PART 1. TEXAS STATE LIBRARY AND ARCHIVES COMMISSION

CHAPTER 3. STATE PUBLICATIONS DEPOSITORY PROGRAM

13 TAC §§3.1 - 3.3, 3.7

The Texas State Library and Archives Commission (commission) proposes amendments to §3.1, Definitions; §3.2, Standard Requirements for State Publications in All Formats; and §3.7, State Publications Contact Person; and new §3.3, Standard Deposit and Reporting Requirements for State Publications in All Formats.

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.

The commission recently concluded its quadrennial review of 13 TAC Chapter 3 as required by Government Code, §2001.039. While the commission found that the reasons for initially adopting the rules continue to exist, the commission did note the need for multiple amendments to update and improve the rules. The proposed amendments and new section are necessary to streamline, simplify, update, and clarify the existing rules.

ANALYSIS OF PROPOSED AMENDMENTS AND NEW SECTION. Multiple proposed amendments to §3.1 improve existing definitions and delete unnecessary definitions. The definition of "Texas State Library and Archives Commission" is proposed to be deleted and moved, with minor modifications, to the definition of "Commission." The definitions for "depository library," "state agency," and "state publication" are amended to refer to the existing statutory definitions. The following definitions are proposed for deletion, as they are not necessary, either because the terms are not used within the chapter or, when used, they are clearly defined as necessary, or because the terms have commonly accepted definitions that do not require any additional specificity within the rules: "depository publication," "electronic external storage devices," "internet connection," "on-line," "print publication," "report," "Texas Records and Information Locator (TRAIL)," "Uniform Resource Locators," and "website." A proposed amendment to the definition of "physical format" simplifies the definition to mean a transportable medium in which analog or digital information is published, such as print, microform, magnetic disk, or optical disk. An amendment to the definition of "internet publication" updates the term to "online publication." An amendment adds a new defined term, "removable electronic media," to replace the deleted term "electronic external storage devices." Other amendments make minor grammar and punctuation corrections and renumber the definitions as appropriate.

Proposed amendments to §3.2 clarify and improve the rule language and delete unnecessary language. A proposed amendment in subsection (a) corrects the references to the commission's rules regarding exemptions. Subsection (b) is proposed for deletion as it merely restates a statutory requirement and is therefore not necessary in the rule. Subsection (f) is proposed for deletion as the archival code "A" was removed from the archival state publications series on the State Records Retention Schedule to clarify that those publications are not transferred to the Archives but deposited to the program. Therefore, existing subsection (f) is unnecessary and inapplicable to state publications.

Proposed new §3.3 replaces existing §3.3, currently proposed for repeal in the same issue of the Texas Register, but does not make any major substantive changes to the rule. Rather, new §3.3 provides clearer guidance to state agencies regarding their duties with respect to certain types of state publications. Subsection (a) establishes the general requirement for the number of copies of state publications that must be deposited, which is four copies for most state publications except for annual financial reports and annual operating budgets (three copies) and requests for legislative appropriations, quarterly and annual reports of measures, and state or strategic plans (two copies). These numbers are consistent with the previous requirement in rule with the exception of state or strategic plans. The new rule would require two copies of state or strategic plans as opposed to three copies as currently required in rule. This change is necessary to comply with Government Code, §2056.002, which requires that two copies be provided to the commission.

Proposed new subsection (b) applies to state publications in electronic format, noting that the number and method of submission differs depending on whether the publication is available online and also that specific instructions may apply to the preparation and distribution of the publication. State agencies should comply with specific instructions in statute, administrative rule, or promulgated by other state agencies regarding state publications. However, in the absence of specific instructions, proposed subsection (b) would require either online access to the publication or the submission of one copy on removable electronic media or other method approved by the Director and Librarian. The commission will maintain information about state publications that may have specific instructions regarding distribution on its website for state agencies to reference.

Proposed subsection (c) establishes minimum requirements for electronic submissions, including file type, the requirement that state agencies include a publication reporting form, submission by the designated state agency publication liaison, and required descriptive information.

Proposed subsection (d) clarifies that a publication reporting form must be included with each submission to the program, whether the submission is in print or electronic format.

