ADOPTED RULES 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 1.Library Development Grants: Electronic Access 13 TAC sec.1.101 The Texas State Library and Archives Commission adopts amendments to sec.1.101 relating to the criteria and procedures for awarding Internet Assistance Grants to connect public libraries to the Internet and other electronic information sources, without changes to the proposed text as published in the April 25, 1997, issue of the Texas Register (22 TexReg 3692-3694). The Library and Archives Commission has awarded Internet Assistance Grants to connect public libraries to the Internet and other electronic information sources in State Fiscal Years 1996 and 1997. During this process, a number of grant applicants raised concerns about the criteria and procedures used to award these grants. To address some of these concerns, the Library and Archives Commission developed and proposed these amended rules. The goals of these amended rules were: to make it clear that certain criteria were to be evaluated objectively, and other criteria were to be evaluated subjectively; to clarify and streamline the process of grant evaluation and award; to clarify and expand the allowable use of the grant funds; and, to assist applicants in preparing a competitive grant application by better specifying what the grant evaluators will be looking for. By adopting and enforcing these sections, the state and its citizens will benefit by having a more clearly developed grant program that enables public library applicants to better understand what is expected of their applications. No comments were received regarding adoption of the sections. The amendment is adopted under the Government Code, sec.441.136, that provides the Texas State Library and Archives Commission with the authority to adopt rules for the administration of public information technology grants. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 18, 1997. TRD-9710901 Raymond Hitt Assistant State Library Texas State Library and Archives Commission Effective date: September 8, 1997 Proposal publication date: April 25, 1997 For further information, please call: (512) 463-5460 CHAPTER 6.State Records Records Center Storage Services Fee Schedule 13 TAC sec.6.122, sec.6.123 The Texas State Library and Archives Commission adopts new sec.sec.6.122-6.123, concerning cost recovery fees for records center storage services provided to state agencies in the Austin area by the State and Local Records Management Division, with a change to the proposed text as published in the June 10, 1997, issue of the Texas Register (22 TexReg 5638). The change is: replacing the word "monthly" with the word "processing" in sec.6.123(a)(3)(A). Effective September 1, 1997, the Texas State Library and Archives Commission is required by Government Code, sec.441.017(b) to establish a cost recovery fee schedule to recover the cost of records storage services provided to state agencies. Prior to September 1, 1997, the Texas State Library and Archives Commission has used general revenue appropriations to provide these services without charge to the receiving agencies, even though the receiving agencies are funded with general revenue or dedicated funds. The change in the method of financing these services is to minimize the use of general revenue to fund state agency efforts when other sources of revenue are available; require state agencies to pay for services received to provide true cost accountability; and to ensure that, to the extent possible, users of state agency services pay for the services they receive. The Seventy-fifth Legislature, in the General Appropriations Act for the 1998-99 Biennium, changed the method of financing from general revenue for the Texas State Library and Archives Commission's records storage services to recovery of costs through fees. The fee calculations are based on the estimated average monthly volume of hard copy, microfilm, and disaster recovery records stored, and the estimated volume of disaster recovery records rotated into and out of storage during a month, and are set to recover the costs of providing the services. To encourage public access to public information at the least possible cost, no separate fees are imposed for authorized agency access to records in storage. Furthermore, to encourage the timely disposition of obsolete records in storage, no separate fee is imposed for records destruction or disintegration services. Agencies using the services will be billed monthly for the actual volume of services received. The change made to sec.6.123(a)(3)(A) is to clarify that the fee is assessed per rotation transaction as sec.6.123(a)(3)(B) clearly indicates. The monthly fee for the disaster recovery vault storage, as opposed to rotation services, is provided for in sec.6.123(a)(4)(A). By adopting and enforcing these sections, the state and its citizens will benefit by ensuring the centralized cost-effective storage and the physical protection of non-current state records, electronically recorded disaster recovery backup records, and vital and permanent records maintained on microfilm. The timely retrieval and unlimited authorized access to stored records will help to ensure the efficient conduct of state business and encourage public access to public information. No comments were received regarding adoption of the sections. The new sections are adopted under the authority of Government Code, 441.017(b), which requires the Texas State Library and Archives Commission to establish and keep current a cost recovery fee schedule for its records storage services. sec.6.122.Definitions. The following words and terms, when used in these sections, have the following meanings, unless the context clearly indicates otherwise. Terms not defined in these sections have the meanings defined in the Government Code, sec.sec.441.031-441.039 and sec.sec.441.051-441.062. Agency-A state executive, judicial, or legislative department, institution, board, or commission, including an eleemosynary institution. Cubic foot-A storage measurement equal to a standard records center container (approximate measurements are 12-1/4 inches wide by 15-3/4 inches long by 10-1/4 inches high). Disaster recovery services-The temporary off-site storage and regular rotation of a security backup copy of records for the purpose of recovering information in the event of a disaster. 