TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 11. ADMINISTRATION DEPARTMENT

SUBCHAPTER A. ADMINISTRATION

13 TAC §11.2, §11.5

The Texas Historical Commission (hereafter referred to as the "Commission") proposes amendments to §11.2 and §11.5 of Title 13, Part 2, Chapter 11 of the Texas Administrative Code concerning the administration department. These amendments are needed as part of the Commission's overall effort to clarify language in order to implement necessary updates, additions and changes to more precisely reflect the procedures of the administrative department.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rule changes are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wolfe has also determined that for each year of the first five year period these rule changes are in effect the public benefit anticipated as a result of the implementation of these rules will be improvements in the administration of the Commission. There will be minimal effects on small businesses or micro-businesses.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendments are proposed under §442.005(q), of the Texas Government Code which provides the Commission with the authority to promulgate rules and conditions to reasonably effect the purposes of those chapters.

No other statutes, articles or codes are affected by these amendments.

§11.2.Election of Officers.

(a) At the last quarterly meeting of even-numbered years, the chair shall appoint three people to serve on a nominating committee, and shall also appoint a chair of that committee. [The nominating committee will choose its own chair.] The positions available for nomination shall be the vice chair and secretary.

(b) The nominating committee will nominate only one person for each elective office. The committee shall contact each person it wishes to nominate in order to obtain the person's acceptance of nomination. A commission member may hold only one office at a time.

(c) The nominating committee will present its report of nominees at the first commission meeting of odd-numbered years. The chair shall call for further nomination from the floor. After all nominations are made, the chair will close the nominations and ask for a vote by voice or show of hands. If there is a simple majority for one person for each elective office, those people are elected. If there is not a majority for any one person for each office, the commission shall hold an election runoff for each office between the two people receiving the highest number of votes for that office. The chair will only vote to make or break ties.

§11.5.Executive Committee.

This committee consists of the chair, vice-chair, secretary, and immediate past chair of the Texas Historical Commission, as well as other members of the commission appointed by the chair. The committee may act on behalf of the Full Commission with its advance approval, or such action may be placed on the agenda of the next meeting of the Commission for ratification.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702879

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 12. TEXAS HISTORIC COURTHOUSE PRESERVATION PROGRAM

13 TAC §12.5, §12.9

The Texas Historical Commission (hereinafter referred to as the "Commission") proposes amendments to Title 13, Part 2, Chapter 12, §12.5 and §12.9 of the Texas Administrative Code related to the Texas Historic Courthouse Preservation Program.

The adoption of these amendments by the commission is needed to provide additional definitions and to clarify the text in §12.5 and §12.9.

In this issue of the Texas Register, the Commission concurrently proposes amendments to the rules in Chapter 12 pursuant to Texas Government Code §2001.039.

Mark Wolfe, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

Mr. Wolfe has also determined that for each year of the first five-year period the amendment of the rules are in effect the public benefit anticipated as a result of administering the rules will be the preservation of additional historic county courthouses. There are no probable economic costs to persons required to comply with the amendments.

Mr. Wolfe has also determined that there will be no impact on small or micro-businesses as a result of implementing these rules.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

These amendments are proposed under the authority of Texas Government Code §442.005(q), which provides the Texas Historical Commission with the authority to promulgate rules to reasonably affect the purposes of those chapters, and under Texas Government Code §442.0081(h), which provides the Texas Historical Commission with the authority to adopt rules to implement the historic courthouse preservation and maintenance programs.

No other statutes, articles, or codes are affected by these amendments.

§12.5.Definitions.

When used in this chapter, the following words or terms have the following meanings unless the context indicates otherwise.

(1) Texas Historic Courthouse Preservation Program. Means the grant or loan program created by Texas Government Code §§442.0081 - 442.0083.

(2) The Courthouse Fund Account. Means a separate account in the general revenue fund. The account consists of transfers made to the account, payment on loans made under the historic courthouse preservation program, grants and donations received for the purposes of the historic courthouse preservation program, and income earned on investments of money in the account.

