Part 1. TEXAS STATE LIBRARY AND ARCHIVES COMMISSION

Chapter 1. LIBRARY DEVELOPMENT

Subchapter C. MINIMUM STANDARDS FOR ACCREDITATION OF LIBRARIES IN THE STATE LIBRARY SYSTEM

13 TAC §§1.74, 1.81, 1.83

The Texas State Library and Archives Commission adopts amendments to §1.74 and §1.81, and adopts new §1.83, without changes to the text as published in the October 8, 2004, issue of the Texas Register (29 TexReg 9481).

The sections address criteria for system membership.

Six comments were received during the comment period.

Four comments were received about §1.83(3) regarding the requirement to participate in the interlibrary loan network by offering to both borrow and lend materials. These comments focused on the provision to lend to other libraries. The comments stated that this provision would be a hardship for smaller libraries, costing them money for postage and supplies, and also staff time to handle this provision. Some asked if this would mean they would incur OCLC costs. They stated that smaller libraries do not have the resources to do this. The comments also stated that the collections of smaller libraries would not have books to lend, except local history, which would not be lent under local policy. They asked if libraries would be required to lend out of state as well as in Texas. One comment said that the State Library would be dictating what services a library must provide, which is not the role of the State Library, and if the Texas State Library is going to require that libraries start offering full interlibrary loan service, training must be made available and no cost to libraries. Two comments also said that the statement in the preamble to the posted rules which said that we had determined there was no fiscal impact for state or local governments was inaccurate because there could be costs.

Agency response: The task force that recommended the rule wanted to emphasize the resource sharing nature of the Texas Library System. The Library Systems Act (§441.122(14)) reads: "'State library system' means a network of library systems, interrelated by contract, for the purpose of organizing library resources and services for research, information, and recreation to improve statewide library service and to serve collectively the entire population of the state." The proposed rule states that libraries participate by lending as requested, according to the policies of the library. Interlibrary loan in Texas is done through a system of TexNet centers, except for those libraries that already handle their own interlibrary loans. Interlibrary loan will continue to operate in this way, so libraries are not being asked to set up full interlibrary loan services in local libraries. The TexNet centers fill requests from the collection of the host library or through the OCLC network. Libraries that are not part of the OCLC network are not required to join. The TexNet centers will not regularly ask small libraries to fill requests. Libraries that do not have their holdings in the OCLC network are not likely to be asked to loan, either from other libraries in Texas or from out of state. Libraries may set up loan policies as they see fit, and it is entirely proper to not lend local history materials. In addition, libraries receive funds through system membership that would pay costs incurred. The system staff will assist libraries that need help in establishing policies. The agency believe that libraries may need additional information on interlibrary loan and how it is provided in Texas to fully understand the limited impact this rule will have.

Two comments were received regarding the proposed revised minimum local expenditures/total local expenditures provision in §1.81. Two people, both writing concerning the same library, explained the fiscal situation for their library, stated that they did not believe that the library would be able to meet the raised amount, stated that system membership was important to their library and community, and asked for consideration of this situation. One also asked for consideration of the creation of a classification which would allow such libraries to continue to operate under the present rules, feeling this would show a sincere interest to assist, rather than possibly cause the failure of, small struggling libraries that show the potential of a strong future. Placement in this classification should be permitted only if a library can produce evidence to support the financial hardship and a prognosis that no improvement will be likely.

Agency response: The task force and commission staff carefully analyzed and considered the impact of raising this criterion on current system member libraries. It was noted that this criterion had not been changed for over 25 years, despite the considerable impact of inflation in that time period. The LFY2003 public library annual report data was examined and it was found that approximately 7% of libraries would not be able to reach the raised criterion if it were enacted immediately. This criterion was recognized as both a key criterion in helping raise minimum criterion and also potentially the most difficult for local libraries. This proposed raised criterion is phased in, not taking effect until LFY2007, to give those libraries that do not yet meet the new criterion adequate time to do so, with the active assistance of the system and State Library. Establishing a separate classification for some libraries that would allow them to continue to operate under the existing rules would not be fair to all libraries and would not be in accord with the reasons for raising the criterion. Therefore the agency does not make the requested changes in the rule.

The amendments and new section are adopted under the authority of Government Code §441.127, that provides the Commission authority to establish accreditation standards for system membership.

