civil or criminal liability shall attach to the sheriff or any authorized representative engaged in the receipt and review of, or an investigation connected with, any application for, or in the issuance, denial or revocation of, any license under ORS 166.291 to 166.295 as a result of the lawful performance of duties under those sections.

(7) Immediately upon acceptance of an application for a concealed handgun license, the sheriff shall enter the applicant’s name into the Law Enforcement Data System indicating that the person is an applicant for a concealed handgun license or is a license holder.

(8) The county sheriff may waive the residency requirement in subsection (1)(c) of this section for a resident of a contiguous state who has a compelling business interest or other legitimate demonstrated need.

(9) For purposes of subsection (1)(c) of this section, a person is a resident of a county if the person: (a) Has a current Oregon driver license issued to the person showing a residence address in the county; (b) Is registered to vote in the county and has a memorandum card issued to the person under ORS 247.181 showing a residence address in the county; (c) Has documentation showing that the person currently leases or owns real property in the county; or (d) Has documentation showing that the person filed an Oregon tax return for the most recent tax year showing a residence address in the county.

Note 2: The amendments to 166.291 by section 10, chapter 826, Oregon Laws 2009, become operative January 2, 2012. See section 14, chapter 826, Oregon Laws 2009, as amended by section 23, chapter 826, Oregon Laws 2009. The text that is operative on and after January 2, 2012, is set forth for the user’s convenience.

166.291. (1) The sheriff of a county, upon a person’s application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person: (a)(A) Is a citizen of the United States; or (B) Is a legal resident alien who can document continuous residency in the county for at least six months and has declared in writing to the United States Citizenship and Immigration Services the intent to acquire citizenship status and can present proof of the written declaration to the sheriff at the time of application for the license; (b) Is at least 21 years of age; (c) Is a resident of the county; (d) Has no outstanding warrants for arrest; (e) Is not free on any form of pretrial release; (f) Demonstrates competence with a handgun by any one of the following: (A) Completion of any hunter education or hunter safety course approved by the State Department of Fish and Wildlife or a similar agency of another state if handgun safety was a component of the course; (B) Completion of any National Rifle Association firearms safety or training course if handgun safety was a component of the course; (C) Completion of any firearms safety or training course or class available to the general public offered by law enforcement, community college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or a law enforcement agency if handgun safety was a component of the course;

(D) Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, reserve law enforcement officers or any other law enforcement officers if handgun safety was a component of the course; (E) Presents evidence of equivalent experience with a handgun through participation in organized shooting competition or military service; (F) Is licensed or has been licensed to carry a firearm in this state, unless the license has been revoked; or (G) Completion of any firearms training or safety course or class conducted by a firearms instructor certified by a law enforcement agency or the National Rifle Association if handgun safety was a component of the course; (g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony; (h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application; (i) Has not been committed to the Oregon Health Authority under ORS 426.130; (j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; (k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470; (L) Has not been convicted of an offense involving controlled substances or participated in a courtsupervised drug diversion program, except this disability does not operate to exclude a person if: (A) The person has been convicted only once of violating ORS 475.864 (3) and has not completed a court-supervised drug diversion program under ORS 135.907; or (B) The person has completed a court-supervised drug diversion program under ORS 135.907 and has not been convicted of violating ORS 475.864 (3); (m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738; (n) Has not received a dishonorable discharge from the Armed Forces of the United States; and (o) Is not required to register as a sex offender in any state.

(2) A person who has been granted relief under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or has had the person’s record expunged under the laws of this state or equivalent laws of other jurisdictions is not subject to the disabilities in subsection (1)(g) to (L) of this section.

(3) Before the sheriff may issue a license: (a) The application must state the applicant’s legal name, current address and telephone number, date and place of birth, hair and eye color and height and weight. The application must also list the applicant’s residence address or addresses for the previous three years. The application must contain a statement by the applicant that the applicant meets the requirements of subsection (1) of this section. The application may include the Social Security number of the applicant if the applicant voluntarily provides this number. The application must be signed by the applicant. (b) The applicant must submit to fingerprinting and photographing by the sheriff. The sheriff shall fingerprint and photograph the applicant and shall conduct any investigation necessary to corroborate the requirements listed under subsection (1) of this section. If a nationwide criminal records check is necessary, the sheriff shall request the Department of State Police to conduct the check, including fingerprint identification, through the Federal Bureau of Investigation. The Federal Bureau of Investigation shall return

the fingerprint cards used to conduct the criminal records check and may not keep any record of the fingerprints. The Department of State Police shall report the results of the fingerprint-based criminal records check to the sheriff. The Department of State Police shall also furnish the sheriff with any information about the applicant that the Department of State Police may have in its possession from its central bureau of criminal identification including, but not limited to, manual or computerized criminal offender information.

(4) Application forms for concealed handgun licenses shall be supplied by the sheriff upon request. The forms shall be uniform throughout the state in substantially the following form: ______________________________________________________________________________ APPLICATION FOR LICENSE TO CARRY CONCEALED HANDGUN Date________ I hereby declare as follows: I am a citizen of the United States or a legal resident alien who can document continuous residency in the county for at least six months and have declared in writing to the United States Citizenship and Immigration Services my intention to become a citizen and can present proof of the written declaration to the sheriff at the time of this application. I am at least 21 years of age. I have been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, I was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470. I have never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony in the State of Oregon or elsewhere. I have not, within the last four years, been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor. Except as provided in ORS 166.291 (1)(L), I have not been convicted of an offense involving controlled substances or completed a courtsupervised drug diversion program. There are no outstanding warrants for my arrest and I am not free on any form of pretrial release. I have not been committed to the Oregon Health Authority under ORS 426.130, nor have I been found mentally ill and presently subject to an order prohibiting me from purchasing or possessing a firearm because of mental illness. If any of the previous conditions do apply to me, I have been granted relief or wish to petition for relief from the disability under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or have had the records expunged. I am not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738. I have never received a dishonorable discharge from the Armed Forces of the United States. I am not required to register as a sex offender in any state. I understand I will be fingerprinted and photographed.

Legal name ____________ Age ______ Date of birth ________ Place of birth ____________ Social Security number ___________ (Disclosure of your Social Security account number is voluntary. Solicitation of the number is authorized under ORS 166.291. It will be used only as a means of identification.)

Proof of identification (Two pieces of current identification are required, one of which must bear a photograph of the applicant. The type of identification and the number on the identification are to be filled in by the sheriff.): 1.____________ 2.____________

Height _____ Weight _____ Hair color _____ Eye color _____ Current address ________ (List residence addresses for the past three years on the back.)

City _____ County _____ Zip _____ Phone_____ I have read the entire text of this application, and the statements therein are correct and true. (Making false statements on this application is a misdemeanor.) _______________ (Signature of Applicant) Character references. ___________________________ Name Address ___________________________ Name Address Approved ___ Disapproved ___ by ___ Competence with handgun demonstrated by _____ (to be filled in by sheriff) Date _____ Fee Paid _____ License No._____

______________________________________________________________________________ (5)(a) Fees for concealed handgun licenses are: (A) $15 to the Department of State Police for conducting the fingerprint check of the applicant.

(B) $50 to the sheriff for the issuance or renewal of a concealed handgun license.

(C) $15 to the sheriff for the duplication of a license because of loss or change of address. (b) The sheriff may enter into an agreement with the Department of Transportation to produce the concealed handgun license.

(6) No civil or criminal liability shall attach to the sheriff or any authorized representative engaged in the receipt and review of, or an investigation connected with, any application for, or in the issuance, denial or revocation of, any license under ORS 166.291 to 166.295 as a result of the lawful performance of duties under those sections.

(7) Immediately upon acceptance of an application for a concealed handgun license, the sheriff shall enter the applicant’s name into the Law Enforcement Data System indicating that the person is an applicant for a concealed handgun license or is a license holder.

(8) The county sheriff may waive the residency requirement in subsection (1)(c) of this section for a resident of a contiguous state who has a compelling business interest or other legitimate demonstrated need.

(9) For purposes of subsection (1)(c) of this section, a person is a resident of a county if the person: (a) Has a current Oregon driver license issued to the person showing a residence address in the county; (b) Is registered to vote in the county and has a memorandum card issued to the person under ORS 247.181 showing a residence address in the county; (c) Has documentation showing that the person currently leases or owns real property in the county; or

(d) Has documentation showing that the person filed an Oregon tax return for the most recent tax year showing a residence address in the county.

166.292 Procedure for issuing; form of license; duration. (1) If the application for the license is approved, the sheriff shall issue and mail or otherwise deliver to the applicant at the address shown on the application, within 45 days of the application, a wallet sized license bearing the photograph of the licensee.

The license must be signed by the licensee and carried whenever the licensee carries a concealed handgun.

(2) Failure of a person who carries a concealed handgun also to carry a concealed handgun license is prima facie evidence that the person does not have such a license.

(3) Licenses for concealed handguns shall be uniform throughout the state in substantially the following form: ______________________________________________________________________________ OREGON CONCEALED HANDGUN LICENSE County ________ License Number _____ Expires ________ Date of birth ______ Height ________ Weight ________ Name _________ Address _________ Licensee’s City _____ Zip ___ Photograph Signature _______________ Issued by _______________ Date of issue _______________ ______________________________________________________________________________ (4) An Oregon concealed handgun license issued under ORS 166.291 and this section, unless revoked under ORS 166.293, is valid for a period of four years from the date on which it is issued.

(5) The sheriff shall keep a record of each license issued under ORS 166.291 and this section, or renewed pursuant to ORS 166.295.

(6) When a sheriff issues a concealed handgun license under this section, the sheriff shall provide the licensee with a list of those places where carrying concealed handguns is prohibited or restricted by state or federal law. [1989 c.839 §9 (166.291 to 166.293 enacted in lieu of 166.290); 1993 c.625 §5; 1993 c.693 §2; 1993 c.735 §5] 166.293 Denial or revocation of license; review. (1) If the application for the concealed handgun license is denied, the sheriff shall set forth in writing the reasons for the denial. The denial shall be sent to the applicant by certified mail, restricted delivery, within 45 days after the application was made. If no decision is issued within 45 days, the person may seek review under the procedures in subsection (5) of this section.

(2) Notwithstanding ORS 166.291 (1), and subject to review as provided in subsection (5) of this section, a sheriff may deny a concealed handgun license if the sheriff has reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant’s mental or psychological state or as demonstrated by the applicant’s past pattern of behavior involving unlawful violence or threats of unlawful violence.

(3)(a) Any act or condition that would prevent the issuance of a concealed handgun license is cause for revoking a concealed handgun license.

(b) A sheriff may revoke a concealed handgun license by serving upon the licensee a notice of revocation. The notice must contain the grounds for the revocation and must be served either personally or by certified mail, restricted delivery. The notice and return of service shall be included in the file of the licensee. The revocation is effective upon the licensee’s receipt of the notice.

(4) Any peace officer or corrections officer may seize a concealed handgun license and return it to the issuing sheriff if the license is held by a person who has been arrested or cited for a crime that can or would otherwise disqualify the person from being issued a concealed handgun license. The issuing sheriff shall hold the license for 30 days. If the person is not charged with a crime within the 30 days, the sheriff shall return the license unless the sheriff revokes the license as provided in subsection (3) of this section.

(5) A person denied a concealed handgun license or whose license is revoked or not renewed under ORS 166.291 to 166.295 may petition the circuit court in the petitioner’s county of residence to review the denial, nonrenewal or revocation. The petition must be filed within 30 days after the receipt of the notice of denial or revocation.

(6) The judgment affirming or overturning the sheriff’s decision shall be based on whether the petitioner meets the criteria that are used for issuance of a concealed handgun license and, if the petitioner was denied a concealed handgun license, whether the sheriff has reasonable grounds for denial under subsection (2) of this section. Whenever the petitioner has been previously sentenced for a crime under ORS 161.610 or for a crime of violence for which the person could have received a sentence of more than 10 years, the court shall grant relief only if the court finds that relief should be granted in the interest of justice.

(7) Notwithstanding the provisions of ORS 9.320, a corporation, the state or any city, county, district or other political subdivision or public corporation in this state, without appearance by attorney, may appear as a party to an action under this section.

(8) Petitions filed under this section shall be heard and disposed of within 15 judicial days of filing or as soon as practicable thereafter.

(9) Filing fees for actions shall be as for any civil action filed in the court. If the petitioner prevails, the amount of the filing fee shall be paid by the respondent to the petitioner and may be incorporated into the court order.

(10) Initial appeals of petitions shall be heard de novo.

(11) Any party to a judgment under this section may appeal to the Court of Appeals in the same manner as for any other civil action.

(12) If the governmental entity files an appeal under this section and does not prevail, it shall be ordered to pay the attorney fees for the prevailing party. [1989 c.839 §9a (166.291 to 166.293 enacted in lieu of 166.290); 1993 c.735 §6; 1995 c.518 §3; 1995 c.658 §89; 1999 c.1052 §7; 2003 c.14 §65; 2007 c.202 §1; 2007 c.368 §3] 166.295 Renewal of license. (1)(a) A concealed handgun license is renewable by repeating the procedures set out in ORS 166.291 and 166.292, except for the requirement to submit fingerprints and provide character references. A licensee may submit the application for renewal by mail if the licensee: (A) Is an active member of the Armed Forces of the United States, the National Guard of the United States or the Oregon National Guard; and (B) Submits with the application proof of the licensee’s military orders and a copy of the licensee’s military identification. (b) An otherwise expired concealed handgun license continues to be valid for up to 45 days after the licensee applies for renewal if: (A) The licensee applies for renewal before the original license expires; (B) The licensee has proof of the application for renewal; and

(C) The application for renewal has not been denied.

(2) If a licensee changes residence, the licensee shall report the change of address and the sheriff shall issue a new license as a duplication for a change of address. The license shall expire upon the same date as would the original. [1989 c.839 §10; 1993 c.735 §7; 2007 c.368 §4] 166.297 Annual report regarding revocation of licenses. (1) The sheriff of a county shall submit annually to the Department of State Police a report containing the number of concealed handgun licenses revoked during the reporting period and the reasons for the revocations.

(2) The Department of State Police shall compile the reports submitted under subsection (1) of this section and shall submit the compilation to the Legislative Assembly biennially. [1993 c.735 §13] 166.300 Killing another as cause for loss of right to bear arms. (1) Any person who has committed, with firearms of any kind or description, murder in any degree, or manslaughter, either voluntary or involuntary, or who in a careless or reckless manner, kills or injures another with firearms, and who, at any time after committing murder or manslaughter or after said careless or reckless killing or injury of another, carries or bears firearms of any kind or description within this state, shall be punished upon conviction by a fine of not more than $500, or by imprisonment in the county jail not to exceed one year, or both.

(2) Subsection (1) of this section does not deprive the people of this state of the right to bear arms for the defense of themselves and the state, and does not apply to any peace officer in the discharge of official duties or to a member of any regularly constituted military organization while on duty with such military organization.

(3) Justice courts, county courts and all other courts having jurisdiction as justice courts, shall have concurrent jurisdiction with the circuit courts of all prosecutions under subsection (1) of this section.

166.310 [Repealed by 1985 c.709 §4] 166.320 Setting springgun or setgun. (1) Any person who places or sets any loaded springgun, setgun, or any gun, firearm or other device of any kind designed for containing or firing explosives, in any place where it may be fired, exploded or discharged by the contact of any person or animal with any string, wire, rod, stick, spring or other contrivance affixed to or connected with it, or with its trigger, shall be punished upon conviction by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail for not less than 30 days nor more than six months, or both.

(2) Subsection (1) of this section does not apply to any loaded springgun, setgun, firearm or other device placed for the purpose of destroying gophers, moles or other burrowing rodents, and does not prevent the use of a coyote getter by employees of county, state or federal governments engaged in cooperative predatory animal control work.

166.330 Use of firearms with other than incombustible gun wadding. Any person who uses in any firearms discharged on lands within this state, not owned by the person, anything other than incombustible gun wadding, shall be punished upon conviction by a fine of not less than $5 nor more than $100, or by imprisonment in the county jail for not less than two days nor more than 60 days.

166.340 [1965 c.20 §§2,3; 1969 c.351 §1; repealed by 1981 c.41 §3] 166.350 Unlawful possession of armor piercing ammunition. (1) A person commits the crime of unlawful possession of armor piercing ammunition if the person:

(a) Makes, sells, buys or possesses any handgun ammunition the bullet or projectile of which is coated with Teflon or any chemical compound with properties similar to Teflon and which is intended to penetrate soft body armor, such person having the intent that the ammunition be used in the commission of a felony; or (b) Carries any ammunition described in paragraph (a) of this subsection while committing any felony during which the person or any accomplice of the person is armed with a firearm.

(2) As used in this section, “handgun ammunition” means ammunition principally for use in pistols or revolvers notwithstanding that the ammunition can be used in some rifles.

(3) Unlawful possession of armor piercing ammunition is a Class A misdemeanor. [1985 c.755 §2; 1987 c.158 §29] POSSESSION OF WEAPON OR DESTRUCTIVE DEVICE IN PUBLIC BUILDING OR COURT FACILITY 166.360 Definitions for ORS 166.360 to 166.380. As used in ORS 166.360 to 166.380, unless the context requires otherwise: (1) “Capitol building” means the Capitol, the State Office Building, the State Library Building, the Labor and Industries Building, the State Transportation Building, the Agriculture Building or the Public Service Building and includes any new buildings which may be constructed on the same grounds as an addition to the group of buildings listed in this subsection.

(2) “Court facility” means a courthouse or that portion of any other building occupied by a circuit court, the Court of Appeals, the Supreme Court or the Oregon Tax Court or occupied by personnel related to the operations of those courts, or in which activities related to the operations of those courts take place.

(3) “Loaded firearm” means: (a) A breech-loading firearm in which there is an unexpended cartridge or shell in or attached to the firearm including but not limited to, in a chamber, magazine or clip which is attached to the firearm. (b) A muzzle-loading firearm which is capped or primed and has a powder charge and ball, shot or projectile in the barrel or cylinder.

(4) “Public building” means a hospital, a capitol building, a public or private school, as defined in ORS 339.315, a college or university, a city hall or the residence of any state official elected by the state at large, and the grounds adjacent to each such building. The term also includes that portion of any other building occupied by an agency of the state or a municipal corporation, as defined in ORS 297.405, other than a court facility.

(5) “Weapon” means: (a) A firearm; (b) Any dirk, dagger, ice pick, slingshot, metal knuckles or any similar instrument or a knife other than an ordinary pocket knife, the use of which could inflict injury upon a person or property; (c) Mace, tear gas, pepper mace or any similar deleterious agent as defined in ORS 163.211; (d) An electrical stun gun or any similar instrument; (e) A tear gas weapon as defined in ORS 163.211; (f) A club, bat, baton, billy club, bludgeon, knobkerrie, nunchaku, nightstick, truncheon or any similar instrument, the use of which could inflict injury upon a person or property; or (g) A dangerous or deadly weapon as those terms are defined in ORS 161.015. [1969 c.705 §1; 1977 c.769 §2; 1979 c.398 §1; 1989 c.982 §4; 1993 c.741 §2; 1999 c.577 §2; 1999 c.782 §6; 2001 c.201 §1]

166.370 Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school. (1) Any person who intentionally possesses a loaded or unloaded firearm or any other instrument used as a dangerous weapon, while in or on a public building, shall upon conviction be guilty of a Class C felony.

(2)(a) Except as otherwise provided in paragraph (b) of this subsection, a person who intentionally possesses: (A) A firearm in a court facility is guilty, upon conviction, of a Class C felony. A person who intentionally possesses a firearm in a court facility shall surrender the firearm to a law enforcement officer.