(3) Texas Courthouse Preservation Program Advisory Committee. Means a committee that serves the commission in matters concerning the courthouse program.

(4) Courthouse. Means the principal building(s) which houses county government offices and courts and its (their) surrounding site(s) (typically the courthouse square).

(5) [(4)] Historic courthouse. Means a county courthouse or building that previously served as a county courthouse that is at least 50 years old prior to the date of application, with the initial date of service defined as the date of the first official commissioners court meeting in the building;

(6) [(5)] Historic courthouse project. Means an undertaking to preserve or restore a historic courthouse.

(7) [(6)] Historic courthouse structure. Means a courthouse structure that is [one or more of the following:]

[(A)] a structure that currently or previously served as the official county courthouse of the county in which it is located; and that is:

(A) at least 50 years old prior to the date of application, with the initial date of service defined as the date of the first official commissioners court meeting in the building;

(B) listed on the National Register of Historic Places;

(C) designated a Recorded Texas Historic Landmark;

(D) designated a State Antiquities Landmark;

(E) determined by the commission to qualify as an eligible property under the designations noted above;

(F) certified by the commission to other state agencies as worthy of preservation; or

(G) designated by an ordinance of a municipality with a population of more than 1.5 million as historic.

(8) [(7)] Master preservation plan or master plan. Means a comprehensive planning document that includes the historical background of a courthouse, as well as a detailed analysis of its architectural integrity, current condition, and future needs for preservation. The commission shall promulgate specific guidelines for developing the document.

(9) Conservation Easement. Means a voluntary legal agreement whereby the property owner grants the Commission an interest in the property for the purpose of preservation of historic, architectural, scenic and open space values, also may be called a preservation easement.

(10) Construction Documents (also known as contract documents). Means the written and graphic instructions used for construction of a project which are prepared by an architect and their engineering consultants. May also be called architectural plans and specifications.

(11) [(8)] Restoration. Means the act or process of accurately depicting the form, features, and character of a property as it appeared at a particular period of time by means of the removal of features from other periods in its history and reconstruction of missing features from the restored period. (As defined by the Secretary of the Interior's Standards for the Treatment of Historic Properties (1995 edition, or as revised)).

(12) [(9)] Reconstruction. Means the act or process of depicting, by means of new construction, the form, features, and detailing of a non-surviving site, landscape, building, structure, or object for the purpose of replicating its appearance at a specific period of time and in its historic location. (As defined by the Secretary of the Interior's Standards for the Treatment of Historic Properties (1995 edition, or as revised)).

(13) [(10)] Preservation. Means the act or process of applying measures necessary to sustain the existing form, integrity, and materials of a historic property. (As defined by the Secretary of the Interior's Standards for the Treatment of Historic Properties (1995 edition, or as revised)).

(14) [(11)] Rehabilitation. Means the act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features which convey its historical, cultural, or architectural values. (As defined by the Secretary of the Interior's Standards for the Treatment of Historic Properties (1995 edition, or as revised)).

(15) [(12)] Match requirement. Means the percentage of the total project cost that must be provided by a county or municipality.

(16) [(13)] Current cash match. Means monies to be paid by a county or municipality as part of the preservation project described in a current request for grant or loan funding.

(17) [(14)] Current in-kind match. Materials and labor to be donated as part of the preservation project described in a current request for grant or loan funding.

(18) [(15)] Planning match. Means county or municipal monies spent on an approved master preservation plan or approved construction plans and specifications.

§12.9.Application Requirements and Considerations.

(a) A county or municipality that owns a historic courthouse may apply to the commission for a grant or loan for a historic courthouse project. The application must include:

(1) the address of the courthouse;

(2) a statement of the historic designations that the courthouse has or is likely to receive;

(3) a statement of the amount of money that the county or municipality commits to contribute to the project;

(4) a statement of previous county or municipal monies spent on planning which the county or municipality may be allowed as credit toward their match;

(5) a statement of whether the courthouse is currently functioning as a courthouse or other public facility;

(6) copies of any plans, including the required master preservation plan or current construction plans and specifications, that the county or municipality may have for the project unless the commission already has these plans on file;

(7) copies of existing deed covenants, restrictions or easements held by the commission or other preservation organizations;

(8) statements of support from local officials and community leaders; and

(9) the current cost estimate of the proposed project; and

(10) any other information that the commission may require.