Proposed subsection (e) addresses the Texas Records and Information Locator (TRAIL), authorized by Government Code, §441.102, and notes that a state agency is not required to submit copies of its agency websites to the program. The subsection also establishes minimum technical requirements to which a state agency website should adhere to enable the commission to harvest information from the website through TRAIL.

Finally, proposed amendments to §3.7 clarify the language and improve readability and add one new requirement to the duties of state agency publications liaisons--identifying and depositing historical publications that may be discovered that should have been provided to the program but were not. This requirement will ensure the commission is able to fulfill its statutory duties under Government Code, §441.104 and that the public has access to state publications.

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 and new section are in effect, there are no reasonably foreseeable fiscal implications for the state or local governments as a result of enforcing or administering the rules, as proposed.

PUBLIC BENEFIT AND COSTS. Ms. Chubb has determined that for each of the first five years the proposed amendments and new section are in effect, the anticipated public benefit will be increased clarity in the commission's requirements pertaining to the State Publications Depository Program, which should improve state agencies' ability to comply, ultimately improving 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 or new section.

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 and new section will be in effect, the commission has determined the following:

1. The proposed amendments and new section will not create or eliminate a government program;

2. Implementation of the proposed amendments and new section will not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed amendments and new section will not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed amendments and new section will not require an increase or decrease in fees paid to the commission;

5. The proposal will not create a new regulation, as the new sections are proposed to replace repealed sections due to the nature and complexity of the amendments;

6. The proposal will not expand or repeal an existing regulation;

7. The proposed amendments and new section will not increase the number of individuals subject to the proposal's applicability; and

8. The proposed amendments and new section 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 and new section do not constitute a taking under Government Code, §2007.043.

REQUEST FOR PUBLIC COMMENT. Written comments on the proposed amendments and new section 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 new rule and 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; and Government Code, §441.104, which directs the commission to establish a program for the preservation and management of state publications.

CROSS REFERENCE TO STATUTE. Government Code, Chapter 441.

§3.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Born digital publication--A state publication that originates in electronic format.

(2) Commission--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. [The Texas State Library and Archives Commission.]

(3) Complex relational database--A database comprised of multiple inter-related tables that is dynamically updated, that contains only minimal narrative text, and that cannot be accurately represented as a set of static HTML pages or a spreadsheet.

(4) Depository library--A depository library as defined by Government Code, §441.101(2). [Any library that the Director and Librarian or the commission designates as a depository library for state publications.]

[(5) Depository publication--A state publication in any format distributed from or on behalf of the Texas State Library and Archives Commission to a depository library.]

(5) [(6)] Director and Librarian--Chief executive and administrative officer of the Texas State Library and Archives Commission.

[(7) Electronic external storage devices--Removable electronic media used to store and transfer electronic information.]

(6) [(8)] Electronic format--A form of recorded information that can be processed by a computer.

[(9) Internet connection--A combination of hardware, software and telecommunications services that allows a computer to communicate with any other computer on the worldwide network of networks known as the Internet, and that adheres to the standard protocols listed in Internet standards documents of the Internet Engineering Steering Group, Internet Architecture Board, and Internet community.]

(7) [(10)] Online [Internet ] publication--A publication that is published on the Internet as a file or files [accessible by Internet connection].

[(11) On-line--Accessible via a computer or terminal, rather than on paper or other medium.]

(8) [(12)] Physical format--A transportable medium in which analog or digital information is published, such as print, microform, magnetic disk, or optical disk. [A tangible system for the compilation and presentation of information, including print publications and electronic external storage devices as defined in this chapter.]

[(13) Print publication--A publication:]

[(A) that is published in a format that is accessible without the use of a computer, including information published on paper, in microformat, on audio tapes, vinyl discs or audio compact discs, on videotape or film, or on any other media that are not specifically cited in this definition; and]

[(B) that is not an Internet publication as defined in this section.]

(9) [(14)] Publicly distributed--Provided to persons outside of the agency, in print or other physical medium, or by an Internet connection, or from a limited local area network on agency premises, or at another location on behalf of the agency. Information that is made accessible only through an authentication process, such as a username [user name] and password, or upon request via open records laws, is not deemed publicly distributed.

(10) Removable electronic media--Devices used to store and transfer electronic information.