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. Microfilm 16mm roll equivalent-A storage measurement equal to a standard 16mm roll of microfilm and to 60 microfiche, microfiche jackets, or aperture cards. One reel of 35mm film is equal to two microfilm 16mm roll equivalents. sec.6.123.Records Center Storage Services Fee Schedule. (a) The following fees will be charged for records center storage services provided to state agencies by the Texas State Library. (1) Records center stack storage. (A) The monthly fee is $.1874 per cubic foot. (B) The fee is assessed for the total volume of cubic feet stored in the records center stack areas on the last calendar day of each month. (2) Microfilm security vault storage. (A) The monthly fee is $.0353 per microfilm 16mm roll equivalent. (B) The fee is assessed for the total volume of microfilm 16mm roll equivalents stored in the microfilm security vault on the last calendar day of each month. (3) Disaster recovery vault rotation services. (A) The processing fee is $2.3806 per cubic foot. (B) The fee is assessed for the total volume of cubic feet processed into or out of disaster recovery vault storage during each month, which includes temperature and humidity controlled security storage for less than one month. (4) Disaster recovery vault storage. (A) The monthly fee is $1.5488 per cubic foot. (B) The fee is assessed for the total volume of cubic feet stored in the disaster recovery vault at the beginning of each month, minus the volume of cubic feet rotated out during that month. (b) The fee for containers other than the standard one cubic foot is determined based on the amount of shelf space that could be used if occupied by standard records center containers. For example, a container occupying the space that would otherwise hold two standard records center containers will be assessed a fee equivalent to twice the cubic foot fee. (c) The fees for records center storage services include the physical transfer of state records, inventory control indexing (with barcoding where applicable), storage in environment and security controlled facilities, circulation services, and final disposition. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 18, 1997. TRD-9710903 Raymond Hitt Assistant State Library Texas State Library and Archives Commission Effective date: September 8, 1997 Proposal publication date: June 10, 1997 For further information, please call: (512) 463-5460 CHAPTER 7.Local Records Records Retention Schedules 13 TAC sec.7.125 The Texas State Library and Archives Commission adopts an amendment to sec.7.125, concerning records retention schedules for the records of county clerks, district clerks, and public safety agencies, with changes to the proposed text as published in the May 23, 1997, issue of the Texas Register (22 TexReg 4408). As a result of public comment and the need to clarify certain retention and procedural requirements, changes have been made to the records retention schedules adopted under this rule. The Texas State Library and Archives Commission, under authority of Government Code, sec.441.160, periodically reviews schedules it has previously adopted by rule that establish mandatory minimum retention periods for local government records. This review takes into account comments and suggestions received from local governments and the public since the schedules were last released and changes to federal and state laws, regulations, and rules that affect the appropriate minimum periods of time local government records must or should be retained. Proposed amendments to the schedules are then circulated to local governments for review. Only after this review period are amendments to the schedules formally proposed under the Administrative Procedure Act. As an outcome of the review process, amended schedules were prepared for the records of county clerks, district clerks, and public safety agencies based upon suggestions from local governments and the public and changes to law or regulation. Local governments are required under Local Government Code, sec.203.041 and sec.203.042, to prepare and submit records control schedules to the director and librarian of the Texas State Library that conform to records retention schedules issued by the commission or to declare compliance with commission schedules. These schedules provide the means by which local governments may lawfully dispose of records. If such records are destroyed while they still have fiscal, legal, administrative, or historical value, then the public's right to access public information contained in them is effectively denied. Application of retention periods will further benefit the public through avoidance of storage and personnel costs associated with maintaining records after they have ceased to have value. A summary of the comments and the commission's responses follows. Minor changes to grammar, syntax, punctuation, or spelling as the result of public comment are not noted. The number following the title of a records series is the records series item number in the schedule indicated. Comment: A commenter suggested that various financial records series maintained by county clerks be eliminated from Local Schedule CC and reference made to corresponding records series in Local Schedule GR, a schedule issued by the commission that sets retention periods for records common to all local governments, including financial records. The commenter states that there is no reason to have the same records series in more than one commission schedule. Response: The commission avoids duplication of records series in its records retention schedules as much as possible, but in this instance feels the duplication is appropriate. Local Schedule CC derives from the Texas County Records Manual, first published in 1977. County clerks are long accustomed to having all records they create and maintain in a single schedule and many have established effective records management programs based on schedules using the descriptions and records series item numbers in Local Schedule CC. In addition, some of the records series the commenter suggested should be eliminated are financial records filed by law with the county clerk by other local governments, and they would not be adequately covered by financial records series in Local Schedule GR. Comment: A commenter questioned whether the records series description for the Public Hospital Bond Record (1125-22) in Local Schedule CC was accurate. Response: The commission agrees and the records series description is amended to remove reference to a population bracket. Comment: A commenter sought clarification of the intent of the retention note to Legal Opinions (1225-17) in Local Schedule CC. Response: The note is amended to indicate that the record copy of the legal opinions are maintained permanently by county or district attorneys. Comment: A commenter sought clarification of the word "requests" in Open Records Requests (2275-24) in Local Schedule DC. Response: Open Records Requests (1250-09, 1525-13, and 1850-09) in Local Schedules CC and Open Records Requests (2275-24) in Local Schedule DC are amended to define requests as written requests, which includes requests received by electronic mail and facsimile. Comment: A commenter suggested