These rules and regulations governing procedures for negotiated rulemaking before the Game and Parks Commission are adopted under authority of the Administrative Procedure Act and the Negotiated Rulemaking Act, sections 84-901 through 84-932, R.R.S. 1999. These rules and regulations are effective following enactment by the Game and Parks Commission, approval by the Attorney General and Governor and when five days have elapsed since filing with the Secretary of State.
007.01 Negotiated Rulemaking Generally The purpose of these regulations is to establish a framework for the conduct of negotiated rulemaking consistent with the Administrative Procedure Act and the Negotiated Rulemaking Act. The negotiated rulemaking process can be used by the Commission, whenever appropriate, to resolve controversial issues prior to the commencement of formal rulemaking. Negotiated rulemaking is not a substitute for the requirements of the Administrative Procedure Act, but may be used as a supplemental procedure to permit the direct participation of affected interests in the development of new rules or the amendment or repeal of existing rules. The negotiated rulemaking process also does not preclude other Commission efforts or processes designed to reach consensus with affected or interested persons concerning the content of rules or regulations. A consensus agreement on a proposed rule reached by a Negotiated Rulemaking Committee may be modified by the Commission as a result of a subsequent formal rulemaking process.
007.02 Definitions For purposes of this Chapter of these procedural rules:
007.02A APA shall mean the Administrative Procedure Act, Neb. Rev. Stat, sections 84-901 through 84-920, R.R.S. 1999.007.02B Agency shall mean the Game and Parks Commission, its Director and staff.007.02C Commission shall mean the eight Commissioners as defined in 37-101, R.R.S. 2004.007.02D Commission Director shall mean the secretary as defined in 37-106, R.R.S. 2004.007.02E Consensus shall mean unanimous concurrence among the interests represented on a Negotiated Rulemaking Committee unless the committee agrees upon another specified definition.007.02F Convenor shall mean a person who impartially assists the Commission in determining whether establishment of a Negotiated Rulemaking Committee is feasible and appropriate for a particular rulemaking procedure.007.02G Facilitator shall mean a person who impartially aids in the discussion and negotiations among the members of a Negotiated Rulemaking Committee to develop a proposed rule. A facilitator shall not have decision making authority.007.02H Interest shall mean, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner.007.02I Negotiated rulemaking shall mean rulemaking through the use of a Negotiated Rulemaking Committee.007.02J Negotiated Rulemaking Committee or Committee shall mean an advisory committee established to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule.007.02K Person shall mean an individual, partnership, limited liability company, corporation, association, governmental subdivision, Agency, or public or private organization of any character.007.02L Rule or regulation shall mean any rule, regulation, or standard issued by the Commission, including the amendment or repeal thereof whether with or without prior hearing and designed to implement, interpret, or make specific the law enforced or administered by it or governing its organization or procedure, but not including rules and regulations concerning the internal management of the Commission not affecting private rights, private interests, or procedures available to the public, and for the purpose of the APA, every rule and regulation which shall prescribe a penalty shall be presumed to have general applicability or to affect private rights and interests.007.03 Establishment of a Negotiated Rulemaking Committee; Criteria The Agency may establish a Negotiated Rulemaking Committee to negotiate and develop a proposed rule if the Commission determines that the use of the negotiated rulemaking procedure is in the public interest. In making that determination, the Commission shall consider whether:
007.03A There is a need for the rule.007.03B There are a limited number of identifiable interests that will be significantly affected by the rule.007.03C There is a reasonable likelihood that a committee can be convened with a balanced representation of persons who: 007.03C1 Can adequately represent the interests identified; and007.03C2 Are willing to negotiate in good faith to reach a consensus on the proposed rule.007.03D There is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time.007.03E The negotiated rulemaking procedure will not unreasonably delay the notice of proposed formal rulemaking and the issuance of the final rule pursuant to the APA.007.03F The Agency has adequate resources and is willing to commit those resources, including technical assistance, to the committee.007.03G The Commission, to the maximum extent possible consistent with the legal obligations of the Commission, will use the consensus of the committee as the basis of the rule proposed by the Commission in the formal rulemaking process of the APA.007.04 Convenors; Selection; Duties The Agency, at its discretion, may use the services of a convenor.
