Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 7. Local Records Microfilming Standards for Local Governments 13 TAC sec.sec.7.21-7.28, 7.30-7.32 The Texas State Library and Archives Commission adopts amendments to sec.sec.7. 21-7.28, 7.30-7.32. Sections 7.21, 7.22, 7.24-7.27 are adopted with changes to the proposed text as published in the November 1, 1991, issue of the Texas Register (16 TexReg 6191). Sections 7.32, 7.28, and 7.30-7.32 are adopted without changes and will not be republished. Because of concern expressed by local governments that under some circumstances on film certificates of authenticity might jeopardize the admissibility of filmed records as evidence, the sections are amended to permit both on and off film certificates, with supporting system documentation. Sections that are adopted with changes: Section 7.21: changed word "redetermined" to "predetermined" in definition of "Step-and-repeat system". Section 7.22(d): changed "filmed processed " to "film processed". Section 7.24: changed wording to clarify type of quality control testing required and what test results should indicate. Section 7.25: changed the title to clarify content of section. Changed the wording of the certification; changed the certification requirement to allow both on and off film certification; added requirement to maintain procedural, operational, and training manuals to ensure documentation of system activity; added a review of the microfilm program for compliance with rules. Section 7.26: changed wording to clarify section. Section 7.27: changed certification requirement to reflect option of on or off film certification. Changes will allow local governments the option to use either on film or off film certificates of legality and authenticity. Two commenters believed that on film certificates should be required to be used by all governments; four commenters believed that off film certification should be permitted to avoid certification being made before microfilm has been inspected; nine commenters stated that they would not have a problem using off film certificates; three commenters believed that they would continue to use on film certificates as well as off film certificates; one commenter questioned whether jacket microfilm should not be accepted for recording and storage of permanent records; one commenter asked if the microfilm must be compared to the original document during the visual inspection. Commenting in favor of the amendments were the Texas Municipal Clerks Association and City of Burleson. The commission agreed with most comments and changes to the rules as published were made in response to them. The commission did not specifically disagree with any comments, but in some cases did not yet have adequate data to support desired changes. The amendments are adopted under the Local Government Code, sec.204.004, which provides the Texas State Library and Archives Commission with the authority to adopt rules for standards and procedures for the microfilming of local government records. sec.7.21. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Terms not defined in these rules shall have the meanings defined in the Local Government Code, Title 6, Chapter 201, or the standards of the Association for Information and Image Management according to Technical Report for Glossary of Micrographics (TR2-1990 or latest revision). AIIM-The Association for Information and Image Management. ANSI-The American National Standards Institute. Archival record -A record having a permanent retention period. Aperture card-A card with a rectangular opening(s) into which 16mm/35mm microfilm frames can be inserted, mounted, or premounted. Archival storage conditions-Environmental conditions suitable for preserving photographic film that is to be retained permanently. Batch-A quantity of chemicals or film which has been prepared at one time, and which has been identified through labeling or through other means by the manufacturer as a batch or lot. CAD (computer assisted design)-A method of creating microimages by computer- driven laser. Convenience film -Microfilm copies of records created only for convenience of use and considered nonrecords under the Local Government Code, sec.201.003(8)(A). or elected public officer who by the state constitution, state law, ordinance, or administrative policy is in charge of an office that creates or receives local government records. Diazo-Coated film containing sensitized layers composed of diazonium salts that react with couplers to form azo dye images. Dmax-Measurement of maximum obtainable density taken from a completely exposed area of conventionally processed silver-gelatin film (i.e. leader or trailer). Essential record -Any local government record necessary to the resumption or continuation of government operations in an emergency or disaster, to the re- creation of the legal and financial status of the government, or to the protection and fulfillment of obligations to the people of the state. Film-Microfilm. First-generation film -Film produced directly from a subject. Legible-The quality of a letter or numeral which enables the observer to identify it positively and quickly to the exclusion of all other letters and numerals. Local government record-Any document, paper, letter, book, map, photograph, sound or video recording, microfilm, magnetic tape, electronic medium, or other information recording medium, regardless of physical form or characteristic and regardless of whether public access to it is open or restricted under the laws of the state, created or received by a local government or any of its officers or employees pursuant to law, including an ordinance, or in the transaction of public business, except for materials excluded under the Local Government Code, Chapter 201. Long-term film -Film suitable for the preservation of records for a minimum of 100 years when stored under proper conditions, providing the original film was processed correctly. Long-term record -A record for which the retention period on a records retention schedule is 100 years but less than permanent. Master negative -The copy of microfilm stored offsite for security and used only for generating use copies. Medium-term film -Film suitable for the preservation of records for more than 10 years but less than 100 years when stored under proper conditions, providing the original film was processed correctly. Medium-term record -A record for which the retention period on a records retention schedule is more than 10 years but less than 100 years. Medium-term storage conditions-Storage conditions meeting ANSI/AIIM standards to ensure a life of 100 years for medium-term film. Microfilm-Roll microfilm, microfiche, computer output microfilm (COM), and all other formats produced by any method of microphotography or other means of miniaturization on film. Microfilming-The methods, procedures, and processes used to produce microfilm. Permanent film -Film that is suitable for the preservation of records having permanent value when the film is properly processed and stored under archival storage conditions, provided that the original images are of suitable quality. Permanent record -A record for which the retention period on a records retention schedule is permanent. Readable-The quality of a group of letters or numerals which makes them recognizable as words or whole numbers. Records management officer-The person identified under the Local Government Code, sec.203.001 or designated under the Local Government Code, sec.203.025 as the records management officer. Records retention schedule-A document issued by the Texas State Library and Archives Commission under authority of the Government Code, sec.441.158, establishing mandatory retention periods for local government records. Records series -File unit(s) or document(s) arranged in accordance with a filing system or maintained as a unit because they relate to a particular subject or function, result from the same activity, have a particular form, or because of some other relationship arising out of their creation, receipt, or use. Retention period -The minimum time that must pass after the creation, recording, receipt of a record, or the fulfillment of certain actions associated with a record before it is eligible for destruction. Second-generation microfilm -A microfilm copy made from the master negative. Short-term film -Film suitable for the preservation of records for 10 years when stored under proper conditions, providing the original film was processed correctly. Short-term record -A record for which the retention period on a records retention schedule is 10 years or less. Step-and-repeat system -A method of microfilming by which images are directly placed on an area of film according to a redetermined format, usually in orderly rows and columns. Vesicular-Film in which the light-sensitive component is suspended in a plastic layer in which optical vesicles are created on exposure to form the image. sec.7.22. General (a) Where these rules do not specify a standard or procedure, ANSI/AIIM standards are the minimum requirements for all microfilming of local government records. (b) The originals of records that have been microfilmed may not be destroyed prior to the expiration of their retention periods unless the microfilm has met minimum standards of the tests required under these rules. (c) These rules apply to the microfilming of any local government record, including court case papers, which is to be maintained solely in microfilm format and to all microfilm which is created or maintained as a back-up or security copy of short-term, medium-term, long-term, or permanent records. These rules do not apply to convenience filming. (d) Custodians must maintain, or require to be maintained, documentation identifying titles of records filmed, quality control tests conducted, the results of quality control tests, dates records filmed, disposition of records after filming, dates film processed, disposition of film, reduction ratio used, records series contained on each microfilm, and equipment on which each microfilm was filmed and processed. The documentation must be retained until final disposition of all microfilm documented in the log or equivalent. (e) Chemicals, film, and processor used in processing must be compatible. (f) The records custodian, records management officer, or other authorized representative of the governing body of a local government may make unannounced inspections of the microfilm facilities in which the master microfilm of the local government is filmed, processed, and/or stored. (g) Master microfilm produced for a local government shall be the property of the local government and the local government shall have the same responsibilities for ensuring its management and preservation as it would have for the records under the Local Government Code, Title 6, Subtitle 6, if they were not microfilmed. If the master microfilm is to be stored by a service provider, the local government may demand and receive delivery of upon five working days' notice. (h) If microfilmed records contain information to which access by the public is restricted or confidential, such information must be expunged from any microfilm copies or hard copies made available to the public. sec.7.24. Tests and Other Methods of Inspection and Verification. (a) General. (1) With the exception of retakes, if a defect is found on any microfilm, the microfilm immediately preceding and following the sample of microfilm on which the defect was found must be inspected. If a defect is found on those microfilms, the uninspected microfilm preceding and/or following those microfilms must be inspected image by image until all defective film has been identified. (2) Water used in microfilm processing must meet the requirements in American National Standards Institute Practice for Operational Procedures/Inspection and Quality Control of First Generation, Silver-Gelatin Microfilm of Documents (ANSI/AIIM MS23-1991 or latest revision). (b) The following tests must be utilized in the production of all film. (1) Methylene blue test. (A) Methylene blue test for conventionally processed silver-gelatin film as specified in American National Standard for Photography (chemicals)-Residual Thiosulfate and Other Chemicals in Films, Plates, and Papers-Determination and Measurement (ANSI/ASC PH4.8-1985 or latest revision) must be followed. (B) A test must be performed at least once each week during which processing is done on a test strip of approximately six inches from a master microfilm or on a process control strip. If processing is performed by a service bureau a test performed for one local government agency may satisfy this requirement for more than one local government. (C) A test must also be performed whenever a batch of fixer or developer is changed, or when changes in processing such as replacement or addition of filter, water softener, or replenishing system are made, or when water is changed. (D) Test test results must be obtained on a scheduled basis within 10 days of processing. If film fails to meet the standards established by these rules, it must be rewashed and retested within the 14 days of initial processing. (E) Once a year, two test strips must be taken from the same microfilm; one must be sent to an independent testing laboratory and the other to the laboratory which performs the weekly test, for verification of test results. (F) If either test result is greater than 0.014 gram per meter squared, the records custodian must identify and remedy the cause of the deviation from the required standard. (2) Density test. (A) The density test must be performed on all master microfilm. (B) Testing procedures as specified in American National Standards Institute Practice for Operational Procedures/Inspection and Quality Control of First Generation, Silver-Gelatin Microfilm of Documents (ANSI/AIIM MS23-1991 or latest revision) must be performed. (C) Background density must be in accordance with American National Standards Institute Practice for Operational Procedures/Inspection and Quality Control of First Generation, Silver-Gelatin Microfilm of Documents (ANSI/AIIM MS23--1991 or latest revision). (3) Resolution test. (A) The resolution test must be performed on all master microfilm. (B) The resolution test must be conducted in accordance with American National Standards Institute Practice for Operational Procedures/Inspection and Quality Control of First Generation, Silver-Gelatin Microfilm of Documents (ANSI/AIIM MS23- 1991 or latest revision). (C) The resolution target must meet the American National Standard Microcopying- ISO Test Chart Number 2-Description and Use in Photographic Documentary Reproduction (ANSI/ISO 3334-1979 or latest revision) and/or American National Standard Test Chart for Rotary Microfilm Cameras (ANSI/AIIM MS17-1983 or latest revision) and/or Standard for Information and Image Management-Recommended Practice for Identification of Microforms (ANSI/AIIM MS19-1987 or latest revision). Photocopies may not be used. (4) Visual inspection. (A) Inspection must be completed within