(B) A weapon, other than a firearm, in a court facility may be required to surrender the weapon to a law enforcement officer or to immediately remove it from the court facility. A person who fails to comply with this subparagraph is guilty, upon conviction, of a Class C felony. (b) The presiding judge of a judicial district may enter an order permitting the possession of specified weapons in a court facility.

(3) Subsection (1) of this section does not apply to: (a) A sheriff, police officer, other duly appointed peace officers or a corrections officer while acting within the scope of employment. (b) A person summoned by a peace officer to assist in making an arrest or preserving the peace, while the summoned person is engaged in assisting the officer. (c) An active or reserve member of the military forces of this state or the United States, when engaged in the performance of duty. (d) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun. (e) A person who is authorized by the officer or agency that controls the public building to possess a firearm or dangerous weapon in that public building. (f) An employee of the United States Department of Agriculture, acting within the scope of employment, who possesses a firearm in the course of the lawful taking of wildlife. (g) Possession of a firearm on school property if the firearm: (A) Is possessed by a person who is not otherwise prohibited from possessing the firearm; and (B) Is unloaded and locked in a motor vehicle.

(4) The exceptions listed in subsection (3)(b) to (g) of this section constitute affirmative defenses to a charge of violating subsection (1) of this section.

(5)(a) Any person who knowingly, or with reckless disregard for the safety of another, discharges or attempts to discharge a firearm at a place that the person knows is a school shall upon conviction be guilty of a Class C felony. (b) Paragraph (a) of this subsection does not apply to the discharge of a firearm: (A) As part of a program approved by a school in the school by an individual who is participating in the program; (B) By a law enforcement officer acting in the officer’s official capacity; or (C) By an employee of the United States Department of Agriculture, acting within the scope of employment, in the course of the lawful taking of wildlife.

(6) Any weapon carried in violation of this section is subject to the forfeiture provisions of ORS 166.279.

(7) Notwithstanding the fact that a person’s conduct in a single criminal episode constitutes a violation of both subsections (1) and (5) of this section, the district attorney may charge the person with only one of the offenses.

(8) As used in this section, “dangerous weapon” means a dangerous weapon as that term is defined in ORS 161.015. [1969 c.705 §§2,4; 1977 c.207 §2; 1979 c.398 §2; 1989 c.839 §22; 1989 c.982 §5; 1991 c.67 §39; 1993 c.625 §1; 1999 c.782 §7; 1999 c.1040 §4; 2001 c.666 §§24,36; 2003 c.614 §6; 2009 c.556 §6] 166.372 [1993 c.625 §3; repealed by 1996 c.16 §5] 166.373 Possession of weapon in court facility by peace officer or federal officer. (1) Notwithstanding ORS 166.370 (2) and except as provided in subsection (2) of this section, a peace officer, as defined in ORS 161.015, or a federal officer, as defined in ORS 133.005, may possess a weapon in a court facility if the officer: (a) Is acting in an official capacity and is officially on duty; (b) Is carrying a weapon that the employing agency of the officer has authorized the officer to carry; and (c) Is in compliance with any security procedures established under subsections (3) and (4) of this section.

(2) A judge may prohibit a peace officer or a federal officer from possessing a weapon in a courtroom. A notice of the prohibition of the possession of a weapon by an officer in a courtroom must be posted outside the entrance to the courtroom.

(3) A presiding judge of a judicial district or the Chief Justice of the Supreme Court may establish procedures regulating the possession of a weapon in a court facility by a peace officer or a federal officer subject to the following: (a) The procedures must be established through a plan for court security improvement, emergency preparedness and business continuity under ORS 1.177 or 1.180; and (b) Notice of the procedures must be posted at the entrance to the court facility, or at an entrance for peace officers or federal officers if the entrance is separate from the entrance to the court facility, and at a security checkpoint in the court facility.

(4) A judge may establish procedures regulating the possession of a weapon in a courtroom by a peace officer or a federal officer. A notice of the procedures regulating the possession of a weapon by an officer must be posted outside the entrance to the courtroom. [2001 c.201 §3; 2005 c.804 §7] 166.380 Examination of firearm by peace officer; arrest for failure to allow examination. (1) A peace officer may examine a firearm possessed by anyone on the person while in or on a public building to determine whether the firearm is a loaded firearm.

(2) Refusal by a person to allow the examination authorized by subsection (1) of this section constitutes reason to believe that the person has committed a crime and the peace officer may make an arrest pursuant to ORS 133.310. [1969 c.705 §3] 166.382 Possession of destructive device prohibited; exceptions. (1) A person commits the crime of unlawful possession of a destructive device if the person possesses: (a) Any of the following devices with an explosive, incendiary or poison gas component: (A) Bomb; (B) Grenade; (C) Rocket having a propellant charge of more than four ounces; (D) Missile having an explosive or incendiary charge of more than one-quarter ounce; or (E) Mine; or

(b) Any combination of parts either designed or intended for use in converting any device into any destructive device described in paragraph (a) of this subsection and from which a destructive device may be readily assembled.

(2) As used in this section: (a) “Destructive device” does not include any device which is designed primarily or redesigned primarily for use as a signaling, pyrotechnic, line throwing, safety or similar device. (b) “Possess” has the meaning given that term in ORS 161.015.

(3) This section does not apply to: (a) Persons who possess explosives as provided in ORS 480.200 to 480.290. (b) The possession of an explosive by a member of the Armed Forces of the United States while on active duty and engaged in the performance of official duties or by a member of a regularly organized fire or police department of a public agency while engaged in the performance of official duties. (c) The possession of an explosive in the course of transportation by way of railroad, water, highway or air while under the jurisdiction of, or in conformity with, regulations adopted by the United States Department of Transportation. (d) The possession, sale, transfer or manufacture of an explosive by a person acting in accordance with the provisions of any applicable federal law or regulation that provides substantially the same requirements as the comparable provisions of ORS 480.200 to 480.290.

(4) Possession of a destructive device is a Class C felony. [1989 c.982 §1] 166.384 Unlawful manufacture of destructive device. (1) A person commits the crime of unlawful manufacture of a destructive device if the person assembles, produces or otherwise manufactures: (a) A destructive device, as defined in ORS 166.382; or (b) A pyrotechnic device containing two or more grains of pyrotechnic charge in violation of chapter 10, Title 18 of the United States Code.

(2) Unlawful manufacture of a destructive device is a Class C felony. [1989 c.982 §2] 166.385 Possession of hoax destructive device. (1) A person commits the crime of possession of a hoax destructive device if the person knowingly places another person in fear of serious physical injury by: (a) Possessing, manufacturing, selling, delivering, placing or causing to be placed a hoax destructive device; or (b) Sending a hoax destructive device to another person.

(2) Possession of a hoax destructive device is a Class A misdemeanor.

(3) Notwithstanding subsection (2) of this section, possession of a hoax destructive device is a Class C felony if a person possesses, or threatens to use, a hoax destructive device while the person is committing or attempting to commit a felony.

(4) As used in this section, “hoax destructive device” means an object that reasonably appears, under the circumstances: (a) To be a destructive device, as described in ORS 166.382 (1)(a), or an explosive, as defined in ORS 166.660, but is an inoperative imitation of a destructive device or explosive; or (b) To contain a destructive device, as described in ORS 166.382 (1)(a), or an explosive, as defined in ORS 166.660. [1997 c.749 §1] SALE OR TRANSFER OF FIREARMS

166.410 Manufacture, importation or sale of firearms. Any person who manufactures or causes to be manufactured within this state, or who imports into this state, or offers, exposes for sale, or sells or transfers a handgun, short-barreled rifle, short-barreled shotgun, firearms silencer or machine gun, otherwise than in accordance with ORS 166.250, 166.260, 166.270, 166.291, 166.292, 166.425, 166.450, 166.460 and 166.470, is guilty of a Class B felony. [Amended by 1979 c.779 §5; 1987 c.320 §89; 1989 c.839 §23; 1995 c.729 §7; 2001 c.666 §§34,46; 2003 c.14 §§66,67; 2003 c.614 §9] 166.412 Definitions; firearms transaction record; criminal record check; rules. (1) As used in this section: (a) “Antique firearm” has the meaning given that term in 18 U.S.C. 921; (b) “Department” means the Department of State Police; (c) “Firearm” has the meaning given that term in ORS 166.210, except that it does not include an antique firearm; (d) “Firearms transaction record” means the firearms transaction record required by 18 U.S.C. 921 to 929; (e) “Firearms transaction thumbprint form” means a form provided by the department under subsection (11) of this section; (f) “Gun dealer” means a person engaged in the business, as defined in 18 U.S.C. 921, of selling, leasing or otherwise transferring a firearm, whether the person is a retail dealer, pawnbroker or otherwise; (g) “Handgun” has the meaning given that term in ORS 166.210; and (h) “Purchaser” means a person who buys, leases or otherwise receives a firearm from a gun dealer.

(2) Except as provided in subsections (3)(c) and (12) of this section, a gun dealer shall comply with the following before a handgun is delivered to a purchaser: (a) The purchaser shall present to the dealer current identification meeting the requirements of subsection (4) of this section. (b) The gun dealer shall complete the firearms transaction record and obtain the signature of the purchaser on the record. (c) The gun dealer shall obtain the thumbprints of the purchaser on the firearms transaction thumbprint form and attach the form to the gun dealer’s copy of the firearms transaction record to be filed with that copy. (d) The gun dealer shall request by telephone that the department conduct a criminal history record check on the purchaser and shall provide the following information to the department: (A) The federal firearms license number of the gun dealer; (B) The business name of the gun dealer; (C) The place of transfer; (D) The name of the person making the transfer; (E) The make, model, caliber and manufacturer’s number of the handgun being transferred; (F) The name and date of birth of the purchaser; (G) The Social Security number of the purchaser if the purchaser voluntarily provides this number to the gun dealer; and (H) The type, issuer and identification number of the identification presented by the purchaser. (e) The gun dealer shall receive a unique approval number for the transfer from the department and record the approval number on the firearms transaction record and on the firearms transaction thumbprint form. (f) The gun dealer may destroy the firearms transaction thumbprint form five years after the completion of the firearms transaction thumbprint form.

(3)(a) Upon receipt of a request of the gun dealer for a criminal history record check, the department shall immediately, during the gun dealer’s telephone call or by return call: (A) Determine, from criminal records and other information available to it, whether the purchaser is disqualified under ORS 166.470 from completing the purchase; and (B) Notify the dealer when a purchaser is disqualified from completing the transfer or provide the dealer with a unique approval number indicating that the purchaser is qualified to complete the transfer. (b) If the department is unable to determine if the purchaser is qualified or disqualified from completing the transfer within 30 minutes, the department shall notify the dealer and provide the dealer with an estimate of the time when the department will provide the requested information. (c) If the department fails to provide a unique approval number to a gun dealer or to notify the gun dealer that the purchaser is disqualified under paragraph (a) of this subsection before the close of the gun dealer’s next business day following the request by the dealer for a criminal history record check, the dealer may deliver the handgun to the purchaser.

(4)(a) Identification required of the purchaser under subsection (2) of this section shall include one piece of current identification bearing a photograph and the date of birth of the purchaser that: (A) Is issued under the authority of the United States Government, a state, a political subdivision of a state, a foreign government, a political subdivision of a foreign government, an international governmental organization or an international quasi-governmental organization; and (B) Is intended to be used for identification of an individual or is commonly accepted for the purpose of identification of an individual. (b) If the identification presented by the purchaser under paragraph (a) of this subsection does not include the current address of the purchaser, the purchaser shall present a second piece of current identification that contains the current address of the purchaser. The Superintendent of State Police may specify by rule the type of identification that may be presented under this paragraph. (c) The department may require that the dealer verify the identification of the purchaser if that identity is in question by sending the thumbprints of the purchaser to the department.

(5) The department shall establish a telephone number that shall be operational seven days a week between the hours of 8 a.m. and 10 p.m. for the purpose of responding to inquiries from dealers for a criminal history record check under this section.

(6) No public employee, official or agency shall be held criminally or civilly liable for performing the investigations required by this section provided the employee, official or agency acts in good faith and without malice.

(7)(a) The department may retain a record of the information obtained during a request for a criminal records check for no more than five years. (b) The record of the information obtained during a request for a criminal records check by a gun dealer is exempt from disclosure under public records law.

(8) A law enforcement agency may inspect the records of a gun dealer relating to transfers of handguns with the consent of a gun dealer in the course of a reasonable inquiry during a criminal investigation or under the authority of a properly authorized subpoena or search warrant.

(9) When a handgun is delivered, it shall be unloaded.

(10) In accordance with applicable provisions of ORS chapter 183, the Superintendent of State Police may adopt rules necessary for: (a) The design of the firearms transaction thumbprint form; (b) The maintenance of a procedure to correct errors in the criminal records of the department; (c) The provision of a security system to identify dealers who request a criminal history record check under subsection (2) of this section; and

(d) The creation and maintenance of a database of the business hours of gun dealers.

(11) The department shall publish the firearms transaction thumbprint form and shall furnish the form to gun dealers on application at cost.

(12) This section does not apply to transactions between persons licensed as dealers under 18 U.S.C. 923. [1995 c.729 §1; 2001 c.900 §25; 2009 c.595 §114; 2009 c.826 §17] Note: Section 12 (2)(b) and (3)(b), chapter 826, Oregon Laws 2009, affects the implementation of amendments to 166.412 by section 17, chapter 826, Oregon Laws 2009. Section 12, chapter 826, Oregon Laws 2009, provides: Sec. 12. (1) Section 1 of this 2009 Act [181.740] applies to records and information in the possession of the Department of Human Services, the Oregon Health Authority, the Psychiatric Security Review Board or the Judicial Department on or after the effective date of this 2009 Act [January 1, 2010], irrespective of when the record or information was created.

(2)(a) When the Department of Human Services determines that the department has received a sufficient legislative appropriation or federal funding to carry out the provisions of section 1 of this 2009 Act, the department shall adopt a rule so indicating. The department shall notify Legislative Counsel when the rule is adopted. (b) When the Oregon Health Authority determines that the authority has received a sufficient legislative appropriation or federal funding to carry out the provisions of section 1 of this 2009 Act, the authority shall adopt a rule so indicating. The authority shall notify Legislative Counsel when the rule is adopted. (c) When the Chief Justice of the Supreme Court determines that the Judicial Department has received a sufficient legislative appropriation or federal funding to carry out the provisions of section 1 of this 2009 Act, the Chief Justice shall issue an order so indicating. The Chief Justice shall notify Legislative Counsel when the order is issued. (d) When the Psychiatric Security Review Board determines that the board has received a sufficient legislative appropriation or federal funding to carry out the provisions of section 1 of this 2009 Act, the board shall adopt a rule so indicating. The board shall notify Legislative Counsel when the rule is adopted.

(3)(a)(A) The Department of Human Services may not comply with section 1 of this 2009 Act until the department adopts the rule described in subsection (2)(a) of this section; and (B) If the Department of Human Services adopts the rule described in subsection (2)(a) of this section before January 2, 2012, the department may not comply with section 1 of this 2009 Act until the later of: (i) The date the Psychiatric Security Review Board adopts the rule described in section 13 of this 2009 Act; or (ii) January 2, 2012. (b)(A) The Oregon Health Authority may not comply with section 1 of this 2009 Act or the amendments to ORS 166.412 by section 17 of this 2009 Act until the authority adopts the rule described in subsection (2)(b) of this section; and (B) If the Oregon Health Authority adopts the rule described in subsection (2)(b) of this section before January 2, 2012, the authority may not comply with section 1 of this 2009 Act or the amendments to ORS 166.412 by section 17 of this 2009 Act until the later of: (i) The date the Psychiatric Security Review Board adopts the rule described in section 13 of this 2009 Act; or (ii) January 2, 2012. (c)(A) The Judicial Department may not comply with section 1 of this 2009 Act until the Chief Justice issues the order described in subsection (2)(c) of this section; and

(B) If the Chief Justice issues the order described in subsection (2)(c) of this section before January 2, 2012, the Judicial Department may not comply with section 1 of this 2009 Act until the later of: (i) The date the Psychiatric Security Review Board adopts the rule described in section 13 of this 2009 Act; or (ii) January 2, 2012. (d)(A) The Psychiatric Security Review Board may not comply with section 1 of this 2009 Act until the board adopts the rule described in subsection (2)(d) of this section; and (B) If the board adopts the rule described in subsection (2)(d) of this section before January 2, 2012, the board may not comply with section 1 of this 2009 Act until the later of: (i) The date the board adopts the rule described in section 13 of this 2009 Act; or (ii) January 2, 2012.

(4)(a) When the Chief Justice of the Supreme Court determines that the Judicial Department has received a sufficient legislative appropriation or federal funding to carry out the provisions of the amendments to ORS 426.160 and 427.293 by sections 2 and 3 of this 2009 Act, the Chief Justice shall issue an order so indicating. The Chief Justice shall notify Legislative Counsel when the order is issued. (b)(A) Except as provided in subparagraph (B) of this paragraph, the amendments to ORS 426.160 and 427.293 by sections 2 and 3 of this 2009 Act become operative on the date the Chief Justice issues the order described in paragraph (a) of this subsection.

(B) If the Chief Justice issues the order described in paragraph (a) of this subsection before January 2, 2012, the amendments to ORS 426.160 and 427.293 by sections 2 and 3 of this 2009 Act become operative on the later of: (i) The date the Psychiatric Security Review Board adopts the rule described in section 13 of this 2009 Act; or (ii) January 2, 2012. [2009 c.826 §12; 2009 c.826 §21] Note: 166.412 to 166.421 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 166 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

166.414 Fees for conducting criminal history record checks. (1) The Department of State Police may adopt a fee schedule for criminal history record checks required under ORS 166.412 and collect a fee for each criminal history record check requested. The fee schedule shall be calculated to recover the cost of performing criminal history record checks required under ORS 166.412, but may not exceed $10 per record check.

(2) Fees collected under this section shall be paid into the State Treasury and deposited in the General Fund to the credit of the State Police Account. [1995 c.729 §2] Note: See second note under 166.412.

166.416 Providing false information in connection with a transfer of a firearm. (1) A person commits the crime of providing false information in connection with a transfer of a firearm if the person knowingly provides a false name or false information or presents false identification in connection with a purchase or transfer of a firearm.

(2) Providing false information in connection with a transfer of a firearm is a Class A misdemeanor.

[1995 c.729 §3; 2001 c.1 §9]

Note: See second note under 166.412.

166.418 Improperly transferring a firearm. (1) A person commits the crime of improperly transferring a firearm if the person is a gun dealer as defined in ORS 166.412 and sells, leases or otherwise transfers a firearm and intentionally violates ORS 166.412 or 166.434.

(2) Improperly transferring a firearm is a Class A misdemeanor. [1995 c.729 §4; 2001 c.1 §10] Note: See second note under 166.412.

166.420 [Amended by 1989 c.839 §2; 1993 c.4 §1; 1993 c.594 §4; 1993 c.693 §1; repealed by 1995 c.729 §13] 166.421 Stolen firearms; determination; telephone requests. The Department of State Police may respond to a telephone request from any person requesting that the department determine if department records show that a firearm is stolen. No public employee, official or agency shall be held criminally or civilly liable for performing the investigation allowed by this section provided that the employee, official or agency acts in good faith and without malice. [1995 c.729 §5] Note: See second note under 166.412.

