PART 1. TEXAS STATE LIBRARY AND ARCHIVES COMMISSION
CHAPTER 3. STATE PUBLICATIONS DEPOSITORY PROGRAM
The Texas State Library and Archives Commission (commission) proposes amendments to §3.5, Standard Exemptions for State Publications in All Formats, and §3.6, Special Exemptions.
BACKGROUND. Section 441.104 of the Government Code establishes the commission's duties under the State Publications Depository Program (program), under which the commission acquires, organizes, retains, and provides access to state publications. Under section 441.103 of the Government Code, state agencies are required to designate one or more staff persons as agency publications liaisons, who are required to maintain a record of the agency's state publications. State agencies must furnish copies of their state publications to the commission in the number specified by commission rules. Section 441.105 of the Government Code authorizes the state librarian to specifically exempt a publication or distribution format from the requirements of the program.
The proposed amendments are necessary to exempt additional types of publications not appropriate for retention in the program. Exempting these types of publications will ensure the program includes the types of publications that document the operations of state agencies while easing state agencies' duties by reducing the number of publications they are required to submit. In addition, exempting items that are not appropriate for inclusion in the program will allow the commission to maximize its use of record storage space.
ANALYSIS OF PROPOSED AMENDMENTS. Proposed amendments to §3.5 clarify the introductory language and make the following proposed changes:
A proposed amendment to §3.5(11) adds course materials to the existing exemption for course schedules. This exemption covers university course schedules and courses offered by state agencies. The commission proposes to add "materials" to this item, as course materials are also inappropriate for the program.
Proposed new §3.5(26) adds non-fiction university press publications not aligned with the commission's collection development policy. One of the primary goals of the program is to capture all publications documenting the operation of a state agency. Non-fiction university press publications take up a considerable amount of space. If the commission were to accept all non-fiction publications, additional offsite storage would likely be necessary. Further, these titles are typically widely available at other libraries, particularly at the universities whose presses produce them. Exempting non-fiction university press publications that are not aligned with the commission's collection development priorities will ensure consistent application of the policy and that the program documents the university press function focusing on publications relating to Texas-related history and government.
A proposed amendment to §3.5(37) adds a clarifying date to the exemption. The proposed new exemption will read "rules and regulations after 1976 (as compendia)." The State Law Library holds the complete collection of historic Texas Administrative Code (TAC) publications. The TAC from 1999 to present is available on the Secretary of State's website. Researching rules and regulations prior to 1976 can be more challenging as centralized resources such as the Register and the TAC do not exist. Locating rules prior to 1976 may require archival research in the minutes or other records of a particular agency if published compendia are not available. If an agency did not include rule language in minutes or did not maintain or transfer records containing the text of adopted rules, there may be no other way to locate this information. For this reason, published collections of rules predating 1976 are important to the program to provide greater access to this information. However, rules and regulations after 1976 are not appropriate for the program.
Proposed new §3.5(42) adds training materials. As with course materials, training materials that are distributed publicly do not typically document the operation of a state agency. For example, the State Bar of Texas produces course materials as part of their Continuing Legal Education programming. While these publications have historically been provided to the commission under the program, less than 1% of these publications have been requested since at least the year 2000. According to the commission's research, several other libraries maintain these materials, including the State Law Library, Legislative Reference Library, and at least five Texas law school libraries. Because these types of materials are readily available from multiple other sources and are not necessary for the program, the commission proposes to add "training materials" to the list of exempted items as §3.5(42).
Finally, proposed amendments to §3.5 renumber the paragraphs to maintain the list in alphabetical order.
Proposed amendments to §3.6 clarify that special exemptions are for types of publications not listed in §3.5.
FISCAL IMPACT. Jelain Chubb, State Archivist and Director, Archives and Information Services, has determined that for each of the first five years the proposed amendments are in effect, there are no reasonably foreseeable fiscal implications for the state or local governments as a result of enforcing or administering the amended rules, as proposed. At most, some state agencies may have fewer publications to furnish the program, thereby potentially resulting in a minimal cost savings to the agencies.
PUBLIC BENEFIT AND COSTS. Ms. Chubb has determined that for each of the first five years the proposed amendments are in effect, the anticipated public benefit will be a streamlined focus on the commission's ability to acquire, organize, retain, and provide access to state publications. There are no anticipated economic costs to persons required to comply with the proposed amendments.
LOCAL EMPLOYMENT IMPACT STATEMENT. The proposal has no impact on local economy; therefore, no local employment impact statement under Government Code, §2001.022 is required.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT STATEMENT. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities; therefore, a regulatory flexibility analysis under Government Code, §2006.002 is not required.