007.04A The Agency may employ or contract for an organization or an individual to serve as a convenor, or may use the services of a state employee to act as a convenor. A convenor shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The Agency shall determine whether a person under consideration as a convenor has such an interest. A person disqualified under this criterion shall be dropped from further consideration.007.04B The convenor may assist the Agency and Commission in making the determination of need for a negotiated rulemaking process discussed in section 007.03 above. The convenor may also assist the Agency and Commission in: 007.04B1 Identifying persons who will be significantly affected by a proposed rule.007.04B2 Conducting discussions with affected persons on the issues of concern and ascertaining whether the establishment of a Negotiated Rulemaking Committee is feasible and appropriate for the particular rulemaking.007.04C The convenor shall report findings and make recommendations to the Commission. Upon request of the Commission, the convenor shall ascertain the names of persons who are willing and qualified to represent the interests that will be significantly affected by the proposed rule. That report by the convenor and any recommendations of the convenor shall be public records and made available to the public for review upon request.007.05 Petitions For The Use Of A Negotiated Rulemaking Committee Any person may petition the Commission to request the use of a Negotiated Rulemaking Committee in the development or revision of a rule, as provided below.
007.05A A negotiated rulemaking process may be requested on any topic appropriate for a rule or regulation by the Commission. 007.05A1 A negotiated rulemaking process may be requested only to develop or revise rules which carry out statutes that are within the authority of the Commission to implement.007.05A2 A negotiated rulemaking process may not be requested to develop a rule or regulation to vary or change the specific terms of a statute.007.05A3 A negotiated rulemaking process may not be requested to negotiate a rule on a matter which is not within the definition of a rule or regulation as set forth in subsection 007.02L above.007.05B A request for the use of a negotiated rulemaking procedure shall be made by a petition that meets the requirements of form set out in this subsection. In the event that it does not, the Commission may refuse to accept it. 007.05B1 A petition may be in the form of a pleading that contains a caption, heading, and name as set forth on Attachment 1, which is attached to these rules and made a part of them by reference.007.05B2 A petition may also be made in the form of a letter so long as the letter contains all of the information required by these regulations and is clearly delineated as a petition for negotiated rulemaking.007.05B3 All petitions must be on white, letter sized paper (81/2 by 11) of standard weight.007.05B4 Petitions must be legible, and may be typewritten, photostatically reproduced, printed, or handwritten. If handwritten, petitions must be in ink. Only one side of a page of a petition shall contain any writing.007.05B5 Any documents that are intended to accompany a petition shall be securely fastened, clearly marked as attachments to the petition, and meet the other requirements of this Section as to size, print and legibility.007.05C A petition for a negotiated rulemaking procedure shall meet the following requirements for content and substance. In the event that it does not, the Commission may refuse to accept it.007.05C1 The petition must identify the general subject matter about which the negotiated rulemaking procedure is requested, including the statutes or legislative bill(s) which provide authority for the desired regulation, and, if amendments to existing regulations are sought, identification of the regulations by title, chapter and name.007.05C2 The petition must identify the specific issue(s) proposed for inclusion in the negotiated rulemaking process.007.05C3 The petition must discuss the facts surrounding each problem or issue proposed for inclusion in the negotiated rulemaking process.007.05C4 The petition must discuss why a negotiated rulemaking process is in the public interest, including information on each of the criteria set out in subsections 007.03A through 007.03E above. The petition may also include information on the criteria included in subsections 007.03F and 007.03G above, to the extent such information is available to the petitioner. The petitioner may also submit such other information as may assist the Commission in making a decision.007.05C5 The petition must identify persons who will be significantly affected by any rule which might result from the proposed negotiated rulemaking process, to the extent known by the petitioner. The petitioner may also suggest the names of persons who are willing and qualified to represent the interests that will be significantly affected by the negotiated rulemaking process and the proposed rule.007.05D A petition for a negotiated rulemaking process shall be filed with the Commission. Filing may be made by personal delivery during regular office hours of 8:00 a.m. to 5:00 p.m. or by mail at P. O. Box 30370 2200 North 33rd St., Lincoln, NE 68503-0370.007.05E Upon the filing of a petition for a negotiated rulemaking procedure, the Commission Director may designate an Agency employee or use the services of a convenor to recommend to the Commission whether a negotiated rulemaking process should be initiated.007.05F With sixty (60) days after submission of a petition for a negotiated rule making procedure, the Commission shall:007.05F1 Deny the petition in writing, stating the reason(s) for denial; or007.05F2 Initiate the negotiated rulemaking process as provided in these rules.007.05G The decision of the Commission with respect to a petition for a negotiated rule making procedure may be made in the form of a pleading or a letter clearly designated as the decision on the petition. The petitioner shall be served with a copy of the Commission's final decision by certified mail, return receipt requested.007.05H A decision by the Commission with respect to a petition for a negotiated rulemaking procedure is not subject to judicial review, although nothing herein shall bar a judicial review if such is otherwise provided by law.007.06 Notice of a Negotiated Rulemaking Committee; Comment; Applications for Membership. If the Commission decides to go forward with the establishment of a Negotiated Rulemaking Committee, the Agency shall proceed with the following process. 