the commission should review the permanent retention period assigned to certain Chattel Mortgage Registers (1300-06) in Local Schedule CC and expressed the opinion that they were not historical. Response: The commission disagrees. Historians and other researchers have used early chattel mortgage registers for a variety of purposes, especially to document the extent and effects of the crop lien system, a system that characterized Southern agriculture. Comment: A commenter suggested that the retention period for the Ministry Register (1425-16) in Local Schedule CC be changed from permanent to destroy at option. Response: The commission disagrees. Ministry registers were created by custom rather than by law by some county clerks. Those registers that have survived provide the names and denominations of ministers in a county and have historical and genealogical value. Comment: A commenter suggested that the records series title for Overweight Records (1550-24) in Local Schedule CC be changed to Axle Overweight Records. Response: The commission agrees that the title is more descriptive of the contents of the record and the change is made. Comment: A commenter noted that county clerks are rarely aware of the denial or cancellation of beer and wine permits or licenses and, consequently, the retention period for Beer and Wine License Applications (1775-01) in Local Schedule CC cannot be implemented. The commenter suggested a 1 year retention period. Response: The commission agrees, but believes that a 2 year retention period is more appropriate. Beer and wine licenses must be renewed annually and a 2 year retention period more closely approximates the current retention period. The retention period is changed to 2 years. Comment: A commenter commended the commission for lowering the retention period for the Teacher Service Record Card (1975-02a) in Local Schedule CC from permanent to termination of employment + 75 years. Comment: A commenter commended the commission for adding transcripts and statements of fact from the district court on appeal to Civil Case Papers (2025- 03) in Local Schedule DC to the schedule. Comment: A commenter suggested that lower retention periods be set for certain types of routine civil and criminal process and surety bonds to permit weeding and disposal of these instruments during the process of backfile conversions (e.g., conversion of court case papers from paper to optical disk or microfilm). Response: The commission agrees and new subsections concerning civil and criminal process and surety bonds are added to the following records series in Local Schedule CC: Civil Case Papers (1575-03), Condemnation Case Papers (1575- 07), and Criminal Case Papers (1600-04). New subsections are also added to the following records series in Local Schedule DC: Civil Case Papers (2025-03), Condemnation Case Papers (2025-07), Adoption Case Papers (2075-01), Child Support Case Papers (2075-05), Divorce Case Papers (2075-10), Paternity Case Papers (2075-20), and Criminal Case Papers (2125-05). The retention period is set at 3 years after final judgment rendered or proceedings otherwise terminated in the case. Comment: A commenter suggested that pre-sentence investigation reports be added to the criminal case papers of county and district clerks. Response: The commenter was working with an earlier draft of Local Schedules CC and DC. The versions of these schedules as published in the Texas Register include pre-sentence investigation reports. Comment: A commenter suggested a new subsection be added to Shorthand Notes of Court Reporters (2175-13) in Local Schedule DC to set a retention period for court reporter notes in cases in which an appeal is taken. Response: The retention period for such notes is already set in subsection (b) of the records series. Comment: A commenter suggested adding grand jury lists to Jury Lists (2200-01) in Local Schedule DC. Response: The commenter was working with an earlier draft of Local Schedule DC. The version of that schedule as published in the Texas Register includes grand jury lists in the records series. Comment: A commenter suggested that Special Venire Jury Lists (2200-03) in Local Schedule DC be deleted and the records series combined with Jury Lists (2200-01) in the same schedule. Response: There is merit in the suggestion, but the special venire jury list is a distinct type of jury list with a longer retention period. The records series and records series item numbers in Local Schedule DC, which derive from the Texas County Records Manual, have been used by district clerks for records management purposes since 1985. The commission wishes to avoid deleting records series or combining one records series with another unless there is an overriding need to do so for the sake of clarity. Comment: A commenter suggested that Register Voters, Lists of (2325-08) in Local Schedule DC be deleted because it is the voter registrar that maintains the record copy. Response: The commission disagrees. By law, the voter registrar provides district clerks with lists of registered voters to enable the clerk to make up the jury wheel or enter data in an electronic jury selection system. Comment: A commenter suggested that inclusive dates be added for Reports of Liquor Seized (2325-09) in Local Schedule DC. Response: The commission disagrees. The Texas County Records Manual, from which Local Schedule DC was derived, indicated when a record was first provided for in law and, if no longer provided for in law, the date it became an obsolete record. When the first edition of Local Schedule DC was adopted as a rule of the commission, the decision was made to drop the dates from all records descriptions. The records series noted by the commenter is an obsolete record and the retention periods are appropriate. Comment: A commenter commended the commission for lowering the retention period for general orders under General and Emergency Orders and Related Documentation (4025-03) in Local Schedule PS from permanent to until superseded + 5 years. Comment: A commenter asked if it is the intent of the commission to include records of oral complaints under the general term "complaints" received concerning public safety personnel under Internal Affairs Investigation Records (4075-01) in Local Schedule PS. Response: It is the intent of the commission, and the records description in subsection (e) of the records series is amended to include specific mention of the records of oral complaints. Comment: A commenter commended the commission for lowering the retention period for Arrest Reports (4125-02) in Local Schedule PS from permanent to 75 years. Comment: A commenter sought clarification of whether the retention period in subsection (b) of Protective Orders (4175-16) in Local Schedule PS also applied to the notices that vacated an order. Response: