By: Brown, Ellis S.B. No. 882 A BILL TO BE ENTITLED AN ACT 1-1 relating to negotiated rulemaking by state agencies. 1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-3 SECTION 1. Subtitle A, Title 10, Government Code, is amended 1-4 by adding Chapter 2008 to read as follows: 1-5 CHAPTER 2008. NEGOTIATED RULEMAKING 1-6 SUBCHAPTER A. GENERAL PROVISIONS 1-7 Sec. 2008.001. SHORT TITLE. This chapter may be cited as 1-8 the Negotiated Rulemaking Act. 1-9 Sec. 2008.002. DEFINITIONS. In this chapter: 1-10 (1) "State agency" means an officer, board, 1-11 commission, department, or other agency in the executive branch of 1-12 state government with statewide jurisdiction that makes rules. The 1-13 term includes: 1-14 (A) the attorney general; 1-15 (B) an institution of higher education as 1-16 defined by Section 61.003, Education Code; and 1-17 (C) the State Office of Administrative Hearings. 1-18 (2) The terms "party," "person," and "rule" have the 1-19 meanings assigned by Section 2001.003. 1-20 Sec. 2008.003. COSTS OF PARTICIPATING IN NEGOTIATED 1-21 RULEMAKING. (a) A member of a negotiated rulemaking committee 1-22 established under Subchapter B is responsible for the member's own 1-23 costs in serving on the committee, except as provided by Subsection 2-1 (b). 2-2 (b) The state agency that established the negotiated 2-3 rulemaking committee may pay a member's technical assistance 2-4 expenses and reasonable travel and per diem costs related to the 2-5 member's service on the committee at the rate set in the General 2-6 Appropriations Act for state employees and may provide a reasonable 2-7 rate of compensation to the member if: 2-8 (1) the member certifies that the member lacks 2-9 sufficient financial resources to participate as a member of the 2-10 committee; and 2-11 (2) the agency determines that the member's service on 2-12 the committee is necessary for the adequate representation of an 2-13 affected interest. 2-14 (c) The state agency that established the negotiated 2-15 rulemaking committee shall provide appropriate administrative 2-16 support to the committee. 2-17 (Sections 2008.004 to 2008.050 reserved for expansion 2-18 SUBCHAPTER B. PROCEDURES FOR NEGOTIATED RULEMAKING 2-19 Sec. 2008.051. AUTHORITY FOR NEGOTIATED RULEMAKING. A state 2-20 agency may engage in negotiated rulemaking to assist it in drafting 2-21 a proposed rule by following the procedures prescribed by this 2-22 chapter. 2-23 Sec. 2008.052. APPOINTMENT AND DUTIES OF CONVENER. (a) A 2-24 state agency that proposes to engage in negotiated rulemaking shall 2-25 appoint a convener to assist the agency in determining whether it 3-1 is advisable to proceed. 3-2 (b) The state agency may appoint an agency employee or 3-3 contract with another individual to serve as the convener. The 3-4 convener may not have a financial or other interest in the outcome 3-5 of the rulemaking process that would interfere with the person's 3-6 impartial and unbiased service as the convener. 3-7 (c) The convener shall assist the agency in identifying 3-8 persons who are likely to be affected by the proposed rule, 3-9 including persons who oppose the issuance of a rule. The convener 3-10 shall discuss with those persons or their representatives: 3-11 (1) whether they are willing to participate in 3-12 negotiated rulemaking; 3-13 (2) whether the agency should engage in negotiated 3-14 rulemaking to develop the proposed rule; 3-15 (3) which issues that a negotiated rulemaking 3-16 committee should address; and 3-17 (4) whether there are other persons the convener needs 3-18 to identify who may be affected by the proposed rule. 3-19 (d) The convener shall then recommend to the agency whether 3-20 negotiated rulemaking is a feasible method to develop the proposed 3-21 rule and shall report to the agency on the relevant considerations, 3-22 including: 3-23 (1) the number of identifiable interests that would be 3-24 significantly affected by the proposed rule; 3-25 (2) the probability that those interests would be 4-1 adequately represented in a negotiated rulemaking; 4-2 (3) the probable willingness and authority of the 4-3 representatives of affected interests to negotiate in good faith; 4-4 (4) the probability that a negotiated rulemaking 4-5 committee would reach a unanimous or a suitable general consensus 4-6 on the proposed rule; 4-7 (5) the probability that