two weeks of completion of the methylene blue test. (B) All film of records having medium-term, long-term, or permanent retention periods, or which are designated as essential records must be inspected image by image, by the records custodian or records management officer, or local government office, or independent testing facility under contract with the local government or custodian. (C) Short-term film of non-essential records must be inspected at least every three meters (10 feet) of each third roll or every third fiche. (c) If film processing is done by a service bureau, the local government must obtain a certified statement of the results of density, resolution, methylene blue, and visual inspection tests from the service bureau attesting to the accurate reproduction of records filmed. (d) If microfilm is not to be stored by the service bureau which processed the film, the local government must obtain test results at the same time it obtains the microfilm. If the microfilm is stored by the service bureau which processed the film, the local government must receive the test results within 10 days of completion of the test(s). The custodian, records management officer, local government office, or independent testing facility under contract with the local government or custodian, must inspect the microfilm to results reported by the processor. (e) An inspection of stored master microfilm must be conducted in accordance with American National Standard for Photography (Film)-Processed Safety Film- Storage (ANSI IT9.11-1991 or latest revision). (1) A minimum of 1.0% of the total volume of microfilm of each local government office comprising a cross section of all microfilm (roll, jacket, microfiche, aperture card, COM, etc.) must be inspected for deterioration such as peeling emulsion, brittleness, film curl, discoloration, molding, and blemishes on the film. (2) Of the microfilm selected, 70% shall never before have been inspected, 20% shall have been inspected during the immediately previous inspection, and 10% shall be samples of the oldest and newest film. (3) An inspection of stored master microfilm must be conducted every two years, except if the microfilm has been stored under temperature and/or humidity conditions other than those required under these rules, it must be inspected yearly. (4) Cans, boxes, and reels used to store the film must be inspected for evidence of rust, corrosion, and other deterioration. (5) Master microfilm must not be inspected on a reader printer. Master microfilm must be inspected on a light box with rewinds or comparable equipment which will not scratch the film. (6) The following information must be recorded for each inspection: (A) the quantity and identification of microfilm inspected; (B) the condition of the microfilm, including description of any deterioration such as peeling emulsion, brittleness, film curl, discoloration, molding, and blemishes on the film; (C) the corrective action required (if necessary); (D) the date(s) of inspection and signed certification of inspector; (E) the date corrective action was completed. (7) The inspection log must be maintained by year and within each year numerically according to microfilm identifier or number. (8) If deterioration is found, a more extensive inspection must be conducted to locate all deteriorating film. (9) Any deteriorating film must immediately be removed from the storage area and a new master microfilm created. sec.7.25. Certification and Documentation. (a) After the microfilm has been prepared, processed, and inspected the records custodian must complete and maintain a certificate of authenticity stating: "I (name of records custodian) acting for the (name of agency), a local government in the state of Texas, do hereby declare that I am the (RMO or custodian) of the (name of department) department records. The official records appearing on (identifier) microfilm are accurate reproductions of the record series entitled (record series title). These records were created in the regular course of business and microfilmed as part of a planned records management program adopted by (name of governing body), under provisions of the Local Government Code, sec.203.005 or sec.203.026." (b) The certificate of authenticity must contain the printed or typed name of government, name of office, the name and title of the records custodian, RMO, or deputy, and the date and place certified, and must be signed by the records custodian, RMO, or, if the inspector is a deputy of the custodian, it may be signed by the deputy. (c) A procedure and operational manual must be prepared for the microfilm program and periodically updated so as to reflect current practice and at a minimum must include a description of: (1) purpose of microfilm program; (2) documentation maintained; (3) prepping; (4) camera/filming; (5) processing; (6) quality controls; (7) duplication; (8) storage; and (9) inspection of stored microfilm. (d) Training manuals must be created and maintained for all staff in the microfilm program and periodically updated so as to reflect current practice. Proof of appropriate training and satisfactory completion of required training must be documented for all staff. (e) The microfilm program must be reviewed yearly for compliance with the Local Government Code, Chapter 204 and the rules adopted under it. sec.7.26. Use of Editorial and Technical Targets. (a) A title page target must be included on each roll of microfilm and must identify the local government and subordinate organizational unit(s), the records which are included on the microfilm, title of the records (with identification of contents if not obvious from series titles), restriction or classification (if necessary), bibliographic information (if any), roll number, and date(s) of records being filmed. (b) Restriction or classification targets, if used, must identify the office or agency authorizing the classification or restriction, the statutory or administrative authorization for the restriction or classification, the beginning record and ending record of the record series of which the classified or restricted items are a part, the date of filming, and the nature of the restriction or classification. (c) A declaration by camera operator must state where, when, and by whom records were filmed, name and title of camera operator, the camera and the reduction ratio used. (d) Whenever possible, targets must all face the same direction as the records being microfilmed. Whenever possible, the letters on the target title must be readable to the naked eye without magnification and the image on the film must be at least two millimeters (0.08 inch) high. (e) If the condition of the original record is of poor quality and it is anticipated the images will not be legible and readable when displayed on a microfilm reader or when reproduced in paper copy, a target or stamp stating the reason for the poor image quality must be placed before or directly on the image(s). sec.7.27. Image Sequence. (a) The image sequence on roll microfilm must be: (1) leader (minimum of 700 millimeters (28 inches) of blank film); (2) retakes according to required sequence of subsection (d) of this section (if any); (3) density target and resolution target, in any order or combination; (4) title page; (5) records being microfilmed; (6) certificate of authenticity (if used on microfilm); (7) density target and resolution target, in any order or combination; (8) retakes according to required sequence of subsection (d) of this section (if any); (9) trailer (minimum of 700 millimeters (28 inches) of blank film). (b) For non-essential and short-term microfilm, if the image sequence required in subsection (a) of this section is not used the following must be used: (1) density and resolution target, in any order or combination, must be on the microfilm or a test strip of the microfilm; (2) title page target; (3) if the film is updated, the title page target must be prior to the first image of the records being microfilmed. (c) All microfilm produced for a local government must bear a unique number within the generating department. (d) The filming sequence for retakes on all microfilm must be: (1) title target identifying the retake records; (2) the retake records; (3) certificate of authenticity (if used on microfilm). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 17, 1991. TRD-9116141 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: January 9, 1992 Proposal publication date: November 1, 1991 For further information, please call: (512) 463-5440 13 TAC sec.7.34, sec.7.35 The Texas State Library and Archives Commission adopts new sec.7.34 and sec.7. 35, with changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5937). The new sections are adopted to ensure the physical protection and informational integrity of public information contained in local government records which have been microfilmed using aperture card/CAD or step-and-repeat systems. The new sections will provide local governments with a consistent foundation upon which to base their microfilming programs as required by law. Changes from the proposed text are: sec.7.34. Aperture Card/CAD Systems. Deleted subsections (d) and (e) to permit on or off film certification. sec.7.35. Step-and-Repeat Systems. Deleted subsection (f)(3) and (f)(4); added a new subsection (f)(3) to permit on or off film certification. Two commenters believed that on film certification should be required to be used by all governments; four commenters believed that off film certification should be permitted to avoid certification being made before microfilm has been inspected. Commenting in favor of the new section was the Texas Municipal Clerks Association and City of Burleson. The commission felt that the positions of all commenters could have merit in certain circumstances; therefore it elected to allow local governments the option to use either on film or off film certification. The new section is adopted under the Local Government Code, sec.204.004, which provides that the Texas State Library and Archives Commission shall adopt rules for standards and procedures for microfilming of local government records. sec.7.34. Aperture Card/CAD Systems. (a) Standards for production, processing, testing, and storage of aperture cards are the same as those established in these rules for other microfilm formats, except as stated in this section. (b) For medium-term, long-term, and permanent records master negatives must be silver-gelatin microfilm in roll form. (c) For short-term microfilm: (1) a methylene blue test must be performed on a sample aperture card according to sec.7.24(b)(1) of this title (relating to Tests and Other Methods of Inspection and Verification); (2) a density test must be conducted on a sample at a minimum of once every 250 cards or every 1,000 images, whichever is greater; (3) a resolution test must be conducted on a sample at a minimum of once every 250 cards or every 1,000 images, whichever is greater; (4) density and resolution targets must be on the microfilm or a test sample of the microfilm. (d) Aperture cards must have the following information on label headings: name of government, office of origin, records series, and unique identifier. (e) Adherence to the provisions of sec.7.26 of this title (relating to Use of Editorial and Technical Targets) and sec.7.27 of this title (relating to Image Sequence) is not required in the production of short-term aperture cards. sec.7.35. Step-and-Repeat Systems. (a) Standards for production, processing, testing, and storage of microfilm from a step-and-repeat system are the same as those established in these rules for other microfilm formats, except as stated in this section. (b) Silver-gelatin microfilm in roll or microfiche form must be used for master negatives. (c) A density test must be conducted at the beginning of each day of filming and at a minimum of once every roll or every 3,000 images. (d) A resolution test must be conducted at the beginning of each day of filming and at a minimum of once every roll or every 3,000 images. (e) Density and resolution targets must be on the microfilm or a sample of the microfilm. (f) The following image sequence must be followed: (1) title page target; (2) records being microfilmed; (3) certificate of authenticity (if used on microfilm). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 17, 1991. TRD-9116140 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: January 9, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 463-5440 Records Retention Schedules 13 TAC sec.sec.7.121-7.127 The Texas State Library and Archives Commission adopts new sec.sec.7.121-7.127. New sec.7.125 and sec.7.127 are adopted with changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5024). New sec.sec.7.121-7.124, and 7.126 are adopted without changes and will not be republished. The justification of the new sections is to establish standards for the creation, approval, and distribution of records retention schedules for local government records; to amend the county records manual; and to adopt by reference the county records manual as amended and schedules for records common to all local governments, records of municipal and justice courts, records of property taxation, and records of elections and voter registration. A change was made to sec.7.125 indicating that the records retention schedules are adopted. A change was made to sec.7.125 indicating an editorial shortening of the title of Local Schedule TX. Changes were made to sec.7.127 by adding paragraphs (28) and (29) to subsection (c). These changes were necessary to avoid conflict between a retention period in Local Schedule TX, changed as the result of public comment, and the same record in the county records manual. The sections and the records retention schedules, as changed, were approved by the Local Government Records Committee, as required by the Government Code, sec.441.165, at an open meeting held in Austin on December 6, 1991. The sections will function by providing local governments with mandatory minimum retention periods for records. Comments were received from three local governments and two state agencies. None of the comments involved the text of the sections as published. The comments concerned suggested changes to the records retention schedules adopted by reference in sec.7.125. A commenter suggested a change to the proposed retention period for accounts receivable records detailing the receipt of monies due to the Comptroller of Public Accounts in Local Schedule GR. A commenter suggested the inclusion in Local Schedule GR of audiotapes of workshop sessions of governing bodies and a reconsideration of the permanent retention period assigned to affidavits of publication of municipal ordinances in the same schedule. Commenters suggested changes to the retention periods proposed for appraisal review board hearing case papers, exemption and special appraisal records, property value documentation, and tax rolls in Local Schedule TX. One commenter observed that the retention period for applications for local option