(b) The Texas Historic Courthouse Preservation Program will be a competitive process, with applications evaluated and grants awarded based on the factors provided in this section, including the amount of program money for grants.

(1) Funding requests may be reduced by the commission to reflect ineligible project costs or smaller scopes or phases of work such as planning for the construction work, or for any other reason such as limited grant funding availability.

(2) The commission may adjust the amount of a previously awarded grant up and/or down based on the changing conditions of the property and the program.

(c) In considering whether to grant an application, the commission will assign weights to and consider each of the following factors:

(1) the status of the building as a functioning courthouse;

(2) the age of the courthouse;

(3) the degree of endangerment;

(4) the courthouse is subject to a current conservation easement or covenant held by the commission;

(5) the proposal is in conformance with the approved master plan and addresses the work in proper sequence;

(6) the county or municipality agrees to place/extend a preservation easement/covenant and/or deed restriction as part of the grant process;

(7) the importance of the building within the context of an architectural style;

(8) the proposal addresses and remedies former inappropriate changes;

(9) the historic significance of the courthouse, as defined by 36 CFR §101(a)(2)(A) and (E), and NPS Bulletin 15, "How to Apply the National Register Criteria for Evaluation."

(10) the degree of surviving integrity of original design and materials;

(11) if a county or municipality submits completed and commission-approved construction plans and specifications for proposed work at the time of the application, provided the plans and specifications are current and comply with the previously approved master plan;

(12) the use of the building as a courthouse after the project;

(13) the county's or municipality's provision of a match greater than 15% of the grant request;

(14) the proposal results in a fully restored county courthouse [court-house];

(15) the status of the courthouse in terms of state and local historical designations that are in place;

(16) the county or municipal government's provision of preservation incentives and support of the county historical commission and other county-wide preservation efforts;

(17) the location of the county in a region with few awarded courthouse grant applications;

(18) the existence of a plan for physically protecting county records during the restoration and afterwards, as well as an assessment of current and future space needs and public accessibility for such records, if county-owned;

(19) the existence of a strong history of compliance with the state courthouse law (Texas Government Code, §§442.0081 - 442.0083 and the Antiquities Code of Texas, Texas Natural Resources Code Chapter 191);

(20) the effort to protect and enhance surrounding historic resources; and

(21) the evidence of community support and county or municipality commitment to protection.

(d) Other Considerations.

(1) The factors noted in subsection (c) of this section, and any additional ones determined necessary by the commission, will be published prior to each individual grant round as part of the formal procedures for the round.

(2) The commission may distribute a portion of the funds available for each grant period to be used for specific purposes and/or granted through different criteria than other funds. Such specific purposes may include, but are not limited to, the following:

(A) Emergency repairs necessary to prevent damage to or deterioration of the courthouse; or

(B) Compliance with the Americans with Disabilities Act or other state or federally mandated repairs or modifications.

(C) Grants to the owners of previously awarded projects that require additional funding to resolve unforeseen conditions that may prevent the owners from meeting the intended goals of the program.

(3) Any such distribution to a specific purpose or change in criteria must be decided by a vote of the commission and advertised to the potential grantees prior to the date for the submission of applications.

(e) As a condition for a county or municipality to receive money under the courthouse fund, the commission may require creation of a conservation easement on the property, and may require creation of other appropriate covenants in favor of the state. The highest preference will be given to counties agreeing to the above referenced easements or covenants at the time of application.

(f) The commission shall provide oversight of historic courthouse projects.

(1) The commission may make periodic inspections of the projects during construction and/or upon and following completion to ensure compliance with program rules and procedures.

(2) The commission may require periodic reports to ensure compliance with program rules and procedures and as a prerequisite to disbursement of grant or loan funds.