The amendments and new section affect the Government Code, §441.127.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 11, 2005.

TRD-200501115

Edward Seidenberg

Assistant State Librarian

Texas State Library and Archives Commission

Effective date: March 31, 2005

Proposal publication date: October 8, 2004

For further information, please call: (512) 463-5459

13 TAC §1.83

The Texas State Library and Archives Commission adopts the repeal of §1.83, without changes to the proposal as published in the October 8, 2004, issue of the Texas Register (29 TexReg 9483).

This section addresses criteria for system membership.

No comments were received during the comment period.

The repeal is adopted under the authority of Government Code §441.127, that provides the Commission authority to establish accreditation standards for system membership.

The repeal affects the Government Code §441.127.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 11, 2005.

TRD-200501114

Edward Seidenberg

Assistant State Librarian

Texas State Library and Archives Commission

Effective date: March 31, 2005

Proposal publication date: October 8, 2004

For further information, please call: (512) 463-5459

13 TAC §§6.2 - 6.7, 6.9, 6.10

(Editor's Note: In accordance with Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figure in 13 TAC §6.10 is not included in the print version of the Texas Register. The figure is available in the on-line issue of the March 25, 2005, issue of the Texas Register.)

The Texas State Library and Archives Commission adopts amendments to §§6.2 - 6.7, 6.9, and 6.10, relating to records retention scheduling by state agencies. Sections 6.2, 6.4, 6.5, 6.7, and 6.9 are adopted without changes to the proposed text as published in the October 8, 2004, issue of the Texas Register (29 TexReg 9483). Sections 6.3, 6.6, and 6.10 are adopted with changes to the proposed text as published in the October 8, 2004, issue of the Texas Register (29 TexReg 9483).

The amended sections provide that state agencies that have records retention schedules that have been initially certified and then been recertified for two consecutive years be required to submit their schedules for recertification every three years rather than every two years. The amended sections also provide for the method of submission of records schedules for agencies that through legislative action become administratively attached to another agency. The proposed amendments also include a revised Texas State Records Retention Schedule, which establishes minimum retention periods for records common to all state agencies. Although a few retention periods on the schedule have been revised upward to conform to the requirements of the Sarbanes-Oxley Act and a few new series added, most of the changes have been made in response to suggestions for clarification from state agency records management officers and do not involve significant changes to retention periods. Providing for triennial rather than biennial recertification will permit state agencies and commission staff to devote more time to the myriad of issues confronting the management of government records, particularly those in electronic format.

The commission received comments from the Department of State Health Services, the Texas Education Agency, the Employees Retirement System of Texas, the University of Texas System, and the Teacher Retirement System of Texas regarding the proposed amendments. A summary of the comments and the commission's responses follow. The appearance of a five-digit decimal number in a comment or response is the number of the records series in the amended Texas State Records Retention Schedule, which is referred to simply as the schedule.

Comment: The Teacher Retirement System of Texas recommends that the requirement for archival review of Calendars, Appointment and Itinerary Records (1.1.013) of executive staff, board or commission members, division directors, and program heads not be added to the schedule. Teacher Retirement System of Texas notes that many calendars are maintained electronically, that it will be cumbersome if selected calendars must be printed for submission to the State Archivist, and that segregating a subset for archival review while purging others will be difficult.

Response: The long-term value of calendars, appointment books, and itinerary records must be appraised for each agency and sometimes for each office. In this way, calendars, etc. are equivalent to administrative correspondence, which also requires appraisal at the agency and office levels. The commission knows of no state standards for calendar keeping. Each agency and probably each employee or official keeps a calendar to suit individual needs. At executive and sometimes program levels (each agency operates differently and program level managers can sometimes have more information of long-term value than executives), calendars can record important information about meetings and decisions that is not available elsewhere.

The commission understands that electronic calendars will be more difficult to manage; but, as with electronic administrative correspondence, control over these records is required to insure that information of long-term value is properly maintained.

Once the State Archivist has determined that certain calendars have no long-term value, the archival code of "E" can be applied. In the meantime, the agencies must maintain electronic calendars and administrative correspondence at the administrative levels noted on the Texas State Records Retention Schedule. Paper calendars and administrative correspondence should be transferred to the State Archives at the close of the retention periods.