007.06A The Agency shall give notice to the Secretary of State, publish notice in a newspaper having general circulation in the state, and, as appropriate, publish notice in other newspapers and publications. The notice shall include: 007.06A1 An announcement that the Commission intends to establish a Negotiated Rulemaking Committee to negotiate and develop a proposed rule.007.06A2 A description of the subject and scope of the rule to be developed and the issues to be considered.007.06A3 A list of interests likely to be significantly affected by the proposed rule.007.06A4 A list of the persons proposed to represent the affected interests and the Agency.007.06A5 A proposed schedule for completing the work of the committee.007.06A6 An explanation of how a person may apply for or nominate another person for membership on the committee.007.06B Persons interested in making comments upon the formation of a particular proposed Negotiated Rulemaking Committee shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Such comments shall be in writing, and shall either be personally delivered to the Agency during its regular office hours of 8:00 a.m. to 5:00 p.m., Monday through Friday or mailed to the Agency at its business office at P. O. Box 30370 2200 North 33rd Street, Lincoln, NE 68503-0370.007.06C Persons interested in applying for membership on a particular proposed Negotiated Rulemaking Committee or in nominating other persons for such membership shall have thirty (30) days from the date of publication of the notice concerning that committee to do so. Persons making application for membership or nominations for membership shall do so on Attachment 2 which is attached to these regulations and made a part of these regulations by reference, and which shall be provided by the Agency. Persons making application for membership or nominations for membership may also do so by letter, so long as the letter contains all of the information set out in Attachment 2 and is clearly delineated as an application or nomination for membership on a specific Negotiated Rulemaking Committee.007.07 Establishment of a Negotiated Rulemaking Committee; Procedure After publication of notice and termination of the comment and membership application period, the Commission will consider the comments and membership applications for a particular Negotiated Rulemaking Committee and determine whether such a committee can adequately represent the interests of the persons that will be significantly affected by a proposed rule, and whether such a committee is feasible and appropriate in the particular rulemaking. In making the final determination as to creation of a Negotiated Rulemaking Committee, the Commission may use the services of a convenor as set out in Section 007.04 above. In making the final determination as to creation of a Negotiated Rulemaking Committee, the Commission will apply the criteria set out in 007.03 above.
007.07A If, after such a determination, the Commission decides that a negotiated rulemaking procedure is feasible, it shall establish a Negotiated Rulemaking Committee as provided in these regulations. The committee will negotiate issues and develop proposed rules for use by the Commission in formal rulemaking.007.07B If, after such a determination, the Commission decides not to establish a Negotiated Rulemaking Committee, the Agency shall: 007.07B1 Notify the persons who commented on, applied for membership on or nominated persons for membership on the particular Negotiated Rulemaking Committee of the reasons for the decision not to establish such a committee.007.07B2 Publish notice of the decision not to establish the particular Negotiated Rulemaking Committee in a newspaper having general circulation in the state, and, as appropriate, in other newspapers and publications.007.07 Negotiated Rulemaking Committee; Membership All members of a Negotiated Rulemaking Committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members.
007.07A Members of a Negotiated Rulemaking Committee may include: 007.07A1 A person designated by the Director to represent the Agency. This person shall be authorized to fully represent the Commission in the discussions and negotiations of the committee.007.08A2 Persons selected by the Commission as willing and qualified to represent the interests that will be significantly affected by the proposed rule.007.08A3 Persons contacted and recruited by the Negotiated Rulemaking Committee itself by consensus as essential to the success of the negotiated rulemaking process.007.08A4 Persons selected by the Negotiated Rulemaking Committee by consensus upon committee review of a petition for membership or nomination as set out in subsection 007.08B below.007.08B Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person on a Negotiated Rulemaking Committee may petition for or nominate another person for membership on the Negotiated Rulemaking Committee. 007.08B1 Each petition or nomination for committee membership shall be in writing and be submitted to the Negotiated Rulemaking Committee by delivering or mailing the same to the Commission. All such petitions or nominations shall include: 007.08B1a Identification of the applicable negotiated rulemaking proceeding.007.08B1b The name of the petitioner or nominee, and a description of the interests the person represents.007.08B1c Evidence that the petitioner or nominee is authorized to represent parties related to the interests the person proposes to represent.007.08B1d A written commitment that the petitioner or nominee will actively participate in good faith in the development of the rule under consideration.007.08B1e An explanation of reasons that the persons already on the Negotiated Rulemaking Committee do not adequately represent the interests of the person submitting the petition or nomination.007.08C Persons wishing to file such a petition for membership or nomination to a Negotiated Rulemaking Committee may use the form attached hereto as Attachment 3. Attachment 3 is made a part of these regulations by reference. Persons wishing to file such a petition for membership or nomination to a Negotiated Rulemaking Committee may also do so by letter, provided that the letter contains the information set forth above.007.08D Upon receiving a petition for membership on or nomination to a particular Negotiated Rulemaking Committee, the committee in question shall decide, by consensus at its next meeting, whether or not to expand its membership.007.09 Negotiated Rulemaking Committee; Operation A Negotiated Rulemaking Committee established under these rules shall consider the matter proposed by the Commission for consideration and shall attempt to reach consensus concerning a proposed rule and any other matter the committee determines is relevant to the proposed rule.