The retention period does apply to the notices of vacation of orders and the records series description is amended to make that clear. A summary of changes made by commission staff to clarify the meaning of certain aspects of the schedules follows. Under the Local Government Code, sec.203.002 and sec.203.023, records management officers in local governments are required by law to identify and take adequate steps to preserve records that are of permanent value. The retention notes to the following records series are amended to reflect the central role of the records management officer in the determination of what portions of a records series shall be retained permanently for historical reasons: Bond Registers (1125-08), Finance Ledger (1125-16), Public Hospital Bond Record (1125-22), Road District Bond Record (1175-08), Water District Bond Record (1200-19), County Health Officer Reports (1225-06), Civil Case Papers (1575-03), and Bond Registers (1900-07) in Local Schedule CC; Civil Case Papers (2025-03) in Local Schedule DC; and General and Emergency Orders and Related Documentation (4025- 03), Planning Studies and Reports (4025-05), and Case Files and Working Papers (2575-01 on page 26) in Local Schedule PS. Each occurrence of the phrase "exempt from destruction request requirement" throughout Local Schedules CC, DC, and PS is amended to read "exemption from destruction request to the Texas State Library." The amendments are made to make it clear that while requests for destruction need not be made to the Texas State Library, a local government or elected county office may have requirements in its records management program for the creation of internal destruction documentation for the disposal of the records. A retention note is added to Accident Reports (4150-01) in Local Schedule PS to caution that in certain circumstances accident reports must be kept longer than 2 years if they become part of Offense Investigation Records (4125-05). The retention period for Emergency Medical Service Run Reports (4450-02) in Local Schedule PS is raised from 5 years to 6 years 3 months, because the U. S. Health Care Financing Administration requires that medical records involving the payment of Medicare funds be retained a minimum of 6 years and 3 months. The commission received written comments from one individual and RM&Q, Inc. The Local Government Records Committee approved the amendment for adoption by the Texas State Library and Archives Commission, as required by Government Code, sec.441.158, during an open meeting on July 23, 1997 in Austin, Texas. The amendment is adopted under Government Code, sec.441.158, which requires the Texas State Library and Archives Commission to prepare and distribute and adopt by rule records retention schedules for local government records and sec.441.160, which provides the commission with authority to amend the schedules. sec.7.125.Records Retention Schedules. (a) The following records retention schedules, required to be adopted by rule under the Government Code, sec.441.158(a), are adopted by reference. Copies of the schedules are available from the State and Local Records Management Division, Texas State Library, P.O. Box 12927, Austin, Texas 78711-2927; (512) 452-9242. (1)-(6) (No change.) (7) Local Schedule UT: Records of Utility Services. (b) The following records retention schedules, required to be adopted by rule under the Government Code, sec.441.158(a), are adopted. (1)-(2) (No change.) (3) Local Schedule CC: Records of County Clerks, 2nd Edition; FIGURE 1: 13 TAC sec.7.125(b)(3) (4) Local Schedule DC: Records of District Clerks, 2nd Edition; FIGURE 2: 13 TAC sec.7.125(b)(4) (5) Local Schedule PS: Records of Public Safety Agencies, 2nd Edition. FIGURE 3: 13 TAC sec.7.125(b)(5) (c) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 18, 1997. TRD-9710902 Raymond Hitt Assistant State Library Texas State Library and Archives Commission Effective date: October 20, 1997 Proposal publication date: May 23, 1997 For further information, please call: (512) 463-5460 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 7.Gas Utilities Division Substantive Rules 16 TAC sec.7.59 The Railroad Commission of Texas adopts new sec.7.59, concerning natural gas transportation standards and code of conduct, with changes to the proposed text as published in the May 13, 1997, issue of the Texas Register (22 TexReg 4134). The purpose of the new section is to specify standards of conduct to help prevent discrimination prohibited by the Common Purchaser Act, Texas Natural Resources Code, sec.111.081, et seq.; the Cox Act, Texas Civil Statutes, Articles 6050-6066g; and the Gas Utility Regulatory Act, Texas Civil Statutes, Article 1446e ("GURA"). The new rule governs the gathering and transportation of gas by any entity that provides gathering or transportation services to others for a fee. It covers gas utilities as they are defined in GURA and the Cox Act, and addresses other gatherers and transporters under the Common Purchaser Act. A finding by the commission that a transporter had violated one or more provisions of the code of conduct could constitute evidence of unlawful discriminatory activity. The rule also provides exemptions; however, the commission intends to exercise its jurisdiction to prevent discriminatory practices. Entities falling within the exemptions continue to be subject to the commission's authority to enforce the applicable statutes and, while the rule per se will not be enforced against such entities, the commission's enforcement of the statutes may in a proper case entail the application of standards similar to those found in the section. The new rule specifies five basic standards that comprise the code of conduct. The first two standards, in subsections (c)(1) and (c)(2), specify that the application and enforcement of tariff or contract provisions be applied in a similar manner to similarly-situated shippers. Standard number three, in subsection (c)(3), specifies that no shipper shall be given preference over any other similarly-situated shipper. This standard, along with the definition of the term "preference," which includes the dissemination or providing of information, is intended, in part, to prohibit the favoring of an affiliate in the availability of information that results in a preference in the provision of transportation services. The code does not require the separation of personnel in the event that a single person represents both the transporter and a shipper. Standard four, in subsection (c)(4), specifies that requests for transportation services shall be processed similarly, and the fifth standard, in subsection (c)(5) specifies that books and records of affiliates must be maintained in such a fashion that the activities of an affiliate can be identified and segregated. The commission took