election petitions in Local Schedule EL should be the same as that for the petitions. Comments were received on various entries in Local Schedule LC pointing out that proposed retention periods were not long enough for the Comptroller of Public Accounts to complete statutory audits of the case papers and other records of justice and municipal courts. Commenting against the section were the City of North Richland Hills, City of San Marcos, City of Taylor, Attorney General, and Comptroller of Public Accounts. With a few exceptions, comments received concerning proposed retention periods in records retention schedules led to changes to those schedules. One commenter suggested that the retention period for affidavits of publication for municipal ordinances in Local Schedule GR be changed from permanent to five years for the reasons that the ordinances themselves are permanent and the special methods needed to preserve clipping proofs would be burdensome. The agency believes that the procedures set out in the Local Government Code, Chapter 52, and in most home-rule city charters requiring the publication in full or by caption of municipal ordinances before their enactment are directive in nature and failure to publish as required might place the validity of an ordinance into question. The agency does believe that in the event of a codification or re-codification of municipal ordinances, the affidavits of publication for the codified ordinances are no longer relevant to the proof of their validity as the notice by publication of the code itself validates all its provisions. The retention period was changed to permit that type of exception to the permanent retention requirement. The agency feels that photocopying is an effective solution to the problem of newspaper clipping proof yellowing and deterioration. One commenter objected to four year retention periods for a number of records series of municipal courts and urged that the periods be lowered to three years. Based upon comments received from the Comptroller of Public Accounts, the agency is constrained from making the changes and must raise the retention periods to five years to satisfy the administrative needs of the Comptroller's Office in carrying out its statutory duty to audit case papers and other records of justice and municipal courts to verify the proper accounting of state court fees. The agency believes that the suggestion of the Comptroller of Public Accounts that the retention periods for docket books and logs of process issued by justice and municipal courts be reworded to five years from date of offense is unnecessary as the docketing of a case or the logging of process issuance must naturally follow the commission of the offense. A suggestion from the Comptroller's Office that the retention period for reports of motor carrier convictions be raised from AV to five years was withdrawn following discussion with officials of that agency. The new sections are adopted under the Government Code, sec.sec.441.158- 441.160, and the Local Government Code, sec.202.001(b)(2). The Government Code sec.441. 158(a), requires the Texas State Library and Archives Commission to prepare and distribute records retention schedules for local government records and to adopt the schedules by rule. The Government Code, sec.441.159 and sec.441.160, permit the commission to adopt rules amending the county records manual, whose retention periods for county records were validated and continued in effect by the Local Government Code, sec.441.159. The Local Government Code, sec.202.001(b) (2), permits the commission to exempt by rule certain records from records destruction procedures established by statute. sec.7.125. Adoption of Records Retention Schedules by Reference. The following records retention schedules, required to be adopted by rule under the Local Government Code, sec.441.158(a), are adopted by reference. Copies of the schedules are available from the Local Records Division, Texas State Library, Box 12927, Austin, Texas 78711-2927; (512) 463-5478: (1) Local Schedule GR: Records Common to All Local Governments; (2) Local Schedule LC: Records of Justice and Municipal Courts; (3) Local Schedule TX: Records of Property Taxation; (4) Local Schedule EL: Records of Elections and Voter Registration. sec.7.127. Amendments to Records Retention Schedules and the County Records Manual. (a) An amendment to a retention period in a records retention schedule adopted under sec.7.125 of this title (relating to Adoption of Records Retention Schedules by Reference) or in the county records manual adopted under sec.7.126 of this title (relating to Adoption of County Records Manual by Reference) does not affect any caution statement associated with the retention period unless otherwise indicated in this section. (b) The records descriptions and retention periods for records listed on pages B21 (personnel records only); B22 (purchasing agent files only); B99 (personnel records only); B116 (federal withholding records only); B117 (social security payments record only); B169 (personnel records only); B205 (personnel records only); B207-B250; B255-B261; B265-B267; B269-B273; B279; B285; and Auditor l- Auditor 14 of the first edition of the county records manual are deleted. (c) The records descriptions and retention periods for records listed in Volume 1 of the county records manual are amended as follows. (1) The retention period for Item Number 1000-04 (Photographs and Recordings) is changed to: "Permanent. Caution: Most photographs and other nontextual media of the types described must be retained permanently for historical reasons; but latitude is allowed to the records management officer in an elective county office to determine to what extent a particular photograph, for example, documents the history and activities of the office or the county. If it is determined that it does not, it need be kept only as long as administratively valuable. Be certain that photographs and other non-textual media do not fall within other records series." (2) Section (b) of the retention period for item number 1000-05 (Policy and Procedures Files) is changed to: "Type II-five years after superseded." (3) The records descriptions and retention periods for the following records listed in Volume 1 of the county records manual are deleted: Item Numbers 1000- 06 (Scrapbooks); 1150-01 (Applications and Petitions for Place on Ballot); 1150- 02 (Certifications of Candidates); 1150-03 (Declarations of Intent to Run as Independent Candidate); 1150-04 (Declarations of Write- Candidacy); 1150-05 (Election Minutes); 1150-06 (Election Notices); 1150-07 (Election Orders and Proclamations); 1150-08 (Election Return Record); 1150-09 (Notices of Precinct Boundary Changes); 1150-10 (Orders of Appointment of Election Judges; 1150-11 (Poll Tax Exemption Certificates); 1150-12 (Poll Tax Receipts); 1150-13 (Lists of Qualified Voters); 1150-14 (Lists of Recommended Election Judges); 1350-01 (Absentee Voting Records) ; 1350-02 (Annual Reports of Unexpended Contributions); 1350-03 (Applications for Local Option Election Petitions); 1350-04 (Campaign Contribution and Expenditure Statements); 1350-05 (Certifications of Candidates); 1350-06 (County Election Returns); 1350-07 (Designations of Campaign Treasurers; 1350-08 (Federal Postcard Applications); 1350-09 (New Resident Registration Records); 1350-10 (Lists and Certifications of Party Candidates in Primary Elections); 1350-11 (Notices of Persons Elected as Party Officers); 1350-12 (Poll Lists); 1350-13 (Precinct Absentee Lists); 1350-14 (Precinct Convention Records); 1350-15 (Precinct Election Records); 1350-16 (Recount Committee Reports of Recount); 1350-17 (Recount Records); 1350- 18 (Recount Supervisors' Reports); 1350-19 (Lists of Registered Voters); 1350-20 (Reports of Fraud in Constitutional Amendment Elections); 1350-21 (Statements of Compensation); 1350-22 (Withdrawal of Candidacy Requests), (Notices of Intent to Dispose of Public Records); 1850-08 (Notices of Intent to Dispose of Public Records); and 2000-04 (Notices of Intent to Dispose of Public Records). (4) The retention period for Item Number 1100-07 (Commissioners Court Petitions) is changed to: "two years after consideration of the petition by the court." (5) The retention periods for Item Numbers 1125-02 (Annual Fee Reports); 1125-20 (Monthly Expense Reports); 1125-21 (Prisoner Expense Reports); 1125-23 (Reports of Collections); 1125-24 (Treasurer's Monthly Reports); 1125-25 (Treasurer's Quarterly Reports) and section (a) of the retention period for Item Number 1125- 05 (Auditor's Reports) are changed to: "three years from the end of the fiscal year to which the report relates." (6) The retention period for Item Number 1125-06 (Banking Records) is changed to "five years from the end of the fiscal year to which the records relate." (7) The retention period for Item Number 1125-07 (Bid Records) is changed to: "(a) Successful bids and requests for proposals, including invitations to bid, bid bonds and affidavits, bid sheets, and similar supporting documentation-three years after end of fiscal year of award. (b) Unsuccessful bids-two years. (c) Informal bid records, such as requests for quotations and estimates, for the procurement of goods or services for which state law or county policy does not require the formal letting of bids-one year." (8) Section (b) of the retention period for Item Number 1125-08 (Bond Registers) and the retention periods for Item Numbers 1125-22 (Public Hospital Bond Record); 1175-08 (Road District Bond Record); 1200-10 (Bond Record) and 1900-07 (Bond Registers) are changed to: "Permanent." (9) Section (a) of the retention period for Item Number 1125-10 (Claims) is changed to: "three years from the end of the fiscal year of date of payment." (10) The retention periods for Item Numbers 1125-12 (Contracts, Leases, and Agreements) and 1125-14 (County Depository Pledge Contracts) are changed to: "four years after the expiration or termination of the agreement according to its terms." (11) Section (a) of the retention period for Item Number 1125-15 (Deposit Warrants) is changed to: "three years from the end of the fiscal year to which the warrant relates." (12) The retention period for Item Number 1175-02 (Highway Fund Annual Reports) is changed to: "Permanent." (13) The retention periods for Item Numbers 1200-12 (Construction Contracts); 1200-22 (Construction Contracts); 1200-43 (Construction Contracts); 1200-49 (Construction Contracts); and 1200-69 (Construction Contracts) are changed to: "Permanent." (14) The retention period for Item Number 1200-13 (Dissolution Tax Receipts) is changed to: "three years from end of the fiscal year of payment." (15) The retention periods for Item Numbers 1225-05 (County Building Authority Quarterly Reports) and 1225-31 (Tuberculosis Control Board Quarterly Reports) and section (a) of the retention period for Item Number 1225-14 (Hospital Board or District Reports) are changed to: "three years from the end of the fiscal year to which the report relates." (16) The retention period for Item Number 1225-15 (Insurance Policies on County Property) is changed to: "four years after expiration or termination of the policy according to its terms." (17) The retention period for Item Number 1225-16 (Inventories of County Property) is changed to: "(a) Capital asset equipment or property inventories (including sequential number property logs)-three years after superseded. (b) Inventory records (parts and supplies)-one year." (18) Sections (b) and (c) of the retention period for Item Number 1225-23 (Public Works Project Records) are changed to: "Permanent." (19) The retention periods for Item Numbers 1250-03 (Cash Receipts); 1250-05 (Daily Cash Book or Reports); 1250-06 (Deposit Warrants); 1525-04 (Cash Receipts); 1525-05 (Daily Cash Book or Reports); sections (a)(2) and (b) of 1800-01 (Cash Receipts); 1800-05 (Fee Sheets); 1850-02 (Cash Receipts); 1850-03 (Daily Cash Book or Reports); and 1850-04 (Deposit Warrants) and section (b) of the retention period for Item Number 1125-15 (Deposit Warrants) are changed to: "three years from the end of the fiscal year to which the records relate." (20) The retention periods for Item Numbers 1250-07 (Fee Book); 1525-06 (Fee Book); 1800-04 (Fee Book); and 1850-05 (Fee Book) are changed to: "five years from the end of the fiscal year to which the record relates." (21) The retention period for Item Number 1325-18 (Reports of Death) is changed to: "Until receipt of death certificate." (22) The records descriptions and retention periods for Item Numbers 1525-15 (Records Schedules and Implementation Plans) and 1850-10 (Records Schedules and Implementation Plans) are changed to: "Records Management Records. (a) Records control schedules (including all successive versions of or amendments to schedules). Permanent. (b) Records destruction documentation -Records documenting the destruction of records under records control schedules, including requests submitted to the Texas State Library and Archives Commission for authorization to destroy unscheduled records or the originals of permanent records that have been microfilmed. Permanent. (c) Records inventories-Lists or inventories of the active and inactive records created or received by a county office. As long as administratively valuable. (d) Records management plans and policy documents-Plans and similar documents establishing the policies and procedures under which a records management program operates. Five years after superseded. (23) The retention periods for Item Numbers 1575-04 (Civil Docket); 1575-05 (Civil File Docket, Type IV only); 1575-08 (Jury Docket); 1625-03 (Community Property Docket); 1625-06 (Guardians' Docket); 1625-12 (Probate Docket); 1625-13 (Probate File Docket, Type IV only); 1625-18 (Small Estates Docket); 1625-20 (Vital Statistics Docket); 1650-04 (County Court Docket); 1650-05 (County Court Docket, Type IV only); 1650-10 (Scire Facias Docket); 1725-02 (Alcoholism Docket); 1725-12 (Mental Illness Docket); 1725-15 (Mental Retardation Docket); and 1725-18 (Narcotics Addiction Docket) are changed to: "Permanent." (24) The retention period for Item Number 1600-04 (Criminal Case Papers) is changed to: "(a) DWI and DUID cases-five years after dismissal or acquittal or 10 years after conviction, as applicable. (b) All other cases-five years after final judgment rendered or proceedings otherwise terminated in the case, except: (1) Warrants, capiases, summonses, subpoenas, witness attachments, and returns- four years after final judgment rendered or proceedings otherwise terminated. (2) Bail, personal, appeal, peace, cost, and other surety bonds, or certificates of deposit or affidavits in lieu thereof-three years after final judgment rendered or proceedings otherwise terminated in the case. (3) Bills of cost-four years after paid or waived. (4) Judgments and docket sheets-20 years if they meet the criteria of category 2 under Fingerprints on page 183." (25) Section (b) of the retention periods for Item Numbers 1600-06 (Criminal File Docket) and 1650-05 (County Court Criminal File