1-1 By: Brown, Ellis S.B. No. 882 1-2 (In the Senate - Filed March 3, 1997; March 5, 1997, read 1-3 first time and referred to Committee on State Affairs; 1-4 March 25, 1997, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 11, Nays 0; March 25, 1997, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 882 By: Ellis 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to negotiated rulemaking by state agencies. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-12 SECTION 1. Subtitle A, Title 10, Government Code, is amended 1-13 by adding Chapter 2008 to read as follows: 1-14 CHAPTER 2008. NEGOTIATED RULEMAKING 1-15 SUBCHAPTER A. GENERAL PROVISIONS 1-16 Sec. 2008.001. SHORT TITLE. This chapter may be cited as 1-17 the Negotiated Rulemaking Act. 1-18 Sec. 2008.002. DEFINITIONS. In this chapter: 1-19 (1) "State agency" means an officer, board, 1-20 commission, department, or other agency in the executive branch of 1-21 state government with statewide jurisdiction that makes rules. The 1-22 term includes: 1-23 (A) the attorney general; 1-24 (B) an institution of higher education as 1-25 defined by Section 61.003, Education Code; and 1-26 (C) the State Office of Administrative Hearings. 1-27 (2) The terms "party," "person," and "rule" have the 1-28 meanings assigned by Section 2001.003. 1-29 Sec. 2008.003. COSTS OF PARTICIPATING IN NEGOTIATED 1-30 RULEMAKING. (a) A member of a negotiated rulemaking committee 1-31 established under Subchapter B is responsible for the member's own 1-32 costs in serving on the committee, except as provided by Subsection 1-33 (b). 1-34 (b) The state agency that established the negotiated 1-35 rulemaking committee may pay a member's technical assistance 1-36 expenses and reasonable travel and per diem costs related to the 1-37 member's service on the committee at the rate set in the General 1-38 Appropriations Act for state employees and may provide a reasonable 1-39 rate of compensation to the member if: 1-40 (1) the member certifies that the member lacks 1-41 sufficient financial resources to participate as a member of the 1-42 committee; and 1-43 (2) the agency determines that the member's service on 1-44 the committee is necessary for the adequate representation of an 1-45 affected interest. 1-46 (c) The state agency that established the negotiated 1-47 rulemaking committee shall provide appropriate administrative 1-48 support to the committee. 1-49 (Sections 2008.004 to 2008.050 reserved for expansion 1-50 SUBCHAPTER B. PROCEDURES FOR NEGOTIATED RULEMAKING 1-51 Sec. 2008.051. AUTHORITY FOR NEGOTIATED RULEMAKING. A state 1-52 agency may engage in negotiated rulemaking to assist it in drafting 1-53 a proposed rule by following the procedures prescribed by this 1-54 chapter. 1-55 Sec. 2008.052. APPOINTMENT AND DUTIES OF CONVENER. (a) A 1-56 state agency that proposes to engage in negotiated rulemaking shall 1-57 appoint a convener to assist the agency in determining whether it 1-58 is advisable to proceed. 1-59 (b) The state agency may appoint an agency employee or 1-60 contract with another individual to serve as the convener. The 1-61 convener may not have a financial or other interest in the outcome 1-62 of the rulemaking process that would interfere with the person's 1-63 impartial and unbiased service as the convener. 1-64 (c) The convener shall assist the agency in identifying 2-1 persons who are likely to be affected by the proposed rule, 2-2 including persons who oppose the issuance of a rule. The convener 2-3 shall discuss with those persons or their representatives: 2-4 (1) whether they are willing to participate in 2-5 negotiated rulemaking; 2-6 (2) whether the agency should engage in negotiated 2-7 rulemaking to develop the proposed rule; 2-8 (3) which issues that a negotiated rulemaking 2-9 committee should address; and 2-10 (4) whether there are other persons the convener needs 2-11 to identify who may be affected by the proposed rule. 2-12 (d) The convener shall then recommend to the agency whether 2-13 negotiated rulemaking is a feasible method to develop the proposed 2-14 rule and shall report to the agency on the relevant considerations, 2-15 including: 2-16 (1) the number of identifiable interests that would be 2-17 significantly affected by the proposed rule; 2-18 (2) the probability that those interests would be 2-19 adequately represented in a negotiated rulemaking; 2-20 (3) the probable willingness and authority of the 2-21 representatives of affected interests to negotiate