ORS 527.714: Types of rules; procedure; findings necessary; rule analysis.

(1) The rulemaking authority of the State Board of Forestry under ORS 527.610 to 527.770 consists generally of the following three types of rules: (a) Rules adopted to implement administration, procedures or enforcement of ORS 527.610 to 527.770 that support but do not directly regulate standards of forest practices. (b) Rules adopted to provide definitions or procedures for forest practices where the standards are set in statute. (c) Rules adopted to implement the provisions of ORS 527.710 (2), (3), (6), (8), (9) and (10) that grant broad discretion to the board and that set standards for forest practices not specifically addressed in statute. (2) When considering the adoption of a rule, and prior to the notice required pursuant to ORS 183.335, the board shall determine which type of rule described in subsection (1) of this section is being considered. (3) If the board determines that a proposed rule is of the type described in subsection (1)(a) or (b) of this section, or if the proposed rule is designed only to clarify the meaning of rules already adopted or to make minor adjustments to rules already adopted that are of the type described in subsection (1)(c) of this section, rulemaking may proceed in accordance with ORS 183.325 to 183.410 and is not subject to the provisions of this section. (4) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, and the proposed rule would change the standards for forest practices, the board shall describe in its rule the purpose of the rule and the level of protection that is desired. If the proposed rule would change the standards for forest practices that relate to the protection of aquatic resources, the level of protection that is desired must be consistent with: (a) Requirements described in the Private Forest Accord Report dated February 2, 2022, and published by the State Forestry Department on February 7, 2022; or (b) If a habitat conservation plan consistent with the Private Forest Accord Report has been approved, the terms of the habitat conservation plan. (5) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, including a proposed amendment to an existing rule not qualifying under subsection (3) of this section, and the proposed rule would provide new or increased standards for forest practices, the board may adopt such a rule only after determining that the following facts exist and standards are met: (a)(A) If forest practices continue to be conducted under existing regulations: (i) There is monitoring or research evidence that documents that degradation of resources maintained under ORS 527.710 (2) or (3) is likely; or (ii) In the case of rules proposed under ORS 527.710 (10), that there is a substantial risk of serious bodily injury or death; or (B) The board has received reports produced by the Adaptive Management Program Committee and the Independent Research and Science Team described in ORS 527.732 and 527.733 that review the new or increased standards the proposed rule would provide; (b) If the resource to be protected is a wildlife species, the scientific or biological status of a species or resource site to be protected by the proposed rule has been documented using best available information; (c) The proposed rule reflects available scientific information and, as appropriate, the results of relevant monitoring and adequate field evaluation at representative locations in Oregon; (d) The objectives of the proposed rule are clearly defined, and the restrictions placed on forest practices as a result of adoption of the proposed rule: (A)(i) Are to prevent harm or provide benefits to the resource or resource site for which protection is sought; or (ii) In the case of rules proposed under ORS 527.710 (10), are to reduce risk of serious bodily injury or death; and (B) Are directly related to the objective of the proposed rule and materially advance its purpose; and (e) The availability, effectiveness and feasibility of alternatives to the proposed rule, including nonregulatory alternatives, were considered, and the alternative chosen is the least burdensome to landowners and timber owners, in the aggregate, while still achieving the desired level of protection. (6) Nothing in subsection (5) of this section: (a) Requires the board to call witnesses; (b) Requires the board to allow cross-examination of witnesses; (c) Restricts ex parte communications with the board or requires the board to place statements of such communications on the record; (d) Requires verbatim transcripts of records of proceedings; or (e) Requires depositions, discovery or subpoenas. (7) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, including a proposed amendment to an existing rule not qualifying under subsection (3) of this section, and that the proposed rule relates to aquatic resources, the board may adopt the rule only after considering reports from the Adaptive Management Program Committee and the Independent Research and Science Team. (8) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, and the proposed rule would require new or increased standards for forest practices, as part of or in addition to the economic and fiscal impact statement required by ORS 183.335 (2)(b)(E), the board shall, prior to the close of the public comment period, prepare and make available to the public a comprehensive analysis of the economic impact of the proposed rule. The analysis shall include, but is not limited to: (a) An estimate of the potential change in timber harvest as a result of the rule; (b) An estimate of the overall statewide economic impact, including a change in output, employment and income related to: (A) The forest products industry; (B) Other private sectors such as commercial fishing, recreational fishing and other outdoor recreation; and (C) Government sectors such as public water system providers, waste treatment and built and natural infrastructure; (c) An estimate of the total economic impact on the forest products industry and common school and county forest trust land revenues, both