Docket) are changed to: "Type II file dockets-five years from the end of the fiscal year in which all fees and costs listed in the volume have been paid or waived." (26) The retention period for Item Number 1800-02 (Cost Deposit Record) is changed to: "five years after last entry." (27) The retention period for Item Number 1800-07 (Statistical Reports to Texas Judicial Council) is changed to: "three years." (28) The retention period for Item Number 1375-03 (Delinquent Tax Record) is changed to: "Destroy at option." (29) The retention period for Item Number 1375-17 (Tax Rolls) is changed to: "Destroy at option." (d) The records descriptions and retention periods for the following records listed in Volume 2, Section 3 of the county records manual as separately published in 1988 are deleted: Item Numbers 1000-01 (Budget Requests and Working Papers); 1000-02 (Correspondence); 1000-03 (News Releases); 1000-04 (Photographs and Recordings); 1000-05 (Policy and Procedure Files); 1000-06 (Scrapbooks); 2350-01 (Administrative Hearing Case Papers); 2350-02 (Administrative Hearing Docket); 2350-03 (Civil Case Papers); 2350-04 (Civil Docket); 2375-01 (Small Claims Case Papers); 2375-02 (Small Claims Docket) ; 2400-01 (Bail Bond Record); 2400-02 (Criminal Case Papers; 2400-03 (Criminal Docket); 2400-04 (Examining Trial Case Papers); 2400-05 (Examining Trial Docket); 2400-06 (Reports of Record of Motor Carrier Convictions); 2400-07 (Traffic Conviction Abstracts); 2400-08 (Witness Record); 2425-01 (Appeal or Transfer Record); 2425-02 (Civil and Criminal Docket); 2425-03 (Execution Docket); 2425-04 (Jury Certificates); 2425- 05 (Jury Time Book); 2425-06 (Process Registers); 2425-07 (Statistical Reports to Texas Judicial Council); 2450-01 (Cremation Permits); 2450-02 (Reports of Deaths Resulting from Traffic Accidents) ; 2450-03 (Fire Inquest Case Papers); 2450-04 (Fire Inquest Record); 2450-05 (Inquest Case Papers); 2450-06 (Inquest Record); 2475-01 (Birth and Death Record) ; 2475-02 (Birth Texas State Library and Archives Commission Local Records Certificates); 2475-03 (Birth Record); 2475-04 (Burial Transit Permit Records); 2475-05 (Death Certificates); 2475-06 (Death Certificates of Persons under 55); 2475-07 (Death Record); 2475-08 (Disinterment Permits); 2475-09 (Applications for Disinterment Permits); 2475-10 (Marriage Register); 2475-11 (Reports of Death); 2500-01 (Acknowledgment Record); 2500-02 (Annual Fee Reports); 2500-02a (Applications for Deputies); 2500-03 (Banking Records); 2500-04 (Cash Receipts); 2500-05 (Cost Deposit Record); 2500-05a (Reports to County Auditor); 2500-06 (Daily Cash Book or Reports); 2500-07 (Deposit Warrants); 2500-08 (Fee Book); 2500-09 (Legal Opinions); 2500-10 (Monthly Expense Reports); 2500-11 (Notices of Intent to Dispose of Public Records); 2500-12 (Open Records Applications); 2500-13 (Records Schedules and Implementation Plans); and 2500-14 (Reports of Collections). (e) The records descriptions and retention periods for records listed in Volume 2 of the county records manual are amended as follows: (1) The retention period for Item Number 1000-04 (Photographs and Recordings) is changed to: "Permanent. Caution: Most photographs and other nontextual media of the types described must be retained permanently for historical reasons, but latitude is allowed to the records management officer in an elective county office to determine to what extent a particular photograph, for example, documents the history and activities of the office or the county. If it is determined that it does not, it need be kept only as long as administratively valuable. Be certain that photographs and other nontextual media do not fall within other records series." (2) Section (b) of the retention period for item number 1000-05 (Policy and Procedures Files) is changed to: "Type II -five years after superseded." (3) The records descriptions and retention periods for the following records listed in Volume 2 of the county records manual are deleted: Item Numbers 1000- 06 (Scrapbooks); 2275-23 (Notices of Intent to Dispose of Public Records); 2325- 02 (Election Box Stub Certificates); retention period (a) only of 2325-08 (Lists of Registered Voters); 2350-01 (Administrative Hearing Case Papers); 2350-02 (Administrative Hearing Docket); 2350-03 (Civil Case Papers); 2350-04 (Civil Docket); 2375-01 (Small Claims Case Papers); 2375-02 (Small Claims Docket); 2400-01 (Bail Bond Record); 2400-02 (Criminal Case Papers; 2400-03 (Criminal Docket); 2400-04 (Examining Trial Case Papers); 2400-05 (Examining Trial Docket); 2400-06 (Reports of Record of Motor Carrier Convictions); 2400-07 (Traffic Conviction Abstracts); 2400-08 (Witness Record); 2425-01 (Appeal or Transfer Record); 2425-02 (Civil and Criminal Docket); 2425-03 (Execution Docket); 2425-04 (Jury Certificates); 2425-05 (Jury Time Book); 2425-06 (Process Registers); 2425-07 (Statistical Reports to Texas Judicial Council); 2450-01 (Cremation Permits); 2450-02 (Reports of Deaths Resulting from Traffic Accidents); 2450-03 (Fire Inquest Case Papers); 2450-04 Fire Inquest Record); 2450-05 (Inquest Case Papers) ; 2450-06 (Inquest Record); 2475-01 (Birth and Death Record); 2475-02 (Birth Certificates); 2475-03 (Birth Record); 2475-04 (Burial Transit Permit Records); 2475-05 (Death Certificates); 2475-06 (Death Certificates of Persons under 55); 2475-07 (Death Record); 2475-08 (Disinterment Permits); 2475-09 (Applications for Disinterment Permits); 2475-10 (Marriage Register); 2475-11 (Reports of Death); 2500-01 (Acknowledgment Record); 2500-02 (Annual Fee Reports); 2500-02a (Applications for Deputies); 2500-03 (Banking Records); 2500-04 (Cash Receipts); 2500-05 (Cost Deposit Record); 2500-05a (Reports to County Auditor); 2500-06 (Daily Cash Book or Reports); 2500-07 (Deposit Warrants); 2500-08 (Fee Book); 2500-09 (Legal Opinions); 2500-10 (Monthly Expense Reports); 2500-11 (Notices of Intent to Dispose of Public Records); 2500-12 (Open Records Applications); 2500-13 (Records Schedules and Implementation Plans); 2500-14 (Reports of Collections); 2550-13 (Notices of Intent to Dispose of Public Records); 2600-14 (Notices of Intent to Dispose of Public Records); 2750-07 (Notices of Intent to Dispose of Public Records); 2800- 12 (Notices of Intent to Dispose of Public Records); 2875-11 (Notices of Intent to Dispose of Public Records); and 2925-08 (Notices of Intent to Dispose of Public Records). (4) The retention periods for Item Numbers 2025-04 (Civil Docket); 2025-05 (Civil File Docket, Type IV only); 2025-08 (Jury Docket); 2050-03 (Delinquent Tax Docket); 2075-02 (Adoption Docket); 2075-06 (Child Support Docket); 2075-11 (Divorce Docket); 2075-16 (Neglected Children Docket); 2150-05 (District Court Docket); 2150-06 (District Court File Docket, Type IV only); and 2150-11 (Scire Facias Docket) are changed to: "Permanent." (5) Section (a) of the exempt documents section of the retention period for Item Number 2125-05 (Criminal Case Papers) is changed to: "Warrants, capiases (except pro fine), summonses, subpoenas, subpoena applications, witness attachments, and returns -four years after final judgment rendered or proceedings otherwise terminated in the case." (6) Section (b) of the exempt documents section of the retention period for item number 2125-05 (Criminal Case Papers) is changed to: "Bills of cost and capias pro fine-four years after paid or waived." (7) Section (b) of the retention periods for Item Numbers 2125-07 (Criminal File Docket) and 2150-06 (District Court File Docket) are changed to: Type II file dockets-five years from the end of the fiscal year in which all fees and costs listed in the volume have been paid or waived." (8) The retention period for Item Number 2125-10 (Expunged Criminal Records) is changed to: "(a) Expunged records arising from arrests for offenses committed on or before August 31, 1989 -one year from date of issuance of order of expunction. (b) Expunged records arising from arrests for offenses committed on or after September 1, 1989 that are not given to-Must be destroyed on the first anniversary of the date the order of expunction is issued. (By law, Texas Code of Criminal Procedure, sec.55.02(d))" (9) The retention for Item Number 2175-14 (Statistical Reports to Texas Judicial Council) is changed to: "three years." (10) The retention periods for Item Numbers 2275-05 (Banking Records); 2550-05 (Banking Records); 2600-05 (Banking Records); 2725-02 (Banking Records); 2800-03 (Banking Records); 2875-03 (Banking Records); and 2925-01 (Banking Records) are changed to: "five years from the end of the fiscal year to which the records relate." (11) Sections (a)(2) and (b) of Items Numbers 2275-06 (Cash Receipts); 2550-06 (Cash Receipts); 2600-06 (Cash Receipts); 2725-03 (Cash Receipts); and 2800-04 (Cash Receipts) are changed to: "three years from the end of the fiscal year to which the records relate." (12) The retention periods for Items 2275-07 (Child Support Payment Ledger) and 2275-09 (Cost Deposit Record) are changed to: "five years after last entry." (13) The retention periods for Item Numbers 2275-11 (Court Reporter Expense Statements); 2275-12 (Daily Cash Book or Reports); 2275-14 (Deposit Warrants); 2275-16 (Fee Sheets); 2550- 08 (Daily Cash Book or Reports); 2550-09 (Deposit Warrants); 2600- 08 (Daily Cash Book or Reports); 2600-09 (Deposit Warrants); 2700- 03 (Dockets); 2725-05 (Daily Cash Book or Reports); 2725-06 (Deposit Warrants); 2725-07 (Expense Account Journals or Reports); 2775-05 (Dockets); 2800-06 (Daily Cash Book or Reports); 2800-07 (Deposit Warrants); 2875-04 (Cash Receipts); 2875-06 (Daily Cash Book or Reports) ; and 2875-07 (Deposit Warrants) are changed to: "three years from the end of the fiscal year to which the records relate." (14) The retention periods for Item Numbers 2275-15 (Fee Book); 2550-10 (Fee Book); 2600-11 (Fee Book); 2725-08 (Fee Book); 2800-08 (Fee Book); and 2875-08 (Fee Book) are changed to read: "five years from the end of the fiscal year to which the record relates." (15) The records descriptions and retention periods for Item Numbers 2275-26 (Records Schedules and Implementation Plans); 2550-15 (Records Schedules and Implementation Plans); 2600-16 (Records Schedules and Implementation Plans); 2750-09 (Records Schedules and Implementation Plans); 2800-14 (Records Schedules and Implementation Plans); 2875-13 (Records Schedules and Implementation Plans) and 2925-10 (Records Schedules and Implementation Plans) are changed to: "Records Management Records. (a) Records control schedules (including all successive versions of or amendments to schedules). Permanent. (b) Records destruction documentation -Records documenting the destruction of records under records control schedules, including requests submitted to the Texas State Library and Archives Commission for authorization to destroy unscheduled records or the originals of permanent records that have been microfilmed. Permanent. (c) Records inventories-Lists or inventories of the active and inactive records created or received by a county office. As long as administratively valuable. (d) Records management plans and policy documents-Plans and similar documents establishing the policies and procedures under which a records management program operates. Five years after superseded. (16) The retention periods for Item Numbers 2550-11 (Hot Check Fund Ledger); 2600-11 (Drug Forfeiture Fund Ledger); 2600-12 (Hot Check Fund Ledger); and 2725-13 (Work Release Salary Fund Ledger) are changed to: "10 years from the end of the fiscal year of last entry in ledger." (17) The retention periods for Item Numbers 2650-28 (Work Schedules) and 2825-08 (Work Schedules) are changed to: "one year." This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 17, 1991. TRD-9116142 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: February 1, 1992 Proposal publication date: September 13, 1991 For further information, please call: (512) 463-5440 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission Of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.17 The Public Utility Commission of Texas adopts new sec.23.17, concerning procedures for the administration of intraLATA compensation and interexchange carrier access charge revenues, with changes to the proposed text as published in the September 27, 1991, issue of the Texas Register (15 TexReg 5305). The section as adopted recognizes the commission's authority over the structure of intraLATA revenue pooling, the exchange carrier association, and the distribution of revenues; provides a mechanism under which the industry may petition for approval of changes to intraLATA toll pooling procedures; provides for the establishment of an exchange carrier association; authorizes the development of procedures by that association for distribution of revenues which may allow for some local exchange carriers (LECs) to continue pooling while allowing others to withdraw from pooling; establishes general guidelines for the development of access charges between the LECs; allows for transition payments to be made by LECs; establishes commission review and approval of the initial procedures and subsequent changes to these procedures for intraLATA compensation; formalizes the record keeping process for commission review; and allows for formal inquiries into any issue pertaining to this section. The following submitted comments in response to the September 27, 1991 Texas Register publication: Central Telephone Co. of Texas (CENTEL), Office of Public Utility Counsel (OPC), U.S. Sprint (Sprint), AT&T Communications of the Southwest, Inc (AT&T), and the Texas Association of Long Distance Telephone Companies (TEXALTEL). With the exception of TEXALTEL all comments were in support of the rule. The Texas Exchange Carriers Association (TECA) filed reply comments. In its request for comments to the proposed rule, the commission asked parties to comment on what notification requirements if any, such as publication in the Texas Register , should apply to the initial filing of procedures and to any changes to procedures. Sprint and TEXALTEL filed comments on this specific issue. Sprint filed comments generally in support of the rule but suggested that the rule should be modified to provide for direct notice to all interexchange access customers in Texas. TEXALTEL recommended that the rule be modified to provide for notice of changes to procedures to any interested person who has requested notice of filings under the rule. This recommendation was based on the concern that such notice is necessary to ensure that interested parties have an opportunity to participate in the review process in a prompt and meaningful manner. In its reply comments TECA noted that, under the proposed rule, it is within the commission's discretion to determine the appropriate notice and that a requirement of notice of all proposed changes to all interexchange carriers (IXCs) would be burdensome because of the number of carriers in Texas. The commission believes that the concerns of Sprint and TEXALTEL are appropriate and accordingly changes have been made to the text as published. The changes