oral comments at a pre-publication public hearing on April 22, 1997. In response to the May 13, 1997, Texas Register publication of the proposed new section, and various written correspondence from industry associations and the commission concerning the proposed rule, the commission received over 200 written responses from interested persons. In addition, the commission heard oral comments at an open meeting on June 24, 1997. Many of these commenters indicated only that they either supported or opposed the proposed new section, while others suggested specific amendments to the proposal. The following associations or groups filed comments on the proposed new section: Association of Texas Intrastate Natural Gas Pipelines (ATIP); Gas Processors Association (GPA); Independent Petroleum Association of America (IPAA); North Texas Oil & Gas Association (NTOGA); Permian Basin Petroleum Association (PBPA); Texas Independent Producers and Royalty Owners Association (TIPRO); Texas Mid-Continent Oil & Gas Association (TMOGA); and Texas Municipal Gas Association (TMGA). All of the associations supported the rule as proposed, in part: all supported the standards, but not all supported the information disclosure requirements. Only NTOGA and TMGA supported the rule as proposed in its entirety. ATIP, GPA, TIPRO, and TMOGA supported the proposed rule in part and suggested amendments. While many of the comments suggested specific language changes and amendments to various subsections contained in the proposed new section, the commenters emphasized two primary issues: First, they challenged the need for a rule to address discrimination. Many commenters stated that the commission has insufficient evidence demonstrating that discrimination was occurring except in isolated situations. The commenters' contention was that the commission's informal complaint procedure was adequate to address those few instances in which an entity believed that it had experienced unlawful discrimination and that there was no need to implement a rule that would affect all transporters to address situations that occur infrequently. Second, the commenters challenged the need for industry-wide information disclosure. The commenters argued that the mandatory information disclosure provisions in the proposed rule would be unduly costly and would impose a level of regulation that would yield little benefit, if any. Some further contended that the information disclosure provisions would actually result in a non- competitive environment in which transporters would offer fewer options in order to avoid the information disclosure obligation in the proposed rule. The commission agrees that the information disclosure requirements in the proposed rule are not warranted, and in the adopted rule, the commission has eliminated the information disclosure requirements. The commission has either amended or deleted language in every subsection of the proposed rule that applied to information disclosure. Specifically, in subsection (a), the commission amended language to reflect the elimination of information disclosure requirements and to emphasize the standards of conduct. In subsection (b), the commission eliminated definitions of "electronic information site" and "transaction" because they apply to the information disclosure requirements which have been eliminated, and renumbered the remaining definitions. The commission amended the definition of "transportation service" to clarify that the term does not include processing services. The commission changed the wording of subsection (c)(5) to clarify that transporters must maintain their books of account in such a fashion that transportation services - and not other services - provided to an affiliate can be identified and segregated. The commission deleted in its entirety proposed subsection (d), which contained the information disclosure requirements, and redesignated subsequent subsections. Proposed subsection (e), relating to exemptions, has been redesignated as subsection (d); exemptions (d)(3) and (d)(4) (proposed as (e)(3) and (e)(4)) have been deleted in their entirety to be consistent with the elimination of the information disclosure requirements. Exemption (d)(1) (proposed as (e)(1)) has been amended to clarify that all distribution and transportation activities performed by a local distribution company are exempt, not just those services it performs for retail customers. Exemption (d)(2) (proposed as (e)(2)) has been reworded for clarity: an entity transporting only its own gas through its own system is exempt from the rule, and additional language makes clear that the term "system" is that designated by the transporter's current T-4 permit on file with the commission. Proposed subsection (f), relating to other requirements, has been redesignated as subsection (e). Subsections (e)(1) and (e)(3) (proposed as (f)(1) and (f)(3)) have been deleted consistent with the elimination of the information disclosure requirement. The text proposed in (f)(2) is the only provision retained in the subsection, and it has been amended to add language to clarifying the commission's ability to request relevant information regarding rates and other conditions of service from any transporter for commission review and investigation purposes. Proposed subsection (g), concerning the effective date, has been redesignated as subsection (f) and amended to provide that the new section is effective upon commission adoption, with the exception of subsection (e), which takes effect 90 days after the adoption of the rule. The commission finds that the section as amended does not enlarge the scope or burden of the proposed new section. Eliminating the information disclosure requirements, in fact, narrows the scope and reduces the burden on transporters required to comply with the section. Further, the commission finds that the section as amended does not affect entities other than those affected by the section as proposed. The commission adopts new sec.7.59 pursuant to the Texas Natural Resources Code, sec.111.083, which requires common purchasers, as defined in Texas Natural Resources Code, sec.111.081(a)(2), to purchase or take the natural gas purchased or taken by it as a common purchaser under rules prescribed by the commission in the manner, under the inhibitions against discriminations, and subject to the provisions applicable to common purchasers of oil; Texas Natural Resources Code, sec.111.086, which requires common purchasers to purchase without discrimination in favor of one producer or person against another producer or person in the same field and without unjust or unreasonable discrimination between fields in this state; Texas Natural Resources Code, sec.111.087, which prohibits common purchasers from discriminating between or against production of a similar kind or