COST INCREASE TO REGULATED PERSONS. The proposed amendments do not impose or increase a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the commission is not required to take any further action under Government Code, §2001.0045.
GOVERNMENT GROWTH IMPACT STATEMENT. In compliance with Government Code, §2001.0221, the commission provides the following government growth impact statement. For each year of the first five years the proposed amendments will be in effect, the commission has determined the following:
1. The proposed amendments will not create or eliminate a government program;
2. Implementation of the proposed amendments will not require the creation of new employee positions or the elimination of existing employee positions;
3. Implementation of the proposed amendments will not require an increase or decrease in future legislative appropriations to the commission;
4. The proposed amendments will not require an increase or decrease in fees paid to the commission;
5. The proposal will not create a new regulation;
6. The proposed amendments will not expand or repeal an existing regulation, but they will limit an existing regulation by narrowing its scope of applicability;
7. The proposed amendments will not increase the number of individuals subject to the proposal's applicability; and
8. The proposed amendments will not positively or adversely affect this state's economy.
TAKINGS IMPACT ASSESSMENT. No private real property interests are affected by this proposal, and the proposal does not restrict or limit an owner's right to their property that would otherwise exist in the absence of government action. Therefore, the proposed amendments to not constitute a taking under Government Code, §2007.043.
REQUEST FOR PUBLIC COMMENT. Written comments on the proposed amendments may be submitted to Jelain Chubb, State Archivist and Director, Archives and Information Services, Texas State Library and Archives Commission, P.O. Box 12927, Austin, Texas 78711, or via email at rules@tsl.texas.gov. To be considered, a written comment must be received no later than 30 days from the date of publication in the Texas Register.
STATUTORY AUTHORITY. The amendments are proposed under Government Code, §441.102, which requires the commission by rule to establish procedures for the distribution of state publications to depository libraries and for the retention of those publications; Government Code, §441.103, which requires a state agency to furnish copies of its state publications that exist in a physical format to the Texas State Library in the number specified by commission rules; Government Code, §441.104, which directs the commission to establish a program for the preservation and management of state publications; and Government Code, §441.105, which authorizes the commission to specifically exempt a publication or a distribution format from this subchapter.
CROSS REFERENCE TO STATUTE. Government Code, Chapter 441.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
§3.5.Standard Exemptions for State Publications in All Formats.
The following publications are exempt from the State Publications
Depository Program and shall not be provided to the commission: [The Director and Librarian has exempted from deposit requirements
certain kinds of state publications. A state agency is not required
to deposit or provide access to these state publications:]
(1) agendas;
(2) advertisements;
(3) alumni materials;
(4) announcements;
(5) artwork (graphical representations without textual information);
(6) calendars;
(7) codes (as compendia);
(8) complex relational databases;
(9) contracts;
(10) correspondence;
(11) course schedules and materials;
(12) curriculum catalogs (departmental only);
(13) drafts of plans, reports;
(14) fiction;
(15) forms and instruction manuals for their completion;
(16) fund raising materials;
(17) grant proposals, bids;
(18) hearings (transcripts of);
(19) job listings;
(20) laws (as compendia);
(21) literary criticisms;
(22) memorabilia;
(23) memoranda (including e-mail);
(24) news or press releases;
(25) newsletters and subscriber lists meant only for employee, faculty or student use;
(26) non-fiction university press publications not aligned with the commission's collection development policy;
(27) [(26)] notices of sale;
(28) [(27)] opinions and orders issued by state courts;
(29) [(28)] daily or weekly periodicals (that are summarized in monthly or quarterly publications);
(30) [(29)] personnel manuals;
(31) [(30)] photographs;
(32) [(31)] poetry;
(33) [(32)] policy handbooks
intended only for internal use;
(34) [(33)] programs (announcements
of events, training sessions);
(35) [(34)] recruitment materials;
(36) [(35)] reprints (reissued without change);
(37) [(36)] rules and regulations after 1976 (as compendia);
(38) [(37)] standards (as compendia);
(39) [(38)] stationery;
(40) [(39)] student publications
(those produced by students);
(41) [(40)] telephone directories
meant only for employee, faculty, or student use;
(42) training materials;
(43) [(41)] unedited compilations
of data or information submitted via forms or other means from individuals
or entities under the regulation of a state agency; and
(44) [(42)] volunteer newsletters.
§3.6.Special Exemptions.
Upon written application, the Director and Librarian may exempt other [specific kinds of] state publications and
information formats not listed in §3.5 of this title (relating
to Standard Exemptions for State Publications in All Formats) from
deposit requirements.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 2, 2023.