(3) The commission may adopt additional procedures to ensure program compliance.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702880

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 13. TEXAS HISTORIC PRESERVATION TAX CREDIT PROGRAM

13 TAC §13.1, §13.2

The Texas Historical Commission (hereafter referred to as the Commission) proposes amendments to §13.1 and §13.2 (relating to the State Franchise Tax Credits) of Title 13, Part 2, Chapter 13 of the Texas Administrative Code. These changes are needed to address the eligibility of credits earned against the state insurance premium tax and the addition of public institutions of higher education as eligible recipients under certain circumstances.

The first amendment expands the rehabilitation franchise tax credit to include insurance premium tax. This provision implements Senate Bill 550 introduced by Senator Campbell in the 85th Legislative Session and passed into law. The amendment reflects changes to Texas Tax Code, §171.908 with the addition of subsection (e) to allow the credit to be claimed against the state premium tax by an entity that is subject to that tax under Chapters 221, 222, 223, or 224 of the Texas Insurance Code.

The second amendment includes a provision that specifies that an institution of higher education or university system as per §171.901(4) of the Texas Tax Code are not subject to the depreciation and tax-exempt use provisions as defined by §47(c)(2) of the Internal Revenue Code. This provision implements House Bill 1003 introduced by Representative Capriglione in the 85th Legislative session and passed into law. The change applies to eligible costs and expenses incurred on or after the effective date of the act, June 14, 2017 until the amendment expires on January 1, 2022.

A third amendment addresses applications received retroactively for projects placed in service before the effective date of the program.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wolfe has also determined that for each year of the first five year period the rules are in effect the public benefit anticipated as a result of the implementation of these rules will be the certified rehabilitation of certain designated historic buildings on public university campuses. There will be minimal effects on small businesses or micro-businesses, and there are minimal anticipated economic costs to persons who are required to comply with the amendments to these rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendment of these rules is proposed under §442.005(q) the Texas Government Code, which provides the Commission with the authority to promulgate rules for the effective administration of the Commission's programs, and Texas Tax Code §171.909, which authorizes the Commission and the Comptroller to adopt rules necessary to implement the Tax Credit for Certified Rehabilitation of Certified Historic Structures Program.

No other statutes, articles or codes are affected by this proposal.

§13.1.Definitions.

The following words and terms when used in these rules shall have the following meanings unless the context clearly indicates otherwise:

(1) Applicant--The entity that has submitted an application for a building or structure it owns or for which it has a contract to purchase.

(2) Application--A fully completed Texas Historic Preservation Tax Credit Certification Application form submitted to the Commission, which includes three parts:

(A) Part A - Evaluation of Significance, to be used by the Commission to make a determination whether the building is a certified historic structure;

(B) Part B - Description of Rehabilitation, to be used by the Commission to review proposed projects for compliance with the Standards for Rehabilitation; and

(C) Part C - Request for Certification of Completed Work, to be used by the Commission to review completed projects for compliance with the work approved under Part B.

(3) Application fee--The fee charged by the Commission and paid by the applicant for the review of Part B and Part C of the application as follows:

Figure: 13 TAC §13.1(3) (No change.)

(4) Audited cost report--Such documentation as defined by the Comptroller in 34 TAC Chapter 3, Tax Administration.

(5) Building--Any edifice enclosing a space within its walls, and usually covered by a roof, the purpose of which is principally to shelter any form of human activity, such as shelter or housing, or to provide working, office, parking, display, or sales space. The term includes among other examples, banks, office buildings, factories, warehouses, barns, railway or bus stations, and stores and may also be used to refer to a historically and functionally related unit, such as a courthouse and jail or a house and barn. Functional constructions made usually for purposes other than creating human shelter or activity such as bridges, windmills, and towers are not considered buildings under this definition and are not eligible to be certified historic structures.

(6) Certificate of eligibility--A document issued by the Commission to the Owner, following review and approval of a Part C application, that confirms the property to which the eligible costs and expenses relate is a certified historic structure and the rehabilitation qualifies as a certified rehabilitation; and specifies the date the certified historic structure was first placed in service after the rehabilitation.