incorporated as sec.23.17(e)(3) require that the association provide notice of filings under this rule to all interested parties who have specifically requested that the association notify them of changes to procedures. Accordingly, the association will on a quarterly basis inform all requesting parties of filings for changes to procedures under sec.23.17(e)(1) and will provide notice of applications for revenue distribution changes under 23.17(e) (2) to such parties at the time of filing. While it is correct that under the proposed rule it is within the commission's discretion to determine the appropriate scope of notice, this change will provide interested parties greater opportunities to participate promptly and meaningfully in the review process without creating a burdensome notice requirement. Centel filed comments in support of the rule and did not recommend any changes to the proposed rule. AT&T generally supported the rule, believed that terms of the rule are in the public interest, and recommended three changes. AT&T recommended that the words "interim or" be inserted in subsection (d) between the words "upon" and "final." In support AT&T argued that the use of the phrase "final determination" would likely preclude interim revision of the initial procedures until after the docketed case is completed. In its reply comments TECA argued that the proposed change is semantic because the "reversal" language of the proposed rule at 23.17(d) indicates that the initial procedures may be modified even if the term "interim" is not used. In order to clear up any ambiguity pertaining to the meaning of this subsection, the commission after reviewing the comments has decided to adopt AT&T's proposed change. AT&T recommended that the rule should provide for automatic docketing of proposed changes to the administrative procedures upon request of any party to the review. In support, AT&T argued that if the initial procedures are important enough to provide for automatic docketing, then any subsequent substantive change to those procedures may be equally deserving of such treatment. TEXALTEL also recommended that subsection (e)(2)(C)(iii) provide for mandatory docketing upon request of any participating party based on the examiner's recommendations. In its reply comments TECA observed that the commission should have the discretion to decide whether and when it wishes to act. The commission declines to adopt AT&T's and TEXALTEL's suggested change. Rather than require mandatory docketing of proposed changes upon request of any party under sec.23.17(e), the commission reserves the discretion to act in such matters. In this regard the commission has changed sec.23.17(d) so that upon request of a commissioner a proceeding under sec.23.17(d) will be docketed. This change will provide the maximum discretion for the commission regarding review of the initial procedures. Changes to procedures are still subject to review and subject to docketing under the rule upon a showing of good cause. Parties have the option under sec.23.17(e) to participate by filing comments. The right to petition the commission for a formal inquiry into any matter under this rule remains an option under subsection (g). AT&T recommended that subsection (f) pertaining to association records be modified to provide any party with the right of access to the association records during the course of any proceeding provided by subsections(d),(e), or (g). AT&T observed that a meaningful opportunity to participate in the review process under the rule would require a right of access to the association records. The commission also declines to adopt AT&T's suggested changes regarding access to association records. All parties have substantial rights of access to information which is relevant during docketed proceedings under the normal discovery rules. As TECA indicates, subsection (f) relates to the ongoing duty of the commission to keep fully informed of the association's operations in the same manner as the commission does for those of any LEC. TEXALTEL was the only group to submit comments that were opposed to the rule. In its comments TEXALTEL stated that the rule is illegal, because adopting a rule that creates a commission-approved exchange carrier association to distribute pooled intraLATA revenues would constitute unlawful abdication of the commission's duties under the Public Utility Regulatory Act sec.sec.37, 38, and 39(a) to fix and regulate utilities' rates and overall revenues. TEXALTEL also indicated that the rule does not give the commission sufficient authority over pooling to enable it to control this area adequately. In its reply comments TECA indicated that the very purpose of the rule is to make clear the commission's jurisdiction over pooling. The commission observes that this section clearly establishes the commission's jurisdiction over intraLATA pooling and the exchange carriers association. By requiring the association to file all changes with the commission and by establishing a public interest review process for approval of initial pooling procedures and subsequent revenue distribution changes, the commission ensures that pooling will take place in a fair and reasonable manner without abdication of its statutory duties. Without waiving its rights to challenge the commission's authority to promulgate this rule, TEXALTEL proposed several changes to the rule. Several proposed changes involved textual matters. TEXALTEL recommended that subsection (a) be modified to confirm the commission's authority over the pooled revenues and the exchange carrier association. TEXALTEL also recommended modifying subsection (c)(3) to make it clear that the access charges to be assessed the LECs will be established by the commission pursuant to law. In this regard the commission observes that the rule in its entirety makes clear the commission's jurisdiction in this area and that the rule expressly provides for access charges between LECs to be imposed at the same terms and conditions as access services are provided to IXCs in Texas. TEXALTEL suggested that the rule be modified to provide for any interested person (as opposed to any affected person) to request docketing. The commission does not believe that it is necessary to provide for docketing upon the request of any interested person. Interested persons are not prevented from providing comments by this rule; however, it is more appropriate for persons who demonstrate that they have a justiciable interest in a proceeding under this rule to have the right to make recommendations and, if necessary, invoke the full scope of the commission's powers of investigation as a request of docketing or a formal inquiry. In this regard the commission is changing the proposed rule to clarify one aspect. It is the commission's intent to require a justiciable interest from persons requesting docketing under subsection (d) or subsection (e). Accordingly, those sections are changed to reflect this intent. It is clearer to provide for participation by persons who demonstrate a justiciable interest as opposed to an affected person. The commission considers OPC and the commission staff to have a justiciable interest in proceedings under this rule. Several of TEXALTEL's recommendations involve requiring affirmative commission action on all changes to procedures. These recommendations involve adding language that the association file an application for approval of all changes before the changes are put into effect, that the examiner merely make a recommendation for the commissioners rather than a final determination, and, presumably because the commissioners will affirmatively act on all applications, extending the time that the commissioners have to make a ruling on the examiner's recommendations from 40 days to 60 days. Although OPC filed comments generally concurring with the rule as proposed, OPC also recommended that the rule be changed to require affirmative action by the commission for all changes to procedures under sec.23.17(e)(2). In support OPC argued that the commission should formally review each application so that the commissioners have the opportunity to raise any concerns they may have about changes to procedures. The commission notes that under the proposed rule the commission has the right to review and modify any examiner's recommendation under sec.23.17(e) and if necessary under sec.23.17(g) to initiate a formal inquiry into any changes to procedures made under sec.23.17(e)(1) or (2). Furthermore, it is anticipated, as indicated by TECA in its reply comments, that many changes to be made to the initial pooling procedures would likely be administrative changes for which affirmative action by the commission is unnecessary and may even be burdensome. TEXALTEL recommended that the rule be changed to provide that the association be required to file quarterly reports with the commission and OPC concerning revenue distribution and also be required to file annual audited reports. The commission has the authority to request this information from the exchange carriers association at any time under the proposed rule and where appropriate may formally inquire into any matter affecting intraLATA pooling. However, the commission has determined that the association should file with the commission and OPC reports concerning the distribution of revenues on a semi-annual basis and audited reports on an annual basis. In order to evaluate the need for such filings, the general counsel shall recommend to the commission appropriate changes to the filing procedures for the semi-annual reports and annual audit after reviewing one full year of such filings. Accordingly, these changes have been incorporated into the rule at subsection (f). TEXLTEL recommended subsection (g) should provide that the commission or the examiner may, when necessary, issue an interim order suspending the distribution of revenues or payments under the rule or suspending or changing the association's then existing procedures for management or distribution of revenues. Because the commission interprets subsection (g) as giving it this authority as a result of a formal inquiry, no change is necessary to the rule. The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16(a) , which authorize the Public Utility Commission to make and enforce rules that are reasonably required in the exercise of its power and jurisdiction and sec.18, which grant the commission the authority and power to carry out the public policy of this state to protect the public interest in having adequate and efficient telecommunications service available to all citizens of the state at just fair and reasonable rates. sec.23.17. Administration of IntraLATA Compensation and Interexchange Carrier Access Charge Revenues. (a) Purpose. The provisions of this section are intended to ensure that the revenues from Intrastate IntraLATA Message Toll Services (MTS), Wide Area Telecommunications Services (WATS), Private Line Services, and from the imposition of access charges for the origination or termination of these services when provided between local exchange carriers are distributed in a fair and reasonable manner; and that revenues from Intrastate Interexchange Carrier Access Charges (ICAC) are distributed in accordance with commission orders. (b) Exchange carrier association. An association shall be established by the local exchange carriers of Texas in order to develop administrative procedures for the purpose set out in subsection (a) of this section. These procedures shall include procedures for the distribution of revenues from the ICAC and from Intrastate IntraLATA MTS, WATS, Private Line Services, and from the imposition of access charges for the origination or termination of these services when provided between local exchange carriers. (c) Procedures for the distribution of revenues. (1) Procedures developed by the association may allow for the pooling of those revenues described in subsection (a) of this section. (2) Procedures developed by the association may allow local exchange carriers to withdraw or remain as participants in the pooling of those revenues described in subsection (a) of this section. (3) Procedures developed by the association may provide for the imposition of access charges for the origination or termination of the services described in subsection (a) of this section when provided between local exchange carriers. Any such access charges shall be imposed at the same rates and under the same terms and conditions as access services are provided to interexchange carriers in Texas. (4) Procedures developed by the association may provide for transition payments to be made by local exchange carriers. (d) Initial filing of procedures. On the effective date of this section, the association shall file with the commission all administrative procedures developed for the purpose set out in subsection (a) of this section, including all procedures that are used to determine the distribution of those revenues described in subsection (a) of this section. Within 30 days of filing, a commissioner or any party that demonstrates a justiciable interest may request that the procedures be docketed, and upon such request the procedures shall be docketed. If the initial procedures are docketed within 30 days of filing, those initial procedures will remain in effect subject to modification or reversal upon interim or final determination of the commission or examiner. If the initial procedures are not docketed within 30 days of filing, those initial procedures will remain in effect unless changed pursuant to subsection (e) or (g) of this section. (e) Changes to the procedures. (1) The association must file with the commission any changes to the administrative procedures, including any changes to the procedures that affect the distribution of those revenues described in subsection (a) of this section, that occur after the initial filing of procedures within 30 days of the implementation of such changes. (2) For changes to the procedures that affect the distribution of those revenues described in subsection (a) of this section, the association must also file an application for approval of such changes within 30 days of their implementation. Such changes are subject to a final determination of the commission or the examiner. The commission or the examiner may in the final determination reverse or modify all or some of the changes. The commission shall process all applications for approval of changes using the criteria and procedures set out in subparagraphs (A)-(C) of this paragraph. (A) Each application shall contain a certificate of service attesting that a copy of the request has been served upon the Office of Public Utility Counsel. (B) Each application shall: (i) clearly set forth the good cause for approval of the changes; (ii) describe how the changes will affect the public interest; (iii) identify the annual revenue impact on each local exchange carrier affected by the changes; and (iv) state whether the annual revenue impact identified in clause (iii) of this subparagraph will require any local exchange