PART 1. TEXAS STATE LIBRARY AND ARCHIVES COMMISSION
CHAPTER 2. GENERAL POLICIES AND PROCEDURES
SUBCHAPTER A. PRINCIPLES AND PROCEDURES OF THE COMMISSION
13 TAC §§2.40, 2.42, 2.46, 2.48
The Texas State Library and Archives Commission proposes new 13 TAC §§2.40, 2.42, 2.46, and 2.48 concerning alternative dispute resolution, negotiation and mediation of certain contract disputes, negotiated rulemaking, and petitions for adoption of rule changes. Adding these was part of the recent Sunset Commission's review of the agency.
Edward Seidenberg, Assistant State Librarian, has determined that for the first five years the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended rule.
Mr. Seidenberg also has determined that for each of the first five years the rules are in effect the public benefits anticipated as a result of enforcing the new section will be to articulate the agency's policy regarding alternative dispute resolution, negotiation and mediation of certain contract disputes, negotiated rulemaking, and petitions for adoption of rule changes. There are no cost implications to either small businesses or persons required to comply with the revised rule.
Comments on the rules may be submitted in writing to Edward Seidenberg, Texas State Library, Box 12927, Austin, Texas 78711-2927.
The new rules are proposed under Government Code §441.020, Government Code, Chapter 2260, Government Code, Chapter 2008, and Government Code, §2001.021.
The proposed rules affect Government Code §441.020, Government Code, Chapter 2260, Government Code, Chapter 2008, and Government Code, §2001.021.
§2.40.Alternative Dispute Resolution.
(a) The agency's policy is to enable the resolution and early settlement of internal and external disputes, including contested cases, through voluntary settlement processes, which may include a procedure or combination of procedures described by Chapter 154, Civil Practice and Remedies Code. Any Alternative Dispute Resolution (ADR) procedure used to resolve disputes before the commission shall comply with the requirements of Chapter 2009, Government Code, and any model guidelines for the use of ADR issued by the State Office of Administrative Hearings.
(b) The agency's deputy director or his designee shall be the agency's dispute resolution coordinator (DRC). The DRC shall perform the following functions, as required:
(1) coordinate the implementation of the policy set out in subsection (a) of this section;
(2) serve as a resource for any staff training or education needed to implement the ADR procedures; and
(3) collect data to evaluate the effectiveness of ADR procedures implemented by the agency.
(c) Any costs associated with retaining an impartial third party mediator, moderator, facilitator, or arbitrator, shall be borne by the party requesting ADR.
(d) Agreements of the parties to ADR must be in writing and are enforceable in the same manner as any other written contract. Confidentiality of records and communications related to the subject matter of an ADR proceeding shall be governed by §154.073 of the Civil Practice and Remedies Code.
(e) If the ADR process does not result in an agreement, the matter may be referred to the commission for other appropriate disposition.
§2.42.Negotiation and Mediation of Certain Contract Disputes.
The commission adopts by reference the rules of the Office of the Attorney General in Texas Administrative Code, Title 1, Part 3, Chapter 68 relating to Negotiation and Mediation of Certain Contract Disputes to comply with the requirements of Government Code, Chapter 2260, §2260.052(c). The rules set forth a process to permit parties to structure a negotiation or mediation in a manner that is most appropriate for a particular dispute regardless of the contract's complexity, subject matter, dollar amount, or method and time of performance.
§2.46.Negotiated Rulemaking.
(a) It is the agency's policy to enable the use of negotiated rulemaking procedures when appropriate. In situations where proposed rules could be complex, controversial, or to affect disparate groups, negotiated rulemaking may be considered by the agency.
(b) When negotiated rulemaking is considered, the deputy director, or designee, shall be the agency's negotiated rulemaking coordinator to assist it in determining whether it is advisable to proceed. The coordinator shall have the duties described in Government Code, Chapter 2008, and shall make a recommendation to the commission to proceed or to defer negotiated rulemaking. The recommendation shall be made after the coordinator, at a minimum, has considered all of the items enumerated in Government Code, §2008.052(c). The coordinator shall perform the following functions, as required:
(1) coordinate the implementation of the policy set out in subsection (a) of this section, and in accordance with the Negotiated Rulemaking Act, Chapter 2008, Government Code;
(2) serve as a resource for any staff training or education needed to implement negotiated rulemaking procedures; and,
(3) collect data to evaluate the effectiveness of negotiated rulemaking procedures implemented by the agency.
(c) Upon the coordinator's recommendation to proceed, the agency may initiate negotiated rulemaking according to the provisions of Government Code, Chapter 2008.
§2.48.Petition for Adoption of Rule Changes.
(a) In accordance with Government Code, §2001.021, an interested person may petition for the adoption, amendment, or repeal of a rule of the commissioner.
(b) A petition under this section must be in writing and contain the following minimum requirements:
(1) It must specify or otherwise make clear that the petition is made pursuant to the provisions of the Administrative Procedure Act.
(2) It must clearly state the body or substance of the rule requested for adoption, and, if appropriate, relate the requested rule to an adopted rule or rules of the commission.
(3) It must contain the petitioner's full name, address, telephone number, and signature.
(4) It must be signed by the petitioner with the date the petition is submitted.
(5) It must include the chapter and subchapter in which, in the petitioner's opinion, the rule belongs, and the proposed rule text of a new rule or the text of the proposed rule change prepared in a manner to indicate the words to be added or deleted from the current text, if any.
(6) It must include a statement of statutory or other authority under which the rule is to be promulgated; and a brief explanation of why the rule action is necessary or desirable.
(c) The commission staff shall evaluate the merits of the proposal.
(d) In accordance with the Government Code, §2001.021, the commission staff shall respond to the petitioner within 60 days of receipt of the petition. The response shall:
(1) advise that rulemaking proceedings will be initiated; or,
(2) deny the petition, stating the reasons for its denial.
(e) If rulemaking procedures are initiated under this section, the version of the rule which the commission staff proposes may differ from the version proposed by the petitioner.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 5, 2008.
TRD-200804096
Edward Seidenberg
Assistant State Librarian
Texas State Library and Archives Commission
Earliest possible date of adoption: September 21, 2008
For further information, please call: (512) 463-5459