OAR 350-016-0040. Notice; Content; Public Comment; Expedited Rule Adoption; Emergency Rule Adoption; Amendment or Repeal; Substantial Compliance Required

(1) Prior to the adoption, amendment or repeal of any rule, the Gorge Commission shall give notice of its intended and final actions. As applicable by each state’s individual notice requirements and time periods, the Gorge Commission shall use each state’s notice forms, submit the information required, and fulfill other requirements for publication of rulemaking actions in the Oregon Bulletin and the Washington State Register. (2) When the Gorge Commission proposes to adopt, amend or repeal a rule, it shall give interested persons reasonable opportunity to submit data or views at a public hearing, except when the Gorge Commission uses expedited or emergency rulemaking procedures in subsections (3) and (4) of this section. The Gorge Commission shall consider fully any written or oral submissions. (3) Expedited Rulemaking. (a) The Gorge Commission may file notice for the expedited adoption of rules meeting any one of the following criteria: (A) The proposed rules relate only to internal governmental operations that are not subject to violation by a person; (B) The proposed rules adopt or incorporate by reference without material change federal statutes or regulations, Washington or Oregon state statutes, or rules of other Washington or Oregon state agencies; (C) The proposed rules only: (i) Correct typographical errors; (ii) Correct spelling or grammatical mistakes; (iii) Make address, phone, other contact information, or name changes; (iv) Correct statutory or rule references; (v) Change a term or phrase in order to conform with a change prescribed by law; or (vi) Clarify language of a rule without changing its effect. (D) The content of the proposed rules is explicitly and specifically dictated by statute; or (E) The proposed rules have been the subject of negotiated rule making, pilot rule making, or some other process that involved substantial participation by interested parties before the development of the proposed rule. (b) The Gorge Commission may file notice for the expedited repeal of rules meeting any one of the following criteria: (A) The statute on which the rule is based has been repealed and has not been replaced by another statute providing statutory authority for the rule; (B) The statute on which the rule is based has been declared unconstitutional by a court with jurisdiction, there is a final judgment, and no statute has been enacted to replace the unconstitutional statute; (C) The rule is no longer necessary because of changed circumstances; or (D) Other rules of the agency or of another agency govern the same activity as the rule, making the rule redundant. (4) Emergency Rulemaking. (a) The Gorge Commission may adopt or amend a rule without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, if the Gorge Commission prepares: (A) A statement of its findings that its failure to act promptly will result in serious prejudice to the public interest or the interests of the parties concerned and the specific reasons of its findings of prejudice; (B) A citation of the statutory or other legal authority relied upon and bearing upon the promulgation of the rule; (C) A statement of the need for the rule and a statement of how the rule is intended to meet the need; and (D) A list of the principal documents, reports or studies, if any, prepared by or relied upon by the Gorge Commission in considering the need for and in preparing the rule, and a statement of the location at which those documents are available for public inspections. (b) A rule adopted or amended under this section is temporary and may be effective for a period of not longer than 120 days. The adoption of a rule under this section does not preclude the subsequent adoption of an identical rule under sections (1) to (3) of this rule. (5) Any person may request in writing, including electronic communication, that the Gorge Commission mail or provide electronically to the person copies of its notice of intended action given pursuant to section (1) of this rule. Upon receipt of any request the Gorge Commission shall acknowledge the request, establish a mailing list and maintain a record of all mailings made pursuant to the request. (6) This rule does not apply to public contracts and purchasing. (7) A rule is not valid unless adopted in substantial compliance with the provisions of this rule in effect on the date that the notice required under sections (1) to (4) of this rule is delivered to the Oregon Secretary of State and the Washington Code Reviser for the purpose of publication. (8) Unless otherwise provided by statute, the adoption, amendment or repeal of a rule by the Gorge Commission need not be based upon or supported by an evidentiary record. (9) The Gorge Commission may correct its failure to substantially comply with the requirements of sections (1) and (4) of this section in adoption of a rule by an amended filing, so long as the noncompliance did not substantially prejudice the interests of persons to be affected by the rule. (10) When the Gorge Commission establishes a deadline for comment on a proposed rule, the Gorge Commission may not extend that deadline for another agency or person unless the extension applies equally to all interested agencies and persons. The Gorge Commission shall not consider any submission made after the final deadline has passed.