166.422 Enforcement of ORS 166.412. Where appropriate, a person may enforce the legal duties imposed by ORS 166.412 (7), by the provisions of ORS 30.260 to 30.300 and ORS chapter 183. [1989 c.839 §12; 1995 c.729 §8] Note: 166.422 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 166 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

166.425 Unlawful purchase of firearm. (1) A person commits the crime of unlawfully purchasing a firearm if the person, knowing that the person is prohibited by state or federal law from owning or possessing the firearm or having the firearm under the person’s custody or control, purchases or attempts to purchase the firearm.

(2) Unlawfully purchasing a firearm is a Class A misdemeanor. [1989 c.839 §15] 166.427 Register of transfers of used firearms. (1) Whenever a person engaged in the business, as defined in 18 U.S.C. 921, of selling, leasing or otherwise transferring a firearm, whether the person is a retail dealer, pawnbroker or otherwise, buys or accepts in trade, a used firearm, the person shall enter in a register the time, date and place of purchase or trade, the name of the person selling or trading the firearm, the number of the identification documentation presented by the person and the make, model and manufacturer’s number of the firearm. The register shall be obtained from and furnished by the Department of State Police to the dealer on application at cost.

(2) The duplicate sheet of the register shall, on the day of purchase or trade, be hand delivered or mailed to the local law enforcement authority.

(3) Violation of this section by any person engaged in the business of selling, leasing or otherwise transferring a firearm is a Class C misdemeanor. [1989 c.839 §16; 1993 c.4 §3; 2001 c.539 §12]

166.429 Firearms used in felony. Any person who, with intent to commit a felony or who knows or reasonably should know that a felony will be committed with the firearm, ships, transports, receives, sells or otherwise furnishes any firearm in the furtherance of the felony is guilty of a Class B felony. [1989 c.839 §17] 166.430 [Amended by 1971 c.464 §1; repealed by 1989 c.839 §39] 166.432 Definitions for ORS 166.412 and 166.433 to 166.441. (1) As used in ORS 166.412, 166.433, 166.434, 166.436 and 166.438, “criminal background check” or “criminal history record check” means determining the eligibility of a person to purchase or possess a firearm by reviewing state and federal databases including, but not limited to, the: (a) Oregon computerized criminal history system; (b) Oregon mental health data system; (c) Law Enforcement Data System; (d) National Instant Criminal Background Check System; and (e) Stolen guns system.

(2) As used in ORS 166.433, 166.434, 166.436, 166.438 and 166.441: (a) “Gun dealer” has the meaning given that term in ORS 166.412. (b) “Gun show” means an event at which more than 25 firearms are on site and available for transfer.

[2001 c.1 §3] Note: 166.432, 166.433 and 166.445 were adopted by the people by initiative petition but were not added to ORS chapter 166 or any series therein. See Preface to Oregon Revised Statutes for further explanation.

166.433 Findings regarding transfers of firearms. The people of this state find that: (1) The laws of Oregon regulating the sale of firearms contain a loophole that allows people other than gun dealers to sell firearms at gun shows without first conducting criminal background checks; (2) It is necessary for the safety of the people of Oregon that any person who transfers a firearm at a gun show be required to request a criminal background check before completing the transfer of the firearm; and (3) It is in the best interests of the people of Oregon that any person who transfers a firearm at any location other than a gun show be allowed to voluntarily request a criminal background check before completing the transfer of the firearm. [2001 c.1 §1] Note: See note under 166.432.

166.434 Application of ORS 166.412 to all firearm transfers by gun dealers; fees for criminal background checks. (1) Notwithstanding the fact that ORS 166.412 requires a gun dealer to request a criminal history record check only when transferring a handgun, a gun dealer shall comply with the requirements of ORS 166.412 before transferring any firearm to a purchaser. The provisions of ORS 166.412 apply to the transfer of firearms other than handguns to the same extent that they apply to the transfer of handguns.

(2) In addition to the determination required by ORS 166.412 (3)(a)(A), in conducting a criminal background check or criminal history record check, the Department of State Police shall also determine whether the recipient is otherwise prohibited by state or federal law from possessing a firearm.

(3) Notwithstanding ORS 166.412 (5), the department is not required to operate the telephone number established under ORS 166.412 (5) on Thanksgiving Day or Christmas Day. (4)(a) The department may charge a fee, not to exceed the amount authorized under ORS 166.414, for criminal background checks required under this section or ORS 166.436. (b) The department shall establish a reduced fee for subsequent criminal background checks on the same recipient that are performed during the same day between the hours of 8 a.m. and 10 p.m. [2001 c.1 §5] 166.436 Firearm transfers by persons other than gun dealers; criminal background checks authorized; liability. (1) The Department of State Police shall make the telephone number established under ORS 166.412 (5) available for requests from persons other than gun dealers for criminal background checks under this section.

(2) Prior to transferring a firearm, a transferor other than a gun dealer may request by telephone that the department conduct a criminal background check on the recipient and shall provide the following information to the department: (a) The name, address and telephone number of the transferor; (b) The make, model, caliber and manufacturer’s number of the firearm being transferred; (c) The name, date of birth, race, sex and address of the recipient; (d) The Social Security number of the recipient if the recipient voluntarily provides that number; (e) The address of the place where the transfer is occurring; and (f) The type, issuer and identification number of a current piece of identification bearing a recent photograph of the recipient presented by the recipient. The identification presented by the recipient must meet the requirements of ORS 166.412 (4)(a).

(3)(a) Upon receipt of a request for a criminal background check under this section, the department shall immediately, during the telephone call or by return call: (A) Determine from criminal records and other information available to it whether the recipient is disqualified under ORS 166.470 from completing the transfer or is otherwise prohibited by state or federal law from possessing a firearm; and (B) Notify the transferor when a recipient is disqualified from completing the transfer or provide the transferor with a unique approval number indicating that the recipient is qualified to complete the transfer.

The unique approval number is a permit valid for 24 hours for the requested transfer. If the firearm is not transferred from the transferor to the recipient within 24 hours after receipt of the unique approval number, a new request must be made by the transferor. (b) If the department is unable to determine whether the recipient is qualified for or disqualified from completing the transfer within 30 minutes of receiving the request, the department shall notify the transferor and provide the transferor with an estimate of the time when the department will provide the requested information.

(4) A public employee or public agency incurs no criminal or civil liability for performing the criminal background checks required by this section, provided the employee or agency acts in good faith and without malice.

(5)(a) The department may retain a record of the information obtained during a request for a criminal background check under this section for the period of time provided in ORS 166.412 (7). (b) The record of the information obtained during a request for a criminal background check under this section is exempt from disclosure under public records law.

(6) The recipient of the firearm must be present when the transferor requests a criminal background check under this section.

(7)(a) Except as otherwise provided in paragraphs (b) and (c) of this subsection, a transferor who receives notification under this section that the recipient is qualified to complete the transfer of a firearm is immune from civil liability for any use of the firearm from the time of the transfer unless the transferor knows, or reasonably should know, that the recipient is likely to commit an unlawful act involving the firearm. (b) If the transferor is required to request a criminal background check under ORS 166.438, the immunity provided by paragraph (a) of this subsection applies only if, in addition to receiving the notification required by this section, the transferor has the recipient fill out the form required by ORS 166.438 (1)(a) and retains the form as required by ORS 166.438 (2). (c) The immunity provided by paragraph (a) of this subsection does not apply: (A) If the transferor knows, or reasonably should know, that the recipient of the firearm intends to deliver the firearm to a third person who the transferor knows, or reasonably should know, may not lawfully possess the firearm; or (B) In any product liability civil action under ORS 30.900 to 30.920. [2001 c.1 §6] 166.438 Transfer of firearms at gun shows.(1) A transferor other than a gun dealer may not transfer a firearm at a gun show unless the transferor: (a)(A) Requests a criminal background check under ORS 166.436 prior to completing the transfer; (B) Receives notification that the recipient is qualified to complete the transfer; and (C) Has the recipient complete the form described in ORS 166.441; or (b) Completes the transfer through a gun dealer.

(2) The transferor shall retain the completed form referred to in subsection (1) of this section for at least five years and shall make the completed form available to law enforcement agencies for the purpose of criminal investigations.

(3) A person who organizes a gun show shall post in a prominent place at the gun show a notice explaining the requirements of subsections (1) and (2) of this section. The person shall provide the form required by subsection (1) of this section to any person transferring a firearm at the gun show.

(4) Subsection (1) of this section does not apply if the transferee is licensed as a dealer under 18 U.S.C. 923.

(5)(a) Failure to comply with the requirements of subsection (1), (2) or (3) of this section is a Class A misdemeanor. (b) Notwithstanding paragraph (a) of this subsection, failure to comply with the requirements of subsection (1), (2) or (3) of this section is a Class C felony if the person has two or more previous convictions under this section.

(6) It is an affirmative defense to a charge of violating subsection (1) or (3) of this section that the person did not know, or reasonably could not know, that more than 25 firearms were at the site and available for transfer. [2001 c.1 §7] 166.440 [Repealed by 1989 c.839 §39] 166.441 Form for transfer of firearm at gun show. (1) The Department of State Police shall develop a form to be completed by a person seeking to obtain a firearm at a gun show from a transferor other than a gun dealer. The department shall consider including in the form all of the requirements for disclosure of information that are required by federal law for over-the-counter firearms transactions.

(2) The department shall make the form available to the public at no cost. [2001 c.1 §8]

166.445 Short title. ORS 166.432 to 166.445 and the amendments to ORS 166.416, 166.418 and 166.460 by sections 9, 10 and 11, chapter 1, Oregon Laws 2001, shall be known as the Gun Violence Prevention Act. [2001 c.1 §2] Note: See note under 166.432.

166.450 Obliteration or change of identification number on firearms. Any person who intentionally alters, removes or obliterates the identification number of any firearm for an unlawful purpose, shall be punished upon conviction by imprisonment in the custody of the Department of Corrections for not more than five years. Possession of any such firearm is presumptive evidence that the possessor has altered, removed or obliterated the identification number. [Amended by 1987 c.320 §90; 1989 c.839 §24] 166.460 Antique firearms excepted. (1) ORS 166.250, 166.260, 166.291 to 166.295, 166.410, 166.412, 166.425, 166.434, 166.438 and 166.450 do not apply to antique firearms.

(2) Notwithstanding the provisions of subsection (1) of this section, possession of an antique firearm by a person described in ORS 166.250 (1)(c)(B) to (D) or (F) constitutes a violation of ORS 166.250.

[Amended by 1979 c.779 §6; 1989 c.839 §25; 1993 c.735 §8; 1995 c.729 §9; 2001 c.1 §11; 2001 c.666 §§35,47; 2003 c.614 §10; 2009 c.499 §5] 166.470 Limitations and conditions for sales of firearms. (1) Unless relief has been granted under ORS 166.274, 18 U.S.C. 925(c) or the expunction laws of this state or an equivalent law of another jurisdiction, a person may not intentionally sell, deliver or otherwise transfer any firearm when the transferor knows or reasonably should know that the recipient: (a) Is under 18 years of age; (b) Has been convicted of a felony; (c) Has any outstanding felony warrants for arrest; (d) Is free on any form of pretrial release for a felony; (e) Was committed to the Oregon Health Authority under ORS 426.130; (f) After January 1, 1990, was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; (g) Has been convicted of a misdemeanor involving violence or found guilty except for insanity under ORS 161.295 of a misdemeanor involving violence within the previous four years. As used in this paragraph, “misdemeanor involving violence” means a misdemeanor described in ORS 163.160, 163.187, 163.190, 163.195 or 166.155 (1)(b); or (h) Has been found guilty except for insanity under ORS 161.295 of a felony.

(2) A person may not sell, deliver or otherwise transfer any firearm that the person knows or reasonably should know is stolen.

(3) Subsection (1)(a) of this section does not prohibit: (a) The parent or guardian, or another person with the consent of the parent or guardian, of a minor from transferring to the minor a firearm, other than a handgun; or (b) The temporary transfer of any firearm to a minor for hunting, target practice or any other lawful purpose.

(4) Violation of this section is a Class A misdemeanor. [Amended by 1989 c.839 §3; 1991 c.67 §40; 1993 c.735 §11; 2001 c.828 §2; 2003 c.577 §7; 2009 c.499 §6; 2009 c.595 §115]

Note 1: The amendments to 166.470 by section 8, chapter 826, Oregon Laws 2009, become operative on the date that the rule described in section 13 (1), chapter 826, Oregon Laws 2009, is adopted by the Psychiatric Security Review Board. See section 13, chapter 826, Oregon Laws 2009, as amended by section 22, chapter 826, Oregon Laws 2009 (Note 4 under 166.274). The text that is operative from the date of adoption of that rule until January 2, 2012, is set forth for the user’s convenience.

166.470. (1) Unless relief has been granted under ORS 166.274 or section 5, chapter 826, Oregon Laws 2009, or 18 U.S.C. 925(c) or the expunction laws of this state or an equivalent law of another jurisdiction, a person may not intentionally sell, deliver or otherwise transfer any firearm when the transferor knows or reasonably should know that the recipient: (a) Is under 18 years of age; (b) Has been convicted of a felony; (c) Has any outstanding felony warrants for arrest; (d) Is free on any form of pretrial release for a felony; (e) Was committed to the Oregon Health Authority under ORS 426.130; (f) After January 1, 1990, was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; (g) Has been convicted of a misdemeanor involving violence or found guilty except for insanity under ORS 161.295 of a misdemeanor involving violence within the previous four years. As used in this paragraph, “misdemeanor involving violence” means a misdemeanor described in ORS 163.160, 163.187, 163.190, 163.195 or 166.155 (1)(b); or (h) Has been found guilty except for insanity under ORS 161.295 of a felony.

(2) A person may not sell, deliver or otherwise transfer any firearm that the person knows or reasonably should know is stolen.

(3) Subsection (1)(a) of this section does not prohibit: (a) The parent or guardian, or another person with the consent of the parent or guardian, of a minor from transferring to the minor a firearm, other than a handgun; or (b) The temporary transfer of any firearm to a minor for hunting, target practice or any other lawful purpose.

(4) Violation of this section is a Class A misdemeanor.

Note 2: The amendments to 166.470 by section 11, chapter 826, Oregon Laws 2009, become operative January 2, 2012. See section 14, chapter 826, Oregon Laws 2009, as amended by section 23, chapter 826, Oregon Laws 2009. The text that is operative on and after January 2, 2012, is set forth for the user’s convenience.

166.470. (1) Unless relief has been granted under ORS 166.274 or 18 U.S.C. 925(c) or the expunction laws of this state or an equivalent law of another jurisdiction, a person may not intentionally sell, deliver or otherwise transfer any firearm when the transferor knows or reasonably should know that the recipient: (a) Is under 18 years of age; (b) Has been convicted of a felony; (c) Has any outstanding felony warrants for arrest; (d) Is free on any form of pretrial release for a felony; (e) Was committed to the Oregon Health Authority under ORS 426.130; (f) After January 1, 1990, was found to be mentally ill and subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; (g) Has been convicted of a misdemeanor involving violence or found guilty except for insanity under ORS 161.295 of a misdemeanor involving violence within the previous four years. As used in this

paragraph, “misdemeanor involving violence” means a misdemeanor described in ORS 163.160, 163.187, 163.190, 163.195 or 166.155 (1)(b); or (h) Has been found guilty except for insanity under ORS 161.295 of a felony.

(2) A person may not sell, deliver or otherwise transfer any firearm that the person knows or reasonably should know is stolen.

(3) Subsection (1)(a) of this section does not prohibit: (a) The parent or guardian, or another person with the consent of the parent or guardian, of a minor from transferring to the minor a firearm, other than a handgun; or (b) The temporary transfer of any firearm to a minor for hunting, target practice or any other lawful purpose.

(4) Violation of this section is a Class A misdemeanor.

166.480 Sale or gift of explosives to children. Any person who sells, exchanges, barters or gives to any child, under the age of 14 years, any explosive article or substance, other than an ordinary firecracker containing not more than 10 grains of gunpowder or who sells, exchanges, barters or gives to any such child, any instrument or apparatus, the chief utility of which is the fact that it is used, or is ordinarily capable of being used, as an article or device to increase the force or intensity of any explosive, or to direct or control the discharge of any such explosive, is guilty of a misdemeanor. [Amended by 1989 c.839 §26] 166.490 Purchase of firearms in certain other states. (1) As used in this section, unless the context requires otherwise: (a) “Contiguous state” means California, Idaho, Nevada or Washington. (b) “Resident” includes an individual or a corporation or other business entity that maintains a place of business in this state.

(2) A resident of this state may purchase or otherwise obtain a rifle or shotgun in a contiguous state and receive in this state or transport into this state such rifle or shotgun, unless the purchase or transfer violates the law of this state, the state in which the purchase or transfer is made or the United States.

(3) This section does not apply to the purchase, receipt or transportation of rifles and shotguns by federally licensed firearms manufacturers, importers, dealers or collectors.

(4) This section expires and stands repealed upon the date that section 922(b) (3) of the Gun Control Act of 1968 (18 U.S.C. 922(b) (3)) and regulations pursuant thereto are repealed or rescinded. [1969 c.289 §§1,2,3,4] 166.510 [Amended by 1957 c.290 §1; 1973 c.746 §1; 1983 c.546 §2; repealed by 1985 c.709 §4] 166.515 [1973 c.746 §2; repealed by 1985 c.709 §4] 166.520 [Amended by 1973 c.746 §3; repealed by 1985 c.709 §4] 166.560 [1965 c.118 §1; repealed by 1971 c.743 §432] 166.610 [Repealed by 1971 c.743 §432] 166.620 [Repealed by 1963 c.94 §2] DISCHARGING WEAPONS

166.630 Discharging weapon on or across highway, ocean shore recreation area or public utility facility. (1) Except as provided in ORS 166.220, any person is guilty of a violation who discharges or attempts to discharge any blowgun, bow and arrow, crossbow, air rifle or firearm: (a) Upon or across any highway, railroad right of way or other public road in this state, or upon or across the ocean shore within the state recreation area as defined in ORS 390.605. (b) At any public or railroad sign or signal or an electric power, communication, petroleum or natural gas transmission or distribution facility of a public utility, telecommunications utility or railroad within range of the weapon.

(2) Any blowgun, bow and arrow, crossbow, air rifle or firearm in the possession of the person that was used in committing a violation of this section may be confiscated and forfeited to the State of Oregon. This section does not prevent: (a) The discharge of firearms by peace officers in the performance of their duty or by military personnel within the confines of a military reservation. (b) The discharge of firearms by an employee of the United States Department of Agriculture acting within the scope of employment in the course of the lawful taking of wildlife.

(3) The hunting license revocation provided in ORS 497.415 is in addition to and not in lieu of the penalty and forfeiture provided in subsections (1) and (2) of this section.

(4) As used in this section: (a) “Public sign” includes all signs, signals and markings placed or erected by authority of a public body. (b) “Public utility” has the meaning given that term in ORS 164.365 (2). (c) “Railroad” has the meaning given that term in ORS 824.020. [Amended by 1963 c.94 §1; 1969 c.501 §2; 1969 c.511 §4; 1973 c.196 §1; 1973 c.723 §118; 1981 c.900 §1; 1987 c.447 §113; 1991 c.797 §2; 2009 c.556 §7] 166.635 Discharging weapon or throwing objects at trains. (1) A person shall not knowingly throw an object at, drop an object on, or discharge a bow and arrow, air rifle, rifle, gun, revolver or other firearm at a railroad train, a person on a railroad train or a commodity being transported on a railroad train. This subsection does not prevent a peace officer or a railroad employee from performing the duty of a peace officer or railroad employee.

