SECTION 253.4. Negotiated Rulemaking and Alternative Dispute Resolution

(a) Policy. It is the Commission's policy to encourage the use of negotiated rulemaking and alternative dispute resolution procedures in appropriate situations.

(b) Negotiated Rulemaking. When the Commission finds that a rule to be proposed is likely to be complex, controversial, or affect disparate groups, the Commission may propose to engage in negotiated rulemaking in accordance with the Government Code, Chapter 2008.

(1) The Commission's executive director or his designee shall serve as the Commission's convener.

(2) The convener shall assist in identifying persons who are likely to be affected by a proposed rule, including those who oppose issuance of a rule. The convener shall discuss with those persons or their representatives as provided in Government Code §2008.052(c).

(3) The convener shall then recommend to the Commission whether negotiated rulemaking is a feasible method to develop the proposed rule and shall report to the agency on the relevant considerations, including those listed in Government Code §2008.052(d).

(4) After considering the convener's recommendation and report, if the Commission intends to engage in negotiated rulemaking it shall publish notice of its intent in appropriate media and in the Texas Register consistent with the requirements in Government Code §2008.053(a). The notice shall include a request for comments on the proposal to engage in negotiated rulemaking and list the people the Commission proposes to appoint to the negotiated rulemaking committee.

(5) After considering comments, if the Commission intends to proceed with negotiated rulemaking it shall appoint a negotiated rulemaking committee and a facilitator approved by the negotiated rulemaking committee.

(6) The facilitator shall preside over meetings of the negotiated rulemaking committee and assist the committee in establishing procedures for conducting negotiations and in attempting to arrive at a consensus on the proposed rule.

(7) At the conclusion of negotiations, the negotiated rulemaking committee shall send a written report to the Commission as provided in Government Code §2008.056(d).

(8) After considering the negotiated rulemaking committee's report, if the Commission intends to proceed with the rulemaking process it shall proceed in accordance with Government Code, Chapter 2001, Subchapter B.

(c) Alternative Dispute Resolution. The Commission encourages the fair and expeditious resolution of disputes through alternative dispute resolution (ADR) procedures.

(1) ADR procedures include any procedure or combination of procedures described by Civil Practice and Remedies Code, Chapter 154. ADR procedures are intended to supplement and not limit other dispute resolution procedures available for use by the Commission.

(2) Any ADR procedure used to resolve disputes before the Commission shall conform with Government Code, Chapter 2009, and, to the extent possible, the model guidelines for the use of ADR issued by the State Office of Administrative Hearings (SOAH).

(3) Upon receipt of notice of a dispute, the Commission's Executive Director, in consultation with the Commission's General Counsel, shall determine whether use of an ADR procedure is an appropriate method for resolving the dispute.

(4) If an ADR procedure is determined to be appropriate, the Commission's Executive Director shall recommend to the claimant the use of ADR to resolve the dispute. The Commission's General Counsel will collaborate with the claimant to select an appropriate procedure for dispute resolution and implement the agreed upon procedure consistent with SOAH's model guidelines.

(5) ADR for Breach of Contract Claims. Resolution of breach of certain contract claims brought by a contractor against the Commission shall conform to the requirements of Government Code, Chapter 2260. The Commission adopts by reference the Office of the Attorney General's rules regarding the negotiation and mediation of certain contract disputes (1 Texas Administrative Code Part 3, Chapter 68).

(6) The requirements of Government Code, Chapter 2260, and the Office of the Attorney General's model rules are required prerequisites to a contractor filing suit in accordance with Civil Practices and Remedies Code, Chapter 107.

(d) The Commission's General Counsel is designated as the coordinator to implement the Commission's policy under this rule, provide necessary training, and collect data concerning the effectiveness of the implemented procedures.

Source Note: The provisions of this §253.4 adopted to be effective December 6, 2011, 36 TexReg 8227