carrier to request a rate increase under Texas Civil Statutes, Article 1446c, sec.43, within one year of the filing of the application. (C) Each application shall be assigned a project control number, assigned to an examiner, and reviewed administratively. (i) No later than 30 days after the filing date of the application, interested persons other than the commission staff and the Office of Public Utility Counsel may file written comments or recommendations concerning the application. No later than 45 days after the filing of the application, the Office of Public Utility Counsel may file written comments or recommendations concerning the application. No later than 60 days after the filing of the application, the commission staff shall file written comments or recommendations concerning the application. (ii) Within 90 days of filing, after administrative review, the presiding examiner shall approve, with modification, deny, or docket the application. The examiner may postpone a decision on the application beyond the 90th day after filing if he or she finds that additional information is needed to determine whether good cause exists. (iii) If the presiding examiner approves, approves with modification, or denies the application, any party that has participated in the review process may request, within 10 days of the examiner's ruling, that the application be docketed and upon such request, the application may be docketed. (iv) If the presiding examiner has approved, approved with modification, or denied the application and the application has not been docketed pursuant to subparagraph (C) of this paragraph, a copy of the examiner's ruling shall be provided to the commission. The commission may, within 40 days of the examiner's ruling, overrule the approval or denial and order that the application be docketed. (3) Any party may request to be notified when changes are filed with the commission pursuant to paragraphs (1) and (2) of this subsection by contacting the association directly. The association shall inform all such parties when changes are filed as set out in subparagraphs (A) and (B) of this paragraph. (A) The association shall inform all such parties that changes were filed pursuant to paragraph (1) of this subsection on a quarterly basis beginning with the first full quarter after final adoption of the initial procedures. (B) The association shall inform all such parties that changes were filed pursuant to paragraph (2) of this subsection concurrent with any such filings with the commission. (f) Association Records. The association shall maintain accurate historical and current records necessary to determine the appropriate management and distribution of those revenues described in subsection (a) of this section. The association shall make available to the Public Utility Commission of Texas and to the Office of Public Utility Counsel all books, records, studies, electronic databases, or other information upon request. The association shall file semi- annual reports with the commission and with the Office of Public Utility Counsel concerning the distribution of revenues under this rule and shall file annual audited reports on the association's management and distribution of revenues. After reviewing one full year of such filings, the general counsel shall recommend to the commission appropriate changes to the filing procedures for the semi-annual reports and annual audit. Any claims of confidentiality that accompany information provided to the Public Utility Commission of Texas or to the Office of Public Utility Counsel will be subject to the provisions of Texas Civil Statutes, Article 6252-17a. (g) Formal inquiry. Upon its own motion, upon the motion of the general counsel, or upon petition of any person that demonstrates a justiciable interest, the commission may initiate a formal inquiry into any matter pertaining to this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1991. TRD-9116164 Mary Ross McDonald Secretary Public Utility Commission of Texas Effective date: January 9, 1992 Proposal publication date: September 27, 1991 For further information, please call: (512) 458-0100 Part IV. Texas Department of Licensing and Regulation Chapter 64. Employers of Certain Temporary Common Workers 16 TAC sec.sec.64.1, 64.10, 64.20, 64.60, 64.70, 64.71, 64.72, 64. 80, 64.90, 64.91 The Texas Department of Licensing and Regulation adopts new sec.sec.64.1, 64.10, 64.20, 64.60, 64.70, 64.71, 64.72, 64.80, 64.90, and 64.91. Sections 64.1, 64.10, 64.20, 64.70, 64.71, 64.72, 64.80, 64.90, and 64.91, are adopted with changes to the proposed text published in the October 18, 1991, issue of the Texas Register (16 TexReg 5765). Section 64.91 is adopted without changes and will not be republished. The rules are necessary to implement Article 5221a-10, Employers of Certain Temporary Common Workers. Employers of certain temporary common workers shall be licensed by the department and comply with standards of practice, conduct, and ethics established by the department. Comments were received suggesting temporary worker agencies be required to notify the department if they elect to cover their employees with worker's compensation and to provide certain information to the department as to their election regarding worker's compensation; that sec.64.72 be broadened to include notification to the license holder when the department is notified of service; that the word knowingly be added to the language specifying a violation of the rules; that the language indicating that an administrative penalty could be imposed for threatening a violation be changed to make clear that a violation must occur before an administrative penalty is imposed; that the word "consumer" be defined; that the phrase regarding, "...fire and extended liability coverage" be deleted in sec.64.71; that the word "illegal" be inserted before drug dealing where the term is used; and that sec.64.72 be changed to allow pick up or drop off of workers in the rear one-third of the premises. Comments against certain sections were received from the City of Dallas, Texas Association of Temporary Services, Peakload, Inc., Link Personnel Services, Inc., Industrial Labor Service and the City of Pasadena. The department disagrees with the suggestion that temporary worker agencies be required to notify the department if they elect to cover their employees with worker's compensation and to provide certain information to the department as to their election regarding worker's compensation because it was determined this Act and these rules are not the appropriate place to deal with these issues and that the department is not the proper venue for addressing these issues. The department also disagrees with only allowing the pick up or drop off of workers in the rear one-third of the premises because it is unduly restrictive on the licensee and that the safety of workers can be safeguarded by the rule as proposed. The new sections are adopted under Texas Civil Statutes, Article 5221a-10 and Article 9100, which provides the Texas Department of Licensing and Regulation with the authority to promulgate rules necessary to regulate the Employers of Certain Temporary Common Workers Act. sec.64.1. Authority. (a) The sections in this chapter are promulgated under the Employers of Certain Temporary Common Workers Act (Texas Civil Statutes, Article 5221a-10) and the Texas Department of Licensing and Regulation Act (Texas Civil Statutes, Article 9100). (b) Regulatory, administrative, and licensing activities under this Act shall be carried out by the department and commissioner under Texas Civil Statutes, Article 9100. sec.64.10. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Consumer-A common worker and/or a third party user as defined in the Act. Registered agent -The individual or entity, designated by the temporary common worker employer to which all departmental communications or correspondence will be addressed. Temporary common worker employer-A person that provides common worker employees to a third party user and includes both a temporary common worker agent and a temporary common worker agency. sec.64.20. Licensing Requirements General. (a) Each person desiring a state of Texas temporary common worker employer license shall request an application from the department. A separate application and fee must be submitted for each place of business or labor hall operated in the state. (b) All applications shall be submitted on the form approved by the commissioner and provided by the department. (c) The application for a license must: (1) state the name, address, and telephone number of the applicant, including the trade name by which the applicant does business; the names, addresses, and telephone numbers of all partners or corporate officers and the street address and telephone number of the place of business or labor hall to be operated by the license holder; (2) state the name, address, and telephone number of the registered agent for the place of business or labor hall, including the office or position held by that person with the labor hall; (3) contain a certification that the applicant has met fire and health standards established by state or federal law, or municipal ordinance for the labor hall location; (4) certify that the applicant, if an individual, is 18 years of age or older; and (5) include a certificate of insurance showing coverage as required in sec.64.71(c) of this title (relating to Other Duties of License Holder). sec.64.60. Powers and Duties of the Department and Commissioner. (a) All temporary common worker employers holding licenses shall be notified by the department, in writing, of the pending expiration of their license not later than the 30th day before the date on which the license expires. (b) The department shall issue a license to an applicant who meets the application requirements and pays the fee as required in sec.64.80 of this title (relating to Fees-License). (c) The commissioner shall enforce this Act pursuant to Texas Civil Statutes, Article 5221a-10 and Article 9100. sec.64.70. Rights and Duties of a License Holder. (a) A license holder must display the license in a conspicuous place in each place of business or labor hall operated by the license holder in the state. (b) Each temporary common worker employer must notify the department, in writing, of any changes in information regarding location or ownership. The notification must be received by the department no later than 30 days after the change occurs. (c) Each temporary common worker employer shall provide employees and consumers with access to the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department. (d) The license holder must allow the department and representatives of other governmental subdivisions, as part of an inspection or investigation, to enter the business premises during regular business hours and examine and copy any records that relate directly or indirectly to the inspection or investigation being conducted. The department and representatives of other governmental subdivisions may inspect all records, books, and documents, whether paper or electronic, pertaining to the business operation. (e) Each license holder must respond within two working days from its receipt of a written complaint from a consumer, and must attempt to resolve the complaint not later than the 10th day after the date of receipt. If the license holder is unable to resolve the complaint within the specified 10 days, the complaint shall be referred to the department. sec.64.71. Other Duties of License Holder. (a) A license holder shall promptly pay or distribute to the proper individuals all money or other things of value entrusted to the license holder by a third person for such purpose. (b) A license holder shall comply with the terms and provisions of contracts entered into between the license holder and common workers and third party users. (c) A license holder shall maintain a policy of insurance with an insurance carrier authorized to do business in the State of Texas in the amount of at least $100,000/$300,000, which insures the license holder against liability for damage to persons or property arising out of the license holder's operation, or ownership of any motor vehicle for the transportation of individuals in connection with their business, activities or operations as a temporary common worker employer. A certificate of the required insurance shall be filed with the department. (d) All vehicles used for hire by a license holder for the transportation of individuals in his operations as a labor hall shall: (1) have displayed prominently at the passenger entrance of the vehicle the name of the temporary common worker employer and the number of their license issued by the department; (2) be equipped with one 10 pound BC fire extinguisher or two 5 pound BC fire extinguishers; and (3) comply with all Texas vehicle inspection and safety regulations for the transportation of passengers for hire as defined by Texas Railroad Commission regulations. (e) Each license holder shall, semimonthly or at the time of each payment of wages, furnish each client/worker employed by the labor hall either a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing in detail each and every deduction made from the wages. sec.64.72. Additional Provisions for Labor Halls. (a) An attendant must be on the labor hall premises as an agent for legal process for the temporary common worker employer at all times that common workers are on the premises during normal business hours. In addition to service on the registered agent, any process involving a license holder shall be served, in person or by registered mail, on the license holder. (b) The labor hall premises must have a lobby or waiting room with a floor area not less than 450 square feet. The lobby or waiting room must have adequate heat and ventilation. (c) A labor hall may allow the pick up or drop off of workers only in a safe location. (d) The sale of alcoholic beverages on the premises of a labor hall is prohibited. (e) Prostitution, gambling, intoxication, illegal drug dealing, or illegal drug use on the premises of a labor hall is prohibited. (f) Knowingly furnishing any person for immoral or illegal purposes, or causing to be sent any person to enter as a servant, inmate or for any purpose whatsoever, to any place of bad repute, house of ill fame, or assignation house, or any house or place of amusement kept for illegal or immoral purposes, the character of which the license holder could have ascertained by reasonable diligence, is prohibited. (g) Knowingly sending a common worker to a place where a strike or lockout exists without first informing the common worker with a written statement of the existence of the strike or lockout is prohibited. (h) Knowingly furnishing employment to a child, as defined by federal and state statute, in violation of statutes regulating the employment of children or the compulsory attendance at school is prohibited. (i) A license holder shall comply with the provisions of all applicable Federal, State, and local statutes, ordinances, regulations