(2) Violation of subsection (1) of this section is a misdemeanor. [1973 c.139 §4] 166.638 Discharging weapon across airport operational surfaces. (1) Any person who knowingly or recklessly discharges any bow and arrow, gun, air gun or other firearm upon or across any airport operational surface commits a Class A misdemeanor. Any bow and arrow, gun, air gun or other firearm in the possession of the person that was used in committing a violation of this subsection may be confiscated and forfeited to the State of Oregon, and the clear proceeds shall be deposited with the State Treasury in the Common School Fund.

(2) As used in subsection (1) of this section, “airport operational surface” means any surface of land or water developed, posted or marked so as to give an observer reasonable notice that the surface is developed for the purpose of storing, parking, taxiing or operating aircraft, or any surface of land or water when actually being used for such purpose.

(3) Subsection (1) of this section does not prohibit the discharge of firearms by peace officers in the performance of their duty or by military personnel within the confines of a military reservation, or otherwise

lawful hunting, wildlife control or other discharging of firearms done with the consent of the proprietor, manager or custodian of the airport operational surface.

(4) The hunting license revocation provided in ORS 497.415 is in addition to and not in lieu of the penalty provided in subsection (1) of this section. [1981 c.901 §2; 1987 c.858 §2] 166.640 [Repealed by 1971 c.743 §432] POSSESSION OF BODY ARMOR 166.641 Definitions for ORS 166.641 to 166.643. As used in this section and ORS 166.642 and 166.643: (1) “Body armor” means any clothing or equipment designed in whole or in part to minimize the risk of injury from a deadly weapon.

(2) “Deadly weapon” has the meaning given that term in ORS 161.015.

(3) “Misdemeanor involving violence” has the meaning given that term in ORS 166.470. [2001 c.635 §1] 166.642 Felon in possession of body armor. (1) A person commits the crime of felon in possession of body armor if the person: (a) Has been convicted of a felony or misdemeanor involving violence under the law of any state or the United States; and (b) Knowingly is in possession or control of body armor.

(2) Felon in possession of body armor is a Class C felony.

(3) For purposes of subsection (1) of this section, a person who has been found to be within the jurisdiction of a juvenile court for having committed an act that would constitute a felony or misdemeanor involving violence has been convicted of a felony or misdemeanor involving violence.

(4) Subsection (1) of this section does not apply to: (a) A person who is wearing body armor provided by a peace officer for the person’s safety or protection while the person is being transported or accompanied by a peace officer; or (b) A person who has been convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the law of the United States, which felony did not involve criminal homicide, as defined in ORS 163.005, and who has been discharged from imprisonment, parole or probation for the offense for a period of 15 years prior to the date of the alleged violation of subsection (1) of this section.

(5) It is an affirmative defense to a charge of violating subsection (1) of this section that a protective order or restraining order has been entered to the benefit of the person. The affirmative defense created by this subsection is not available if the person possesses the body armor while committing or attempting to commit a crime. [2001 c.635 §2] 166.643 Unlawful possession of body armor. (1) A person commits the crime of unlawful possession of body armor if the person, while committing or attempting to commit a felony or misdemeanor involving violence, knowingly: (a) Wears body armor; and (b) Possesses a deadly weapon.

(2) Unlawful possession of body armor is a Class B felony. [2001 c.635 §3]

MISCELLANEOUS 166.645 Hunting in cemeteries prohibited. (1) Hunting in cemeteries is prohibited.

(2) As used in subsection (1) of this section “hunting” has the meaning for that term provided in ORS 496.004.

(3) Violation of subsection (1) of this section is a misdemeanor. [1973 c.468 §2; 1987 c.158 §30] 166.649 Throwing an object off an overpass in the second degree. (1) A person commits the crime of throwing an object off an overpass in the second degree if the person: (a) With criminal negligence throws an object off an overpass; and (b) Knows, or reasonably should have known, that the object was of a type or size to cause damage to any person or vehicle that the object might hit.

(2) Throwing an object off an overpass in the second degree is a Class A misdemeanor.

(3) As used in this section and ORS 166.651, “overpass” means a structure carrying a roadway or pedestrian pathway over a roadway. [1993 c.731 §1] 166.650 [Repealed by 1971 c.743 §432] 166.651 Throwing an object off an overpass in the first degree. (1) A person commits the crime of throwing an object off an overpass in the first degree if the person: (a) Recklessly throws an object off an overpass; and (b) Knows, or reasonably should have known, that the object was of a type or size to cause damage to any person or vehicle that the object might hit.

(2) Throwing an object off an overpass in the first degree is a Class C felony. [1993 c.731 §2] 166.660 Unlawful paramilitary activity. (1) A person commits the crime of unlawful paramilitary activity if the person: (a) Exhibits, displays or demonstrates to another person the use, application or making of any firearm, explosive or incendiary device or any technique capable of causing injury or death to persons and intends or knows that such firearm, explosive or incendiary device or technique will be unlawfully employed for use in a civil disorder; or (b) Assembles with one or more other persons for the purpose of training with, practicing with or being instructed in the use of any firearm, explosive or incendiary device or technique capable of causing injury or death to persons with the intent to unlawfully employ such firearm, explosive or incendiary device or technique in a civil disorder.

(2)(a) Nothing in this section makes unlawful any act of any law enforcement officer performed in the otherwise lawful performance of the officer’s official duties. (b) Nothing in this section makes unlawful any activity of the State Department of Fish and Wildlife, or any activity intended to teach or practice self-defense or self-defense techniques, such as karate clubs or self-defense clinics, and similar lawful activity, or any facility, program or lawful activity related to firearms instruction and training intended to teach the safe handling and use of firearms, or any other lawful sports or activities related to the individual recreational use or possession of firearms, including but not limited to hunting activities, target shooting, self-defense, firearms collection or any organized activity including, but not limited to any hunting club, rifle club, rifle range or shooting range which does not include a conspiracy as defined in ORS 161.450 or the knowledge of or the intent to cause or further a civil disorder.

(3) Unlawful paramilitary activity is a Class C felony.

(4) As used in this section: (a) “Civil disorder” means acts of physical violence by assemblages of three or more persons which cause damage or injury, or immediate danger thereof, to the person or property of any other individual. (b) “Firearm” has the meaning given that term in ORS 166.210. (c) “Explosive” means a chemical compound, mixture or device that is commonly used or intended for the purpose of producing a chemical reaction resulting in a substantially instantaneous release of gas and heat, including but not limited to dynamite, blasting powder, nitroglycerin, blasting caps and nitrojelly, but excluding fireworks as defined in ORS 480.110 (1), black powder, smokeless powder, small arms ammunition and small arms ammunition primers. (d) “Law enforcement officer” means any duly constituted police officer of the United States, any state, any political subdivision of a state or the District of Columbia, and also includes members of the military reserve forces or National Guard as defined in 10 U.S.C. 101 (9), members of the organized militia of any state or territory of the United States, the Commonwealth of Puerto Rico or the District of Columbia not included within the definition of National Guard as defined by 10 U.S.C. 101 (9), members of the Armed Forces of the United States and such persons as are defined in ORS 161.015 (4) when in the performance of official duties. [1983 c.792 §2; 1987 c.858 §3; 2001 c.666 §§26,38; 2005 c.830 §27; 2009 c.610 §7] 166.663 Casting artificial light from vehicle while possessing certain weapons prohibited. (1) A person may not cast from a motor vehicle an artificial light while there is in the possession or in the immediate physical presence of the person a bow and arrow or a rifle, gun, revolver or other firearm.

(2) Subsection (1) of this section does not apply to a person casting an artificial light: (a) From the headlights of a motor vehicle that is being operated on a road in the usual manner. (b) When the bow and arrow, rifle, gun, revolver or other firearm that the person has in the possession or immediate physical presence of the person is disassembled or stored, or in the trunk or storage compartment of the motor vehicle. (c) When the ammunition or arrows are stored separate from the weapon. (d) On land owned or lawfully occupied by that person. (e) On publicly owned land when that person has an agreement with the public body to use that property. (f) When the person is a peace officer or government employee engaged in the performance of official duties. (g) When the person has been issued a license under ORS 166.291 and 166.292 to carry a concealed weapon.

(3) A peace officer may issue a citation to a person for a violation of subsection (1) of this section when the violation is committed in the presence of the peace officer or when the peace officer has probable cause to believe that a violation has occurred based on a description of the vehicle or other information received from a peace officer who observed the violation.

(4) Violation of subsection (1) of this section is punishable as a Class B violation.

(5) As used in this section, “peace officer” has the meaning given that term in ORS 161.015. [1989 c.848 §2; 1999 c.1051 §159; 2005 c.22 §116; 2009 c.610 §3] 166.710 [1957 c.601 §1; repealed by 1971 c.743 §432] RACKETEERING

166.715 Definitions for ORS 166.715 to 166.735. As used in ORS 166.715 to 166.735, unless the context requires otherwise: (1) “Documentary material” means any book, paper, document, writing, drawing, graph, chart, photograph, phonograph record, magnetic tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into usable form, or other tangible item.

(2) “Enterprise” includes any individual, sole proprietorship, partnership, corporation, business trust or other profit or nonprofit legal entity, and includes any union, association or group of individuals associated in fact although not a legal entity, and both illicit and licit enterprises and governmental and nongovernmental entities.

(3) “Investigative agency” means the Department of Justice or any district attorney.

(4) “Pattern of racketeering activity” means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents, provided at least one of such incidents occurred after November 1, 1981, and that the last of such incidents occurred within five years after a prior incident of racketeering activity. Notwithstanding ORS 131.505 to 131.525 or 419A.190 or any other provision of law providing that a previous prosecution is a bar to a subsequent prosecution, conduct that constitutes an incident of racketeering activity may be used to establish a pattern of racketeering activity without regard to whether the conduct previously has been the subject of a criminal prosecution or conviction or a juvenile court adjudication, unless the prosecution resulted in an acquittal or the adjudication resulted in entry of an order finding the youth not to be within the jurisdiction of the juvenile court.

(5) “Person” means any individual or entity capable of holding a legal or beneficial interest in real or personal property.

(6) “Racketeering activity” includes conduct of a person committed both before and after the person attains the age of 18 years, and means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to commit: (a) Any conduct that constitutes a crime, as defined in ORS 161.515, under any of the following provisions of the Oregon Revised Statutes: (A) ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995, relating to securities; (B) ORS 162.015, 162.025 and 162.065 to 162.085, relating to bribery and perjury; (C) ORS 162.235, 162.265 to 162.305, 162.325, 162.335, 162.355 and 162.365, relating to obstructing governmental administration; (D) ORS 162.405 to 162.425, relating to abuse of public office; (E) ORS 162.455, relating to interference with legislative operation; (F) ORS 163.095 to 163.115, 163.118, 163.125 and 163.145, relating to criminal homicide; (G) ORS 163.160 to 163.205, relating to assault and related offenses; (H) ORS 163.225 and 163.235, relating to kidnapping; (I) ORS 163.275, relating to coercion; (J) ORS 163.670 to 163.693, relating to sexual conduct of children; (K) ORS 164.015, 164.043, 164.045, 164.055, 164.057, 164.075 to 164.095, 164.098, 164.125, 164.135, 164.140, 164.215, 164.225 and 164.245 to 164.270, relating to theft, burglary, criminal trespass and related offenses; (L) ORS 164.315 to 164.335, relating to arson and related offenses; (M) ORS 164.345 to 164.365, relating to criminal mischief; (N) ORS 164.395 to 164.415, relating to robbery;

(O) ORS 164.865, 164.875 and 164.868 to 164.872, relating to unlawful recording or labeling of a recording; (P) ORS 165.007 to 165.022, 165.032 to 165.042 and 165.055 to 165.070, relating to forgery and related offenses; (Q) ORS 165.080 to 165.109, relating to business and commercial offenses; (R) ORS 165.485 to 165.515, 165.540 and 165.555, relating to communication crimes; (S) ORS 166.180, 166.190, 166.220, 166.250, 166.270, 166.275, 166.410, 166.450 and 166.470, relating to firearms and other weapons; (T) ORS 164.377 (2) to (4), as punishable under ORS 164.377 (5)(b), 167.007 to 167.017, 167.054, 167.057, 167.062 to 167.080, 167.090, 167.122 to 167.137, 167.147, 167.164, 167.167, 167.212, 167.355, 167.365, 167.370, 167.428, 167.431 and 167.439, relating to prostitution, obscenity, sexually explicit material, sexual conduct, gambling, computer crimes involving the Oregon State Lottery, animal fighting, forcible recovery of a fighting bird and related offenses; (U) ORS 171.990, relating to legislative witnesses; (V) ORS 260.575 and 260.665, relating to election offenses; (W) ORS 314.075, relating to income tax; (X) ORS 180.440 (2) and 180.486 (2) and ORS chapter 323, relating to cigarette and tobacco products taxes and the directories developed under ORS 180.425 and 180.477; (Y) ORS 411.630, 411.675, 411.690 and 411.840, relating to public assistance payments, and ORS 411.990 (2) and (3); (Z) ORS 462.140, 462.415 and 462.420 to 462.520, relating to racing; (AA) ORS 463.995, relating to boxing, mixed martial arts and entertainment wrestling, as defined in ORS 463.015; (BB) ORS 471.305, 471.360, 471.392 to 471.400, 471.403, 471.404, 471.405, 471.425, 471.442, 471.445, 471.446, 471.485, 471.490 and 471.675, relating to alcoholic liquor, and any of the provisions of ORS chapter 471 relating to licenses issued under the Liquor Control Act; (CC) ORS 475.005 to 475.285 and 475.840 to 475.980, relating to controlled substances; (DD) ORS 480.070, 480.210, 480.215, 480.235 and 480.265, relating to explosives; (EE) ORS 819.010, 819.040, 822.100, 822.135 and 822.150, relating to motor vehicles; (FF) ORS 658.452 or 658.991 (2) to (4), relating to farm labor contractors; (GG) ORS chapter 706, relating to banking law administration; (HH) ORS chapter 714, relating to branch banking; (II) ORS chapter 716, relating to mutual savings banks; (JJ) ORS chapter 723, relating to credit unions; (KK) ORS chapter 726, relating to pawnbrokers; (LL) ORS 166.382 and 166.384, relating to destructive devices; (MM) ORS 165.074; (NN) ORS 86A.095 to 86A.198, relating to mortgage bankers and mortgage brokers; (OO) ORS chapter 496, 497 or 498, relating to wildlife; (PP) ORS 163.355 to 163.427, relating to sexual offenses; (QQ) ORS 166.015, relating to riot; (RR) ORS 166.155 and 166.165, relating to intimidation; (SS) ORS chapter 696, relating to real estate and escrow; (TT) ORS chapter 704, relating to outfitters and guides; (UU) ORS 165.692, relating to making a false claim for health care payment; (VV) ORS 162.117, relating to public investment fraud;

(WW) ORS 164.170 or 164.172; (XX) ORS 647.140, 647.145 or 647.150, relating to trademark counterfeiting; (YY) ORS 164.886; (ZZ) ORS 167.312 and 167.388; (AAA) ORS 164.889; (BBB) ORS 165.800; or (CCC) ORS 163.263, 163.264 or 163.266. (b) Any conduct defined as “racketeering activity” under 18 U.S.C. 1961 (1)(B), (C), (D) and (E).

(7) “Unlawful debt” means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in the state in whole or in part because the debt was incurred or contracted: (a) In violation of any one of the following: (A) ORS chapter 462, relating to racing; (B) ORS 167.108 to 167.164, relating to gambling; or (C) ORS 82.010 to 82.170, relating to interest and usury. (b) In gambling activity in violation of federal law or in the business of lending money at a rate usurious under federal or state law.

(8) Notwithstanding contrary provisions in ORS 174.060, when this section references a statute in the Oregon Revised Statutes that is substantially different in the nature of its essential provisions from what the statute was when this section was enacted, the reference shall extend to and include amendments to the statute. [1981 c.769 §2; 1983 c.338 §898; 1983 c.715 §1; 1985 c.176 §5; 1985 c.557 §8; 1987 c.158 §31; 1987 c.249 §7; 1987 c.789 §20; 1987 c.907 §12; 1989 c.384 §2; 1989 c.839 §27; 1989 c.846 §13; 1989 c.982 §6; 1991 c.398 §3; 1991 c.962 §6; 1993 c.95 §13; 1993 c.215 §1; 1993 c.508 §45; 1993 c.680 §29; 1995 c.301 §35; 1995 c.440 §13; 1995 c.768 §10; 1997 c.631 §420; 1997 c.789 §1; 1997 c.867 §23; 1999 c.722 §8; 1999 c.878 §4; 2001 c.146 §1; 2001 c.147 §3; 2003 c.111 §1; 2003 c.484 §8; 2003 c.801 §15; 2003 c.804 §66; 2007 c.498 §3; 2007 c.585 §26; 2007 c.811 §7; 2007 c.869 §7; 2009 c.717 §25] 166.720 Racketeering activity unlawful; penalties. (1) It is unlawful for any person who has knowingly received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest or equity in, real property or in the establishment or operation of any enterprise.

(2) It is unlawful for any person, through a pattern of racketeering activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, any interest in or control of any real property or enterprise.

(3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.

(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsections (1), (2) or (3) of this section.

(5)(a) Any person convicted of engaging in activity in violation of the provisions of subsections (1) to (4) of this section is guilty of a Class A felony. (b) In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of the provisions of subsections (1) to (4) of this section, through which the person derived a pecuniary value, or by which the person caused personal injury or property damage or other loss, may be sentenced to pay a fine that does not exceed three times the gross value gained or three times the gross loss

caused, whichever is greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. (c) The court shall hold a hearing to determine the amount of the fine authorized by paragraph (b) of this subsection. (d) For the purposes of paragraph (b) of this subsection, “pecuniary value” means: (A) Anything of value in the form of money, a negotiable instrument, a commercial interest or anything else the primary significance of which is economic advantage; or (B) Any other property or service that has a value in excess of $100.

(6) An allegation of a pattern of racketeering activity is sufficient if it contains substantially the following: (a) A statement of the acts constituting each incident of racketeering activity in ordinary and concise language, and in a manner that enables a person of common understanding to know what is intended; (b) A statement of the relation to each incident of racketeering activity that the conduct was committed on or about a designated date, or during a designated period of time; (c) A statement, in the language of ORS 166.715 (4) or other ordinary and concise language, designating which distinguishing characteristic or characteristics interrelate the incidents of racketeering activity; and (d) A statement that the incidents alleged were not isolated. [1981 c.769 §§3,4; 1997 c.789 §2] 166.725 Remedies for violation of ORS 166.720; time limitation. (1) Any circuit court may, after making due provision for the rights of innocent persons, enjoin violations of the provisions of ORS 166.720 (1) to (4) by issuing appropriate orders and judgments, including, but not limited to: (a) Ordering a divestiture by the defendant of any interest in any enterprise, including real property. (b) Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in violation of the provisions of ORS 166.720 (1) to (4). (c) Ordering the dissolution or reorganization of any enterprise. (d) Ordering the suspension or revocation of a license, permit or prior approval granted to any enterprise by any agency of the state. (e) Ordering the forfeiture of the charter of a corporation organized under the laws of this state, or the revocation of a certificate of authority authorizing a foreign corporation to conduct business within this state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of ORS 166.720 (1) to (4) and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate of authority revoked.

(2) All property, real or personal, including money, used in the course of, derived from or realized through conduct in violation of a provision of ORS 166.715 to 166.735 is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. Forfeited property shall be distributed as follows: (a)(A) All moneys and the clear proceeds of all other property forfeited shall be deposited with the State Treasurer to the credit of the Common School Fund.

