CHAPTER 2008. NEGOTIATED RULEMAKING
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE A. ADMINISTRATIVE PROCEDURE AND PRACTICE
CHAPTER 2008. NEGOTIATED RULEMAKING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2008.001. SHORT TITLE. This chapter may be cited as the
Negotiated Rulemaking Act.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.002. DEFINITIONS. In this chapter:
(1) "State agency" means an officer, board, commission,
department, or other agency in the executive branch of state
government with statewide jurisdiction that makes rules. The term
includes:
(A) the attorney general;
(B) an institution of higher education as defined by Section
61.003, Education Code; and
(C) the State Office of Administrative Hearings.
(2) The terms "party," "person," and "rule" have the meanings
assigned by Section 2001.003.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.003. COSTS OF PARTICIPATING IN NEGOTIATED RULEMAKING.
(a) A member of a negotiated rulemaking committee established
under Subchapter B is responsible for the member's own costs in
serving on the committee, except as provided by Subsection (b).
(b) The state agency that established the negotiated rulemaking
committee may pay a member's technical assistance expenses and
reasonable travel and per diem costs related to the member's
service on the committee at the rate set in the General
Appropriations Act for state employees and may provide a
reasonable rate of compensation to the member if:
(1) the member certifies that the member lacks sufficient
financial resources to participate as a member of the committee;
and
(2) the agency determines that the member's service on the
committee is necessary for the adequate representation of an
affected interest.
(c) The state agency that established the negotiated rulemaking
committee shall provide appropriate administrative support to the
committee.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER B. PROCEDURES FOR NEGOTIATED RULEMAKING
Sec. 2008.051. AUTHORITY FOR NEGOTIATED RULEMAKING. A state
agency may engage in negotiated rulemaking to assist it in
drafting a proposed rule by following the procedures prescribed
by this chapter.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.052. APPOINTMENT AND DUTIES OF CONVENER. (a) A state
agency that proposes to engage in negotiated rulemaking shall
appoint a convener to assist the agency in determining whether it
is advisable to proceed.
(b) The state agency may appoint an agency employee or contract
with another individual to serve as the convener. The convener
may not have a financial or other interest in the outcome of the
rulemaking process that would interfere with the person's
impartial and unbiased service as the convener.
(c) The convener shall assist the agency in identifying persons
who are likely to be affected by the proposed rule, including
persons who oppose the issuance of a rule. The convener shall
discuss with those persons or their representatives:
(1) whether they are willing to participate in negotiated
rulemaking;
(2) whether the agency should engage in negotiated rulemaking to
develop the proposed rule;
(3) which issues that a negotiated rulemaking committee should
address; and
(4) whether there are other persons the convener needs to
identify who may be affected by the proposed rule.
(d) The convener shall then recommend to the agency whether
negotiated rulemaking is a feasible method to develop the
proposed rule and shall report to the agency on the relevant
considerations, including:
(1) the number of identifiable interests that would be
significantly affected by the proposed rule;
(2) the probability that those interests would be adequately
represented in a negotiated rulemaking;
(3) the probable willingness and authority of the
representatives of affected interests to negotiate in good faith;
(4) the probability that a negotiated rulemaking committee would
reach a unanimous or a suitable general consensus on the proposed
rule;
(5) the probability that negotiated rulemaking will not
unreasonably delay notice and eventual adoption of the proposed
rule;
(6) the adequacy of agency and citizen resources to participate
in negotiated rulemaking;
(7) the probability that the negotiated rulemaking committee
will provide a balanced representation between public and
regulated interests; and
(8) the willingness of the agency to accept the consensus of a
negotiated rulemaking committee as the basis for the proposed
rule.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.053. NOTICE REQUIREMENTS FOR NEGOTIATED RULEMAKINGS.
(a) After considering the convener's recommendation and report,
a state agency that intends to engage in negotiated rulemaking
shall publish timely notice of its intent in appropriate media
and file timely notice of its intent with the secretary of state
for publication in the Texas Register. The notice must include:
(1) a statement that the agency intends to engage in negotiated
rulemaking;
(2) a description of the subject and scope of the rule to be
developed;
(3) a description of the known issues to be considered in
developing the rule;
(4) a list of the interests that are likely to be affected by
the proposed rule;
(5) a list of the individuals the agency proposes to appoint to
the negotiated rulemaking committee to represent the agency and
affected interests;
(6) a request for comments on the proposal to engage in
negotiated rulemaking and on the proposed membership of the
negotiated rulemaking committee; and
(7) a description of the procedure through which a person who
will be significantly affected by the proposed rule may, before
the agency establishes the negotiated rulemaking committee, apply
to the agency for membership on the committee or nominate another
to represent the person's interests on the committee.