regionally and statewide; and (d) An assessment of the economic impact of the proposed rule on various types of affected forestland parcels and on various geographic locations that is derived from consulting stakeholders. (9) The provisions of this section do not apply to temporary rules adopted by the board. [1996 c.9 §16 (enacted in lieu of 527.713); 1999 c.1103 §13; 2003 c.740 §10; 2022 c.33 §47] 527.714. (1) The rulemaking authority of the State Board of Forestry under ORS 527.610 to 527.770 consists generally of the following three types of rules: (a) Rules adopted to implement administration, procedures or enforcement of ORS 527.610 to 527.770 that support but do not directly regulate standards of forest practices. (b) Rules adopted to provide definitions or procedures for forest practices where the standards are set in statute. (c) Rules adopted to implement the provisions of ORS 527.710 (2), (3), (6), (8), (9) and (10) that grant broad discretion to the board and that set standards for forest practices not specifically addressed in statute. (2) When considering the adoption of a rule, and prior to the notice required pursuant to ORS 183.335, the board shall determine which type of rule described in subsection (1) of this section is being considered. (3) If the board determines that a proposed rule is of the type described in subsection (1)(a) or (b) of this section, or if the proposed rule is designed only to clarify the meaning of rules already adopted or to make minor adjustments to rules already adopted that are of the type described in subsection (1)(c) of this section, rulemaking may proceed in accordance with ORS 183.325 to 183.410 and is not subject to the provisions of this section. (4) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, and the proposed rule would change the standards for forest practices, the board shall describe in its rule the purpose of the rule and the level of protection that is desired. (5) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, including a proposed amendment to an existing rule not qualifying under subsection (3) of this section, and the proposed rule would provide new or increased standards for forest practices, the board may adopt such a rule only after determining that the following facts exist and standards are met: (a) If forest practices continue to be conducted under existing regulations: (A) There is monitoring or research evidence that documents that degradation of resources maintained under ORS 527.710 (2) or (3) is likely; or (B) In the case of rules proposed under ORS 527.710 (10), that there is a substantial risk of serious bodily injury or death; (b) If the resource to be protected is a wildlife species, the scientific or biological status of a species or resource site to be protected by the proposed rule has been documented using best available information; (c) The proposed rule reflects available scientific information, the results of relevant monitoring and, as appropriate, adequate field evaluation at representative locations in Oregon; (d) The objectives of the proposed rule are clearly defined, and the restrictions placed on forest practices as a result of adoption of the proposed rule: (A)(i) Are to prevent harm or provide benefits to the resource or resource site for which protection is sought; or (ii) In the case of rules proposed under ORS 527.710 (10), are to reduce risk of serious bodily injury or death; and (B) Are directly related to the objective of the proposed rule and substantially advance its purpose; (e) The availability, effectiveness and feasibility of alternatives to the proposed rule, including nonregulatory alternatives, were considered, and the alternative chosen is the least burdensome to landowners and timber owners, in the aggregate, while still achieving the desired level of protection; and (f) The benefits to the resource, or in the case of rules proposed under ORS 527.710 (10), the benefits in reduction of risk of serious bodily injury or death, that would be achieved by adopting the rule are in proportion to the degree that existing practices of the landowners and timber owners, in the aggregate, are contributing to the overall resources concern that the proposed rule is intended to address. (6) Nothing in subsection (5) of this section: (a) Requires the board to call witnesses; (b) Requires the board to allow cross-examination of witnesses; (c) Restricts ex parte communications with the board or requires the board to place statements of such communications on the record; (d) Requires verbatim transcripts of records of proceedings; or (e) Requires depositions, discovery or subpoenas. (7) If the board determines that a proposed rule is of the type described in subsection (1)(c) of this section, and the proposed rule would require new or increased standards for forest practices, as part of or in addition to the economic and fiscal impact statement required by ORS 183.335 (2)(b)(E), the board shall, prior to the close of the public comment period, prepare and make available to the public a comprehensive analysis of the economic impact of the proposed rule. The analysis shall include, but is not limited to: (a) An estimate of the potential change in timber harvest as a result of the rule; (b) An estimate of the overall statewide economic impact, including a change in output, employment and income related to: (A) The forest products industry; (B) Other private sectors such as commercial fishing, recreational fishing and other outdoor recreation; and (C) Government sectors such as public water system providers, waste treatment and built and natural infrastructure; (c) An estimate of the total economic impact on the forest products industry and common school and county forest trust land revenues, both regionally and statewide; and (d) An assessment of the economic impact of the proposed rule on various types of affected forestland parcels and on various geographic locations that is derived from consulting stakeholders. (8) The provisions of this section do not apply to temporary rules adopted by the board.