(B) For purposes of subparagraph (A) of this paragraph, “clear proceeds” means proceeds of forfeited property less costs of maintaining and preserving property pending its sale or other disposition, less costs of sale or disposition and, if the Department of Justice has not otherwise recovered its costs and expenses of the investigation and prosecution leading to the forfeiture, less 30 percent of the remaining proceeds of the

property which is awarded to the department as reasonable reimbursement for costs of such investigation and prosecution. (b) Any amounts awarded to the Department of Justice pursuant to paragraph (a) of this subsection shall be deposited in the Criminal Justice Revolving Account in the State Treasury.

(3) Property subject to forfeiture under this section may be seized by a police officer, as defined in ORS 133.525 (2), upon court process. Seizure without process may be made if: (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.

(4) In the event of a seizure under subsection (3) of this section, a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the police officer making the seizure, subject only to the order of the court.

When property is seized under this section, pending forfeiture and final disposition, the police officer may: (a) Place the property under seal; (b) Remove the property to a place designated by the court; or (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

(5) The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of a provision of ORS 166.715 to 166.735 may institute civil proceedings under this section. In any action brought under this section, the circuit court shall give priority to the hearing and determination.

Pending final determination, the circuit court may at any time enter such injunctions, prohibitions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper. The Attorney General, district attorney or state agency bringing an action under this section may be awarded, upon entry of a judgment in favor of the state, costs of investigation and litigation, reasonably incurred. Amounts recovered may include costs and expenses of state and local governmental departments and agencies incurred in connection with the investigation or litigation.

(6)(a) Any aggrieved person may institute a proceeding under subsection (1) of this section: (A) If the proceeding is based upon racketeering activity for which a criminal conviction has been obtained, any rights of appeal have expired and the action is against the individual convicted of the racketeering activity; or (B) If the person is entitled to pursue a cause of action under subsection (7)(a)(B) of this section. (b) In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits.

(7)(a) Any person who is injured by reason of any violation of the provisions of ORS 166.720 (1) to (4) shall have a cause of action for three-fold the actual damages sustained and, when appropriate, punitive damages: (A) If a criminal conviction for the racketeering activity that is the basis of the violation has been obtained, any rights of appeal have expired and the action is against the individual convicted of the racketeering activity; or

(B) If the violation is based on racketeering activity as defined in ORS 166.715 (6)(a)(B) to (J), (K) as it relates to burglary and criminal trespass, (L) to (P), (S), (T), (U), (V), (X) to (Z), (AA) to (DD), (KK), (LL) or (OO) to (VV). (b) The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this subsection. (c) Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds.

(8) An investigative agency may bring an action for civil penalties for any violation of ORS 166.720 (1) to (4). Upon proof of any such violation, the court shall impose a civil penalty of not more than $250,000.

(9) A judgment rendered in favor of the state in any criminal proceeding under ORS 166.715 to 166.735 shall estop the defendant in any subsequent civil action or proceeding brought by the state or any other person as to all matters as to which such judgment would be an estoppel as between the state and the defendant.

(10) The Attorney General may, upon timely application, intervene in any civil action or proceeding brought under subsection (6) or (7) of this section if the Attorney General certifies that, in the opinion of the Attorney General, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.

(11)(a) Notwithstanding any other provision of law, a criminal or civil action or proceeding under ORS 166.715 to 166.735 may be commenced at any time within five years after the conduct in violation of a provision of ORS 166.715 to 166.735 terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of the provisions of ORS 166.715 to 166.735, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (6) or (7) of this section which is based in whole or in part upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two years following its termination. (b) A cause of action arising under subsection (6)(a)(A) or (7)(a)(A) of this section accrues when the criminal conviction for the underlying activity is obtained. In addition to any suspension of the running of the period of limitations provided for in paragraph (a) of this subsection, the period of limitations prescribed by paragraph (a) of this subsection is suspended during any appeal from the criminal conviction for the underlying activity.

(12) The application of one civil remedy under any provision of ORS 166.715 to 166.735 shall not preclude the application of any other remedy, civil or criminal, under ORS 166.715 to 166.735 or any other provision of law. Civil remedies under ORS 166.715 to 166.735 are supplemental and not mutually exclusive.

(13) Notwithstanding subsection (6) or (7) of this section, a person may not institute a proceeding under subsection (6) of this section and does not have a cause of action under subsection (7) of this section if the conduct that is the basis of the proceeding or action could also be the basis of a claim of discrimination because of sex that constitutes sexual harassment.

(14) In an action brought under the provisions of this section by a person other than the Attorney General, a district attorney or a state agency, the court may award reasonable attorney fees to the prevailing party. In a civil action brought under the provisions of this section by the Attorney General, a district attorney or a state agency: (a) The court may award reasonable attorney fees to the Attorney General, district attorney or state agency if the Attorney General, district attorney or state agency prevails in the action; and (b) The court may award reasonable attorney fees to a defendant who prevails in an action under this section if the court determines that the Attorney General, district attorney or state agency had no objectively

reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court. [1981 c.769 §5; 1983 c.715 §2; 1995 c.79 §54; 1995 c.618 §58a; 1995 c.619 §1; 1995 c.696 §17; 1997 c.249 §51; 1997 c.789 §3; 2003 c.576 §390; 2007 c.869 §8] 166.730 Authority of investigative agency; compelling compliance with subpoena. (1) If, pursuant to the civil enforcement provisions of ORS 166.725, an investigative agency has reason to believe that a person or other enterprise has engaged in, or is engaging in, activity in violation of ORS 166.715 to 166.735, the investigative agency may administer oaths or affirmations, subpoena witnesses or documents or other material, and collect evidence pursuant to the Oregon Rules of Civil Procedure.

(2) If matter that the investigative agency seeks to obtain by the subpoena is located outside the state, the person or enterprise subpoenaed may make such matter available to the investigative agency or its representative for examination at the place where such matter is located. The investigative agency may designate representatives, including officials of the jurisdiction in which the matter is located, to inspect the matter on its behalf and may respond to similar requests from officials of other jurisdictions.

(3) Upon failure of a person or enterprise, without lawful excuse, to obey a subpoena, and after reasonable notice to such person or enterprise, the investigative agency may apply to the circuit court for the judicial district in which such person or enterprise resides, is found or transacts business for an order compelling compliance. [1981 c.769 §6; 1983 c.715 §3] 166.735 Short title; construction. (1) ORS 166.715 to 166.735 may be cited as the Oregon Racketeer Influenced and Corrupt Organization Act. (2) The provisions of ORS 166.715 to 166.735 shall be liberally construed to effectuate its remedial purposes. [1981 c.769 §§1,7; 1983 c.715 §4]

Oregon

OSHA

Bloodborne Pathogens

OAR 437 Division 2/Z

Web site: www.orosha.org Salem Central Office 350 Winter St. NE, Rm. 430 Salem, OR 97301-3882 Phone: (503) 378-3272 Toll-free: (800) 922-2689 Fax: (503) 947-7461

s u l P

F FA AC CT T S SH HE EE ET T Bloodborne Pathogens

General Requirements Hepatitis B and C and human immunodeficiency virus (HIV) are examples of bloodborne pathogens that can cause disease in humans. The bloodborne pathogens standard details what employers must do to protect workers whose jobs put them at risk of coming into contact with blood and other potentially infectious materials (OPIM) that can cause serious illness or death.

All Oregon employees with exposure to blood or OPIM are covered under 1910.1030, Bloodborne Pathogens. The standard requires employers to do the following: • Conduct an exposure determination to identify occupationally exposed employees.

• Establish an exposure-control plan to eliminate or minimize employee exposures. Review and update the plan annually to reflect technological and procedural changes. OAR 437-002-1030, Additional Oregon Rules for Bloodborne Pathogens, requires an annual evaluation involving front-line employees to identify and select engineering and work-practice controls, including safer medical devices.

• Use engineering controls that isolate or remove the bloodborne pathogen hazard from the workplace. They include sharps disposal containers, self-sheathing needles, and safer medical devices such as sharps with engineered sharps-injury protection and needleless systems.

• Enforce work-practice controls that reduce the likelihood of exposure by changing the way a task is performed. They include appropriate procedures for hand washing, sharps disposal, specimen packaging, laundry handling, and cleaning contaminated material.

• Establish housekeeping practices that keep the worksite clean and sanitary. Implement written procedures for cleaning and decontaminating work surfaces.

• Select and provide personal protective equipment (PPE) such as gloves, gowns, and masks and ensure its use. Clean, repair, and replace this equipment as needed.

• Make hepatitis B vaccinations available to all employees with occupational exposure to bloodborne pathogens within 10 days of assignment at no cost to the worker.

• Provide post-exposure follow-up at no cost to workers who experience an exposure incident. This includes providing a confidential medical evaluation; identifying and testing the source individual, if feasible; testing the exposed employee’s blood upon consent, performing post-exposure prophylaxis; offering counseling; and evaluating reported illnesses. Seek medical treatment and follow-up immediately for timely administration of post-exposure prophylaxis. All diagnoses must remain confidential.

• Use labels and signs to communicate hazards. Attach warning labels to containers of regulated waste, refrigerators and freezers, and other containers used to store or transplant blood or OPIM. Facilities may use red bags or containers instead of labels. Post signs to identify restricted areas.

• Provide information and training to employees on initial assignment, then at least annually. Ensure that training covers the dangers of bloodborne pathogens, preventive practices, and post-exposure procedures.

Keep training records, containing the training date, training content, name and qualification of the trainer, and the name and job title of trainee, for three years.

• Maintain medical records for the duration of employment plus 30 years, in accordance with 1910.1020, Access to Employee Exposure and Medical Records. Maintain sharps injury logs for five years.

Bloodborne Pathogens continued Exposure Determination

Collateral Duty Employers may choose to train employees in first aid and CPR. Their role in the emergency medical plan may be to assist coworkers if a workplace incident occurs. Under this scenario, their potential exposure to bloodborne pathogens is limited, most likely resulting from an exposure incident while providing assistance. This role is characterized as a collateral duty.

Incidental clean-up of blood or removal of a discarded needle may also fall under collateral duty. The employer’s responsibility is to offer the hepatitis B vaccination to the employee after these types of responses and provide post-exposure follow-up immediately if an exposure incident occurs. The exposure control plan, training, procedures for post-exposure follow-up and other rule requirements must already be in place.

Good Samaritan Acts A Good Samaritan is someone who renders emergency care or first aid at the scene of an accident. If the employer does not require employees to render first aid, the responder is considered a member of the general public for the duration of the response. Employees trained in first aid but who are not expected to render aid are Good Samaritans. Nothing in 1910.1030 applies when the incident is a Good Samaritan act.

Employers are not required to provide post-exposure follow-up, medical evaluations, recordkeeping, or other rule requirements in the event of a blood or OPIM exposure incident, although OR-OSHA promotes these actions.

OR-OSHA requires employers to provide medical evaluations, offering the hepatitis B vaccine and postexposure evaluation and follow-up, including prophylaxis according to recommendations of the U.S. Public Health Service (1910.1030(f)(1)(ii)(D), i.e., the Centers for Disease Control and Prevention (CDC).

Employers must provide post-vaccination testing for antibody to hepatitis B surface antigen (anti-HBs) for health-care personnel who have blood or patient contact and who are at ongoing risk for injuries with sharp instruments or needlesticks. CDC defines health-care personnel as those whose activities involve contact with patients or with blood or other body fluids from patients in a health-care, laboratory, or public-safety setting.

Antibody testing is required approximately two months after the employee finishes the vaccination series.

Sharps The standard requires employers to implement the use of sharps with engineered sharps injury protection (SESIP) that do not compromise worker or patient safety or the outcome of the medical procedure. To meet the definition of a SESIP in the standard, a device must have a “built-in safety feature or mechanism that effectively reduces the risk of an exposure incident” when used for withdrawing body fluids, accessing a vein or artery, or administering medications, immunizations, or other fluids.

Resources For the full text of OR-OSHA’s bloodborne pathogens rule, refer to OAR 437, Division 2/Z, 1919.1030 Bloodborne Pathogens. Industry-specific standards are also found at OR-OSHA’s Web site, www.orosha.org, (Rules/Laws).

Related resource links Bloodborne pathogen rule: www.cbs.state.or.us/external/osha/pdf/rules/division_2/div2z-1030bloodborne.pdf Interpretation letter: www.cbs.state.or.us/external/osha/interps/1997/uofocoll.pdf Program directive: www.cbs.state.or.us/external/osha/pdf/pds/pd-154.pdf Pamphlet: www.cbs.state.or.us/external/osha/pdf/pubs/2261.pdf CDC guidelines: www.cdc.gov/mmwr/PDF/RR/RR5011.pdf OR-OSHA (11/05) FS-16

The Standards and Technical Resources Section of Oregon OSHA produced this fact sheet to highlight our programs, policies or standards.

The information is from field staff, research by technical resources staff, and published materials. We urge readers to also consult the actual rules as this fact sheet information is not as detailed.

OAR 437 Division 2/Z

Bloodborne Pathogens

An exposure determination is the employers’ risk assessment that evaluates and determines if employees have reasonably anticipated contact with human blood or other potentially infectious materials through the skin, eye, mucous membrane or through other means such as a injury from a contaminated needle or sharp object. Gloves or the use of other personal protective equipment is not a consideration when making the exposure determination.

Exposure to bloodborne pathogens is an occupational hazard for healthcare, emergency, or public safety personnel in occupational work environments and for first-aid providers who render assistance at a first-aid station, clinic, dispensary or other locations where injured employees routinely go for assistance. Bloodborne pathogen exposure hazards exist for other workers, and include, among others, body piercers, day care workers, funeral service employees, and employees who clean-up blood or remove and dispose of needles. Where exposure to bloodborne pathogens is reasonably anticipated, full compliance with the standard is required.

Antibody Testing

Bloodborne Pathogens: Questions and Answers about Occupational Exposure

Oregon OSHA

Layout and cover design, Patricia Young, Oregon OSHA

TABLE OF CONTENTS Introduction.................................................................................................................................... 3 Section I

Bloodborne Pathogens Standard.............................................................................. 4

Section II Exposure Control Plans Exposure determination.............................................................................................. 8 Training....................................................................................................................... 9 Section III Preventive Measures Hepatitis B vaccination............................................................................................. 10 Universal precautions................................................................................................ 11 Section IV Methods of Control Engineering controls and work practices.................................................................. 12 Personal protective equipment (PPE)........................................................................ 14 Housekeeping............................................................................................................ 16 Labeling.................................................................................................................... 18 Labeling requirements.............................................................................................. 19 Section V Exposure Incidents.................................................................................................. 20 Section VI Record Keeping....................................................................................................... 21 Appendix A — Statement of Declination................................................................................... 23 Appendix B — Bloodborne Pathogens Exposure Control Plan............................................... 24 Appendix C — Example of Sharps Injury Log......................................................................... 30 Oregon OSHA Services............................................................................................................... 31

1

In compliance with the Americans with Disabilities Act (ADA), this publication is available in alternative formats. Call the Oregon OSHA public relations manager, 503-378-3272.

Material contained in this publication is in the public domain and may be reproduced without permission from Oregon OSHA.

2

INTRODUCTION The intent of this question-and-answer manual is to help employers and employees understand the Oregon Occupational Safety and Health Division (Oregon OSHA) requirements regarding exposure to the hepatitis B virus (HBV), the human immunodeficiency virus (HIV), and other bloodborne pathogens, including the hepatitis C virus (HCV).

Acquired immunodeficiency syndrome (AIDS) and hepatitis B merit serious concern for workers occupationally exposed to blood, other potentially infectious materials, and certain other body fluids that contain such bloodborne pathogens as HIV and HBV. According to estimates of the Occupational Safety and Health Administration, more than 5.6 million workers in health care and public safety occupations could be exposed to these viruses.

Such workers include physicians, dentists, dental employees, phlebotomists, nurses, morticians, paramedics, medical examiners, laboratory and blood bank technologists and technicians, housekeeping

personnel in health care institutions, laundry workers, employees in long-term care facilities, and home-care workers. Other workers who may be occupationally exposed to blood or other potentially infectious materials, depending on their work assignments, include research laboratory workers, first-aid responders, and public safety personnel (fire, police, rescue, correctional officers, etc.).

Exposure to bloodborne pathogens occurs in many ways. Although needlestick injuries are the most common means of exposure for health care workers, bloodborne pathogens can also be transmitted through contact with eyes, nose, and mouth or through broken skin.

Oregon OSHA recognizes the need to safeguard workers from health hazards related to bloodborne pathogens. With the bloodborne pathogens standard, Oregon OSHA aims to reduce the risk of occupational exposure to bloodborne diseases.

3

SECTION I

Bloodborne Pathogens Standard

Q A

Who is covered by the bloodborne pathogens standard?

Oregon OSHA’s rule applies to all people occupationally exposed* to blood or other potentially infectious materials. Blood means human blood, blood products, or blood components. OPIM includes the following:

OAR 437-002-1910.1030 The bloodborne pathogens standard tells how to determine who has occupational exposure and how to reduce workplace exposure to bloodborne pathogens.

•

Human body fluids: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any body fluid visibly contaminated with blood, and all body fluids when it is difficult or impossible to differentiate between body fluids.

•

Any unfixed tissue or organ (other than intact skin) from a human (living or dead).

•

HIV‑containing cell or tissue cultures, organ cultures, and HIV- or HBV‑containing culture medium or other solutions as well as blood, organs, or other tissues from animals experimentally infected with HIV or HBV.

Q A

What are bloodborne pathogens?

Bloodborne pathogens are microorganisms that can cause disease when transmitted from an infected individual to another individual through blood and certain body fluids. Bloodborne pathogens are capable of causing serious illness and death. The most common illnesses caused by bloodborne pathogens are hepatitis B (HBV), hepatitis C (HCV), and acquired immunodeficiency syndrome (AIDS) from HIV, or human immunodeficiency virus.

Q A

What is hepatitis B? Hepatitis B is a liver disease caused by the hepatitis B virus (HBV). Hepatitis B, formerly called “serum hepatitis,” is a life‑threatening bloodborne pathogen and a major risk to employees in jobs where there is exposure to blood and other potentially infectious material (OPIM). Hepatitis, which means “inflammation of the liver,” can be caused by drugs, toxins, autoimmune disease, and infectious agents, including viruses.

Q A

What is hepatitis C? Hepatitis C is a liver disease caused by the hepatitis C virus (HCV). It is the most common chronic bloodborne infection in the United States and is primarily transmitted through large or repeated direct percutaneous exposures to blood. Most people who are chronically infected are not aware of their infection because they are not clinically ill.

Infected people can infect others and are at risk for chronic liver disease or other HCVrelated chronic diseases. Currently there is no vaccine against hepatitis C.

4

Q A

Are there specific occupations covered by the standard?

The hazard of exposure to infectious materials affects employees in many types of jobs. The following occupations are likely to be covered by the standard, but the scope of the standard is not limited to employees in these occupations:

•

Physicians, physician assistants, nurses, nurse practitioners, and health care employees in clinics and physicians’ offices

•

Employees of clinical and diagnostic laboratories

•

Housekeepers in health care facilities

•

Workers in hospital laundries or commercial laundries that serve health care or public safety institutions

•

Tissue bank personnel

•

Employees of blood banks and plasma centers who collect, transport, and test blood

* Occupationally exposed means exposed during the performance of job duties to blood or other potentially infectious materials through skin, eyes, mucous membranes, or broken skin by needlesticks, human bites, cuts, abrasions, splashes, or other means.