negotiated rulemaking will 4-8 not unreasonably delay notice and eventual adoption of the proposed 4-9 rule; 4-10 (6) the adequacy of agency and citizen resources to 4-11 participate in negotiated rulemaking; 4-12 (7) the probability that the negotiated rulemaking 4-13 committee will provide a balanced representation between public and 4-14 regulated interests; and 4-15 (8) the willingness of the agency to accept the 4-16 consensus of a negotiated rulemaking committee as the basis for the 4-17 proposed rule. 4-18 Sec. 2008.053. NOTICE REQUIREMENTS FOR NEGOTIATED 4-19 RULEMAKINGS. (a) After considering the convener's recommendation 4-20 and report, a state agency that intends to engage in negotiated 4-21 rulemaking shall publish timely notice of its intent in appropriate 4-22 media and file timely notice of its intent with the secretary of 4-23 state for publication in the Texas Register. The notice must 4-24 include: 4-25 (1) a statement that the agency intends to engage in 5-1 negotiated rulemaking; 5-2 (2) a description of the subject and scope of the rule 5-3 to be developed; 5-4 (3) a description of the known issues to be considered 5-5 in developing the rule; 5-6 (4) a list of the interests that are likely to be 5-7 affected by the proposed rule; 5-8 (5) a list of the individuals the agency proposes to 5-9 appoint to the negotiated rulemaking committee to represent the 5-10 agency and affected interests; 5-11 (6) a request for comments on the proposal to engage 5-12 in negotiated rulemaking and on the proposed membership of the 5-13 negotiated rulemaking committee; and 5-14 (7) a description of the procedure through which a 5-15 person who will be significantly affected by the proposed rule may, 5-16 before the agency establishes the negotiated rulemaking committee, 5-17 apply to the agency for membership on the committee or nominate 5-18 another to represent the person's interests on the committee. 5-19 (b) A state agency that intends to proceed with the 5-20 rulemaking process after receiving the report of the negotiated 5-21 rulemaking committee shall announce in a statement accompanying the 5-22 notice of a proposed rule required by Subchapter B, Chapter 2001, 5-23 that: 5-24 (1) negotiated rulemaking was used in developing the 5-25 proposed rule; and 6-1 (2) the report of the negotiated rulemaking committee 6-2 is public information and the location at which the report is 6-3 available to the public. 6-4 Sec. 2008.054. APPOINTMENT AND DURATION OF NEGOTIATED 6-5 RULEMAKING COMMITTEE. (a) After considering comments it receives 6-6 in response to the notice of proposed negotiated rulemaking, a 6-7 state agency that intends to proceed shall establish a negotiated 6-8 rulemaking committee and appoint the members of the committee. 6-9 (b) A state agency shall consider the appropriate balance 6-10 between representatives of affected interests in appointing the 6-11 negotiated rulemaking committee. 6-12 (c) The state agency shall appoint individuals to the 6-13 committee to represent the agency and appoint other individuals to 6-14 the committee to represent the interests identified by the agency 6-15 that are likely to be affected by the proposed rule. Article 6-16 6252-33, Revised Statutes, does not apply to the size or 6-17 composition of the committee or to the agency's ability to 6-18 reimburse expenses of committee members under Section 2008.003(b). 6-19 (d) The committee is automatically abolished on the adoption 6-20 of the proposed rule, unless the committee or the state agency 6-21 after consulting the committee specifies an earlier abolition date. 6-22 Sec. 2008.055. APPOINTMENT OF FACILITATOR. 6-23 (a) Concurrently with its establishment of the negotiated 6-24 rulemaking committee, a state agency shall appoint a facilitator. 6-25 The agency may appoint an agency employee, subject to Subdivision 7-1 (b)(3), or contract with another state employee or private 7-2 individual to serve as the facilitator. The agency's appointment 7-3 of the facilitator is subject to the approval of the negotiated 7-4 rulemaking committee and the facilitator serves at the will of the 7-5 committee. 