[(15) Report--A report:]

[(A) that is not confidential, prepared by a state agency in any format and is required by statute, rule, or rider in the General Appropriations Act to be submitted to: the governor, a member, agency, or committee of the legislature, another state agency, and is publicly distributed; and]

[(B) that is prepared by a state agency in electronic or online format and is determined appropriate for submission through the Texas Digital Archive by Director and Librarian]

[(16) Serial--Issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely. The term includes, but is not limited to: periodicals, newspapers, reports, yearbooks, journals, minutes, proceedings, transactions.]

(11) [(17)] Site map--An HTML page providing links to all materials available to the public on a Web site. A site map can provide links to sections or categories within a Web site rather than to each individual document if all documents within each section are inter-linked.

(12) [(18)] State agency--A state agency as defined by Government Code, §441.101(3). [State agency--Any entity established or authorized by law to govern operations of the state such as a state office, department, division, bureau, board, commission, legislative committee, authority, institution, regional planning council, university system, institution of higher education as defined by Texas Education Code, §61.003, or a subdivision of one of those entities.]

(13) [(19)] State publication--A state publication as defined by Government Code, §441.101(4). [State publication--Information in any format that is produced by the authority of or at the total or partial expense of a state agency or is required to be distributed under law by the agency and is publicly distributed by or for the agency. The term does not include information the distribution of which is limited to contractors with or grantees of the agency, persons within the agency or within other government agencies, or members of the public under a request made under the open records law, Government Code, Chapter 552 if it does not otherwise meet the definition of a state publication.]

(14) [(20)] State Publications Depository Program--A program of the Texas State Library and Archives Commission designed to collect, preserve, and distribute state publications, and promote their use by the citizens of Texas and the United States.

(15) [(21)] Substantive change--A modification of a state publication in any format that represents a fundamental alteration in the information content of a publication. Examples of a substantive change include but are not limited to:

(A) changes to publicly distributed agency information based on the installation of new leadership in a state agency;

(B) amendments to agency policies (such as reversals of former policies; expansions of authority via statutory means, rule-making authority, or judicial process; or clarifications of existing policies);

(C) provision of new information, such as information reports; and

(D) revisions to previously issued information, such as documents describing the financial status, providing statistical data, or reporting on matters within the agency's area of authority.

(16) [(22)] Texas Digital Archive--The digital repository maintained and operated by the Texas State Library and Archives Commission for the preservation of and access to permanently valuable copies of archival state records, reports, and publications.

[(23) Texas Records and Information Locator (TRAIL)--A program of the Texas State Library and Archives Commission designed to locate, index, and make available state publications in electronic format.]

[(24) Texas State Library and Archives Commission--The staff, collections, archives, and property of the Texas State Library and Archives Commission organized to carry out the commission's responsibilities.]

(17) [(25)] Transitory or inconsequential change--A modification of a state publication in any format that represents a minor alteration of the publication and does not alter the essential content of the original publication. A transitory or inconsequential change includes but is not limited to[:] correction of misspellings or typographical errors and the alteration of an online [Internet] publication due to the expiration of textual information that is linked to time-dependent publications (such as press releases or announcements regarding the activities of an agency's programs).

[(26) Uniform Resource Locators--The syntax and semantics of formalized information for location and access of resources on the Internet, as specified in Internet standards documents of the Internet Engineering Steering Group, Internet Architecture Board, and Internet community.]

[(27) Website-- A state website maintained by or for a Texas state agency, including an institution of higher education, intended to provide access to state government information, including electronic format state publications. State agency websites, excluding institutions of higher education, are web harvested by the TRAIL service.]

§3.2.Standard Requirements for State Publications in All Formats.

(a) State agencies are required to furnish copies of state publications in physical format to the commission or provide the commission online access to [deposit or make accessible copies of all] state publications. A state agency is not required to furnish copies of or provide online access to state publications that are exempt [that have not been exempted] from the State Publications Depository Program under §3.5 of this title (relating to Standard Exemptions for State Publications in All Formats) or [in] §3.6 of this title (relating to Special Exemptions) [or under §3.7 of this title (relating to State Publications Contact Person)].

[(b) State agencies are required to display the date that each state publication is produced or distributed in a visible location at or near the beginning of the publication.]

