By: Brown S.B. No. 882
97S0462/1
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 OF PROPOSED NEGOTIATED RULEMAKING.
4-19 After considering the convener's recommendation and report, a state
4-20 agency that intends to engage in negotiated rulemaking shall
4-21 publish timely notice of its intent in appropriate media and file
4-22 timely notice of its intent with the secretary of state for
4-23 publication in the Texas Register. The notice must include:
4-24 (1) a statement that the agency intends to engage in
4-25 negotiated rulemaking;
5-1 (2) a description of the subject and scope of the rule
5-2 to be developed;
5-3 (3) a description of the known issues to be considered
5-4 in developing the rule;
5-5 (4) a list of the interests that are likely to be
5-6 affected by the proposed rule;
5-7 (5) a list of the individuals the agency proposes to
5-8 appoint to the negotiated rulemaking committee to represent the
5-9 agency and affected interests;
5-10 (6) a request for comments on the proposal to engage
5-11 in negotiated rulemaking and on the proposed membership of the
5-12 negotiated rulemaking committee; and
5-13 (7) a description of the procedure through which a
5-14 person who will be significantly affected by the proposed rule may,
5-15 before the agency establishes the negotiated rulemaking committee,
5-16 apply to the agency for membership on the committee or nominate
5-17 another to represent the person's interests on the committee.
5-18 Sec. 2008.054. APPOINTMENT AND DURATION OF NEGOTIATED
5-19 RULEMAKING COMMITTEE. (a) After considering comments it receives
5-20 in response to the notice of proposed negotiated rulemaking, a
5-21 state agency that intends to proceed shall establish a negotiated
5-22 rulemaking committee and appoint the members of the committee.
5-23 (b) A negotiated rulemaking committee appointed by a state
5-24 agency shall be balanced between public and regulated interests.
5-25 (c) The state agency shall appoint individuals to the
6-1 committee to represent the agency and appoint other individuals to
6-2 the committee to represent the interests identified by the agency
6-3 that are likely to be affected by the proposed rule. Article
6-4 6252-33, Revised Statutes, does not apply to the size or
6-5 composition of the committee or to the agency's ability to
6-6 reimburse expenses of committee members under Section 2008.003(b).
6-7 (d) The committee is automatically abolished on the adoption
6-8 of the proposed rule, unless the committee or the state agency
6-9 after consulting the committee specifies an earlier abolition date.
6-10 Sec. 2008.055. APPOINTMENT OF FACILITATOR.
6-11 (a) Concurrently with its establishment of the negotiated
6-12 rulemaking committee, a state agency shall appoint a facilitator.
6-13 The agency may appoint an agency employee, subject to Subdivision
6-14 (b)(3), or contract with another state employee or private
6-15 individual to serve as the facilitator. The agency's appointment
6-16 of the facilitator is subject to the approval of the negotiated
6-17 rulemaking committee and the facilitator serves at the will of the
6-18 committee.
6-19 (b) The facilitator:
6-20 (1) must possess the qualifications required for an
6-21 impartial third party under Section 154.052(a) and (b), Civil
6-22 Practice and Remedies Code;
6-23 (2) is subject to the standards and duties prescribed
6-24 by Section 154.053(a) and (b), Civil Practice and Remedies Code,
6-25 and has the qualified immunity prescribed by Section 154.055, Civil
7-1 Practice and Remedies Code, if applicable;
7-2 (3) shall not be the person designated to represent
7-3 the agency on the negotiated rulemaking committee on substantive
7-4 issues related to the rulemaking; and
7-5 (4) shall not have a financial or other interest in
7-6 the outcome of the rulemaking process that would interfere with the
7-7 person's impartial and unbiased service as the facilitator.
7-8 Sec. 2008.056. DUTIES OF NEGOTIATED RULEMAKING COMMITTEE AND
7-9 FACILITATOR. (a) The facilitator shall preside over meetings of
7-10 the negotiated rulemaking committee and assist the members of the
7-11 committee:
7-12 (1) to establish procedures for conducting
7-13 negotiations; and
7-14 (2) to discuss, negotiate, mediate, and employ other
7-15 appropriate alternative dispute resolution processes to arrive at a
7-16 consensus on the proposed rule.
7-17 (b) It is presumed that the committee has reached a
7-18 consensus on a matter only if the consensus is unanimous, unless
7-19 the committee unanimously:
7-20 (1) agrees to define a consensus to mean a general
7-21 rather than a unanimous consensus; or
7-22 (2) agrees to define the term in another manner.
7-23 (c) The facilitator shall encourage the members of the
7-24 committee to reach a consensus but may not compel or coerce the
7-25 members to do so.
8-1 (d) At the conclusion of the negotiations, the committee
8-2 shall send a written report to the agency that:
8-3 (1) contains the text of the proposed rule, if the
8-4 committee reached a consensus on the proposed rule; or
8-5 (2) specifies the issues on which the committee
8-6 reached consensus, the issues that remain unsolved, and any other
8-7 information, recommendations, or materials that the committee
8-8 considers important, if the committee did not reach a consensus on
8-9 the proposed rule.
8-10 Sec. 2008.057. CONFIDENTIALITY OF CERTAIN RECORDS AND
8-11 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice
8-12 and Remedies Code, apply to the communications, records, conduct,
8-13 and demeanor of the facilitator and the members of the negotiated
8-14 rulemaking committee as if the negotiated rulemaking were a dispute
8-15 being resolved in accordance with Chapter 154, Civil Practice and
8-16 Remedies Code.
8-17 (b) In the negotiated rulemaking context the attorney
8-18 general, subject to review by a Travis County district court,
8-19 decides in accordance with Section 154.073(d), Civil Practice and
8-20 Remedies Code, whether a communication or material subject to
8-21 Section 154.073(d) is confidential, excepted from required
8-22 disclosure, or subject to required disclosure.
8-23 (c) Notwithstanding Section 154.073(d), Civil Practice and
8-24 Remedies Code:
8-25 (1) a private communication and a record of a private
9-1 communication between a facilitator and a member or members of the
9-2 committee are confidential and may not be disclosed unless the
9-3 member or members of the committee, as appropriate, consent to the
9-4 disclosure; and
9-5 (2) the notes of a facilitator are confidential except
9-6 to the extent that the notes consist of a record of a communication
9-7 with a member of the committee who has consented to disclosure in
9-8 accordance with Subdivision (1).
9-9 (d) The report and recommendations of a convener and a
9-10 negotiating committee are public information and available on
9-11 request to any member of the public.
9-12 Sec. 2008.058. ADMINISTRATIVE PROCEDURE ACT REQUIREMENTS
9-13 UNAFFECTED. (a) This chapter does not affect the rulemaking
9-14 requirements prescribed by Chapter 2001.
9-15 (b) A state agency that intends to proceed with the
9-16 rulemaking process after receiving the report of the negotiated
9-17 rulemaking committee shall proceed in accordance with the
9-18 requirements prescribed by Subchapter B, Chapter 2001.
9-19 SECTION 2. This Act takes effect September 1, 1997.
9-20 SECTION 3. The importance of this legislation and the
9-21 crowded condition of the calendars in both houses create an
9-22 emergency and an imperative public necessity that the
9-23 constitutional rule requiring bills to be read on three several
9-24 days in each house be suspended, and this rule is hereby suspended.