Current through Reg. 49, No. 38; September 20, 2024
(a) Definitions.
The following words and terms, when used in this section, shall have the
following meaning:
(1) Alternative Dispute
Resolution coordinator--An agency employee appointed under Subchapter B, §
1.22
of this chapter (relating to Appointment of ADR Coordinator).
(2) Board or agency--Texas Higher Education
Coordinating Board.
(3)
Commissioner--The Commissioner of Higher Education.
(4) Consensus--The negotiated rulemaking
committee has reached consensus on a matter only if the agreement is unanimous,
unless the committee has unanimously agreed to define consensus in another
manner. The absence or silence of a member at the time the final consensus vote
is taken is equivalent to agreement. If consensus is achieved, negotiated
rulemaking committee members may not thereafter withdraw their
agreement.
(5) Institutions of
higher education--As defined in Texas Education Code, §
61.003.
(6) Private or independent institutions of
higher education--As defined in Texas Education Code, §
61.003.
(b) Scope and Purpose. If the
Assistant Commissioner whose Division has jurisdiction over the subject matter
of the rule or rules to be adopted concludes that the agency may benefit from
negotiated rulemaking, he or she shall request that the agency's ADR
coordinator assist in determining whether it is advisable to proceed under the
procedures established in Chapter 2008 of the Texas Government Code. If the ADR
coordinator concludes that formal rulemaking is not advisable, the agency may
nonetheless engage in informal negotiated rulemaking. This rule also implements
Texas Education Code, §§
61.0331,
61.0572,
61.058,
and
61.07761
which require the Board to engage in negotiated rulemaking with institutions of
higher education in accordance with the procedures established in Texas
Government Code, Chapter 2008 when adopting a policy, procedure, or rule
relating to:
(1) the transfer of credit under
Texas Education Code, §
61.827 or admission
policies regarding:
(A) the common admission
application under Texas Education Code, §
51.762;
(B) uniform admissions under Texas Education
Code, §
51.807; or
(C) graduate and professional admissions
under Texas Education Code, §
51.843; or
(2) the reevaluation of data
requests under Texas Education Code, §
51.406;
(3) compliance monitoring under Texas
Education Code, §
61.035;
(4) the standards for cost, efficiency, space
need, and space use under Texas Education Code, §
61.0572
and §
61.058
in regards to:
(A) new construction,
rehabilitation, repair of buildings and facilities at institutions of higher
education; and
(B) the purchases of
improved real property added to institutions of higher education's educational
and general buildings and facilities inventory; or
(5) the allocation (including the allocation
methodologies and related procedures) or distribution of funds, including
financial aid or other trusteed funds under Texas Education Code, §
61.07761,
to institutions of higher education and private or independent institutions of
higher education. For rulemaking on this issue, the Board shall engage in
negotiated rulemaking with both institutions of higher education and private or
independent institutions of higher education, as applicable.
(A) With the exception of subsections (a),
(b), and (d)(3) and (4) of this section, this rule and the procedures set forth
herein apply only to those matters, as set forth in this subsection in which
the Board is required to engage in negotiated rulemaking.
(B) In matters other than those addressed in
this subsection, the Board retains the right to engage in negotiated rulemaking
in accordance with the procedures established in the Texas Government Code,
Chapter 2008.
(c) Appointment of Convener. The ADR
coordinator will appoint an agency employee to serve as the convener to assist
in negotiated rulemaking. 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.
(d) Duties of Convener.
(1) The convener will assist the ADR
coordinator in identifying institutions of higher education (and private or
independent institutions when rulemaking under subsection (a)(6) of this
section is considered) and other stakeholders (such as students, state
agencies, and accreditors) who are likely to be affected by the proposed
rule(s), including identifying institutions and other stakeholders who may
oppose the issuance of rule(s). The convener will discuss with institution
representatives and other stakeholders whether they are willing to participate
in negotiated rulemaking, which issues a negotiated rulemaking committee should
address, and whether there are other institutions or persons the convener needs
to identify who may be affected by the proposed rule(s).
(2) Where the Board is required to engage in
negotiated rulemaking, the convener shall report to the ADR coordinator the
outcome of the above discussions.
(3) Where the Board is not required to engage
in negotiated rulemaking, the convener shall report to the ADR coordinator on
the relevant considerations regarding negotiated rulemaking, including, but not
limited to:
(A) the number of identifiable
interests that would be significantly affected by the proposed
rule(s);
(B) the probable
willingness and authority of the representatives of affected interests to
negotiate in good faith;
(C) the
probability that a negotiated rulemaking committee would reach a unanimous or a
suitable general consensus on the proposed rule(s);
(D) the adequacy of Board, institution, and
citizen resources to participate in negotiated rulemaking; and
(E) the probability that the negotiated
rulemaking committee will provide a balanced representation between affected
stakeholder interests.
(4) Where the Board is not required to engage
in negotiated rulemaking, the convener shall also recommend to the ADR
coordinator whether negotiated rulemaking is appropriate.
(5) The report and recommendations of a
convener are public information and available on request to any member of the
public.
(e) Publishing
Notice of Proposed Negotiated Rulemaking. To initiate negotiated rulemaking,
the Commissioner will publish a notice of intent to establish a negotiated
rulemaking committee to prepare proposed rules. Such notice will be published
both in the Texas Register and on the Board's website. The ADR
coordinator will consider all comments received by the close of the comment
period pursuant to the notice of intent. The notice of intent will include:
(1) a statement that the Board intends to
engage in negotiated rulemaking;
(2) a description of the subject and scope of
the rule(s) to be developed;
(3) a
description of the known issues to be considered in developing the
rule(s);
(4) a list of the
interests likely to be affected by the proposed rule(s);
(5) a list of the individuals the ADR
coordinator proposes to appoint to the negotiated rulemaking committee to
represent the Board and affected interests (each committee will include at
least one agency staff representative);
(6) a request for comments on the proposal to
engage in negotiated rulemaking, including a description of the issues the
commenter believes will need to be addressed in developing the rule(s), as well
as on the proposed membership of the negotiated rulemaking committee;
and
(7) a description of the
procedure through which an institution or person who will be significantly
affected by the proposed rule(s) may, before the ADR coordinator appoints
members to the negotiated rulemaking committee, apply for membership on the
committee or nominate another to represent the institution's or person's
interests on the committee (before nominating an individual to the committee,
the nominator should confirm that the potential nominee can and will make the
necessary time commitment to the negotiations).
(f) Appointment of Negotiated Rulemaking
Committee Members. After considering comments and nominations received in
response to the notice of proposed negotiated rulemaking, the ADR coordinator
will appoint members to a negotiated rulemaking committee to serve until the
proposed rule(s) (if any) is adopted by the Board. The ADR coordinator will
appoint members to the committee with a goal of providing adequate and balanced
representation for the affected interests while keeping the size of the
committee manageable. The ADR coordinator shall select individuals with
demonstrated expertise or experience in the relevant matters under negotiations
and who reflect the diversity of the identifiable interests which could be
significantly affected by the proposed rule(s). An 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.