(b) A state agency that intends to proceed with the rulemaking
process after receiving the report of the negotiated rulemaking
committee shall announce in a statement accompanying the notice
of a proposed rule required by Subchapter B, Chapter 2001, that:
(1) negotiated rulemaking was used in developing the proposed
rule; and
(2) the report of the negotiated rulemaking committee is public
information and the location at which the report is available to
the public.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.054. APPOINTMENT AND DURATION OF NEGOTIATED RULEMAKING
COMMITTEE. (a) After considering comments it receives in
response to the notice of proposed negotiated rulemaking, a state
agency that intends to proceed shall establish a negotiated
rulemaking committee and appoint the members of the committee.
(b) A state agency shall consider the appropriate balance
between representatives of affected interests in appointing the
negotiated rulemaking committee.
(c) The state agency shall appoint individuals to the committee
to represent the agency and appoint other individuals to the
committee to represent the interests identified by the agency
that are likely to be affected by the proposed rule. Article
6252-33, Revised Statutes, does not apply to the size or
composition of the committee or to the agency's ability to
reimburse expenses of committee members under Section
2008.003(b).
(d) The committee is automatically abolished on the adoption of
the proposed rule, unless the committee or the state agency after
consulting the committee specifies an earlier abolition date.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.055. APPOINTMENT OF FACILITATOR. (a) Concurrently
with its establishment of the negotiated rulemaking committee, a
state agency shall appoint a facilitator. The agency may appoint
an agency employee, subject to Subdivision (b)(3), or contract
with another state employee or private individual to serve as the
facilitator. The agency's appointment of the facilitator is
subject to the approval of the negotiated rulemaking committee
and the facilitator serves at the will of the committee.
(b) The facilitator:
(1) must possess the qualifications required for an impartial
third party under Section 154.052(a) and (b), Civil Practice and
Remedies Code;
(2) is subject to the standards and duties prescribed by Section
154.053(a) and (b), Civil Practice and Remedies Code, and has the
qualified immunity prescribed by Section 154.055, Civil Practice
and Remedies Code, if applicable;
(3) shall not be the person designated to represent the agency
on the negotiated rulemaking committee on substantive issues
related to the rulemaking; and
(4) shall not have a financial or other interest in the outcome
of the rulemaking process that would interfere with the person's
impartial and unbiased service as the facilitator.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.056. DUTIES OF NEGOTIATED RULEMAKING COMMITTEE AND
FACILITATOR. (a) The facilitator shall preside over meetings of
the negotiated rulemaking committee and assist the members of the
committee:
(1) to establish procedures for conducting negotiations; and
(2) to discuss, negotiate, mediate, and employ other appropriate
alternative dispute resolution processes to arrive at a consensus
on the proposed rule.
(b) It is presumed that the committee has reached a consensus on
a matter only if the consensus is unanimous, unless the committee
unanimously:
(1) agrees to define a consensus to mean a general rather than a
unanimous consensus; or
(2) agrees to define the term in another manner.
(c) The facilitator shall encourage the members of the committee
to reach a consensus but may not compel or coerce the members to
do so.
(d) At the conclusion of the negotiations, the committee shall
send a written report to the agency that:
(1) contains the text of the proposed rule, if the committee
reached a consensus on the proposed rule; or
(2) specifies the issues on which the committee reached
consensus, the issues that remain unsolved, and any other
information, recommendations, or materials that the committee
considers important, if the committee did not reach a consensus
on the proposed rule.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.
Sec. 2008.057. CONFIDENTIALITY OF CERTAIN RECORDS AND
COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil
Practice and Remedies Code, apply to the communications, records,
conduct, and demeanor of the facilitator and the members of the
negotiated rulemaking committee as if the negotiated rulemaking
were a dispute being resolved in accordance with Chapter 154,
Civil Practice and Remedies Code.
(b) In the negotiated rulemaking context the attorney general,
subject to review by a Travis County district court, decides in
accordance with Section 154.073(d), Civil Practice and Remedies
Code, whether a communication or material subject to Section
154.073(d) is confidential, excepted from required disclosure, or
subject to required disclosure.
(c) Notwithstanding Section 154.073(e), Civil Practice and
Remedies Code:
(1) a private communication and a record of a private
communication between a facilitator and a member or members of
the committee are confidential and may not be disclosed unless
the member or members of the committee, as appropriate, consent
to the disclosure; and
(2) the notes of a facilitator are confidential except to the
extent that the notes consist of a record of a communication with
a member of the committee who has consented to disclosure in
accordance with Subdivision (1).
(d) The report and recommendations of a convener and a
negotiating committee are public information and available on
request to any member of the public.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1352, Sec. 4, eff.
Sept. 1, 1999.
Sec. 2008.058. ADMINISTRATIVE PROCEDURE ACT REQUIREMENTS
UNAFFECTED. (a) This chapter does not affect the rulemaking
requirements prescribed by Chapter 2001.
(b) A state agency that intends to proceed with the rulemaking
process after receiving the report of the negotiated rulemaking
committee shall proceed in accordance with the requirements
prescribed by Subchapter B, Chapter 2001.
Added by Acts 1997, 75th Leg., ch. 1315, Sec. 1, eff. Sept. 1,
1997.