TRD-202302058
Sarah Swanson
General Counsel
Texas State Library and Archives Commission
Earliest possible date of adoption: July 16, 2023
For further information, please call: (512) 463-5460
The Texas State Library and Archives Commission (commission) proposes an amendment to §10.1, Definitions, and new §10.5, Transfer of State Agency Records to the State Archives.
Section 441.181 of the Government Code requires the commission to take legal custody of and preserve archival state records in the state archives. Among other duties, the statute directs the state archivist to identify and designate archival state records and coordinate their transfer to the custody of the commission in accordance with Government Code, §441.186; arrange, describe, and preserve archival state records according to accepted archival practices; and prepare inventories, indexes, catalogs, or other research aids to state archival records held by the program.
Under Government Code, §441.186, the state archivist is authorized to identify and designate state records as archival state records or subject to archival review prior to their destruction. The statute further requires state agency records management officers to submit to the state archivist any information concerning a state record that the state archivist considers necessary to determine the archival value of a record. Unless the commission cannot accept immediate custody of an archival state record, state agencies generally must transfer all archival state records to the custody of the commission when they are no longer needed for the administration of the state agency, unless state law requires that the records remain in the custody of the agency. Once archival state records are transferred to the state archives, the commission becomes the legal owner of the records, preserves the records, and makes them available to the public.
Proposed new §10.5 will facilitate and streamline state agency transfers of archival state records to the commission and ensure the state archivist has the information necessary to properly identify, arrange, describe, catalog, preserve, and provide access to the archival state records in accordance with state statutes. The proposed new rule will benefit state agencies by establishing a systemic approach with key requirements clearly specified to improve state agencies' ability to verify they are transferring only those records that should be transferred to the state archives. The proposed new rule will also ensure more efficient use of the commission's resources needed for managing the appraisal, accession, processing, and cataloging of incoming state agency records.
ANALYSIS OF PROPOSED NEW SECTION. New subsection (a) restates the purpose of the new rule as authorized by statute. New subsections (b) and (c) provide that a state agency must use the forms and procedures available on the commission's website or on request to initiate a transfer of archival state records. Subsection (b) applies to archival state records in the physical possession of the agency and subsection (c) applies to archival state records stored in the State Records Center. Both subsections clarify that submission of the forms constitutes a formal request to transfer archival state records to the state archives. The form will require information such as quantity of records, record series number based on the state agency's approved records retention schedule, date span of records, and any known exceptions to disclosure under the Public Information Act that may apply to the records. The procedure will involve creating an inventory for the records, flagging restricted records, and instructions on how to properly pack and label boxes. New subsection (d) requires that archival state records be appropriately identified, packaged, and transferred according to the procedures available on the commission’s website. New subsection (e) requires that all transfers be accompanied by an inventory. New subsection (f) provides that records storage equipment received with transfers of records will be retained or disposed of at the discretion of the State Archives unless the transferring agency requests the equipment's return. Examples of storage equipment that may be received with transfer of records include external drives and filing cabinets.
The proposed amendment to §10.1 adds a definition for "state archives" to ensure clarity in proposed new §10.5.
FISCAL IMPACT. Jelain Chubb, State Archivist and Director, Archives and Information Services, has determined that for each of the first five years the proposed amendment and new rule are in effect, there are no reasonably foreseeable fiscal implications for the state or local governments as a result of enforcing or administering the amended and new rule, as proposed. State agencies are already required to transfer materials to the state archives according to the state records retention schedule adopted under 13 Tex. Admin. Code §6.10 (archival records must be transferred to the Archives and Information Services Division of the Texas State Library and Archives Commission for archival management). The proposed new rule will streamline and standardize the transfer process.
PUBLIC BENEFIT AND COSTS. Ms. Chubb has determined that for each of the first five years the proposed amendment and new rule are in effect, the anticipated public benefit will be improved organization and description of state archival records and an ability for the commission to make them available for public access more expediently. There are no anticipated economic costs to persons required to comply with the proposed amendment or new rule.
LOCAL EMPLOYMENT IMPACT STATEMENT. The proposal has no impact on local economy; therefore, no local employment impact statement under Government Code, §2001.022 is required.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT STATEMENT. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities; therefore, a regulatory flexibility analysis under Government Code, §2006.002 is not required.
COST INCREASE TO REGULATED PERSONS. The proposed amendment and new rule do not impose or increase a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the commission is not required to take any further action under Government Code, §2001.0045.