or codes, including but not limited to Texas Department of Health Rules on Food Service Sanitation; mechanical, building, electrical, fire prevention and life safety codes. (j) A license holder that violates a prohibition, statute, ordinance or code set forth above may have its license suspended or revoked under sec.64.90 of this title (relating to Sanctions). sec.64.80. Fees-License. (a) The fee for the initial license and each renewal is $300. (b) This fee is not refundable. sec.64.90. Sanctions. (a) Any person may file a complaint with the commissioner alleging a violation of the Act or these rules. The commissioner shall investigate the alleged violation upon receipt of the complaint and may investigate any common worker employer as necessary. (b) If it appears that a person is in violation of the Act or a rule or an order of the commissioner related to the Act, the commissioner may institute action under Texas Civil Statutes, Article 9100 by: (1) giving notice to the license holder of the violation(s) by issuing a Preliminary Report; and (2) providing a statement of the right of the person charged to a hearing on the occurrence of the violation and any proposed sanction and the terms thereof; (3) not later than the 2Oth day after the date on which the notice is received, the person charged may accept the determination of the commissioner made under this rule, including the recommended sanction and all accompanying conditions, or make a written request for a hearing on that determination; (4) if the person charged with the violation accepts the determination of the commissioner, the commission shall issue an order approving the determination and ordering that the recommended sanction and accompanying conditions be imposed upon that person; (5) if the person charged fails to respond in a timely manner to the notice or if the person requests a hearing, the commissioner shall set a hearing, give written notice of the hearing to the person, and designate a hearings examiner to conduct the hearing; (6) if an administrative hearing is held and the person wishes to dispute the administrative sanction imposed, not later than the 3Oth day after the date on which the decision is final, as provided by the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, sec.16(c), the person charged shall file a petition for judicial review contesting the fact of the violation and/or the administrative sanction. Judicial review is subject to the substantial evidence rule and shall be instituted by filing a petition with a Travis County district court as provided by the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, sec.19; and (7) a motion for rehearing is a prerequisite for an appeal. (c) The commissioner may institute an action with the Attorney General for collection of any assessed administrative penalty not received by the department. (d) If it appears that a person is in violation of, or is threatening to violate, the Act or a rule or order of the commissioner related to the Act, the commissioner may request from the Attorney General an action for injunctive relief to restrain the person from continuing the violation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1991. TRD-9116182 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Effective date: January 10, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 463-3127 Chapter 66. Property Tax Consultants 16 TAC sec.66.1, sec.66.62 The Texas Department of Licensing and Regulation adopts new sec.66.1 and sec.66.62, without changes to the proposed text as published in the September 17, 1991, issue of the Texas Register (16 TexReg 5128). The new sections are necessary to establish procedures for making initial appointments to the Property Tax Consultants Advisory Council. Applications will file a biographic data sheet with the executive director of the department. Applications will be considered by the Texas Commission of Licensing and Regulation. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 8886 and Article 9100, which provide the Texas Commission of Licensing and Regulation with the authority to appoint members of the Property Tax Consultants Advisory Council. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1991. TRD-9116184 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Effective date: January 10, 1992 Proposal publication date: September 17, 1991 For further information, please call: (512) 463-3127 TITLE 22. EXAMINING BOARDS Part XIV. Texas Optometry Board Chapter 280. Therapeutic Optometry 22 TAC sec.280.5 The Texas Optometry Board adopts an amendment to sec.280.5, with changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5812). The rule establishes the list of drugs that may be prescribed by a therapeutic optometrist, in compliance with the Texas Optometry Act, sec.1.03. The list, recommended by the five-member advisory committee, established by the same statute, will inform the optometrists of the drugs that may be administered and prescribed, and further, will inform pharmacists of those drugs which may be prescribed by a therapeutic optometrist. The list of drugs will inform the therapeutic optometrist of those drugs which may be administered and prescribed in order to be in compliance with the Act, sec.1.02 and sec.1.03, and also serves the purpose of informing therapeutic optometrists that a violation of the Act occurs if a therapeutic optometrist uses pharmaceutical agents not authorized by the board. The Texas Medical and Texas Ophthalmological Associations argued that the listing of agents by classification or category was not specific enough and that the proposed rule had other technical deficiencies. The State Board of Pharmacy, Texas Optometric Association and other individuals made comments and argued that the proposed rule was sufficiently specific and that the other technical objections were without merit. The Texas Medical and Texas Ophthalmological Associations did suggest minor clarifying language which was incorporated into the rule. Commenting in favor of the amendment were the Texas Optometric Association and the Texas State Board of Pharmacy. Commenting against the amendment were the Texas Medical Association and the Texas Ophthalmological Association. The board determined that listing pharmaceutical agents by classification or categories did comply with statutory intent and did provide sufficient notice of the specific pharmaceutical agents authorized for use. As to other technical objections of the Texas Medical and Texas Ophthalmological Associations, the board found persuasive the written comments of Marcus Piccolo, O.D., dated December 17, 1991, which rebutted those comments. The other minor clarifying language to the proposed rule (as proposed by the Texas Optometric Association, Texas State Board of Pharmacy, Texas Medical Association and Texas Ophthalmological Association) was adopted by the Board. The amendment is adopted under Texas Civil Statutes, Article 4552, sec.2.14 which provides the Texas Optometry Board with the authority to promulgate procedural and substantive rules. sec.280.5. Prescriptions Written for Pharmaceutical Agents by the Therapeutic Optometrists. (a)-(f) (No change.) (g) A therapeutic optometrist may prescribe all: (1) ophthalmic devices; (2) over-the-counter oral medications; and (3) topical pharmaceutical agents used for treating visual defects, abnormal conditions, and diseases of the human eye and adnexa, which are included in the following classifications or are combinations of agents in the classifications. No drug falling within one of the following categories may be used for the treatment of glaucoma in a manner that was not permitted by law on August 31, 1991. Antiviral drugs falling within the anti-infective clasification are not included in the formulary: (A) anti-allergy: (i) antihistamine; (ii) membrane stabilizer; (B) anti-fungal: (i) imidazoles; (ii) polyenes; (C) anti-infective: (i) aminoglycoside; (ii) anti-cell membrane; (iii) anti-cell wall synthesis (iv) anti-DNA synthesis; (v) anti protein synthesis (excluding chloramphenicol); (vi) anti-ACHase; (vii) cephalosporin; (viii) agents affecting intermediary metabolism; (D) anti-inflammatory: (i) Nonsteroidal anti-inflammatory drug (NSAID); (ii) Steroid; (E) antiseptic; (F) chelating agent; (G) chemical cautery; (H) cycloplegic: parasympatholytic; (I) hyperosmotic; (J) miotic: (i) anti-ACHase; (ii) parasympathomimetic; (K) mucolytic; (L) mydriatic: sympathomimetic (Alpha 1 agonists only); (M) vasoconstrictor: sympathomimetic (Alpha 1 agonists only) (h) This formulary specifically list the types of drugs which may be prescribed by a therapeutic optometrist. Subject to the anti-glaucoma and anti-viral limitations described in subsection (g) of this section, a therapeutic optometrist may possess and administer any topical ocular pharmaceutical agent which has a legitimate diagnostic or therapeutic use. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1991. TRD-9116115 Lois Ewald Executive Director Texas Optometry Board Effective date: January 8, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 835-1938 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 5. Property and Casualty Insurance Subchapter E. Texas Catastrophe Property Insurance Association Standard Policy Forms-Windstorm and Hail 28 TAC sec.5.4201 State Board of Insurance of the Texas Department of Insurance adopts an amendment to sec.5.4201, without changes to the proposed text as published in the September 20, 1991, issue of the Texas Register (16 TexReg 5197). 5.4201 concerns the standard Texas Catastrophe Property Insurance Association forms, windstorm and hail. The amendment is necessary to provide a mandatory form to incorporate new provisions into the Texas Catastrophe Property Insurance Policy-Windstorm and Hail and the Texas Special Mobile Home Windstorm and Hail Policy regarding the prompt payment of claims as set out under the Insurance Code, Article 21.55, as provided by House Bill 2, enacted by the 72nd Texas Legislature. new Form Number TCPIA-29, Mandatory Endorsement adds provisions which set forth specific actions to be taken by the insured and the insurer within designated time periods for the prompt payment of claims. comments were received regarding adoption of the amendment. amendment is adopted under the Insurance Code, Articles 21.49 sec.8, which authorizes the State Board of Insurance to approve policy forms and endorsements for the Texas Catastrophe Property Insurance Association. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116190 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 10, 1992 Proposal publication date: September 20, 1991 For further information, please call: (512) 463-6327 Subchapter E. Texas Catastrophe Property Insurance Association Manual 28 TAC sec.5.4501 State Board of Insurance adopts an amendment to sec.5.4501, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 6037). 5.4501 concerns the manual of rules and regulations for insurance coverage effective through the Texas Catastrophe Property Insurance Association. The amendment is necessary to provide proper references in the manual to the maximum limits of liability, as set forth in House Bill 2, enacted by the 72nd Regular Session of the Texas Legislature, which are applicable to risks insured by the association. The amendment also provides a new rule in the manual to reflect that limits of liability effective 9-1-91 for a risk insured on or after 9-1-91 may not be required to be reduced if the risk was insured by the TCPIA for a greater limit of liability prior to 9-1-91. amendments to the manual set forth the maximum limits of liability to be provided by the association and the specific rules governing the application of those limits in writing insurance through the association. comments were received regarding adoption of the amendment. amendment is adopted under the Insurance Code, Articles 21.49, sec.8, which authorizes the State Board of Insurance to approve manuals of classifications, rules and rates for the Texas Catastrophe Property Insurance Association. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116191 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 109, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 463-6327 TITLE 34. PUBLIC FINANCE Part IV. Employees Retirement System of Texas Chapter 87. Deferred Compensation 34 TAC sec.sec.87.1, 87.3, 87.5, 87.7, 87.9, 87.11, 87.13, 87.15, 87.17, 87.19, 87.21 The Employees Retirement System of Texas adopts amendments to sec.sec.87.1, 87. 3, 87.5, 87.7, 87.9, 87.11, 87.13, 87.15, 87.17, 87.19, and 87.21, concerning deferred compensation. Section 87.17 is adopted with changes to the proposed text as published in the November 8, 1991, issue of the Texas Register (16 TexReg 83). Sections 87.1, 87.3, 87.5, 87.7, 87.9, 87.11, 87.13, 87.15, 87. 19, and 87.21 are adopted without changes and will not be republished. Administration of the deferred compensation program began on January 1, 1991, by ERS. During this initial period of administration, numerous amendments have been necessary to properly administer the program. The amendments will allow ERS to effectively and efficiently administer the deferred compensation program. State employees who choose to participate in this program will benefit by virtue of these rules. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 6252-3g, sec.2. 