7-6 (b) The facilitator: 7-7 (1) must possess the qualifications required for an 7-8 impartial third party under Section 154.052(a) and (b), Civil 7-9 Practice and Remedies Code; 7-10 (2) is subject to the standards and duties prescribed 7-11 by Section 154.053(a) and (b), Civil Practice and Remedies Code, 7-12 and has the qualified immunity prescribed by Section 154.055, Civil 7-13 Practice and Remedies Code, if applicable; 7-14 (3) shall not be the person designated to represent 7-15 the agency on the negotiated rulemaking committee on substantive 7-16 issues related to the rulemaking; and 7-17 (4) shall not have a financial or other interest in 7-18 the outcome of the rulemaking process that would interfere with the 7-19 person's impartial and unbiased service as the facilitator. 7-20 Sec. 2008.056. DUTIES OF NEGOTIATED RULEMAKING COMMITTEE AND 7-21 FACILITATOR. (a) The facilitator shall preside over meetings of 7-22 the negotiated rulemaking committee and assist the members of the 7-23 committee: 7-24 (1) to establish procedures for conducting 7-25 negotiations; and 8-1 (2) to discuss, negotiate, mediate, and employ other 8-2 appropriate alternative dispute resolution processes to arrive at a 8-3 consensus on the proposed rule. 8-4 (b) It is presumed that the committee has reached a 8-5 consensus on a matter only if the consensus is unanimous, unless 8-6 the committee unanimously: 8-7 (1) agrees to define a consensus to mean a general 8-8 rather than a unanimous consensus; or 8-9 (2) agrees to define the term in another manner. 8-10 (c) The facilitator shall encourage the members of the 8-11 committee to reach a consensus but may not compel or coerce the 8-12 members to do so. 8-13 (d) At the conclusion of the negotiations, the committee 8-14 shall send a written report to the agency that: 8-15 (1) contains the text of the proposed rule, if the 8-16 committee reached a consensus on the proposed rule; or 8-17 (2) specifies the issues on which the committee 8-18 reached consensus, the issues that remain unsolved, and any other 8-19 information, recommendations, or materials that the committee 8-20 considers important, if the committee did not reach a consensus on 8-21 the proposed rule. 8-22 Sec. 2008.057. CONFIDENTIALITY OF CERTAIN RECORDS AND 8-23 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice 8-24 and Remedies Code, apply to the communications, records, conduct, 8-25 and demeanor of the facilitator and the members of the negotiated 9-1 rulemaking committee as if the negotiated rulemaking were a dispute 9-2 being resolved in accordance with Chapter 154, Civil Practice and 9-3 Remedies Code. 9-4 (b) In the negotiated rulemaking context the attorney 9-5 general, subject to review by a Travis County district court, 9-6 decides in accordance with Section 154.073(d), Civil Practice and 9-7 Remedies Code, whether a communication or material subject to 9-8 Section 154.073(d) is confidential, excepted from required 9-9 disclosure, or subject to required disclosure. 9-10 (c) Notwithstanding Section 154.073(d), Civil Practice and 9-11 Remedies Code: 9-12 (1) a private communication and a record of a private 9-13 communication between a facilitator and a member or members of the 9-14 committee are confidential and may not be disclosed unless the 9-15 member or members of the committee, as appropriate, consent to the 9-16 disclosure; and 9-17 (2) the notes of a facilitator are confidential except 9-18 to the extent that the notes consist of a record of a communication 9-19 with a member of the committee who has consented to disclosure in 9-20 accordance with Subdivision (1). 9-21 (d) The report and recommendations of a convener and a 9-22 negotiating committee are public information and available on 9-23 request to any member of the public. 9-24 Sec. 2008.058. ADMINISTRATIVE PROCEDURE ACT REQUIREMENTS 9-25 UNAFFECTED. (a) This chapter does not affect the rulemaking 10-1 requirements prescribed by Chapter 2001. 10-2 (b) A state agency that intends to proceed with the 10-3 rulemaking process after receiving the report of the negotiated 10-4 rulemaking committee shall proceed in accordance with the 10-5 requirements prescribed by Subchapter B, Chapter 2001. 10-6 SECTION 2. This Act takes effect September 1, 1997. 10-7 SECTION 3. The importance of this legislation and the 10-8 crowded condition of the calendars in both houses create an 10-9 emergency and an imperative public necessity that the 10-10 constitutional rule requiring bills to be read on three several 10-11 days in each house be suspended, and this rule is hereby suspended.