007.09A A Negotiated Rulemaking Committee may adopt procedures or ground rules for the operation of the committee consistent with these rules and the pertinent Nebraska statutes.007.09B The Agency shall provide appropriate administrative support to a Negotiated Rulemaking Committee including technical assistance and support.007.09C The person representing the Agency on a Negotiated Rulemaking Committee shall participate in the deliberations of the committee with the same rights and responsibilities as other members of the committee and shall be authorized to fully represent the Agency in the discussions and negotiations of the committee.007.09D If a negotiated rule making committee achieves consensus on a proposed rule at the conclusion of the negotiations, the committee shall transmit to the Commission a report containing the proposed rule.007.09E If a Negotiated Rulemaking Committee does not reach a consensus on the proposed rule, the committee shall transmit to the Commission a report specifying areas in which the committee reached consensus and the issues that remain unresolved. The committee may include in the report any other information, recommendations, or materials that the committee considers appropriate. Any member of the committee may include as an addendum to the report additional information, recommendations or materials.007.10 Facilitators; Selection; Duties A facilitator shall be selected to assist a Negotiated Rulemaking Committee with its duties.
007.10A The Agency may nominate a person to serve as a facilitator for the negotiations of a Negotiated Rulemaking Committee, subject to the approval of the committee by consensus. If the committee does not approve the Agency's nomination for facilitator, the Agency shall submit a substitute nomination. If the Committee does not approve the substitute nomination of the Agency for facilitator, the Committee shall select, by consensus, a person to serve as facilitator.007.10B The Agency may employ or contract for an organization or an individual to serve as a facilitator for a Negotiated Rulemaking Committee or the Agency may use the services of a state employee to act as a facilitator. A person designated by the Agency to represent it on a Negotiated Rulemaking Committee with respect to substantive issues may not serve as the facilitator. A facilitator shall not have a financial or other interest that would preclude him or her from serving in an impartial and independent manner. The Agency shall determine whether a person under consideration for facilitator has such an interest. A person disqualified under this criterion shall be dropped from further consideration.007.10C A facilitator approved or selected by a committee shall: 007.10C1 Preside at the meetings of the committee in an impartial manner.007.10C2 Impartially assist members in conducting discussions and negotiations and achieving consensus.007.10C3 Manage the keeping of minutes and records.007.11 Negotiated Rulemaking Committee; Expenses Members of a Negotiated Rulemaking Committee shall be responsible for their own expenses of participation. However, the Commission may pay for a committee member's actual and necessary expenses incurred in serving on the committee as provided in sections 81-1174, R.R.S. 2003 87-1175 through 81-1177, R.R.S. 1999 and a reasonable per diem rate of compensation if:
007.11A The committee member certifies a lack of adequate financial resources to participate on the committee using the form at Attachment 4 which is attached to these regulations and made a part of them by reference; and,007.11B The Commission determines that the committee member's participation is necessary to assure an adequate representation of the interests of the members.007.12 Grants or Gifts The Commission may accept grants or gifts from any source to fund a negotiated rulemaking process if:
007.12A Information on the name of the person giving the grant or gift and the amount of the grant or gift is available to the public.007.12B The grant or gift is given to and accepted by the Commission without placing any condition on the membership of a committee or the outcome of the negotiated rulemaking process.007.12C There is a consensus among the members of the Negotiated Rulemaking Committee that the acceptance of the grant or gift will not diminish the integrity of the negotiated rulemaking process.007.13 Negotiated Rulemaking Committee; Termination A Negotiated Rulemaking Committee shall terminate upon the adoption of the final rule under consideration by the Commission pursuant to the APA, unless the Commission, after consulting the committee, or the committee itself specifies an earlier termination date.
007.14 Negotiated Rulemaking Procedure; Judicial Review Any action of the Commission relating to establishing, assisting or terminating a Negotiated Rulemaking Committee under the Negotiated Rulemaking Act shall not be subject to judicial review, except that nothing in this Section shall bar judicial review if such judicial review is otherwise provided by law.
163 Neb. Admin. Code, ch. 1, § 007