Oregon Department of Justice

Attorney General Ellen F. Rosenblum

Oregon Department of Justice - Attorney General Ellen F. Rosenblum
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Appropriate Dispute Resolution (ADR)

Assessment for Use of Collaborative Process in Rulemaking

137-001-0008

  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.

Stat. Auth.: ORS 183.341 & 183.502
Stats. Implemented: ORS 183.502 & 183.333
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 10-2005, f. 10-31-05, cert. ef. 1-1-06

137-001-0009

Use of Collaborative Dispute Resolution in Rulemaking

  1. If, after consideration of the factors set out in OAR 137-001-0008, the agency establishes a collaborative rulemaking committee, the agency shall inform the committee regarding:

    (a) The membership of the rulemaking committee;

    (b) Whether or not the agency will be a member of the committee;

    (c) A proposed agenda and schedule for completing the work of the committee, including a target date for publication by the agency of any intended rulemaking action pursuant to ORS 183.335; and

    (d) Whether or not the rulemaking committee also serves as an advisory committee under ORS 183.333(1) and is therefore subject to ORS 183.333(3) and (4).

  2. The agency may inform persons on the agency's mailing list maintained pursuant to ORS 183.335(8), those legislators designated in ORS 183.335(15) and any other persons of the subject and scope of rulemaking action that may result from the work of the collaborative rulemaking committee.
  3. The agency may limit membership on a collaborative rulemaking committee to ensure proper functioning of the committee or to achieve balanced membership. If the agency will be a member of the committee, the person or persons representing the agency may participate in the deliberations and activities of the committee with the same status as other members of the committee.
  4. A collaborative rulemaking committee established under this rule shall consider the matter proposed by the agency and attempt to reach a consensus concerning a proposed rulemaking action with respect to such matter.
  5. If the collaborative rulemaking committee established under this rule serves as an advisory committee under ORS 183.333(1), the committee shall comply with ORS 183.333(3) and (4).
  6. The agency shall explain to the committee the agency's expectations for using any consensus reached by the committee in any rulemaking action and explain the decision making process within the agency that would be necessary to bind the agency to any consensus reached by the committee.
  7. The agency may select a facilitator, subject to removal by the committee by consensus. In selecting a facilitator, the agency may consider the convenor or any qualified individual, including an agency employee. If the committee elects to remove the facilitator selected by the agency, the agency may select another facilitator or allow the committee to select a facilitator by consensus. An individual designated to represent the agency in substantive issues may not serve as a facilitator or otherwise chair the committee.
  8. A facilitator approved or selected by a collaborative rulemaking committee may chair the meetings of the committee, assist the members of the committee in conducting discussions and negotiations, or manage the keeping of minutes and records and such assistance, if any, shall be provided in an impartial manner.
  9. For purposes of a collaborative rulemaking, both convenors and facilitators are considered dispute resolution providers, except that the agency's personal services contract for convenors need not contain the elements listed in OAR 137-005-0040(6)(b).
  10. A collaborative rulemaking committee established under this rule may adopt procedures for the operation of the committee. If the committee reaches a consensus on a proposed rulemaking action, the committee shall transmit to the agency a report containing the proposed rulemaking action. If the committee does not reach a consensus on a proposed rulemaking action, the committee may transmit to the agency a report specifying any areas in which the committee did reach a consensus.
  11. If the agency chooses to proceed with a rulemaking action after receiving the report of the committee, the agency shall comply with the rulemaking procedures in ORS 183.325 to 183.355.
  12. The agency may request the committee to reconvene after a notice of proposed rulemaking action required by ORS 183.335(1) in order to consider any public comments received by the agency related to the rule. If the agency wishes to receive input from the committee after the deadline for comment on the proposed rulemaking action, the agency shall extend the comment deadline in order to receive such recommendations from the committee. The agency shall provide notice of the extended deadline to persons on the agency's mailing list maintained pursuant to ORS 183.335(8), to those legislators designated in ORS 183.335(15) and to persons identified in its notice rule adopted under ORS 183.341(4).
  13. The collaborative rulemaking committee shall terminate upon the agency's adoption, amendment, or repeal of the final rule under consideration, unless the committee specifies an earlier termination date. The agency may terminate the collaborative rulemaking committee at any time.
  14. The members of a collaborative rulemaking committee are responsible for their own expenses of participation in the committee. If authorized by law, the agency may pay a member's reasonable travel and per diem expenses and other expenses as the agency deems appropriate.

Stat. Auth.: ORS 183.341 & 183.502
Stats. Implemented: ORS 183.502
Hist.: JD 1-1997, f. 3-28-97, cert. ef. 4-1-97; JD 3-1997, f. 9-4-97, cert. ef. 9-15-97; DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00; DOJ 10-2005, f. 10-31-05, cert. ef. 1-1-06

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