•

Employees of freestanding clinics such as hemodialysis clinics, urgent-care clinics, health maintenance clinics, and familyplanning clinics

•

Employees of clinics in industrial, education, and correctional facilities (e.g., those who collect blood and clean and dress wounds)

•

Employees assigned to provide emergency first aid

•

Dentists, dental hygienists, dental assistants, and dental laboratory technicians

•

Employees of institutions for the developmentally disabled

•

Hospice employees

•

Home health care workers

•

Employees of nursing homes and long‑term care facilities

Q A

If I have employees who may rarely come into contact with blood or OPIM, do all of the rules still apply?

Employers with employees who are not routinely exposed to blood or OPIM may fall under the collateral duty* clause, in which case the hepatitis B vaccination would not need to be offered until an incident involving the presence of blood or OPIM occurs.

In order for an employer to qualify under the collateral duty clause, the following conditions must be met: •

Reporting procedures must be in place under your organization’s exposure control plan to ensure that all incidents involving blood or OPIM are reported before the end of the work shift during which the incident occurred.

•

Reports of incidents must include the names of all involved employees; a description of the circumstances of the incident, including the date and time; and a determination of whether an exposure incident, as defined by the standard, has occurred.

•

Exposure reports must be included on a list of such incidents, readily available to all employees, and provided to Oregon OSHA upon request.

•

Employees of funeral homes and mortuaries

•

HIV and HBV research laboratory and production-facility workers

•

Employees handling regulated waste

•

Emergency medical technicians, paramedics, and other emergency medical service providers

•

Firefighters, law enforcement personnel, and correctional officers

•

How do employers determine if their employees are included in the scope of the standard?

The specifics of the reporting procedure must be included in the bloodborne pathogens training.

•

All employees who are involved in any situation involving the presence of blood or OPIM, regardless of whether a specific exposure incident occurs, must be offered the full hepatitis B vaccination series as soon as possible, but no later than 24 hours after the incident. If an exposure incident, as defined in 1910.1030, occurs, all other post-exposure follow-up procedures according to the standard must be initiated immediately, and the employer must ensure that the medical provider is familiar with and follows the recommendations for post-exposure follow-up set forth by the Oregon Department of Human Services or the Centers for Disease Control.

Q A

The standard requires employers to evaluate each job task and procedure to determine which employees may be expected to be occupationally exposed to blood or other potentially infectious materials. The exposure determination is made without regard to the use of personal protective equipment (PPE), because employees are considered to be exposed even if they wear PPE. If it is determined that sufficient evidence of reasonably anticipated exposure exists, the employer will be held responsible for providing the protections of OAR 437-002-1910.1030 to the employees with occupational exposure.

* Collateral duty is not addressed in the standard, but is addressed in a Letter of Interpretation (Jan. 15, 1997) and Program Directive (A-154), Bloodborne Pathogens.

5

•

Bloodborne pathogens training must be provided to all affected employees.

•

Appropriate PPE, cleanup materials, and equipment must be provided.

Q A

Are janitorial services covered by the standard?

Janitorial, custodial, or maintenance employees are covered under the standard in situations where there is reasonable expectation that exposure to blood or other potentially infectious materials may occur. These situations can include work in a health care facility, cleanup after an accident where blood is present, or removing used syringes in a parking lot. Every employer must determine if there is a reasonable expectation for exposure in their given set of circumstances.

Q A

Are Good Samaritan acts considered occupational exposure?

Good Samaritan acts are not covered under the standard. If an employee has an exposure incident while acting as a Good Samaritan and that employee is not expected to render assistance as part of his or her job duties, the employer is not required by the standard to provide the HBV vaccination series, post-exposure evaluation, follow-up procedures, or any other protections of the standard, although Oregon OSHA encourages employers to do so.

Q A

Q A

Are chiropractors who may perform invasive procedures involving blood covered by the standard?

Chiropractors with no paid employees and no workers’ compensation coverage are not covered by the standard. Chiropractors with paid employees not reasonably expected to be exposed to blood or OPIM in the performance of their duties do not fall under the standard. If chiropractors themselves, who are covered by workers’ compensation, perform procedures for which there is a reasonable anticipation of exposure to blood or OPIM, they fall under the scope of the standard, as would any of their employees whose job duties placed them at risk.

Do cleanup activities of blood or OPIM constitute occupational exposure?

Yes. Employees who clean up and decontaminate areas or surfaces are considered to have occupational exposure. Such employees are covered under the standard.

Q A

Are motel/hotel housekeepers included in the scope of the rules?

Employees in the lodging industry are covered under the standard if there is a reasonable expectation that occupational exposures to blood or other potentially infectious material will occur in the performance of their job duties. The standard is a performance standard and requires the employer to determine occupational exposures without regard to personal protective clothing or equipment. Every location may have individual considerations that must be evaluated to determine exposures. If it is determined that the standard applies to the work location, action should be taken to develop an exposure control plan; provide employee training, information, and PPE; offer the hepatitis B vaccination series; and comply with the other provisions of the standard.

6

Q

ABC Healthcare Employment Agency has a large personnel pool providing hospital staffing and private-duty nursing services.

The employees are on ABC’s payroll. Who is responsible, the employment agency or the client?

A

Personnel providers who send employees to work at other facilities are considered employers whose employees may be exposed to hazards. Because ABC maintains a continuing relationship with the employees, but another employer creates and controls the hazards, there is a shared responsibility to comply with the standard. ABC is required to provide generic training in universal precautions, ensure that employees are provided

with required vaccinations, and ensure that proper follow‑up evaluation is provided after any exposure incident. The client is responsible for providing site‑specific training and PPE and for controlling potential exposure conditions. The client may specify qualifications for personnel, including vaccination status. It is in the best interest of ABC to ensure that all requirements of the standard are met by the client employer to ensure a safe and healthful workplace for the leased employees.

Q A

Are construction, maritime, and agricultural industries covered by the bloodborne pathogen standard?

Yes. The bloodborne pathogen standard applies to all employers at worksites where there is reasonably anticipated skin, eye, mucous membrane, or other parenteral contact with blood or OPIM that may result from the performance of an employee’s duties. It is the employer’s responsibility to determine which job classifications or specific tasks and procedures involve occupational exposure.

Q A

Are drycleaning and laundromat operations covered by the standard?

Oregon OSHA believes that some laundry workers are at risk of exposure to bloodborne pathogens. These individuals may be employed in hospital or commercial laundries that serve health care, public safety, or other institutions where occupational exposure to blood or OPIM occurs.

Any first-aid-trained employee who has rendered first aid should receive treatment under post-exposure evaluation and followup, Section (f)(3). All first-aid-trained employees must have PPE available to them and must be informed about exposure hazards and post-exposure procedures.

Q A

Can ambulance drivers or helicopter pilots eat while transporting a patient or human body parts or organs?

Ambulance drivers or pilots can eat and drink during transportation of patients, body parts, or organs provided that the cab, compartment, or operator have not been contaminated with blood or other potentially infectious materials. The employer may implement procedures for changing contaminated clothing and washing prior to entering the vehicle or ensuring that patients and potentially contaminated material remain behind a separating partition.

Q A

When is urine or feces covered as “other potentially infectious material”?

When there is visible blood. Nasal secretions and tears that have visible blood are also defined as OPIM.

Q A

Are first-aid-trained employees covered by the standard?

First-aid-trained employees assigned to provide emergency first aid as part of their specific job duties are covered by the standard. Examples include occupational nurses or employees in charge of first-aid stations. Position descriptions for such employees would stipulate rendering first aid to fellow employees.

7

SECTION II

Exposure determination OAR 437-002-1910.1030(c)(2)

Exposure Control Plans OAR 437-002-1910.1030(c) The standard requires the employer to develop a written exposure control plan to identify workers with occupational exposure to blood and other potentially infectious material and to specify the methods of protecting and training the employees.

Q A

As an element of the exposure control plan, every employer must identify workers with occupational exposure to blood and other potentially infectious materials.

Q A

How do I know if any of my employees have occupational exposures?

Exposure determination must be based on the definition of occupational exposure without regard to personal protective clothing and equipment. Exposure determination is made by reviewing job classifications within the work environment and sorting exposures into two groups:

What is required in the exposure control plan?

At a minimum, the exposure control plan must include:

•

The exposure determination.

•

The procedures for evaluating the circumstances surrounding an exposure incident.

•

The schedule and method for implementing the provisions of the standard. This schedule may be as simple as a calendar with brief notations describing the methods of implementation and an annotated copy of the standard.

The plan must be reviewed and updated annually or whenever new tasks and procedures affect employees’ occupational exposure. It must be made accessible to employees according to OAR 437-002-1910.1020(e).

The annual audit must review all sections of the exposure control plan.

Q A

Does Oregon OSHA have a sample exposure control plan?

Yes. See Appendix B in this publication.

•

The first group includes job classifications in which all of the employees have occupational exposure, such as operating-room scrub nurses. Within this group, it is not necessary to list specific work tasks.

•

The second group includes job classifications in which some of the employees have occupational exposure. In this group, specific tasks and procedures causing occupational exposure must be listed; for example, hospital laundry workers, if some workers are assigned the task of handling contaminated laundry.

Once employees with occupational exposure have been identified, communicate the hazards to these employees.

Q

Do clinical or diagnostic laboratories that analyze blood or other potentially infectious materials have to comply with this section of the rules?

A

Yes, but they are exempt from Section (e), which covers HIV and HBV research laboratories and production facilities.

Oregon OSHA recommends that universal precaution procedures be followed in clinical or diagnostic laboratories.

8

Training OAR 437-002-1910.1030(g) Each occupationally exposed employee must be given bloodborne pathogen information and training at the time of initial assignment. The training must be conducted during working hours and at no cost to the employee. Training must be repeated at least once a year — more often if new or modified tasks involve occupational exposure to bloodborne pathogens that affect employees.

Q A

Who is qualified to conduct training and provide information?

Possible trainers include a variety of health care professionals such as infectioncontrol practitioners, nurse practitioners, physician assistants, and emergency medical technicians.

Non‑health care professionals such as industrial hygienists, epidemiologists, professional trainers, or others knowledgeable in the subject matter may conduct the training if they can demonstrate knowledge of the elements covered by the standard as it relates to the workplace.

Trainers must provide information appropriate to the educational level, literacy, and language of the audience; the information must contain the following elements: •

Explanation of the regulatory text and how to get a copy of the regulatory text

•

Information on the epidemiology and symptoms of bloodborne diseases

•

How bloodborne pathogens are transmitted

•

Explanation of the exposure control plan and how to get a copy of it

•

How to recognize tasks that might result in occupational exposure

•

Explanation of the use and limitations of work practices, engineering controls, and PPE

•

Information on the types, selection, proper use, location, removal, handling, decontamination, and disposal of PPE

•

•

Who to contact and what to do in an emergency

•

How to report an exposure incident and conduct the post‑exposure evaluation and follow‑up

•

Information about warning labels, signs, and color‑coding

•

Question-and-answer session on any aspect of the training Additional training in standard microbiological practices and techniques, practices and operations specific to the facility, and the proper handling of human pathogens or tissue cultures is required for employees who work in HIV and HBV laboratories and HIV and HBV production facilities. Employees must receive additional training before beginning initial work assignments.

Q A

Can generic training programs, “outside” trainers, or videos be used?

Yes, as long as “site specific” information and employee interaction with the trainer are also provided. Oregon OSHA evaluates training based on employee knowledge or performance. Audiovisual programs on bloodborne pathogens are available from the Oregon OSHA AV Library, 800-922-2989 or 503-947-7453, or select “Audiovisual Lending Library” from the “Information” section of our website, www.orosha.org.

Q A

Will Oregon OSHA train our employees?

No; however, Oregon OSHA does provide a class on the bloodborne pathogens standard for employers and employees, at no charge.

To obtain this assistance, contact the Oregon OSHA Training Section, 888-292-5247 and select option 2 or 503-947-7443, or visit our website, www.orosha.org.

Q A

Will Oregon OSHA review and approve our exposure control plan, training, PPE, or other products?

No.

Information about the hepatitis B vaccination series: its safety, benefits, methods of administration, and availability 9

SECTION III

Employers are not required to provide medical prescreening, and employees are not required to submit to prescreening.

Preventive Measures

The employer must obtain and provide the employee with a copy of the health care professional’s written opinion stating whether a hepatitis B vaccination was indicated for the employee and whether the employee received such vaccination.

Hepatitis B vaccination OAR 437-002-1910.1030(f) The requirements for hepatitis B vaccinations are designed to protect employees from bloodbornepathogen-caused infection by requiring employers to provide hepatitis B vaccinations and medical follow‑up after an exposure incident. Early intervention, testing, counseling, and appropriate prophylaxis can reduce the risk of infection and prevent further transmission.

Q A

Who is required to have hepatitis B vaccinations?

Employers must make the hepatitis B vaccination series available to all employees who have occupational exposure. They must also provide post‑exposure evaluation and follow‑up to all employees who experience an exposure incident. The vaccinations and all medical evaluations and follow‑up must be provided at no cost to the employee, provided at a reasonable time and place, and performed by or under the supervision of a licensed physician or other licensed health care professional. Vaccinations must be administered according to current recommendations of the U.S. Public Health Service. Employees who decline the vaccination must sign a declination form. (See Appendix A, Page 23.) Employees who request the vaccination series later must receive it at no cost if they continue to be exposed.

Q A

When must the hepatitis B vaccination be offered?

The hepatitis B vaccination series must be offered to employees who have occupational exposure to blood or other potentially infectious materials within 10 working days of initial assignment, unless the employee has previously received the series; antibody testing reveals that the employee is immune; or, for medical reasons, the employee cannot be vaccinated.

10

Any booster doses of the hepatitis B vaccine recommended by the U.S. Public Health Service also must be provided by the employer.

Q A

What if an employee refuses to be vaccinated?

The standard requires the employer to obtain a signed declination from each employee who refuses vaccination. The declination statement used by the employer must contain the language found in Appendix A, Page 23; no words may be added or subtracted. A sentence releasing the employer from liability may not be added.

Q

If an employee who wants an HBV vaccine believes he or she is allergic to the vaccine, is the employer required to pay for allergy tests to determine if the employee can safely receive the vaccination?

A

It is the employer’s responsibility to bear the cost of allergy tests recommended by the physician.

Q A

Is prescreening required for hepatitis B serum?

No. The standard does not require pre‑screening of employees for hepatitis B; neither is prescreening prohibited. Prescreening for immunity cannot be used in lieu of offering hepatitis B vaccination.

Q

If an employee begins the vaccination series and terminates employment before the series is complete, can he or she be charged for the remaining vaccine?

A

No. Section (f)(1)(ii)(A) of the standard requires the employer to offer hepatitis B vaccination at no cost to the employee.

Q A

Do my employees need to have a test for hepatitis B antibodies after they complete the vaccination series?

Yes. Oregon OSHA requires that you provide vaccinations, evaluations, or followup procedures for hepatitis B in accordance with Centers for Disease Control and Prevention (CDC) recommendations in place when these procedures took place.

The current CDC guidelines recommend that employees who have ongoing contact with patients or blood and are at ongoing risk for injuries with sharp instruments or needlesticks be tested for antibody to hepatitis B surface antigen one to two months after the completion of the three-dose vaccination series. Employees who do not respond to the primary vaccination series must be revaccinated with a second three-dose vaccine series and retested. Employees who do not respond to the second vaccine series must be evaluated by a physician.

Universal precautions OAR 437-002-1910.1030(d)(1) Universal precautions must be observed. This method of infection control requires the employer and employee to assume that all human blood and specified human body fluids are infectious for HIV, HBV, and other bloodborne pathogens. Where differentiation between types of body fluids is difficult or impossible, all body fluids are to be considered potentially infectious.

Standard precautions and body substance isolation Alternative concepts in infection control are called body substance isolation (BSI) and standard precautions. These methods define blood and all body fluids (whether or not they contain blood) and mucous membranes as infectious. These methods incorporate the fluids and materials covered by this standard and expand coverage to include all body fluids and substances. These concepts are acceptable alternatives to universal precautions, provided that facilities using them adhere to all other provisions of the bloodborne pathogens standard.

SECTION IV

Q A

What if an employee starts the vaccination series, but doesn’t finish it?

Hepatitis B vaccination is a series of three shots. If the employee starts the series, but doesn’t get all three shots, they either have to redo the series or sign the declination statement. If the employee chooses to redo the series, the employer must still pay for it.

11

SECTION IV

Methods of Control Engineering controls and work practices OAR 437-002-1910.1030(d)(2) Engineering controls and work practices are the primary methods used to prevent occupational transmission of HBV, HCV, HIV, and other bloodborne pathogens. Personal protective clothing and equipment also are necessary when occupational exposure to bloodborne pathogens remains even after instituting these controls.

Engineering controls reduce employee exposure in the workplace by either removing or isolating the hazard or isolating the worker from exposure.

Self‑sheathing needles, needle systems, punctureresistant disposal containers for contaminated sharp instruments, resuscitation bags, and ventilation devices are examples of engineering controls. Engineering controls must be examined and maintained or replaced on a schedule.

OAR 437-002-1030 also requires that every employer with employees who use medical sharps in direct patient care must identify, evaluate, and select engineering and work-practice controls, including safer medical devices, at least annually.

Evaluation of safer medical devices must involve nonmanagerial front-line employees responsible for direct patient care and must be done on a facilityby-facility basis. When a facility has multiple departments with specific equipment or work-practice concerns, evaluations must involve employees from those departments.

Emergency departments should coordinate appropriate medical-device selections with the emergency medical services from whom they receive patients.

Example of a case in which it would be useful to coordinate: An ambulance service using a needleless system not compatible with the needleless system used by personnel at a hospital can increase employee exposure potential.

12

After a device is evaluated and selected, the employer must decide whether or not to use that device.

If a device is not purchased because of employer or employee concerns, those concerns must be documented. However, if the employer does not purchase a device that had employee support, the employer must document the employee support as well as the justification for not purchasing that device.

If a device is purchased without the consent of the employees who evaluated it, the employer must document the employees’ concerns as well as the employer’s justification for purchasing that device.

Required documentation must be kept as part of the written exposure control plan.

The employer must ensure that all affected employees are informed on the process for selecting safer medical devices.

All employees must be trained in the use of safer medical devices before using them.

Proper work practices alter the manner in which a task is performed. In work areas where a reasonable likelihood of occupational exposure exists, work-practice controls include restricting eating, drinking, smoking, applying cosmetics or lip balm, and handling contact lenses; prohibiting mouth pipetting; preventing the storage of food or drink in refrigerators or other locations where blood or OPIM are kept; providing and requiring the use of handwashing facilities; and routinely checking equipment and decontaminating it prior to servicing and shipping.

Washing hands when gloves are removed and as soon as possible after skin contact with blood or other potentially infectious materials is required.

The standard prohibits recapping, removing, or bending needles unless the employer can demonstrate that no alternative is feasible or that such action is required by a specific medical procedure.

When recapping, bending, or removing contaminated needles is required by a medical procedure, it must be done using a one‑handed technique or by mechanical means such as the use of forceps.

The standard also prohibits shearing or breaking contaminated needles.

Q A

Are contaminated sharps defined?

Yes. The rule defines contaminated sharps as any contaminated object that can penetrate the skin, including, but not limited to, needles, scalpels, broken glass, broken capillary tubes, and exposed ends of dental wire.

Q A

What must I do with contaminated disposable sharps?

Sharps must be placed immediately (or as soon as feasible after use) in a punctureresistant, leak-proof sharps container that can be closed for handling, storage, transportation, and disposal. The container must be color-coded (such as red) or labeled with the “biohazard” symbol.

Q A

Where are sharps containers required?