Comment: The Teacher Retirement System of Texas suggests that the retention period for Certified Agendas or Tape Recordings of Closed Meetings (1.1.059) be changed from AC + 2 (in which AC means from the date of the meeting or the completion of pending action involving the meeting, whichever later) to FE or CE because the AC retention standard may prove difficult for disposition purposes.

Response: The retention period stated is that set in Government Code §551.104(a). The commission does not have the authority to require a different retention period for a record from that prescribed for the record in a federal or state law, regulation, or rule of court.

Comment: The Teacher Retirement System of Texas notes that Public Access Option Forms (3.1.038) are also included in the description of Former Employee Verification Records (3.3.011). The Teacher Retirement System of Texas suggests that the relationship between the two records series be clarified.

Response: A cross-reference note has been added to 3.1.038 to draw attention to the public access option forms of former employees.

Comment: With regard to Telephone Message Notifications (5.1.016), the Teachers Retirement System of Texas remarked that with the exception of message books and phone logs, other types of notifications are typically not kept separate from the files to which they pertain.

Response: The commission acknowledges the validity of the comment. A message slip associated with an audit, for example, would typically be maintained with other records associated with the audit. The commission believes, however, that the inclusion of message slips and emails in this records series is appropriate to cover those message notifications that are not maintained with another record series.

Comment: The Department of State Health Services pointed out errors in the retention and archival codes that appear at the bottom of many pages of the Texas State Records Retention Schedule.

Response: The errors have been corrected.

Comment: The Department of State Health Services recommends that the word "minimum" be removed from the sentence on page v of the schedule that reads: "This retention schedule indicates the minimum length of time listed records series must be retained by a state agency before destruction or archival preservation." The Department of State Health Services also recommends that the following sentence be removed from page v: "The commission also recommends them as appropriate maximum retention periods." The Department of State Health Services further recommends that the following sentence of page vi of the schedule be deleted: "Retention periods listed in the RRS are required minimums." The Department of State Health Services contends that these suggested changes would give state agency records management officers more support when faced with program staff who wish to keep records longer than the state requires.

Response: The commission recognizes the problems records management officers encounter when attempting to reduce agency retention periods that exceed those in the Texas State Records Retention Schedule. State law, however, limits the authority of the commission to prescribing "minimum" retention periods. See Government Code §441.185(f).

Comment: The University of Texas System questions whether the amended wording of §6.10 means that agencies who may find there is a value in keeping a records series for a longer period than that prescribed in the state schedule can no longer make that determination.

Response: By law, retention periods prescribed by the commission must be minimum retention periods only. The language in §6.10 has been amended to clarify that the retention periods in the Texas State Records Retention Schedule are minimum retention periods.

Comment: The University of Texas System questions the business value of keeping Software Registrations, Warranties and License Agreements (2.2.026) beyond the life of the asset.

Response: State agencies are now required to conduct periodic audits of their software and are also subject to audit by other agencies on the same matter. Requiring that software licenses be kept for some period after the software is taken out of service serves to protect an agency should it be questioned about its prior use of software.

Comment: Both the Employees Retirement System of Texas and the Texas Education Agency requests that rejected bids be removed from Contracts and Leases (5.1.001), arguing that there is no need to keep rejected bids associated with an accepted bid that results in a contract.

Response: The commission agrees and rejected bids have been removed from Contracts and Leases (5.1.001). Because the purchasing practices of an agency are subject to external audit, rejected bids are now included in Bid Documentation (5.3.007).

Comment: The Teacher Retirement System of Texas and the University of Texas System argue that Internet Cookies (2.2.014) and History Files - Web Sites (2.2.015), included for the first time in the Texas State Retention Schedule, should not be considered records. The University of Texas System submits that these types of information enable a technical process, but do not have any relevance in the history of the transaction of business. Both agencies note the difficulty of documenting the disposition of these records. The University of Texas System suggests that if the records remain in the schedule, that an agency be permitted to treat them as transitory information.

Response: The commission believes that Internet Cookies and History Files - Web Sites meet the definition of a state record because they document the "use of public resources." Both types of records have been requested and produced by agencies under the Public Information Act. Both, particularly History Files, have been used by agencies as the basis for personnel disciplinary action. The retention period for both records has been set at as long as administratively valuable, which affords agencies maximum flexibility in determining a definite retention period. Because of the difficulty likely to be associated with managing the disposition of these records, the commission has added a comment to both records series that the disposition can be handled in the same manner as the disposition of transitory information, which does not entail the documentation associated with the disposition of other records.

