CHAPTER 2008. NEGOTIATED RULEMAKING

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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

(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.

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.

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.

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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