in good faith; 2-22 (4) the probability that a negotiated rulemaking 2-23 committee would reach a unanimous or a suitable general consensus 2-24 on the proposed rule; 2-25 (5) the probability that negotiated rulemaking will 2-26 not unreasonably delay notice and eventual adoption of the proposed 2-27 rule; 2-28 (6) the adequacy of agency and citizen resources to 2-29 participate in negotiated rulemaking; 2-30 (7) the probability that the negotiated rulemaking 2-31 committee will provide a balanced representation between public and 2-32 regulated interests; and 2-33 (8) the willingness of the agency to accept the 2-34 consensus of a negotiated rulemaking committee as the basis for the 2-35 proposed rule. 2-36 Sec. 2008.053. NOTICE REQUIREMENTS FOR NEGOTIATED 2-37 RULEMAKINGS. (a) After considering the convener's recommendation 2-38 and report, a state agency that intends to engage in negotiated 2-39 rulemaking shall publish timely notice of its intent in appropriate 2-40 media and file timely notice of its intent with the secretary of 2-41 state for publication in the Texas Register. The notice must 2-42 include: 2-43 (1) a statement that the agency intends to engage in 2-44 negotiated rulemaking; 2-45 (2) a description of the subject and scope of the rule 2-46 to be developed; 2-47 (3) a description of the known issues to be considered 2-48 in developing the rule; 2-49 (4) a list of the interests that are likely to be 2-50 affected by the proposed rule; 2-51 (5) a list of the individuals the agency proposes to 2-52 appoint to the negotiated rulemaking committee to represent the 2-53 agency and affected interests; 2-54 (6) a request for comments on the proposal to engage 2-55 in negotiated rulemaking and on the proposed membership of the 2-56 negotiated rulemaking committee; and 2-57 (7) a description of the procedure through which a 2-58 person who will be significantly affected by the proposed rule may, 2-59 before the agency establishes the negotiated rulemaking committee, 2-60 apply to the agency for membership on the committee or nominate 2-61 another to represent the person's interests on the committee. 2-62 (b) A state agency that intends to proceed with the 2-63 rulemaking process after receiving the report of the negotiated 2-64 rulemaking committee shall announce in a statement accompanying the 2-65 notice of a proposed rule required by Subchapter B, Chapter 2001, 2-66 that: 2-67 (1) negotiated rulemaking was used in developing the 2-68 proposed rule; and 2-69 (2) the report of the negotiated rulemaking committee 3-1 is public information and the location at which the report is 3-2 available to the public. 3-3 Sec. 2008.054. APPOINTMENT AND DURATION OF NEGOTIATED 3-4 RULEMAKING COMMITTEE. (a) After considering comments it receives 3-5 in response to the notice of proposed negotiated rulemaking, a 3-6 state agency that intends to proceed shall establish a negotiated 3-7 rulemaking committee and appoint the members of the committee. 3-8 (b) A state agency shall consider the appropriate balance 3-9 between representatives of affected interests in appointing the 3-10 negotiated rulemaking committee. 3-11 (c) The state agency shall appoint individuals to the 3-12 committee to represent the agency and appoint other individuals to 3-13 the committee to represent the interests identified by the agency 3-14 that are likely to be affected by the proposed rule. Article 3-15 6252-33, Revised Statutes, does not apply to the size or 3-16 composition of the committee or to the agency's ability to 3-17 reimburse expenses of committee members under Section 2008.003(b). 3-18 (d) The committee is automatically abolished on the adoption 3-19 of the proposed rule, unless the committee or the state agency 3-20 after consulting the committee specifies an earlier abolition date. 3-21 Sec. 2008.055. APPOINTMENT OF FACILITATOR. 3-22 (a) Concurrently with its establishment of the negotiated 3-23 rulemaking committee, a state agency shall appoint a facilitator. 3-24 The agency may appoint an agency employee, subject to Subdivision 3-25 (b)(3), or contract with another state employee or private 3-26 individual to serve as the facilitator. The agency's appointment 3-27 of the facilitator is subject to the approval of the negotiated 3-28 rulemaking committee and the facilitator serves at the will of the 3-29 committee. 