(7) Certified historic structure--A building or buildings located on a property in Texas that is certified by the Commission as:

(A) listed individually in the National Register of Historic Places;

(B) designated as a Recorded Texas Historic Landmark under §442.006, Texas Government Code, or as a State Antiquities Landmark under Chapter 191, Texas Natural Resources Code; §21.6 and §26.3(63) - (64) of this title; or

(C) certified by the Commission as contributing to the historic significance of:

(i) a historic district listed in the National Register of Historic Places; or

(ii) a certified local district as per 36 CFR §67.9.

(8) Certified local district--A local historic district certified by the United States Department of the Interior in accordance with 36 C.F.R. §67.9.

(9) Certified rehabilitation--The rehabilitation of a certified historic structure that the Commission has certified as meeting the Standards for Rehabilitation. If the project is submitted for the federal rehabilitation tax credit it must be reviewed by the National Park Service prior to a determination that it meets the requirements for a certificated rehabilitation under this rule. In the absence of a determination for the federal rehabilitation tax credit, the Commission shall have the sole responsibility for certifying the project.

(10) Commission--The Texas Historical Commission. For the purpose of notifications or filing of any applications or other correspondence, delivery shall be made via postal mail to: Texas Historic Preservation Tax Credit Program, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711-2276; or by overnight delivery at: Texas Historic Preservation Tax Credit Program, Texas Historical Commission, 1700 North Congress Avenue, Suite B-65, Austin, Texas 78701.

(11) Comptroller--The Texas Comptroller of Public Accounts.

(12) Contributing--A building in a historic district considered to be historically, culturally, or architecturally significant according to the criteria established by state or federal government, including those formally promulgated by the National Park Service and the United States Department of the Interior at 36 C.F.R. Part 60 and applicable National Register bulletins.

(13) Credit--The tax credit for the certified rehabilitation of certified historic structures available pursuant to Chapter 171, Subchapter S of the Texas Tax Code.

(14) District--A geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by plan or physical development. A district may also comprise individual elements separated geographically but linked by association or history.

(15) Eligible costs and expenses--The qualified rehabilitation expenditures as defined by §47(c)(2), Internal Revenue Code, including rehabilitation expenses as set out in 26 C.F.R. §1.48-12(c), incurred during the project. The depreciation and tax-exempt use provisions of §47(c)(2) do not apply to the costs and expenses incurred by an entity exempt from the tax imposed by Section 171.063 of the Tax Code or by authorized investment of public funds governed by Chapter 2256 by an institution of higher education or university system as defined by §61.003, Education Code if the other provisions of Section 47(c)(2) are met.

(16) Federal rehabilitation tax credit--A federal income tax credit for 20% of qualified rehabilitation expenditures with respect to a certified historic structure, as defined in §47, Internal Revenue Code; 26 C.F.R. §1.48-12; and 36 C.F.R. Part 67.

(17) National Park Service--The agency of the U.S. Department of the Interior that is responsible for certifying projects to receive the federal rehabilitation tax credit.

(18) Owner--A person, partnership, company, corporation, whether for profit or not, governmental body, an institution of higher education or university system or other entity holding a legal or equitable interest in a Property or Structure, which can include a full or partial ownership interest. A long-term lessee of a property may be considered an owner if their current lease term is at minimum 27.5 years for residential rental property, or 39 years for nonresidential real property, as referenced by §47(c)(2), Internal Revenue Code.

(19) Phased development--A rehabilitation project which may reasonably be expected to be completed in two or more distinct states of development, as defined by United States Treasury Regulation 26 C.F.R. §1.48-12(b)(2)(v). Each phase of a phased development can independently support an Application for a credit as though it was a stand-alone rehabilitation. If any completed phase of the rehabilitation project does not meet the requirements of a certified rehabilitation, future applications by the same owner for the same certified historic structure will not be considered.

(20) Placed in service--A status obtained upon completion of the rehabilitation project when the building is ready to be reoccupied and any permits and licenses needed to occupy the building have been issued. Evidence of the date a property is placed in service includes a certificate of occupancy issued by the local building official and/or an architect's certificate of substantial completion.

