OAR 137-001-0008: Assessment for Use of Collaborative Process in Rulemaking

(1) The agency may, in its discretion, conduct an assessment to determine if collaborative rulemaking is appropriate and, if so, under what conditions. The agency may consider any relevant factors, including whether: (a) There is a need for a rulemaking action; (b) The persons, interest groups or entities that will be significantly affected by any rulemaking action resulting from the collaborative rulemaking process: (A) Are not so numerous that it would be impractical to convene a collaborative rulemaking committee; (B) Can be readily identified; (C) Are willing to participate in the collaborative rulemaking; (D) Are willing to negotiate in good faith; and (E) Have the time, resources and ability to participate effectively in a collaborative rulemaking process; (c) The persons identified as representative of the interests of a group of persons or of an organization have sufficient authority to negotiate on behalf of the group or organization they represent; (d) There is a reasonable likelihood that a committee will reach a consensus on the proposed rulemaking action within an appropriate period of time to avoid unreasonable delay in the agency's final rulemaking; (e) The interest of the agency is in joint problem-solving, agreement or consensus which could best be met through collaborative rulemaking, and not solely in obtaining public comment, consultation or feedback, which may be addressed through an advisory committee; (f) If the public involvement objectives of ORS 183.333 are best met through the use of a collaborative rulemaking process. (g) The agency has adequate resources and is willing to commit such resources, including technical assistance, to the committee; (h) The agency, to the extent consistent with its legal obligations, will use the consensus of the committee with respect to the proposed rulemaking action as the basis for a notice of intended adoption, amendment, or repeal of a rule pursuant to ORS 183.335; and (i) Whether a collaborative rulemaking committee should also serve as an advisory committee under ORS 183.333(1). (2) The agency may use the services of a convenor to assist the agency in conducting the assessment and in further identifying persons, interest groups or entities who will be significantly affected by a proposed rulemaking action and the issues of concern to them, and in ascertaining whether a collaborative rulemaking committee is feasible and appropriate for the particular rulemaking action. Upon request of the agency, the convenor may ascertain the names of persons who are willing and qualified to represent interests that will be significantly affected by the proposed rule. (3) Upon request of the agency, the convenor shall report findings in writing and may make recommendations to the agency. Any written report and recommendations of the convenor shall be made available to the public upon request. (4) If the collaborative rulemaking committee also serves as an advisory committee under ORS 183.333(1), the committee will make recommendations about the fiscal impact of the proposed rule or rules, as required by ORS 183.333.