Sharps containers are considered an engineering control and must be located where sharps are used. Containers should be located in each room where sharps are used; however, containers may be placed on a tray and transported to each room for use. Disposable and reusable sharps such as large-bore needles, scalpels, and saws must be contained in a manner that eliminates or minimizes the hazard until they are disposed of or reprocessed.

Q A

If I’ve never had an employee experience a needlestick, do I still need to use safer devices?

Yes. OSHA standards are intended to be implemented to prevent occupational injuries and illnesses. In order to most effectively avoid percutaneous injuries from contaminated sharps, employees must use engineering controls that include safer medical devices.

Q A

By what date do we have to implement safer medical devices?

The requirement to implement safer medical devices is not new. However, the revised standard clarifies “engineering controls” described in the original 1991 bloodborne pathogens standard by adding language to the definition section of the standard that reflects the development and availability of safer medical devices. The 1991 standard states: “engineering and work practice controls shall be used to eliminate or minimize employee exposure.” The revision defines engineering controls as “controls (e.g., sharps disposal containers, self-sheathing needles, safer medical devices, such as sharps with engineered sharps injury protections and needleless systems) that isolate or remove the bloodborne pathogens hazard from the workplace.” Consequently, you should already have safer devices in place.

If you have not already evaluated and implemented appropriate and available engineering controls, you must do so now. Also, employees with occupational exposure to blood and OPIM must be trained regarding the proper use of all engineering and work practice controls.

Q A

What if a safer option is not available for the medical device that I use?

A key element in choosing a safer medical device, other than its effectiveness and appropriateness to the procedure, is its availability on the market. If there is no safer medical device available, you are not required to use something other than the device normally used. During your annual review of devices, you must investigate new and safer options and document this fact in your written exposure control plan. If no engineering control is available, work-practice controls must be used and, if occupational exposure still remains, personal protective equipment must also be used.

13

Q A

Is recapping needles permissible?

Recapping, bending, or removing needles is permissible only if there is no feasible alternative or if required for a specific medical procedure such as blood gas analysis. If recapping, bending, or removal is necessary, workers must use a mechanical device or a one‑handed technique. If recapping is essential — for example, between multiple injections for the same patient — employees must avoid using both hands to recap. Recapping, using the needle itself to pick up the cap, can be done using a one‑handed “scoop” technique, pushing the cap and sharp together against a hard surface to ensure a tight fit.

An alternative is to hold the cap with tongs or forceps to place it on the needle.

Q A

Is hand-washing addressed in the rules?

Yes. The rule requires employers to provide readily accessible hand-washing facilities, where employees are required to wash their hands immediately or as soon as feasible after removal of gloves or other PPE. Any portion of an employee’s body that has contacted blood or other potentially infectious materials, including saliva, must be washed immediately or as soon as feasible after contact. When hand-washing facilities are not feasible, such as in an ambulance, an antiseptic hand cleanser and clean towels or antiseptic towelettes must be provided by the employer. The hands must be washed with soap and running water as soon as feasible after reaching hand-washing facilities.

Alternate hand-washing procedures for health care workers are found in Centers for Disease Control and Prevention’s Guidelines for Hand Hygiene in Health care Settings.

14

Personal protective equipment (PPE) OAR 437-002-1910.1030(d)(3) PPE must be used if engineering and work practice controls do not eliminate the exposure hazard or if such controls are not feasible.

PPE helps prevent occupational exposure to infectious materials. Such equipment includes gloves, gowns, laboratory coats, face shields or masks, and eye protection. PPE is considered appropriate only if it prevents blood or OPIM from passing through or reaching the employee’s work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use.

Under the standard, employers must provide, make accessible, and require the use of PPE at no cost to employees. PPE must be provided in appropriate sizes. Hypoallergenic gloves or similar alternatives must be made available to employees who have an allergic sensitivity to gloves. Employers must ensure that protective equipment is properly used, cleaned, laundered, repaired, or replaced, as needed.

An employee may temporarily and briefly decline to wear PPE under extraordinary (usually, life threatening) circumstances and when, in the employee’s professional judgment, it prevents the delivery of health care or public safety services or poses an increased hazard to workers. In general, appropriate PPE is expected to be used whenever occupational exposure may occur.

The employer also must ensure that employees observe the following precautions for safely handling and using PPE: •

Remove protective equipment when it becomes contaminated and before leaving the work area.

•

Place used protective equipment in appropriately designated areas or containers for storage, washing, decontamination, or discarding.

•

Wear appropriate gloves when there is a reasonable hazard of contact with blood or other potentially infectious materials, when performing vascular access procedures,* and when handling or touching contaminated items or surfaces.

•

Replace gloves if torn, punctured, contaminated, or if they no longer function as a barrier for other reasons.

•

Only decontaminate utility gloves for reuse if their integrity is not compromised.

Discard utility gloves when they’re punctured, cracked, peeling, torn, or deteriorated.

•

Never wash or decontaminate disposable gloves for reuse.

•

•

•

Wear face and eye protection such as a mask with glasses and solid side-shields or a chin‑length face shield whenever splashes, sprays, spatters, or droplets of blood or OPIM may reach the eyes, nose, or mouth.

Wear protective body coverings such as gowns, aprons, caps, and boots when occupational exposure is anticipated. The type and characteristics will depend upon the task and degree of exposure anticipated.

Remove garments when they become saturated with blood or OPIM.

Q A

Are gloves required when giving allergy immunotherapy injections or other injections?

Gloves are not necessary if hand contact with blood or OPIM is not anticipated. If bleeding is anticipated, and the employee is required to clean the site following injection, gloves must be worn. To prevent employee hand contact with blood, the patient can be instructed to apply pressure to the injection site with an alcohol wipe or cotton ball, which the patient would then discard.

Q A

Are there standards that define such PPE terms as fluid-proof, fluid-resistant, and permeability?

No. There are no standards defining the permeability of PPE. Paragraph (d)(3)(i) of the standard states: “Personal protective equipment will be considered ‘appropriate’ only if it does not permit blood or other potentially infectious materials to pass through to or reach the employee’s work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used.”

Q A

Are latex gloves acceptable for all types of jobs?

No. The employer has the responsibility for determining the type of glove required for each job. Vinyl or other leak-proof gloves may be required to withstand heavier work duties.

Q A

Is the use of hand or barrier creams acceptable when using latex gloves?

Q

Yes, if the barrier cream does not cause degradation of the gloves, as petroleum-based creams can.

If employees wear scrubs in work areas where there are exposures to blood and other potentially infectious materials, do they have to remove the scrubs to go down the hall to the restroom?

A

Yes. Removing contaminated scrubs prior to leaving the work area is necessary to prevent contamination of other areas. The term “contaminated” means the presence or the reasonably anticipated presence of blood or other potentially infectious materials.

* Some exceptions are made for voluntary blood donation centers. See Section (d)(3)(ix)(D) of the bloodborne pathogens standard for clarification.

15

Housekeeping OAR 437-002-1910.1030(d)(4)

•

Under the standard, each place of employment must be kept clean and sanitary. Employers must develop and implement a cleaning schedule that includes the methods of decontamination and procedures to be used. The cleaning schedule must explain which areas and surfaces are to be cleaned, the type of contamination present, and how they are to be cleaned.

Placement of discarded contaminated sharps in labeled or color‑coded containers that are closable, puncture‑resistant, and leak-proof on the sides and bottom.

•

Provision of sharps containers that are easily accessible to employees and as close as feasible to the area where sharps are used. Sharps containers must be kept upright during use, replaced routinely, closed when moved, and not overfilled. If cracked or punctured, sharps containers must be replaced.

Employers must ensure that the following housekeeping procedures are followed: •

Cleaning and decontamination of the environment, including equipment and work surfaces that have been contaminated with blood or OPIM.

•

Prohibiting the manual opening, emptying, or cleaning of reusable sharps containers and other employee exposure to percutaneous injury.

•

Decontamination of work surfaces with an appropriate disinfectant after completion of procedures; immediately, if obviously contaminated; after spills of blood or OPIM; and at the end of work shifts if contaminated since last cleaning.

•

Handling contaminated laundry as little as possible and using appropriate PPE when handling it.

•

Placement of wet contaminated laundry in labeled or color‑coded leak‑proof containers for transporting and bagging contaminated laundry without sorting or rinsing it in its area of use.

•

Removal and replacing of protective coverings such as plastic wrap and aluminum foil when contaminated.

•

Regular inspection and decontamination of reusable receptacles such as bins, pails, and cans that are likely to become contaminated.

When contamination is visible, clean and decontaminate receptacles immediately or as soon as feasible.

•

16

Use of mechanical means such as tongs, forceps, or a brush and a dustpan to pick up contaminated broken glass.

•

Storage or processing of reusable sharps in a way that ensures safe handling.

•

Placement of other regulated waste in closable, leak-proof, and labeled or color‑coded containers for storage, handling, transporting, or shipping. “Other regulated waste” means liquid or semi-liquid blood or OPIM; items contaminated with blood or OPIM that would release these substances in a liquid or semi‑liquid state if compressed; items caked with dried blood or OPIM capable of releasing these materials during handling; contaminated sharps; and pathological and microbiological wastes containing blood or OPIM.

Q A

Are employees allowed to take gowns, lab coats, or PPE home to be laundered?

Q

No. Section (d)(3)(iv) of the standard places the responsibility on the employer for cleaning, laundering, and disposal of PPE. This procedure is intended to reduce employee exposure to bloodborne pathogens.

If an employee accidentally gets blood or OPIM on his or her uniform, is the employer responsible for cleaning that uniform?

A

Not necessarily. The employer’s responsibility for cleaning items used in the work area is based on the intended function of those items. If a uniform is to function as PPE, then it is the employer’s responsibility to provide, clean, replace, and dispose of the uniform.

Q A

Are there special handling requirements for PPE to be laundered?

Yes. Contaminated laundry, which is laundry that has been soiled with blood or OPIM, must be handled as little as possible and placed promptly into bags or containers in the area where it has been used or worn and removed. The bags or containers must prevent leakage and be red or labeled with the biohazard symbol. If the facility practices universal precautions, alternative labeling or color‑coding is acceptable if it permits all employees to recognize the laundry bags or containers as requiring compliance with universal precautions. Protective gloves and other PPE must be worn when handling contaminated laundry.

Q

A Q

What disinfectants are acceptable for decontaminating surfaces?

Quaternary ammonia products are appropriate for general housekeeping procedures that do not involve the cleanup of contaminated items or surfaces. “Contaminated” is defined as the presence or reasonably anticipated presence of blood or OPIM.

The regulations do not address requirements for floor covering; however, the floor surface or covering must be capable of being cleaned and decontaminated. Some carpet surfaces may be difficult to decontaminate.

Is there a standard reference that I can follow for decontamination procedures?

A

Yes. These procedures are found in the Centers for Disease Control and Prevention’s Guideline for Hand Hygiene in Health care Settings, October 25, 2002/51(RR16);1-44. This publication, along with Hand Hygiene Guidelines Fact Sheet, is available on the CDC website, www.cdc. gov, or from the Centers for Disease Control and Prevention, 1600 Clifton Road, Atlanta, GA 30333. The phone number for CDC: 404-639-3286.

Q A

Products registered by the EPA as sterilants (List A), disinfectants that are effective against tuberculosis (List B), and disinfectants that are effective against Hepatitis B and HIV (List D). These lists are available from the EPA, 703-308-0127 and on its website, www.epa.gov/oppad001/chemregindex.htm.

A solution of 5.25 percent sodium hypochlorite (household bleach) diluted 1:10 to 1:100 with water and prepared daily is acceptable for cleanup of contaminated items or surfaces.

Is carpeting an acceptable floor covering in medical examination rooms or other areas that may become contaminated with blood or OPIM?

Q A

What wastes are regulated?

Regulated waste:

•

Blood in liquid or semi-liquid form, or other potentially infectious materials, including saliva in dental procedures

•

Items that would release blood or other potentially infectious materials if compressed

•

Contaminated sharps

•

Pathological and microbiological waste containing blood or other potentially infectious materials

•

Items that are caked with dried blood or other potentially infectious materials and that have the ability to release these materials while being handled

17

Q A

Are feminine hygiene products defined as regulated waste?

Labeling

Oregon OSHA does not generally consider discarded feminine hygiene products used to absorb menstrual flow to be regulated waste. Oregon OSHA expects the waste containers in which these products are discarded to be lined in such a way as to protect employees from physical contact with the contents.

The standard requires that fluorescent orange or orange‑red warning labels be attached to containers of regulated waste; to refrigerators and freezers containing blood and other potentially infectious materials; and to other containers used to store, transport, or ship blood or other potentially infectious materials. (See “Labeling requirements,” Page 19.) Labels are not required when: (1) red bags or red containers are used; (2) containers of blood, blood components, or blood products are labeled as to their contents and have been released for transfusion or other clinical use; and (3) individual containers of blood or OPIM are placed in a labeled container during storage, transport, shipment, or disposal. The warning label must be fluorescent orange or orange‑red, must contain the biohazard symbol and the word BIOHAZARD in a contrasting color, and must be attached to each object by string, wire, adhesive, or another method to prevent loss or removal of the label.

Q A

Are bandages and vaginal speculums considered regulated waste?

Bandages that are not saturated to the point of releasing blood or OPIM if compressed are not considered regulated wastes. Similarly, vaginal speculums do not meet the criteria for regulated wastes as defined by the standard.

Q A

Are there special handling procedures for regulated waste?

Yes. Contaminated sharps must be disposed in approved containers. Other regulated waste must be placed in properly labeled or red bags that contain all contents and prevent leakage. The bags or containers must be closed before removal. If a bag leaks or becomes contaminated on the outside, it must be placed in a second labeled and/or red bag or container.

Q

Are there requirements other than the Oregon OSHA bloodborne pathogens standard that govern biohazardous or regulated waste?

A

Yes. The rule requires disposal of regulated waste in accordance with state, local, or federal waste disposal standards. The Department of Human Services, Health Services regulates storage and collection, the Department of Transportation regulates transportation, and the Department of Environmental Quality regulates disposal of biohazardous wastes.

18

OAR 437-002-1910.1030(g)(1)

Labeling requirements No labels required if universal precautions are used and container’s use is known to all employees.

Item

Red container

Biohazard label

Regulated waste container (e.g., contaminated sharps containers)

X

or

X

Reusable contaminated sharps

container (e.g., surgical instruments soaking in a tray)

X

or

X

Refrigerator/freezer holding

blood or other potentially infectious material

X

Containers used for storage,

transport, or shipping of blood

X

or

X

X

or

X

Blood/blood products for clinical use

X

Individual specimen containers of blood or other potentially infectious materials remaining in facility

X

or

Contaminated equipment

needing service (e.g., dialysis equipment, suction apparatus) Specimens and regulated waste shipped from the primary facility to another facility for service or disposal Contaminated laundry

X*

or

Contaminated laundry sent to

another facility that does not use universal precautions

X and a label specifying where the contamination exists

X

or

X

X

or

X

X

or

X

* Alternative labeling or color coding is sufficient if it permits all employees to recognize containers as requiring compliance with universal precautions.

19

SECTION V

•

If the employee does not give consent for HIV serological testing during the collection of blood for baseline testing, preservation of the baseline blood sample for at least 90 days.

If, during this time, the exposed employee elects to have the baseline sample tested, testing shall be done as soon as feasible.

•

Provision of HBV and HIV serological testing, counseling, and safe and effective post‑exposure prophylaxis according to recommendations of the U.S. Public Health Service.

Exposure Incidents OAR 437-002-1910.1030(f)(3) The standard requires immediate post‑exposure medical evaluation and follow‑up for employees who have had an exposure incident.

Q A

What is an occupational exposure incident?

It’s an employee’s exposure to or contact with blood or OPIM through broken skin; through the eyes, nose, or mouth; or by means of a wound such as a needlestick.

Q A

What must be done if an exposure incident occurs?

An evaluation and follow‑up including the following elements:

• •

Identification of the source individual, unless the employer can establish that identification is infeasible or prohibited by state or local law.

•

Obtain consent from the source individual.

If consent is not obtained, the employer must show that legally required consent could not be obtained. Where consent is not required by law, the source individual’s blood, if available, should be tested and the results documented.

•

20

Documentation of the route of exposure and how exposure occurred.

Testing to determine HIV and HBV infectivity as soon as possible after the incident and documentation of the source individual’s blood test results. If the source individual is known to be infected with either HIV or HBV, testing need not be repeated.

•

Provision of the source individual’s test results (if consent has been obtained) and information about disclosure and confidentiality laws to the exposed employee.

•

Upon consent, testing of the exposed employee’s blood for HBV and HIV serological status as soon as feasible after the exposure incident.

The employer must give the health care professional responsible for the employee’s hepatitis B vaccination, post‑exposure evaluation, and follow‑up a copy of the Oregon OSHA standard. The employer must provide the following to the health care professional: a description of the employee’s job duties relevant to the exposure incident, documentation of the route(s) of exposure, circumstances of exposure, results of the source individual’s blood tests, if available, and all relevant employee medical records, including vaccination status.

The health care professional’s written opinion to the employer for post‑exposure evaluation must document that the employee has been informed of the results of the medical evaluation and of any medical conditions resulting from the exposure incident that may require further evaluation or treatment. Other diagnoses pertaining to the employee must remain confidential and not be included in the written report.

The employer must provide a copy of this report to the employee within 15 days of the evaluation.

The requirements for the medical and training records are discussed in the next section, “Record Keeping.”

Q A

If the employer is also the health care professional, how can the employer maintain post‑exposure confidentiality?

The employer is required to maintain required medical records in a way that protects the employee’s identity and test results. If the employer has contracted with a clinic or other health care facility to provide the follow-up programs, confidentiality requirements must be included in the contract.

diagnosed with an illness, such as hepatitis or HIV. If this occurs, the OSHA 300 log must be updated to reflect the incident as an illness, and the description of the incident must reflect the new diagnosis.

SECTION VI

Record Keeping OAR 437-002-1910.1030(h)

All of these types of incidents are recorded as privacy-concern cases, in which the name of the employee is kept confidential. If you have a “privacy-concern case,” do not enter the employee’s name on the OSHA 300 log.

Instead, enter “privacy case” in the space normally used for the employee’s name. This will protect the privacy of the injured or ill employee when another employee, a former employee, or an authorized employee representative has access to the OSHA 300 log.

You must keep a separate, confidential list of the case numbers and employee names for your privacy-concern cases so you can update the cases and provide the information to the government if asked to do so.

Employers must preserve and maintain for each employee an accurate record of occupational exposure according to Oregon OSHA’s rule governing access to employee exposure and medical records, 437-0021910.1020.

Employers who must maintain an exposure-control plan must also maintain a log of injuries from contaminated sharps. This log must protect the confidentiality of the injured employee and must include the type and brand of the device, the department or work area in which the injury occurred, and how the injury occurred. This log must be maintained for five years.

Q A

What information is required to be recorded on the employee medical record?

Under the bloodborne pathogens standard, medical records must include the following:

•

•

•

Q

I own a janitorial company, and we have an exposure control plan because we clean up blood spills. My employees occasionally find used syringes. Do I need to keep a sharps injury log?

Employee’s name; Social Security number; hepatitis B vaccination status, including vaccination dates; and any medical records related to the employee’s ability to receive vaccinations.

A

Results of examinations, medical testing, and post‑exposure evaluation and follow‑up procedures.

Q A

A copy of the information provided to the health care professional and the health care professional’s written opinion.

Q A

When is an employee exposure to blood or OPIM required to be recorded on the OSHA 300 form?