(21) Property--A parcel of real property containing one or more buildings or structures that is the subject of an application for a credit.

(22) Rehabilitation--The process of returning a building or buildings to a state of utility, through repair or alteration, which makes possible an efficient use while retaining those portions and features of the building and its site and environment which are significant.

(23) Rehabilitation plan--Descriptions, drawings, construction plans, and specifications for the proposed rehabilitation of a certified historic structure in sufficient detail to enable the Commission to evaluate compliance with the Standards for Rehabilitation.

(24) Standards for Rehabilitation--The United States Secretary of the Interior's Standards for Rehabilitation as defined in 36 C.F.R. §67.7.

(25) Structure--A building; see also certified historic structure.

(26) Tax credit--A credit earned against either the state franchise tax or the insurance premium tax per Section 171 of the Texas Tax Code and any limitations provided therein.

§13.2.Qualifications Requirements.

(a) Qualification for credit.

(1) An Owner is eligible for a credit for eligible costs and expenses incurred in the certified rehabilitation of a certified historic structure if:

(A) the rehabilitated certified historic structure is placed in service on or after September 1, 2013;

(B) the Owner has an ownership interest in the certified historic structure in the year during which the structure is placed in service after the rehabilitation; and

(C) the total amount of the eligible costs and expenses incurred exceeds $5,000.

(2) A property for which eligible costs and expenses are submitted for the credit must meet Internal Revenue Code §47(c)(2) which includes:

(A) non-residential real property; or

(B) residential rental property.

(b) Eligible costs and expenses. Eligible costs and expenses means those costs and expenses allowed pursuant to Internal Revenue Code §47(c)(2). Such eligible costs and expenses, include, but are not limited to:

(1) expenditures associated with structural components as defined by United States Treasury Regulation §1.48-1(e)(2) including walls, partitions, floors, ceilings, windows and doors, stairs, elevators, escalators, sprinkling systems, fire escapes, components of central air conditioning, heating, plumbing, and electrical systems and other components related to the operation or maintenance of the building;

(2) architectural services;

(3) engineering services;

(4) construction management and labor, materials, and reasonable overhead;

(5) subcontracted services;

(6) development fees;

(7) construction period interest and taxes; and

(8) other items referenced in Internal Revenue Code §47(c)(2).

(c) Ineligible costs and expenses. Eligible costs and expenses as defined in Internal Revenue Code §47(c)(2) do not include the following:

(1) the cost of acquiring any interest in the property;

(2) the personal labor by the applicant;

(3) any cost associated with the enlargement of an existing building;

(4) site work expenditures, including any landscaping, sidewalks, paving, decks, outdoor lighting remote from the building, fencing, retaining walls or similar expenditures; or

(5) any cost associated with the rehabilitation of an outbuilding or ancillary structure unless it is certified by the Commission to contribute to the historical significance of the property.

(d) Eligibility date for costs and expenses.

(1) Applications for rehabilitated historic structures placed in service prior to the program's effective date, January 1, 2015, must be submitted for review by January 1, 2018.

[(1) If the rehabilitated certified historic structure is placed in service on or after September 1, 2013, but before January 1, 2015, the Application may include eligible costs and expenses for the project incurred up to 60 months prior to the date the property is placed in service.]

(2) If the rehabilitated certified historic structure is placed in service on or after January 1, 2015, Part A of the Texas Historic Preservation Tax Credit Certification Application must be submitted prior to the building being placed in service. Projects completed on or after January 1, 2015, but before January 1, 2016, are exempt from this requirement only if their costs and expenses were incurred by an entity exempt from the tax imposed by Section 171.063 of the Tax Code within a 60 month period prior to the building's placed in service date.

(3) While the credit may be claimed for eligible costs and expenses incurred prior to the filing of an application, potential applicants are urged to file Parts A and B of the application at the earliest possible date. This will allow the Commission to review the application and provide guidance to the applicant that will increase the chances that the application will ultimately be approved and the credit received.