(b) [(c)] When a state publication is distributed to the public in multiple formats, state agencies are required to provide access to or copies of that publication to the commission in all formats in which the publication is publicly distributed. State agencies are not required to provide copies to the commission of publications on removable electronic media [electronic external storage devices] if the state publications are made available to the commission under §3.3(e) of this title or other electronic submission agreed to by both agencies [by an Internet connection].

(c) [(d)] When a state publication changes frequently, as in the case of an online [Internet ] publication that announces time-dependent information, state agencies are required to determine whether the alteration in the publication represents a substantive change or a transitory or inconsequential change. If the modification is a substantive change, the original version and the new version must be treated as separate publications and managed in accordance with §3.3 of this title [chapter ] (relating to Standard Deposit and Reporting Requirements for State Publications in All Formats). If the modification is a transitory or inconsequential change, [or if the modification is due only to changes to information that is exempt under §3.6 of this chapter (relating to Special Exemptions),] the two versions are not deemed to be separate publications.

(d) [(e)] Submission of publications to the depository program does not fulfill a state agency's records retention requirements for those publications. [Records retention. State agencies are reminded that compliance with this chapter does not constitute compliance with records retention rules for state government records. See Texas State Records Retention Schedule (second edition or subsequent edition as applicable) and §§6.1 - 6.10 of this title for complete information about records retention requirements.]

[(f) Archival publications. For those publications defined as archival (see §6.1 of this title), one copy must be submitted to the Texas State Archives in accordance with §§6.91 - 6.99 of this title.]

§3.3.Standard Deposit and Reporting Requirements for State Publications in All Formats.

(a) State publications in physical format. State agencies must deposit four copies of state publications in physical format to the State Publications Depository Program except as follows:

(1) State agencies must deposit three copies of the following state publications:

(A) Annual financial reports; and

(B) Annual operating budgets.

(3) State agencies must deposit two copies of the following state publications:

(A) Requests for legislative appropriations;

(B) Quarterly and annual reports of measures; and

(C) State or strategic plans (for agency services, programs within its jurisdiction).

(b) State publications in electronic format. The number and method of submission of state publications in electronic format differs depending on whether the electronic state publication is available online and specific instructions that may apply to the preparation and distribution of the publication. Unless specific instructions require otherwise:

(1) If a state publication is available online, a state agency shall provide the commission online access to the publication. The state agency is not required to submit an electronic copy of the state publication on removable electronic storage media. If also available in print, the URL for the online publication must be included on the cover or title page of the printed publication submitted in accordance with subsection (a) of this section;

(2) If a state publication is not available online, the state agency must submit one copy of each state publication on removable electronic storage media or other method approved by the Director and Librarian. Files must be formatted in a readily accessible format or other file type accessible via software provided to the commission or that is in the public domain. If the file is compressed, it must be compressed using lossless compression techniques.

(c) Minimum requirements for electronic submissions. All submissions of state publications in electronic format for the State Publications Depository Program must:

(1) Consist of an Adobe Portable Document File (PDF) or other secure file type accepted at the determination of the Director and Librarian;

(2) Include a publication reporting form;

(3) Be submitted by the designated state agency publications liaison(s); and

(4) Include the following descriptive information at a minimum:

(A) a title tag;

(B) an author meta tag that includes the name of the state agency responsible for creating the state publication;

(C) a description meta tag that includes a narrative description of the publication; and

(D) a keyword or subject meta tag that includes selected terms from within the publication.

(d) Publication reporting form. A state agency must include a completed publication reporting form with each submission of a publication in either print or electronic format. If a state publication is made available to the commission online in compliance with subsection (b)(1) of this section, the state agency must provide a completed publication reporting form to the commission when the agency notifies the commission that the publication is available.

(e) The Texas Records and Information Locator (TRAIL). TRAIL provides access to state publications that are made available to the public by state agencies online. A state agency is not required to submit copies of its state agency websites to the commission for the State Publications Depository Program. State agencies should ensure their websites adhere to the following minimum technical requirements to enable the commission to harvest the website through TRAIL:

(1) Guaranteed access, at no charge, to the state agency's online state publications. If a "robots.txt" file is used to prevent harvesting of a State Agency website, then that file must include an exception for TSLAC's designated harvesting system;

(2) State publications must be accessible:

(A) by anonymous File Transfer Protocol (FTP), Hyper Text Transfer Protocol (HTTP) or other electronic means as defined in Internet standards documents of the Internet Engineering Steering Group, Internet Architecture Board, and Internet community; and

(B) by following a link or series of links from the Agency's primary URL. For publications accessible only by database searching or similar means, an alternative path such as a hidden link to a comprehensive site map must be provided except as exempted in §3.5 of this title (relating to Standard Exemptions for State Publications in All Formats); or

(C) on alternative electronic formats and interfaces consistent with requirements of the Americans with Disabilities Act of 1990 and as amended.