45, which provide the Employees Retirement System of Texas with the authority to adopt rules, regulations, plans, and procedures to carry out the purposes of this Act. sec.87.17. Distributions. (a)-(b) (No change.) (c) Content of a distribution agreement. (1) A distribution agreement must contain, but shall not be limited to: (A) identifying information concerning the participant, including the date of birth and social security number of the participant; (B) (No change.) (C) the type of qualified investment product from which distributions will be made, including policy/certificate/or account number; (D)-(H) (No change.) (I) beneficiary information, including date of birth(s) and social security number(s). (2)-(3) (No change.) (d) Commencement of distributions. Notwithstanding anything in a distribution agreement: (1) (No change.) (2) the latest a participant may begin receiving a distribution is the later of: (A) April 1st of the calendar year following the calendar year in which the employee attains age 70.5; or (B) (No change.) (e) Filing of distribution agreements by participants. (1)-(2) (No change.) (3) A distribution agreement must be filed: (A) with the participant's agency coordinator; and (B) (No change.) (4) If a participant complies with paragraphs (2) and (3) of this subsection, the relevant agency coordinator shall review the distribution agreement for compliance with the sections in this chapter. (5) If the distribution agreement complies with the sections in this chapter, the agency coordinator shall sign and send the agreement to the plan administrator. The agency coordinator shall ensure that the plan administrator receives the signed distribution agreement no later than the 60th day after the occurrence of the event that entitles the participant to the distribution. (6) If a participant does not comply with paragraphs (2) and (3) of this subsection, the relevant agency coordinator shall submit a written request to the plan administrator for an immediate lump-sum distribution to the participant of all the participant's deferrals and investment income. Proof that the agency coordinator notified the participant concerning the necessity to file a distribution agreement must accompany the written request. The agency coordinator shall ensure that the plan administrator receives the request and proof no later than the 3Oth day after the occurrence that entitles the participant to the distribution. (7) Notwithstanding anything to the contrary in this subsection, a participant who has not separated from service and who has reached age 70.5 must file a distribution agreement only if he wants distributions to begin to him. The distribution agreement must be filed with the participant's agency coordinator. The agency coordinator shall review and forward the distribution agreement in accordance with paragraphs (4) and (5) of this subsection. (f) Filing of distribution agreements by beneficiaries. (1) (No change.) (2) The beneficiary named in a participant's participation agreement, change agreement, or distribution agreement must ensure that the participant's agency coordinator receives the beneficiary's distribution agreement by no later than the 88th day after the participant's death. (3) The requirements in subsection (e) of this section apply to the distribution agreements of beneficiaries except an agency coordinator must ensure that the plan administrator receives a distribution agreement by no later than the 90th day after the participant's death. (g) (No change.) (h) Review of distribution agreements by the plan administrator. The plan administrator shall review each distribution agreement received from an agency coordinator to ensure that: (1)-(2) (No change.) (i) Amendments of distribution agreements. (1)-(3) (No change.) (4) Beneficiaries. (A) The primary and secondary beneficiaries named in a distribution agreement may be changed at anytime by filing a change agreement with the agency coordinator of the state agency at which the participant was employed. (B) Upon receipt of the change agreement, the agency coordinator shall send the agreement to the plan administrator. (C) (No change.) (5) (No change.) (6) Transfers after a distribution has begun. (A) (No change.) (B) The distribution agreement of the participant or beneficiary may be amended only to change the name or type of qualified investment product or qualified vendor listed in the agreement. (C) (No change.) (7) Procedures for amending a distribution agreement. (A) A participant or beneficiary who wants to amend his distribution agreement must file an amended distribution agreement with his agency coordinator. The amended distribution agreement must contain the word "Amended" at the top of the agreement. (B) Upon receipt of the amended distribution agreement, the agency coordinator shall promptly review the agreement for compliance with the sections in this chapter. (C) If the amended distribution agreement does not comply with the sections in this chapter, the agency coordinator shall promptly return the agreement to the participant or beneficiary for corrections. (D) If the amended distribution agreement complies with the sections in this chapter, the agency coordinator shall immediately sign the agreement and send it to the plan administrator. (E) After the plan administrator receives a signed distribution agreement from an agency coordinator, the plan administrator and the qualified vendor covered by the agreement shall take the steps specified in subsections (h) and (j) of this section. (8) (No change.) (j) (No change.) (k) Emergency withdrawals. (1)-(8) (No change.) (9) If the plan administrator approves a participant's request for an emergency withdrawal, the participant must agree to cease all deferrals, except deferrals to life insurance products, to both this plan and the TexaSaver plan for a 12- month period following the approval. (10) The plan administrator may not approve an emergency withdrawal request from a primary or secondary beneficiary. (l)-(p) (No change.) (q) Distributions to missing persons. (1) (No change.) (2) When the plan administrator does not know the location of a participant or beneficiary, the agency coordinator for the participant or beneficiary must send a certified letter to the last known address of the participant or beneficiary. (3) If the certified letter does not result in the discovery of the location of the participant or beneficiary, the agency coordinator shall inform the plan administrator and provide proof to the plan administrator that the certified letter was sent. (4) Upon receiving the notification and proof from an agency coordinator, the plan administrator may direct that all benefits due the participant or beneficiary be deposited in the deferred compensation fund or a qualified investment product that the plan administrator has specifically designated for this purpose. (r)-(s) (No change.) (t) Federal withholding and reporting requirements. (1) A qualified vendor shall file all reports required by the Internal Revenue Service (IRS) when any deferrals and investment income are distributed or otherwise made available to a participant or beneficiary. Payments made to a participant during the participant's life must be reported as taxable wages on an IRS Form W-2, or another appropriate form which may be hereafter promulgated by the IRS. Pursuant to the provisions of Internal Revenue Service Revenue Ruling 86-109 (1986-2 CB 196), payments to the beneficiary of a deceased participant must be reported on IRS Form 1099-MISC (or another appropriate form which may be hereafter promulgated by the IRS) as taxable income of the beneficiary. (2)-(3) (No change.) (4) Federal tax withholding is mandatory for distributions to participants. A qualified vendor shall accurately determine any amounts to be withheld for federal taxes based on a W-4 submitted by the participant at the time of a distribution. If no W-4 is provided, the participant must be considered single with no dependents. The Tax Equity and Fiscal Responsibility Act does not apply to a deferred compensation plan governed by the Internal Revenue Code of 1986, sec.457. (5) Total death benefits, including life insurance proceeds, are taxable as ordinary income to the beneficiary and must be reported on a Form 1099-MISC in accordance with paragraph (1) of this subsection. (6) A qualified vendor shall mail a copy of all reports filed with the Internal Revenue Service about a participant or beneficiary to the participant's or beneficiary's home address. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1991. TRD-9116186 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: January 10, 1992 Proposal publication date: November 8, 1991 For further information, please call: (512) 867-3336 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICF-MR) Subchapter D. Reimbursement Methodology The Texas Department of Human Services (DHS) adopts the repeal of sec.27.417 and an amendment to sec.27.413, concerning reimbursement methodology. The amendment to sec.27.413 is adopted with changes to the proposed text as published in the September 20, 1991, issue of the Texas Register (16 TexReg 5203). The repeal of sec.27.417 is adopted without changes and will not be republished. The justification for the repeal and amendment is to revise the reimbursement methodology for the special children's facilities, which currently are being reimbursed under the case mix payment pilot project. The repeal and amendment will function by enabling providers to have a better understanding of the reimbursement methodology. The resulting rates will more closely reflect the direct care costs incurred by providers to care for children. DHS received written comments on the proposal from the Texas Health Care Association. Comment: The commenter objected to the provision which disqualifies special children's facilities from the additional supplemental reimbursement for heavy care clients. Response: DHS is not revising the proposed section in response to this comment because the facility-specific rates for the special children's facilities ensure that all projected total costs are covered, within limits. This methodology eliminates the need for the supplemental reimbursement for heavy care clients. Comment: The commenter expressed the view that the special children's facilities' projected costs should be multiplied by 1.07 to determine the total reimbursement rate. Response: DHS is not revising the proposed section in response to this comment because providers will be reimbursed for all projected costs, within limits. The amended reimbursement methodology contains a provision to multiply projected costs by 1.03 for qualifying providers. Several revisions have been made to the proposed amendment as a result of discussions with the commenter. In the proposed amendment, nonresident care costs were reimbursed based on the statewide uniform rate component. DHS has revised the section to reimburse total costs, which includes nonresident care costs, on a facility-specific basis. The proposed amendment specified that a 3.0% incentive factor would be applied to the median resident care cost component for all facilities in the large Level V or large Level VI class of service. The revised amendment specifies that the 3.0% incentive factor is applied to qualifying providers' projected total costs. To qualify for this incentive factor, a provider's projected total daily costs must be greater than the uniform rate for large facilities, but not more than 110% of the uniform rate. A provision in the revised amendment stipulates that providers with projected daily costs greater than 110% of the uniform rate for large facilities receive their projected daily costs only, with no incentive factor, with total reimbursement limited to a maximum of 150% of the total uniform rate. Also, a new provision in the amended section requires that a selected facility must continue to have seven or more Medicaid-contracted beds to be eligible for the special children's facility rate. The commenter notified DHS that the concerns expressed in his written comments had been met as the result of the discussions. The effect on state government for the first five-year period the adopted amendments to sec.27.413 will be in effect is an estimated additional cost of $18, 370 for fiscal year 1992; $26,477 for fiscal year 1993; $27,624 for fiscal year 1994; $28,967 for fiscal year 1995; and $30,324 for fiscal year 1996. 40 TAC sec.27.413 amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.413. Rate Setting Methodology. (a)-(b) (No change.) (c) Rate determination. The Texas Board of Human Services determines general reimbursement rates for medical assistance programs for Medicaid recipients under the provisions of Chapter 24 of this title (relating to Reimbursement Methodology). The Texas Board of Human Services determines particular reimbursement rates for each class of ICF-MR provider by class of service based on consideration of DHS staff recommendations. To develop a separate set of reimbursement rate recommendations for each class of service within each provider class, DHS staff apply the following procedures. (1) -(2) (No change.) (3) Alternate children's facility reimbursement rates for selected children's facilities are determined as follows, effective January 1, 1992. (A) Definition of children. When referred to in this section, children are persons under 22 years of age. (B) Determination of eligibility. To be considered eligible for alternate children's facility reimbursement rates, a facility must be one of the selected facilities listed in clause (i) of this subparagraph and must meet the definition of a large children's facility as defined in clause (ii) of this subparagraph. (i) Selected facilities. Selected facilities must be one of the following facilities covered by the Royal Thomas v. Marlin Johnston lawsuit Settlement Agreement: (I) Ada Wilson Hospital, Vendor Number 3730; (II) The Children's Center of Austin, Vendor Number 3731; (III) Thomas Care Center, Vendor Number 3747; (IV) Human Development Center, Vendor Number 3751; (V) Crossroads Development Center, Vendor Number 3756; and (VI) Denton Development Center, Vendor Number 3764. (ii) Definition of children's facility. When referred to in this section, a children's facility is a facility which maintains a census of no less than 85% children and maintains at least seven Medicaid-contracted beds. A selected facility will automatically lose eligibility and be paid under the uniform statewide reimbursement rate when the facility's census falls below 85% children, or when the facility's number of Medicaid-contracted beds falls below seven. (C) Determination of alternative children's facility rates. An eligible children's facility is reimbursed in the following manner. (i) Facilities with projected total per diem costs which are less than the total uniform rate for the facility's class of service are reimbursed at that uniform rate. (ii) Facilities with projected total per diem costs which are greater than the total uniform rate for the facility's class of service, but less than or equal to 110% of that uniform rate, receive their projected total per diem costs multiplied by an incentive factor of 1.03. (iii) Facilities with projected total per diem costs which are greater than 110% of the total uniform rate for the facility's class of service receive their projected total per diem costs only, with no incentive factor, up to a maximum of 150 percent of the total uniform rate for the facility's class of service. (iv) Facilities with projected total per diem costs which are greater than 150% of the total uniform rate for the facility's class of service are reimbursed at 150% of the total uniform rate for that class of service. (D) Additional supplemental reimbursement. Since provision is made to ensure that reasonable and necessary costs are covered, and an opportunity for an incentive is provided, the selected children's facilities covered by the Royal Thomas v. Marlin Johnston lawsuit Settlement Agreement do not qualify for additional supplemental reimbursement for heavy care clients as determined under subsection (f) of this section. (d)-(f) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1991. TRD-9116176 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: January 9, 1992 Proposal publication date: September 20, 1991 For further information, please call: (512) 450-3765 Subchapter D. Reimbursement Methodology 40 TAC sec.27.417 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.417. Case\Mix Payment Pilot Project. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1991. TRD-9116177 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 9, 1992 Proposal publication date: September 20, 1991 For further information, please call: (512) 450-7236