(4) For an institution of higher education or university system as defined by Section 61.003, Education Code, the authorized investment of public funds governed by Chapter 2256, Government Code, relates only to those eligible costs and expenses incurred on or after June 14, 2017 until January 1, 2022 in accordance with Section 171.901(4) of the Tax Code.

(e) Phased development. Part B applications for rehabilitation of the same certified historic structure may be submitted by the same owner only if they describe clearly defined phases of work that align with a cost report that separates the eligible costs and expenses by phase. Separate Part B and C applications shall be submitted for review by the Commission prior to issuance of a certificate of eligibility for each phase.

(f) Amount of credit. The total amount of credit available is twenty-five percent (25%) of the aggregate eligible costs and expenses incurred in the certified rehabilitation of the certified historic structure.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702881

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 15. ADMINISTRATION OF FEDERAL PROGRAMS

13 TAC §15.2, §15.6

The Texas Historical Commission (hereafter referred to as the Commission) proposes amendments to §15.2 and §15.6 (relating to Standards for Administration and Rules and Procedures for Certified Local Governments) of Title 13, Part 2, Chapter 15 of the Texas Administrative Code (relating to Administration of Federal Programs). These are minor changes to text for clarification purposes, including updating legal citations due to recodification of the National Historic Preservation Act and other federal preservation laws.

In this issue of the Texas Register, the Commission concurrently proposes amendments to the rules in Chapter 15 pursuant to Texas Government Code §2001.039.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wolfe has also determined that for each year of the first five year period the rules are in effect the public benefit anticipated as a result of the implementation of these rules will be primarily a better understanding of the grant application process. There will be minimal effects on small businesses or micro-businesses, and there are no anticipated economic costs to persons who are required to comply with the amendments to these rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendments are proposed under §442.005(q) of the Texas Government Code, which authorizes the Commission to promulgate rules for the effective administration of Commission programs, and under §442.005(e), which authorizes the Commission to administer the federal National Historic Preservation Act of 1966 and prepare, maintain, and keep up to date a statewide comprehensive historic preservation plan. Further, as the designated State Historic Preservation Officer (SHPO) under Texas Government Code §442.004(k), the Executive Director of the Commission is authorized to implement the requirements for the certification of local governments under the National Historic Preservation Act.

No other statutes, articles or codes are affected by this proposal.

§15.2.Standards for Administration.