3-30 (b) The facilitator: 3-31 (1) must possess the qualifications required for an 3-32 impartial third party under Section 154.052(a) and (b), Civil 3-33 Practice and Remedies Code; 3-34 (2) is subject to the standards and duties prescribed 3-35 by Section 154.053(a) and (b), Civil Practice and Remedies Code, 3-36 and has the qualified immunity prescribed by Section 154.055, Civil 3-37 Practice and Remedies Code, if applicable; 3-38 (3) shall not be the person designated to represent 3-39 the agency on the negotiated rulemaking committee on substantive 3-40 issues related to the rulemaking; and 3-41 (4) shall not have a financial or other interest in 3-42 the outcome of the rulemaking process that would interfere with the 3-43 person's impartial and unbiased service as the facilitator. 3-44 Sec. 2008.056. DUTIES OF NEGOTIATED RULEMAKING COMMITTEE AND 3-45 FACILITATOR. (a) The facilitator shall preside over meetings of 3-46 the negotiated rulemaking committee and assist the members of the 3-47 committee: 3-48 (1) to establish procedures for conducting 3-49 negotiations; and 3-50 (2) to discuss, negotiate, mediate, and employ other 3-51 appropriate alternative dispute resolution processes to arrive at a 3-52 consensus on the proposed rule. 3-53 (b) It is presumed that the committee has reached a 3-54 consensus on a matter only if the consensus is unanimous, unless 3-55 the committee unanimously: 3-56 (1) agrees to define a consensus to mean a general 3-57 rather than a unanimous consensus; or 3-58 (2) agrees to define the term in another manner. 3-59 (c) The facilitator shall encourage the members of the 3-60 committee to reach a consensus but may not compel or coerce the 3-61 members to do so. 3-62 (d) At the conclusion of the negotiations, the committee 3-63 shall send a written report to the agency that: 3-64 (1) contains the text of the proposed rule, if the 3-65 committee reached a consensus on the proposed rule; or 3-66 (2) specifies the issues on which the committee 3-67 reached consensus, the issues that remain unsolved, and any other 3-68 information, recommendations, or materials that the committee 3-69 considers important, if the committee did not reach a consensus on 4-1 the proposed rule. 4-2 Sec. 2008.057. CONFIDENTIALITY OF CERTAIN RECORDS AND 4-3 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice 4-4 and Remedies Code, apply to the communications, records, conduct, 4-5 and demeanor of the facilitator and the members of the negotiated 4-6 rulemaking committee as if the negotiated rulemaking were a dispute 4-7 being resolved in accordance with Chapter 154, Civil Practice and 4-8 Remedies Code. 4-9 (b) In the negotiated rulemaking context the attorney 4-10 general, subject to review by a Travis County district court, 4-11 decides in accordance with Section 154.073(d), Civil Practice and 4-12 Remedies Code, whether a communication or material subject to 4-13 Section 154.073(d) is confidential, excepted from required 4-14 disclosure, or subject to required disclosure. 4-15 (c) Notwithstanding Section 154.073(d), Civil Practice and 4-16 Remedies Code: 4-17 (1) a private communication and a record of a private 4-18 communication between a facilitator and a member or members of the 4-19 committee are confidential and may not be disclosed unless the 4-20 member or members of the committee, as appropriate, consent to the 4-21 disclosure; and 4-22 (2) the notes of a facilitator are confidential except 4-23 to the extent that the notes consist of a record of a communication 4-24 with a member of the committee who has consented to disclosure in 4-25 accordance with Subdivision (1). 4-26 (d) The report and recommendations of a convener and a 4-27 negotiating committee are public information and available on 4-28 request to any member of the public. 4-29 Sec. 2008.058. ADMINISTRATIVE PROCEDURE ACT REQUIREMENTS 4-30 UNAFFECTED. (a) This chapter does not affect the rulemaking 4-31 requirements prescribed by Chapter 2001. 4-32 (b) A state agency that intends to proceed with the 4-33 rulemaking process after receiving the report of the negotiated 4-34 rulemaking committee shall proceed in accordance with the 4-35 requirements prescribed by Subchapter B, Chapter 2001. 4-36 SECTION 2. This Act takes effect September 1, 1997. 4-37 SECTION 3. The importance of this legislation and the 4-38 crowded condition of the calendars in both houses create an 4-39 emergency and an imperative public necessity that the 4-40 constitutional rule requiring bills to be read on three several 4-41 days in each house be suspended, and this rule is hereby suspended. 4-42 * * * * *