In addition to these comments, the commission corrected a punctuation error by substituting a comma for a semicolon in §6.3(b)(1), re-worded §6.6(c) to put emphasis on a lack of timeliness as an important component in any decision by the director and librarian to decertify an agency's records retention schedule, and added language to §6.10 to identify the amended Texas State Retention Schedule as the third edition of the schedule. The commission also re-worded the archival note to Calendars, Appointment and Itinerary Records to clarify that the note applies to elected state officials also. Subchapter L, Chapter 441, Government Code, a section of which authorizes the commission to adopt these rules, applies to elected state officials as well as state agencies.

The amendments are adopted under Government Code §441.185(e), which authorizes the Texas State Library and Archives Commission to adopt rules relating to the submission of records retention schedules to the state records administrator.

§6.3.Submission of Records Retention Schedules for Recertification.

(a) After initial certification, a records retention schedule must be submitted to the state records administrator for recertification one year from the date of certification or recertification for the first two recertification periods.

(b) After the second recertification, a records retention schedule must be submitted for recertification every three years from the date of the last recertification, except for the following situations.

(1) If a state agency with a certified schedule absorbs another state agency, the records retention schedule must be submitted for recertification within one year of the effective date of the reorganization, and then will revert, when the schedule is recertified, to annual or triennial certification depending on the certification status of the absorbing agency under this section at the time of absorption.

(2) A state agency may choose to submit a complete retention schedule for recertification at any time during a certification period.

(c) If a state agency with a certified schedule absorbs another state agency with a certified schedule, the records management officer of the absorbing agency may use the certified schedule of the absorbed agency as the basis for disposition of the records of the absorbed agency until the records retention schedule of the absorbing agency is recertified in accordance with this section.

(d) If a state agency with a certified schedule administers another state agency with a certified schedule, the records management officer of the administering agency may use the certified schedule of the administratively attached agency as the basis for lawful disposition of the records of the administratively attached agency until the records retention schedule of the administering agency is recertified in accordance with this section.

(e) A records retention schedule due for recertification under this section must be submitted to the state records administrator no later than one year from the end of the month in which the schedule was certified or last recertified (or three years if the state agency is due for triennial recertification).

(f) At the discretion of the state records administrator and on petition from the records management officer of a state agency that it will be impossible to comply fully with the requirements of subsection (e) of this section, the state records administrator may extend the deadline for submission of the records retention schedule for up to 3 months from the end of the month the recertification of the schedule was due. One or more additional extensions may be granted, but in no case may the first extension and any additional extensions be for a combined period of more than one year from the end of the month the recertification was due.

§6.6.Decertification.

(a) If a state agency fails to submit a records retention schedule to the state records administrator for recertification by a required deadline or fails to request an extension, the certification of the currently approved schedule and any approved amendments to the schedule expires one year from the end of the month in which the schedule was initially certified or last recertified (or three years if the state agency is due for triennial recertification).

(b) If a state agency refuses to permit the inspection of a state records series by the state archivist or fails to respond to questions from the state archivist concerning the content, use, or other aspects of a state records series in order for the state archivist to determine if the series contains archival state records in accordance with Government Code, §441.186, the director and librarian may order the decertification of its approved records retention schedule, with decertification effective 30 days from the date of the order.

(c) If a state agency fails to cooperate fully and in a timely manner with the commission, the director and librarian, or any other authorized designee of the director and librarian in fulfilling their duties in accordance with Government Code §441.183, the director and librarian may order the decertification of its approved records retention schedule, with decertification effective 30 days from the date of the order.

(d) If its records retention schedule is decertified according to this section, a state agency is no longer authorized to destroy records based on the schedule and must submit requests for the destruction of its records in accordance with §6.7 of this title (relating to Destruction of State Records).

§6.10.Texas State Records Retention Schedule.

A record listed in the Texas State Records Retention Schedule (Third Edition) must be retained for the minimum retention period indicated by any state agency that maintains a record of the type described.

Figure: 13 TAC §6.10 (.pdf)

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 11, 2005.

TRD-200501113

Edward Seidenberg

Assistant State Librarian

Texas State Library and Archives Commission

Effective date: June 1, 2005

Proposal publication date: October 8, 2004

For further information, please call: (512) 463-5459