quality in favor of its own production; Texas Natural Resources Code, sec.111.090, which authorizes the commission to adopt rules that may be necessary to prevent discrimination; Texas Revised Civil Statutes, Article 1446e, sec.4.02, which grants the commission the power to require that gas utilities report to the commission information relating to themselves and affiliated interests both within and without the State of Texas as it may consider useful in the administration of GURA; Texas Revised Civil Statutes, Article 1446e, sec.5.02(a), which states that it is the duty of the commission to ensure that every rate made, demanded, or received by any gas utility, or by any two or more gas utilities jointly, is just and reasonable, and directs that rates may not be unreasonably preferential, prejudicial, or discriminatory, but must be sufficient, equitable, and consistent in application to each class of consumers; Texas Revised Civil Statutes, Article 1446e, sec.5.10, which prohibits a gas utility, as to rates or services, from making or granting any unreasonable preference or advantage to any corporation or person within any classification, or subject any corporation or person within any classification to any unreasonable prejudice or disadvantage, and from establishing and maintaining any unreasonable differences as to rates of service either as between localities or as between classes of service; and Texas Revised Civil Statutes, Article 1446e, sec.5.12, which prohibits gas utilities from discriminating against any person or corporation that sells or leases equipment or performs services in competition with the gas utility, and from engaging in any other practice that tends to restrict or impair that competition; Texas Civil Statutes, Article 6053, sec.1(a), which directs the commission to establish fair and equitable rules and regulations for the full control and supervision of said gas pipelines and all their holdings pertaining to the gas business in all their relations to the public, and to prescribe and enforce rules and regulations for the government and control of such pipelines in respect to their gas pipelines and producing, receiving, transporting, and distributing facilities; and Texas Civil Statutes, Articles 6057 and 6057a, which prohibit pipeline public utilities from discriminating in favor of or against any person, place or corporation, either in apportioning the supply of natural gas or in their charges therefor, and from directly or indirectly charging, demanding, collecting or receiving from any one a greater or less compensation for any service rendered than from another for a like and contemporaneous service. sec.7.59.Natural Gas Transportation Standards and Code of Conduct. (a) Purpose. The purpose of this section is to specify standards of conduct governing the provision of gas transportation services in order to prevent discrimination prohibited by the Common Purchaser Act, Texas Natural Resources Code, sec.111.081, et seq.; the Cox Act, Texas Civil Statutes, Articles 6050- 6066g; and the Gas Utility Regulatory Act, Texas Civil Statutes, Article 1446e ("GURA"), which if violated, as found by the commission, may constitute evidence of unlawful discriminatory activity. Any exemptions provided in this rule do not diminish statutory prohibitions against discrimination. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Affiliate--Any affiliate as defined in Texas Civil Statutes, Article 1446e, sec.1.03(1) and (8). (2) Commission--Railroad Commission of Texas, including its staff or delegate. (3) Common purchaser of gas--Every common purchaser of gas as defined in Texas Natural Resources Code, sec.111.081(a)(2). (4) Discrimination--Any material difference in rates, service, rules and regulations, or conditions of service for transportation services which unreasonably disadvantages or prejudices similarly-situated shippers. (5) Gas pipeline--Any gas pipeline under the provisions of Texas Civil Statutes, Articles 6051 through 6056, inclusive. (6) Gas utility--Any gas utility as defined in Texas Civil Statutes, Article 1446e, sec.1.03(3) and in Texas Civil Statutes, Article 6050. (7) Local distribution company--an entity that operates a retail gas distribution system. (8) Preference--Any material difference in rates, service, rules and regulations, conditions of service, or the dissemination or providing of information concerning transportation services which unreasonably advantages or favors similarly-situated shippers. (9) Shipper--Any person or corporation for which a transporter is currently providing, has provided, or has pending a written request to provide transportation services. (10) Similarly-situated shipper--Any shipper that seeks or receives transportation services under the same or substantially the same, physical, regulatory, and economic conditions of service as any other shipper of a transporter. In determining whether conditions of service are the same or substantially the same, the commission shall evaluate the significance of relevant conditions, including, but not limited to, the following: (A) service requirements; (B) location of facilities; (C) receipt and delivery points; (D) length of haul; (E) quality of service (firm, interruptible, etc.); (F) quantity; (G) swing requirements; (H) credit worthiness; (I) gas quality; (J) pressure (including inlet or line pressure); (K) duration of service; (L) connect requirements; and (M) conditions and circumstances existing at the time of agreement or negotiation. (11) Transportation service--The receipt of a shipper's gas at a point or points on the facilities of a transporter, and redelivery of a shipper's gas by the transporter at another point or points on the facilities of the transporter, including exchange, backhaul, displacement, and other methods of transportation, provided, however, that the term "transportation service" shall not include processing services or the movement of gas to which the transporter has title. (12) Transporter--Any common purchaser of gas, gas utility, or gas pipeline that provides gas gathering and/or transmission transportation service for a fee. (c) Code of conduct. A transporter that provides transportation services for any shipper (including affiliate shippers) shall: (1) apply any tariff or contract provision for transportation services which provides for discretion in the application of the provision in a similar manner to similarly- situated shippers; (2) enforce any tariff or contract provision for transportation services if there is no discretion stated in the tariff or contract in the application of the provision in a similar manner to similarly-situated shippers; (3) not give any shipper preference in the provision of transportation services over any other similarly-situated shippers; (4) process requests for transportation