All contaminated sharps injuries must be recorded on the OSHA 300 log. All other exposure incidents need only be recorded on the OSHA 300 log when medical treatment is initiated as part of the post-exposure evaluation. These incidents are recorded as injuries until or unless the employee is

Yes. The sharps injury log must be kept by all employers who must maintain an exposure control plan, regardless of whether or not they use sharps in their normal duties.

I must also log injuries from contaminated sharps on my 300 log. Can I just use that as my sharps injury log?

Yes, as long as the information required to be kept on the sharps injury log is recorded on the 300 log. Additionally, you must be able to easily separate the sharps injury information from all of the other information on the 300 log. For example, if you keep your 300 log electronically in a database, you must be able to pull up a report of the sharps injuries with the required information. If you use the paper version of the 300 log, you can comply by using a separate sheet for the sharps injuries.

21

Q A

How long must an employer maintain medical records?

Medical records must be kept confidential and maintained for at least the duration of employment plus 30 years.

The bloodborne pathogens standard also requires employers to keep accurate training records for three years. They must include training dates, contents or a summary of the training, names and qualifications of the trainer or trainers, and names and job titles of trainees.

Upon request, both medical and training records must be made available to the National Institute for Occupational Safety and Health and to Oregon OSHA. Training records must be available to employees or employee representatives upon request. An employee’s medical records can be obtained by that employee or anyone having that employee’s written consent.

Q A

What must I do if I decide to close my business?

If an employer ceases to do business, medical and training records must be transferred to the successive employer. If there is no successive employer, the employer must notify NIOSH, U.S. Department of Health and Human Services, for specific directions regarding disposition of the records at least three months prior to ceasing company operations.

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Appendix A

Statement of Declination The following statement must be signed by every employee who declines the hepatitis vaccine. The statement can only be signed by the employee after he or she has received training regarding hepatitis B, hepatitis B vaccination, and the method and benefits of vaccination. Employees must be told that the vaccine and vaccination are provided free of charge to the employee. The statement is not a waiver; employees can request and receive the hepatitis B vaccination at a later date if they remain occupationally at risk for hepatitis B.

I understand that due to my occupational exposure to blood or other potentially infectious materials, I may be at risk of acquiring hepatitis B virus (HBV) infection. I have been given the opportunity to be vaccinated with hepatitis B vaccine, at no charge to myself. However, I decline hepatitis B vaccination at this time.

I understand that by declining this vaccine, I continue to be at risk of acquiring hepatitis B, a serious disease. If in the future I continue to have occupational exposure to blood or other potentially infectious materials and I want to be vaccinated with hepatitis B vaccine, I can receive the vaccination series at no charge to me.

__________________________________ __________________ Employee signature

Date

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Appendix B The following is an example of a basic exposure control plan. It can be used as a guide to develop your organization’s exposure plan, but your plan

must reflect your employees’ job responsibilities and specific exposures or potential exposures to bloodborne pathogens.

ABC Precious Metals Company Bloodborne Pathogens Exposure Control Plan ABC Precious Metals Company has made a commitment to the prevention of incidents or accidents that can result in employee injury or illness. This exposure control plan is an element of our safety and health program in compliance with Oregon OSHA Bloodborne Pathogens, 1910.1030, requirements. The first-aid-center nurse has the authority and responsibility to ensure that all elements of the exposure plan are in place. A copy of this plan is available to all employees at the first-aid center.

Purpose

Exposure determination Employees subject to the Oregon OSHA bloodborne pathogens standard are those who are reasonably expected to have skin, eye, mucous membrane, or parenteral contact with blood and/or any body fluids that are contaminated with blood resulting from the performance of their assigned job duties. Although Good Samaritan acts are not covered under the bloodborne pathogen standard, it is our policy to provide evaluation and treatment of employees who sustain exposure to blood or OPIM who assist an injured employee but are not required to.

The Employees at risk chart lists job classificaThe purpose and goal(s) of this exposure plan tions and associated tasks identifying employees at is to eliminate or minimize employee risk of exposure to blood or other potentially infecoccupational exposure to blood or other tious materials (OPIM). Exposure determinations are potentially infectious materials (OPIM), identify made without regard to use of PPE. employees occupationally exposed to blood or OPIM in the performance of their regular job duties, provide information and training to employees exposed to blood and OPIM, and comply with Oregon OSHA Bloodborne Pathogen standard, 1910.1030.

Employees at risk Job Classification Nurse (First-aid center)

Task or procedure Blood drawing Process and package of blood and other biological specimens for shipping Cleanse and bandage of cuts, burns, and other open wounds Emergency treatment of traumatic wounds Cardiopulmonary resuscitation Clean up spilled blood or OPIM Decontamination of work surfaces and reusable equipment

Supervisors (Assigned to provide first-aid assistance as part of their job duties)

Cleanse and bandage of cuts, burns, and other open wounds Emergency treatment of traumatic wounds Cardiopulmonary resuscitation Clean up spilled blood or OPIM Decontamination of work surfaces and reusable equipment

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The following is a list of job classifications and tasks in which some employees may have occupational exposures to blood or OPIM: Employees who may be at risk Job Classification

Task or procedure

Janitors

Clean up spilled blood or OPIM Empty biological trash cans

Compliance methods Universal precautions Universal precautions is an approach to infection control in which all human blood and other potentially infectious materials are handled as if they were known to be infectious for bloodborne pathogens. Consider difficult- or impossible-toidentify body fluids as potentially infectious.

Engineering and work practices controls Use the following controls to eliminate or minimize occupational exposure.

Sharp containers Place contaminated needles, bloodcontaminated test tubes, and other sharp objects in a sharps container. Replace containers routinely and do not allow overfilling. Place reusable sharps in metal trays for decontamination. When moving containers of contaminated sharps from the area of use, close containers to prevent spillage or protrusion of contents.

Safe medical devices Purchase and use safe medical devices whenever possible. Evaluate devices annually to determine appropriateness of the device and to investigate new and safer options.

Work practices Clean up blood spills or body fluids as soon as possible. Use disposable absorptive materials, such as paper towels or gauze pads, to soak up the fluids. Clean the area with chemical germicides or a 1:10 solution of liquid bleach. Place absorptive towels, pads, and other material used to mop up spills in plastic bags or designated, labeled containers and treat as biohazardous waste.

Employees must wash their hands upon removal of gloves and other protective gear. In an emergency, if soap and water are not immediately available, use disposable antiseptic towelettes or germicidal gels to clean hands after removing gloves.

Employees must wash their hands with soap and water as soon as possible.

Employees may not eat, drink, smoke, apply cosmetics or lip balm, or handle contact lenses where occupational exposure can occur. Do not store food or beverages in refrigerators and freezers and other sites used to store blood or other biohazardous material. Place biohazard labels on refrigerators or freezers used to store biohazardous material.

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Personal protective equipment (PPE) PPE is provided at no cost to employees. Employees receive training in its use, maintenance, and disposal annually.

Storage area The first-aid center stores and maintains an inventory of sufficient bloodborne protective gear. Take supplies, including PPE, as needed, to the location of the injured person. Supplies include disposable gloves; face shields; impervious disposable coveralls and booties; resuscitation devices; large, heavy-duty plastic bags and ties; sharps containers; biohazard signs or labels; absorbent pressure dressings for wounds; antiseptic towelettes; disposable absorptive material for cleaning up spilled blood; rubber gloves; and bleach solutions or germicides.

PPE use and disposal Employees engaging in activities that may involve direct contact with blood, OPIM, contaminated objects, mucous membranes, or open wounds must wear disposable gloves made of vinyl or latex. Use reusable rubber gloves (inspected and free of apparent defects) or disposable gloves to clean up spill areas. Disinfect reusable gloves with diluted liquid bleach or germicides after use.

Wear face shields or goggles with disposable surgical masks whenever splashes, spray, or spatters of blood droplets or OPIM may be generated and eye, nose, or mouth contamination can be reasonably anticipated.

Use laboratory coats or scrubs at the first-aid center to prevent contamination of employee street clothing. Wear impermeable disposable coveralls and booties whenever contamination of skin not protected by gloves or face shields is anticipated, such as a traumatic injury with significant blood loss.

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Use resuscitation devices, which minimize contact with mucous membranes, to perform cardiopulmonary resuscitation.

Remove used personal protective equipment at the exposure location or as soon as feasible to avoid contamination of other work areas. Place in a biohazard container or in a plastic bag with a biohazard label.

PPE must not be taken from the work site.

Housekeeping Maintain the first-aid center in a clean and sanitary condition. Employees who have received bloodborne pathogen training and who have been included under the exposure plan can clean up spills and work surfaces such as bench tops and blood processing areas.

Clean and decontaminate all equipment and working surfaces after completion of procedures in which blood or body fluids contaminated with blood are handled and immediately, or as soon as feasible, when surfaces are overtly contaminated with blood and at the end of the work shift if the surface may have been contaminated since the last cleaning.

Inspect all biohazardous waste receptacles and decontaminate weekly or immediately upon visible contamination.

Use chemical germicides or solutions of 5.25 percent sodium hypochlorite (liquid bleach) diluted 1:10 with water for cleaning. Chemical germicides approved for use as hospital disinfectants and effective against HIV can also be used.

Broken glassware or glass items must not be picked up directly with the hands. Use a mechanical means, such as a brush and dust pan, tongs, or forceps.

Handle as a biohazardous waste. Decontaminate equipment used to pick up glassware with a 1:10 bleach solution or an approved germicide.

Contaminated laundry

Hepatitis B vaccine

Handle nondisposable linen, such as laboratory coats or scrubs, or any other clothing visibly contaminated with blood using disposable gloves.

Minimize the time spent handling laundry. Bag laundry as close as possible to the location where it was used. Place laundry in a bag that prevents soak-through and/or leakage of fluids to the exterior; place a biohazard label on the bag.

The hepatitis B vaccine is offered, at no cost, to employees that were determined to have occupational exposure, within 10 working days of initial assignment. Employees who have potential exposure to bloodborne pathogens but decline to take the vaccination must sign a declination statement.

Employees who initially decline can still receive the vaccination should they decide at a later date to accept. Previously vaccinated new hires must provide a vaccination record that includes the vaccination dates. Employees must sign a declination statement if the vaccination record is not available and revaccination is declined or not appropriate.

Employees are not to take contaminated items home to launder. Center Street Laundry currently holds the contract to pick up, clean, and return laundered items. The laundry facility has a bloodborne pathogen program in place.

Regulated waste Medical Waste Removal Transportation Inc. has been contracted to pick up regulated waste for disposal. Place regulated waste in containers that are closable, constructed to contain all contents and prevent leakage, appropriately labeled or colorcoded, and closed prior to removal to prevent spillage or protrusion of contents during handling.

Labels and signs Affix warning labels to laundry bags, containers of regulated waste, refrigerator units and containers used to store, transport, or ship blood or OPIM. Red bags or red containers can be used instead of labels.

The first-aid center nurse will coordinate with the Northwest Health Occupational Clinic employee vaccinations. The first-aid center nurse retains vaccination records in the employee medical record file.

Exposure incident and post-exposure evaluation and follow-up An exposure incident to bloodborne pathogens is defined as an eye, mouth, other mucous membrane, non-intact skin, or parenteral contact with blood or other potentially infectious materials that results from the performance of an employee’s duties. It is our policy to include Good Samaritan acts performed by an employee at the work site.

Whenever an exposure occurs, wash the contaminated skin immediately with soap and water. Immediately flush contaminated eyes or mucous membranes with copious amounts of water. Medically evaluate exposed employees as soon as possible after the exposure incident in order that post-exposure prophylaxis, if recommended, can be initiated promptly.

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The medical evaluation is to include the route(s) of exposure and the exposure incident circumstances; identification and documentation of the source individual, where feasible; exposed employee blood collection and testing of blood for HBV and HIV serological status; post-exposure prophylaxis, where indicated; counseling; and evaluation of reported illnesses. Source test results and identity will be disclosed to the exposed employee according to applicable laws and regulations concerning disclosure and confidentiality.

The Northwest Health Occupational Clinic provides hepatitis B vaccinations and medical evaluations and post-exposure follow-up after an exposure incident. The Northwest Health Occupational Clinic is open 24 hours a day; the telephone number is 503-123-9876. A copy of the bloodborne pathogen standard has been provided to the clinic.

Information provided to the health care professional The first-aid center nurse is responsible to ensure that the Northwest Health Occupational Clinic health care professional evaluating the employee after an exposure incident receives the following information: • A description of the employee’s duties as they relate to the exposure incident • Documentation of the route(s) and circumstances of the exposure • The results of the source individual’s blood testing, if available • All medical records relevant to the appropriate treatment of the employee, including vaccination status

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Health care professional’s written opinion The first-aid center nurse will provide the employee with a copy of the health care professional’s written opinion within 15 days after completion of the evaluation.

Limit the health care professional’s written opinion(s) for the hepatitis B vaccination to whether the vaccination is indicated and whether the employee has received the vaccination.

Limit the health care professional’s written opinion for the post-exposure evaluation to the following information: • Whether the employee was informed of the evaluation results • Whether the employee was told about any medical conditions resulting from exposure to blood or OPIM that may require further evaluation or treatment

Training and training records All employees who have occupational exposure to bloodborne pathogens receive training on the epidemiology, symptoms, and mode of transmission of bloodborne pathogen diseases.

In addition, the training program will include the following topics: • An explanation of activities and tasks that may involve exposure to blood and OPIM • How appropriate engineering controls, work practices, and PPE will prevent or reduce exposure • The basis for the selection of PPE; the types, use, location, removal, handling, decontamination, and disposal procedures • Hepatitis B vaccine information including that the vaccine is provided at no cost, the benefits of being vaccinated and methods of administration

• Employer responsibilities for post-exposure evaluation and medical follow-up; how and who to contact should an exposure incident occur

In the event of an exposure incident, the following records will be kept at the first-aid center in the employee’s medical file:

• An explanation of the signs and hazard labels

1. The results of any examination, medical testing, and follow-up procedures.

• How to review or obtain a copy of the exposure control plan and the standard

2. A copy of the treating physician’s written opinion to the employer.

The first-aid center nurse trains employees prior to initial assignment to tasks in which occupational exposure may occur. Training is repeated every 12 months or sooner when there are new tasks or changes to the existing procedures/tasks. Training records are maintained at the center for three years and include the date(s) and content of the training program, name and qualifications of the trainer(s), and names and job titles of the attendees.

3. A copy of all information provided by the employer to the health care professional regarding the exposure incident.

Record keeping Medical records for employees with occupational exposure to bloodborne pathogens include the employee’s name, Social Security number, and hepatitis B vaccination status, including dates of hepatitis B vaccination and any medical records relative to the employee’s ability to receive the vaccination. Medical records are kept for the duration of employment plus 30 years in accordance with Oregon OSHA’s Access to Employee Exposure and Medical Records standard, 1910.1020. Medical records are confidential. Employees must sign a written consent for disclosure.

Record any needle stick, mucous membrane, or skin contact with blood or body fluids contaminated with blood or OPIM requiring medical treatment (e.g., gamma globulin, hepatitis B immune globulin, hepatitis B vaccine, etc.) in the OSHA 300 log. In addition, record any contaminated- sharp injuries, including needle sticks on the sharps injury log. Retain these records for five years.

Plan evaluation and review Review the exposure control plan and update at least annually and whenever necessary to reflect new or modified tasks and procedures that affect occupational exposure. The first-aid center nurse is responsible for the annual review. Sign and date this exposure plan when the review has taken place.

Signature:________________________________ Date:____________________________________

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Case Brand name Type of device report of device (e.g., syringe, suture needle) no.

Work area where injury occurred (e.g., Geriatrics, Lab)

Brief description of how the incident occurred (e.g., procedure being done, action being performed, [disposal injection, etc.] body part injured)

Year 2_____

29 CFR 1910.1030, OSHA’s Bloodborne Pathogens Standard, in paragraph (h)(5), requires an employer to establish and maintain a sharps injury log for recording all percutaneous injuries in a facility occurring from contaminated sharps. The purpose of the log is to aid in the evaluation of devices being used in health care and other facilities and to identify devices or procedures requiring attention or review. This log and the injury-and-illness log required by 29 CFR 1904 must be retained by the employer. The sharps injury log should include all sharps injuries occurring in a calendar year. The log must be retained for five years following the end of the year to which it relates. The log must be kept in a manner that preserves the confidentiality of affected employees.

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_______________________________________________________________________________________________________________

_______________________________________________________________________________________________________________

_______________________________________________________________________________________________________________

_______________________________________________________________________________________________________________

Date

Example of Sharps Injury Log

Establishment/facility name:___________________________________________________________________________________

Appendix C

Oregon OSHA Services

Oregon OSHA offers a wide variety of safety and health services to employers and employees: Appeals 503-947-7426; 800-922-2689; admin.web@state.or.us • Provides the opportunity for employers to hold informal meetings with Oregon OSHA on concerns about workplace safety and health.

• Discusses Oregon OSHA’s requirements and clarifies workplace safety or health violations.

• Discusses abatement dates and negotiates settlement agreements to resolve disputed citations.

Conferences 503-378-3272; 888-292-5247, Option 1; oregon.conferences@state.or.us • Co-hosts conferences throughout Oregon that enable employees and employers to learn and share ideas with local and nationally recognized safety and health professionals.

Consultative Services 503-378-3272; 800-922-2689; consult.web@state.or.us • Offers no-cost, on-site safety and health assistance to help Oregon employers recognize and correct workplace safety and health problems.

• Provides consultations in the areas of safety, industrial hygiene, ergonomics, occupational safety and health programs, assistance to new businesses, the Safety and Health Achievement Recognition Program (SHARP), and the Voluntary Protection Program (VPP).

Enforcement 503-378-3272; 800-922-2689; enforce.web@state.or.us • Offers pre-job conferences for mobile employers in industries such as logging and construction.

• Inspects places of employment for occupational safety and health hazards and investigates workplace complaints and accidents.

• Provides abatement assistance to employers who have received citations and provides compliance and technical assistance by phone.

Public Education 503-947-7443; 888-292-5247, Option 2; ed.web@state.or.us • Provides workshops and materials covering management of basic safety and health programs, safety committees, accident investigation, technical topics, and job safety analysis.

Standards and Technical Resources 503-378-3272; 800-922-2689; tech.web@state.or.us • Develops, interprets, and gives technical advice on Oregon OSHA’s safety and health rules.

• Publishes safe-practices guides, pamphlets, and other materials for employers and employees • Manages the Oregon OSHA Resource Center, which offers safety videos, books, periodicals, and research assistance for employers and employees.

Need more information? Call your nearest Oregon OSHA office.

Salem Central Office 350 Winter St. NE, Rm. 430 Salem, OR 97301-3882 Phone: 503-378-3272 Toll-free: 800-922-2689 Fax: 503-947-7461 en Español: 800-843-8086 Website: www.orosha.org

Bend

Medford

Portland

Red Oaks Square 1230 NE Third St., Ste. A-115 Bend, OR 97701-4374 541-388-6066 Consultation: 541-388-6068

1840 Barnett Road, Ste. D Medford, OR 97504-8250 541-776-6030 Consultation: 541-776-6016

1750 NW Naito Parkway, Ste. 112 Portland, OR 97209-2533 503-229-5910 Consultation: 503-229-6193

Eugene 1140 Willagillespie, Ste. 42 Eugene, OR 97401-2101 541-686-7562 Consultation: 541-686-7913

Pendleton 200 SE Hailey Ave. Pendleton, OR 97801-3056 541-276-9175 Consultation: 541-276-2353

Salem 1340 Tandem Ave. NE, Ste. 160 Salem, OR 97301 503-378-3274 Consultation: 503-373-7819

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Notes: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

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440-2261 (4/11) OR-OSHA