|(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
(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
(B) uniform admissions under Texas Education Code, §51.807;
(C) graduate and professional admissions under Texas
Education Code, §51.843; or
(2) the reevaluation of data requests under Texas Education
(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
(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
(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
(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
(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
(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.
(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).