services from any shipper in a similar manner and within a similar period of time as it does for any other similarly- situated shipper; and maintain its books of account in such a fashion that transportation services provided to an affiliate can be identified and segregated. (d) Exemptions. (1) The distribution and transportation activities services performed by a local distribution company are exempt from this section. (2) In the event that an entity transports only its own gas through its own system, as designated by the transporter's current T-4 permit on file with the commission, then that system is exempt from this section. (e) Other requirements. Any transporter subject to the provisions of this section shall make available to the commission its books and records of transportation service for audit purposes. With at least 10 working days notice by the commission, the transporter shall provide the commission access to records showing rates which the transporter is charging and any other contractual conditions of transportation service. The transporter shall provide the commission access on a reasonable basis to information contained in the transporter's records regarding any other relevant conditions of transportation service. (f) Effective date. This section shall take effect upon adoption by the commission. The provisions of subsection (e) shall take effect 90 days after adoption of this rule. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 19, 1997. TRD-9710967 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: September 8, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 463-7008 TITLE 19. EDUCATION PART I. Texas Higher Education Coordinating Board CHAPTER 21.Student Services SUBCHAPTER B.Determining Residence Status 19 TAC sec.sec.21.23, 21.28, 21.29, 21.30, 21.31, 21.32, 21.33, 21.39 The Texas Higher Education Coordinating Board adopts the repeals of Subchapter B, sec.sec.21.23, 21.28, 21.29, 21.30, 21.31, 21.32, 21.33, and 21.39, concerning Determining Residence Status without changes to the proposed text as published in the June 6, 1997, issue of the Texas Register (22 TexReg 5316). There were no comments received concerning the proposed rules. The repeals are adopted under Texas Education Code, sec.54.053, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Determining Residence Status. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 19, 1997. TRD-9710939 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: September 8, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 483-6162 19 TAC sec.sec.21.23, 21.28, 21.29, 21.30, 21.31, 21.32, 21.33, 21.39, 21.42, 21.43 The Texas Higher Education Coordinating Board adopts new Subchapter B, sec.sec.21.23, 21.28, 21.29, 21.30, 21.31, 21.32, 21.33, 21.39, 21.42 and 21.43, concerning Determining Residence Status with changes to sec.sec.21.23, 21.31, and 21.39 of the proposed text as published in the June 6, 1997, issue of the Texas Register (22 TexReg 5316). No comments were received concerning the proposed rules. The new rules are adopted under Texas Education Code, sec.54.053, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Determining Residence Status. sec.21.23.Reclassification. (a) Persons classified as nonresidents upon first enrollment in an institution of higher education are presumed to be nonresidents for the period during which they continue as students. Students classified as nonresident students shall be considered to retain that status until they make written application for reclassification in the form prescribed by the institution and are officially reclassified in writing as residents of Texas for tuition and admissions purposes by the proper administrative officers of the institution. Application for reclassification must be submitted prior to the official census date of the relevant term. (b) If such nonresident students withdraw from school and reside in the state while gainfully employed for a period of 12 consecutive months, upon re-entry into an institution of higher education they will be entitled to be reclassified as residents for tuition purposes if other evidence indicates they have established a domicile in the State of Texas. Accumulations of summer and other vacation periods do not satisfy this requirement. (c) If such nonresident students enroll while gainfully employed for a period of 12 consecutive months, they shall be considered for reclassification as residents for tuition purposes if other evidence indicates they have established a domicile in the state of Texas. (d) Material to the determination of the establishment of a domicile in Texas are business or personal facts or actions unequivocally indicative of a fixed intention to reside permanently in the state. Such facts shall include, but are not limited to, (1) the length of residence and employment prior to enrolling in the institution, (2) the nature of employment while a student, (3) presence in Texas as a part of a household transferred to the state by an employer or as part of a household moved to the state to accept employment offered in Texas, (4) purchase of a homestead, or (5) dependency upon a parent or legal guardian who has resided in Texas for at least 12 consecutive months immediately preceding the student's enrollment. (e) All of these facts are weighed in the light of the fact that a student's residence while in school is primarily for the purpose of education and not to establish residence, and that decisions of an individual as to residence are generally made after the completion of an education and not before. A person who moves to Texas as the spouse of an individual transferred here by the military (see section 21.28 of this title, relating to Military Personnel, Veterans and Commissioned Officers of the Public Health Service), through the state's plan for economic development and diversification (see section 21.26 of this title, relating to Economic Development and Diversification Employees) or as a part of a household moved to the state to accept employment offered in Texas, is considered not to have come to Texas for the purpose of going to school. Therefore, once he or she has physically resided in Texas for 12 consecutive months, the person may be considered a resident if he or she has otherwise established a domicile in the state. sec.21.31.Competitive Scholarship Recipients. Certain students receiving competitive scholarships may be exempted from paying nonresident tuition rates. (1) Approved Procedures for Awarding Scholarships. Each institution awarding nonresident tuition waivers based on competitive scholarships shall have in the appropriate office of the institution a memo from the institution's administration granting the scholarship committee the authority to award scholarships which hold a nonresident tuition waiver option. In addition, the