GOVERNMENT GROWTH IMPACT STATEMENT. In compliance with Government Code, §2001.0221, the commission provides the following government growth impact statement. For each year of the first five years the proposed new rule will be in effect, the commission has determined the following:
1. The proposed amendment and rule will not create or eliminate a government program;
2. Implementation of the proposed amendment and rule will not require the creation of new employee positions or the elimination of existing employee positions;
3. Implementation of the proposed amendment and rule will not require an increase or decrease in future legislative appropriations to the commission;
4. The proposed amendment and rule will not require an increase or decrease in fees paid to the commission;
5. The proposed rule will create a new regulation;
6. The proposed amendment and rule will not expand, limit, or repeal an existing regulation;
7. The proposed amendment and rule will not increase the number of individuals subject to the proposed rule's applicability; and
8. The proposed amendment and rule will not positively or adversely affect this state's economy.
TAKINGS IMPACT ASSESSMENT. No private real property interests are affected by this proposal, and the proposal does not restrict or limit an owner's right to their property that would otherwise exist in the absence of government action. Therefore, the proposed new rule does not constitute a taking under Government Code, §2007.043.
REQUEST FOR PUBLIC COMMENT. Written comments on the proposed amendment and new rule may be submitted to Jelain Chubb, State Archivist and Director, Archives and Information Services, Texas State Library and Archives Commission, P.O. Box 12927, Austin, Texas, 78711, or via email at rules@tsl.texas.gov. To be considered, a written comment must be received no later than 30 days from the date of publication in the Texas Register.
STATUTORY AUTHORITY. The amendment and new rule are proposed under Government Code, §441.190, which authorizes the commission to adopt rules establishing standards and procedures for the protection, maintenance, and storage of state records. The statute further directs the commission to pay particular attention to the maintenance and storage of archival and vital state records and authorizes the commission to adopt rules as it considers necessary to protect those records. In addition, the amendment and new rule are proposed under Government Code, §441.199, which authorizes the commission to adopt rules it determines necessary for cost reduction and efficiency of recordkeeping by state agencies and for the state's management and preservation of records.
CROSS REFERENCE TO STATUTE. Government Code, Chapter 441.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
§10.1.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) Accession--means the formal acceptance of an item or collection into the holdings of the State Archives and generally includes a transfer of title.
(2) Agency--means the Texas State Library and Archives Commission as an agency of the state of Texas, including the staff, collections, archives, operations, programs, and property of the Texas State Library and Archives Commission.
(3) Commission--means the seven-member governing body of the Texas State Library and Archives Commission.
(4) Deaccession--means the permanent removal of an item or collection of items from the holdings of the State Archives.
(5) Disposal--means the final disposition of an item or collection of items from the State Archives which may include transfer to another repository, sale, or destruction of the item or collection.
(6) Item--means archival material, historical item, artifact, or museum piece in the custody of the State Archives, including the Sam Houston Regional Library and Research Center.
(7) Reappraisal--means the review of items that have been previously appraised, which may result in the identification of materials that no longer merit permanent preservation and that are candidates for deaccessioning.
(8) State archives--means the program of the Archives and Information Services Division of the Texas State Library and Archives Commission for the continued preservation of archival state records and historical resources.
§10.5.Transfer of State Agency Records to the State Archives.
(a) Archival state records shall be transferred to the state archives when the records are no longer needed for the administration of the state agency. Records designated as archival on the state agency's approved records retention schedule must be transferred to the state archives. For records designated for archival review on the state agency's approved records retention schedule, the state agency's records management officer must contact the state archives for an archival review before disposition.
(b) To initiate a transfer of archival state records, the transferring state agency shall notify the state archives using the forms and procedures prescribed by the state archives and available at www.tsl.texas.gov. Submission of these forms shall constitute a formal request from the state agency for the state archives to accept legal and physical custody of the records.
(c) For archival state records stored temporarily in the State Records Center, on notification that the records have met retention requirements and are eligible for archival review or transfer, the state agency records management officer must notify the state archives using the forms and procedures prescribed by the state archives and available at www.tsl.texas.gov. Submission of these forms shall constitute a formal request from the state agency for the state archives to accept legal and physical custody of the records.
(d) Archival state records approved for transfer to the state archives must be identified, packaged, and transferred according to the procedures prescribed by the state archives and available at www.tsl.texas.gov.
(e) All transfers must be accompanied by an inventory as prescribed by the state archives and available at www.tsl.texas.gov.
(f) Records storage equipment received with transfers of records to the state archives will be retained or disposed of at the discretion of the state archives unless the transferring state agency requests the equipment's return.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 2, 2023.
TRD-202302059
Sarah Swanson
General Counsel
Texas State Library and Archives Commission
Earliest possible date of adoption: July 16, 2023
For further information, please call: (512) 463-5460