| individual selected to serve on the committee
will be expected to represent the interests of his or her entity,
organization or group, and participate in the negotiations in a manner
consistent with the goal of developing proposed rules on which the
committee will reach consensus.
(g) Costs of Participating in Negotiated Rulemaking.
(1) The Board will provide appropriate administrative
support to the negotiated rulemaking committee. Except as provided
in this paragraph, a member of a negotiated rulemaking committee is
responsible for the member's own costs in serving on the committee.
However, if:
(A) The member certifies that he or she (or the entity,
organization or group which the member represents) lacks sufficient
financial resources to participate as a member of the committee and
provides any requested proof of same; and
(B) The ADR coordinator determines that the member's
service on the committee is necessary for the adequate representation
of an affected interest,
(C) then, the Board may pay a member's 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.
(2) The costs of the negotiated rulemaking facilitator
described in subsection (h) of this section shall be borne equally,
on a pro rata basis, by all entities represented on the negotiated
rulemaking committee, unless the negotiated rulemaking committee unanimously
agrees to a different cost allocation; or the facilitator is an employee
of the Board, in which event the costs of the facilitator shall be
borne by the Board.
(h) Appointment of Negotiated Rulemaking Facilitator.
The ADR coordinator will appoint a negotiated rulemaking facilitator
who will utilize alternative dispute resolution skills to attempt
to arrive at a consensus on a proposed rule(s). The ADR coordinator
may appoint a Board employee or contract with another state employee
or private individual to serve as the facilitator. The ADR coordinator'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. The ADR coordinator will appoint the facilitator utilizing,
among other things, the following criteria:
(1) The facilitator must possess the qualifications
required for an impartial third party under Texas Civil Practice and
Remedies Code (CPRC) §154.052(a) and (b);
(2) The facilitator is subject to the standards and
duties prescribed by CPRC §154.053(a) and (b) and has the qualified
immunity prescribed by CPRC §154.055, if applicable;
(3) The facilitator will not be the person designated
to represent the Board on the negotiated rulemaking committee on substantive
issues related to the rulemaking; and
(4) The facilitator will 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.
(i) Duties of Negotiated Rulemaking Committee and Facilitator.
The facilitator will preside over meetings of the negotiated rulemaking
committee and assist the members of the committee to establish procedures
for conducting negotiations and will utilize alternative dispute resolution
skills to encourage a consensus on the proposed rule(s). The facilitator
may not, however, compel or coerce the members to reach a consensus.
(j) Consensus and the Negotiated Rulemaking Committee's
Report. If the negotiated rulemaking committee reaches a consensus,
the committee will draft and send a report to the Board that contains
the text of the proposed rule(s). If the committee determines that
only a partial agreement on a proposed rule(s) has been reached, the
committee will draft and send a report to the Board that describes
the partial agreement achieved, lists the unresolved substantive issues,
and includes any other information or recommendations of the committee.
The committee's report is public information. If consensus is not
achieved, the Board shall determine whether to proceed with proposed
rule(s). If the Board decides to proceed with proposed rule(s), the
Board may use language developed during the negotiations or develop
new language for all or a portion of the proposed rule(s).
(k) Proposed Rulemaking under the APA. If the Board
decides to proceed with rulemaking after receipt of the negotiated
rulemaking committee's report, the Board shall initiate rulemaking
under the regular Administrative Procedures Act (APA) procedures,
as prescribed in Texas Government Code, Chapter 2001, Subchapter B.
In addition to the APA's requirements regarding the contents of notice
of proposed rulemaking, the notice will also state that:
(1) the Board used negotiated rulemaking in developing
the proposed rule; and
(2) the negotiated rulemaking committee report is public
information and the report's location at which it will be available
to the public. All published proposed rules will conform to the agreements
resulting from consensus, if any, achieved through negotiated rulemaking
(as reflected in the negotiated rulemaking committee's report).
(l) Confidentiality of Certain Records and Communications.
CPRC §154.053 and §154.073 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 CPRC Chapter 154.
In the negotiated rulemaking context, the Texas Office of the Attorney
General, subject to review by a Travis County district court, decides
in accordance with CPRC §154.073(d) whether a communication or
material subject to CPRC §154.073(d) is confidential, excepted
from required disclosure, or subject to required disclosure. Notwithstanding
CPRC §154.073(e):
(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 paragraph (1) of this subsection.
(m) The Board hereby delegates to the Commissioner
the responsibilities and authority set forth in this section.
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