scholarship committee shall maintain records which verify that residents as well as non-residents were eligible to compete for the scholarship and the criteria used to select scholarship recipients. (2) To qualify for exemption from paying nonresident tuition rates students must be awarded competitive scholarships totaling at least $1,000 for the academic year, the summer session or both by an official scholarship committee or committees of the public institution of higher education they are attending. If nonresidents or foreign students in competition with other students, including Texas residents, obtain these competitive scholarships, the students may pay the same tuition as a resident of Texas during the registration period in which the competitive scholarship is in effect. In order for a competitive scholarship to qualify a student to pay the resident rate, both the funds and the selection process must be under the control of the institution. At the time the competitive scholarship is made, the institution must designate the term or terms of the current 12-month academic year as defined by the institution in which the scholarship will be in effect. Scholarship funds need not be disbursed in each term covered by the scholarship and waiver, but documentation for the scholarship must define the relevant time period for the scholarship. The waiver's time period will be the same as that of the scholarship. If the scholarship is terminated for any reason, the waiver shall also cease as of the end of the enrollment period in which the scholarship is terminated. An institution shall not waive nonresident tuition on the basis of competitive scholarships for more than five percent of its total enrollment in the corresponding semester or term of the previous academic year. If the recipient of the scholarship is concurrently enrolled at more than one institution, the waiver of nonresident tuition is only effective at the institution awarding the scholarship. (3) Beginning with awards for fall 1998, institutions of higher education that offer competitive scholarships shall adopt a written policy describing the factors to be used by the institution in making an award. A policy adopted under this section shall be published in the institution's or unit's catalog and shall be made available to the public in advance of any deadline for the submission of an application for a competitive scholarship to which the policy applies. (4) A nonresident or foreign student is eligible to pay the fees and charges required of Texas residents if the student holds a competitive academic scholarship or stipend and is accepted in a clinical biomedical research training program designed to lead to both a doctor of medicine and doctor of philosophy degree. sec.21.39.Glossary. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Competitive Scholarship--A scholarship which is designated as competitive by the institution, whose sum either singularly or in combination with other competitive scholarships totals the amount named in Texas education code 54.064, that is publicized and open to all students including Texas residents, and which has been selected by the institution to be a basis for the waiver of nonresident tuition charges. Conclusive Evidence--Proof which removes uncertainties. In the case of proving residency, conclusive evidence may include but is not limited to the purchase of a homestead with substantial down-payment, significant employment, dependence on parents who are residents of the state, and business or personal ties in the state which imply a fixed intent to remain in Texas. Dependent--An individual (minor or 18 years of age or older) who is claimed as a dependent for federal income tax purposes by a parent or guardian the year of enrollment and the tax year prior to enrollment. Domicile in Texas--Physically residing in Texas for at least 12 consecutive months with the intent to make Texas one's permanent home. Foreign Students--Aliens who are not permanent residents of the United States or have not been permitted by Congress to adopt the United States as their domicile while they are in this country. Gainful Employment--Lawful activities intended to provide an income to the individual or allow an individual to avoid the expense of paying another person to perform the tasks (as in child care or the maintenance of a home). Homeless Individual--A homeless individual as defined by 42 U.S.C. Section 11302. See Section 21.40 of this title (relating to Homeless Individual). In-District Student--A Texas resident who physically resides within the geographic boundaries of the classifying public junior college district. Independent Student--A student who is not claimed by a parent or a guardian as a dependent for federal income tax purposes during the tax year including the enrollment period. Minor--An individual who is 17 years of age or younger. Nonresident--A citizen, national or permanent resident of the United States or an alien who has been permitted by Congress to adopt the United States as his or her domicile while in this country and who has not met the state requirements for establishing residency for tuition purposes. Official Census Date--The official reporting date for enrollments; the date upon which the student (by virtue of having obligated him/herself to pay requisite tuition and/or fees) is considered to be enrolled in the institution. (For 16- week semesters, the 12th class day; for 6-week summer sessions, the 4th class day. For other length programs, consult the Reporting and Procedures Manual, published by the Educational Data Center of the Coordinating Board. Out-of-District Student-- A Texas resident who does not physically reside within the geographic boundaries of the classifying public junior college district. Prior to Enrolling--Prior to or including the official census date. Public Institution of Higher Education--State-supported institutions of higher education, including public, junior and community colleges, public senior colleges and universities, public health science centers and Texas State Technical Institutes. Resident--A citizen, national or permanent resident of the United States or an alien who has been permitted by Congress to adopt the United States as his or her domicile while in this country and who has otherwise met the state requirements for establishing residency for tuition purposes. Time of Enrollment--Official census date for the semester or term for that institution (for specific dates, refer to the Reporting and Procedures Manual of the Educational Data Center of the Coordinating Board). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 19, 1997. TRD-9710940 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: September 8, 1997 Proposal publication date: June 6, 1997 For further information, please call: (512) 483-6162