(3) Each original state publication and subsequent versions as described in §3.2(c) of this title (relating to Standard Requirements for State Publications in All Formats) must remain available on the agency website for a minimum of nine months to ensure that the publication has been collected by the commission and made available in TRAIL. Agencies may confirm that a version of an online publication has been added to the TRAIL archive by searching at www.tsl.texas.gov/trail/index.html.

§3.7.State Publications Contact Person.

Each state agency must provide notice to the commission in writing of [designate in writing or via the Internet] one person to act as liaison with the State Publications Depository Program for state publications in physical formats and one person to act as liaison with the State Publications Depository Program for online or electronic [Internet] publications. An[; an] agency may [elect to] designate the same person to fulfill the liaison duties for both types of publications. Agencies may request in writing[, by writing to the Program,] to designate additional liaisons in cases where the size and complexity of the agency's publishing activities merit additional coverage. A liaison's duties include:

(1) Depositing [Each liaison must deposit] all state publications within the scope of their [his or her] designated responsibility;[,]

(2) Providing [provide] information to the commission and coordinating with commission staff to resolve problems regarding publications; [resolve problems about them,]

(3) Maintaining [maintain] records of the agency's state publications;[,]

(4) Negotiating [negotiate] exemptions from deposit requirements;[,]

(5) Maintaining and submitting [and submit] publication reporting forms; and[.]

(6) Identifying and depositing historical publications that may be discovered in the regular course of business that should have been furnished to the commission for inclusion in the State Publications Depository Program but were not.

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 August 16, 2023.

TRD-202303009

Sarah Swanson

General Counsel

Texas State Library and Archives Commission

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 463-5460

The Texas State Library and Archives Commission (commission) proposes the repeal of §3.3, Standard Deposit and Reporting Requirements for State Publications in All Formats.

The proposed repeal of §3.3 corresponds with multiple improvements to the rules in 13 Texas Administrative Code, Chapter 3, State Publications Depository Program, including proposed new §3.3, also in this issue of the Texas Register. Due to the nature and number of amendments to §3.3, the commission finds it is simpler to repeal existing §3.3 and propose new §3.3.

FISCAL NOTE. Jelain Chubb, State Archivist and Director, Archives and Information Services, has determined that for each of the first five years the proposed repeal is in effect, there will not be a fiscal impact on state or local government.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT STATEMENT. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal; therefore, a regulatory flexibility analysis under Government Code, §2006.002 is not required.

PUBLIC BENEFIT/COST NOTE. Ms. Chubb has also determined that for the first five-year period the repeal is in effect, the public benefit will be consistency and clarity in the commission’s rules related to the State Publications Depository Program.

GOVERNMENT GROWTH IMPACT STATEMENT. Pursuant to Government Code, §2001.0221, the commission provides the following Government Growth Impact Statement for the proposed repeal.

During the first five years that the proposed repeal would be in effect, the proposed repeal: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the proposed repeal will be in effect, the proposed repeal will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT. Written comments on the proposed repeal may be directed to Jelain Chubb, State Archivist and Director, Archives and Information Services, via email rules@tsl.texas.gov, or mail, P.O. Box 12927, Austin, Texas 78711-2927. Comments will be accepted for 30 days after publication in the Texas Register.

STATUTORY AUTHORITY. The repeal is 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; and Government Code, §441.104, which directs the commission to establish a program for the preservation and management of state publications.

CROSS REFERENCE TO STATUTE. Government Code, Chapter 441.

§3.3.Standard Deposit and Reporting Requirements for State Publications in All Formats.

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 August 16, 2023.

TRD-202303008

Sarah Swanson

General Counsel

Texas State Library and Archives Commission

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 463-5460