(a) For the purpose of administering and complying with the National Historic Preservation Act of 1966, as amended (National Historic Preservation Act of 1966, Pub. L. No. 89-665, 80 Stat. 915 (current version at 54 U.S.C. §300101 (Supp. II 2014))); [(Public Law 96-515, 94 Statute 2987, 16 United States Code 470);] the Tax Reform Act of 1976 (Tax Reform Act of 1976, Pub. L. No. 94-455, 90 Stat. 1520-(current version at 26 U.S.C. § 1 (Supp. II 2014)); [(Public Law 94-455, 90 Statute 1525, 26 United States Code 1);] the Revenue Act of 1978 (Revenue Act of 1978, Pub. L. No. 95-600, 92 Stat. 2763 (current version at 26 U.S.C. §1 (Supp. II 2014))); [1878 (Public Law 95-6700);] the Economic Recovery Tax Act of 1981 (Economic Recovery Tax Act of 1981, Pub. L. No. 97-34, 95 Stat. 172 (current version at 26 U.S.C. §1 (Supp. II 2014))); [(Public Law 97-34, 95 Statute 178, 26 United States Code 1);] the Tax Equity and Fiscal Responsibility Act of 1982 (Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 324 (current version at 26 U.S.C. §1 (Supp. II 2014))); [(Public Law 97-248, 96 Statute 324, 26 United States Code 1);] the Deficit Reduction Act of 1984 (Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494 (current version at 26 U.S.C. § 1 (Supp. II 2014)); [Tax Reform Act of 1984 (Public Law 98-369) and] the Tax Reform Act of 1986 (Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 (current version at 26 U.S.C. §1 (Supp. II 2014)); [(Public Law 99-514);] the Archeological Historical Preservation Act of 1974 (Archeological Historical Preservation Act of 1974, Pub. L. No. 93-291, 88 Stat. 174 (current version at 54 U.S.C. §§312501 - 312508 (Supp. II 2014)); [(Public Law 93-291, 88 Statute 174, 16 United States Code 469);] the Archaeological Resources Protection Act of 1979 (Archeological Resources Protect Act of 1979, Pub. L. No. 96-95, 93 Stat. 721 (current version at 16 U.S.C.A §§470aa - 470mm (West 2017))); [(Public Law 96-95, Statute 721, 16 United States Code 470a);] Executive Order 11593; Executive Order 12072; federal programs, as well as other pertinent federal legislation and directives, the Texas Historical Commission adopts as its own the relevant federal rules and regulations, standards, guidelines: 36 Code of Federal Regulations 60: National Register of Historic Places [historic and cultural properties]; 36 Code of Federal Regulations 800: Protection of historic [and cultural] properties; 36 Code of Federal Regulations 61: Procedures for State, Tribal, and Local Government Historic Preservation Programs [Criteria for comprehensive statewide historic surveys and plans]; 36 Code of Federal Regulations 63: Determinations of eligibility for inclusion in the National Register of Historic Places; 36 Code of Federal Regulations Part 67: Historic Preservation Certifications under the Internal Revenue Code; [36 Code of Federal Regulations 66: Recovery of scientific, prehistoric, historic, and archeological data: methods, standards, and reporting requirements;] 36 Code of Federal Regulations 68: Secretary of the Interior's Standards for the Treatment of Historic Properties [Historic Preservation Projects]; "Archeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines" (48 Federal Register 44716, September 29, 1983): "Recommended Approach for Consultation on Recovery of Significant Information from Archeological Sites" (Advisory Council on Historic Preservation, 1999); ["Consulting about Archeology Under Section 106" (Advisory Council on Historic Preservation, 1990);] 36 Code of Federal Regulations Part 79: Curation of Federally Owned and Administered Archeological Collections; "The Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Program Pursuant to the National Historic Preservation Act [The Section 110 Guidelines] " (64 Federal Register 20496, April 24, 1998 [Advisory Council on Historic Preservation, 1989]); and "Guidance on Section 106 [Preparing] Agreement Documents" (Advisory Council on Historic Preservation, updated 2015 [1989]).

(b) Standards and guidelines formulated and adopted by the Council of Texas Archeologists are adopted by reference for use by the state historic preservation officer insofar as those guidelines do not conflict with federal regulations which apply to the same subjects. The Council of Texas Archeologists guidelines address the following topics:

(1) professional performance standards for fieldwork and analysis;

(2) cultural resource management reports;

(3) curation standards and procedures;

(4) historic cemeteries and unmarked historic graves; and

(5) survey standards and information regarding the availability of the Council of Texas Archeologists guidelines may be obtained from the Council of Texas Archeologists website: counciloftexasarcheologists.org.

§15.6.Rules and Procedures for Certified Local Governments.

(a) Purpose. The Certified Local Government program (hereinafter referred to as the Program) is part of the Historic Preservation Fund (HPF) grants-in-aid program authorized by the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.) (also referred to as the Act), to provide a statutory framework for national historic preservation partnerships among federal, state, tribal, and local governments in the identification, evaluation, designation, and protection of historic and prehistoric properties. The Texas State Historic Preservation Office (Texas SHPO), within the Texas Historical Commission (THC), coordinates the state's preservation responsibilities as set out in the Act. Local participation in this Program is provided to local governments that are certified by the Secretary of the United States Department of the Interior and administered by the National Park Service (NPS) through the Program.

(1) Section 101(c)(1) of the Act directs the Texas State Historic Preservation Officer (SHPO) and the Secretary of the Department of the Interior through the NPS to participate in the partnership and Title 36, Code of the Federal Regulations, Part 61.6 lists requirements that the SHPO and local governments are to meet.

(2) These requirements are also found in the Historic Preservation Fund (HPF) grants manual, as published and amended by the NPS.

(b) City participation. City governments may participate in the Program through compliance with the Texas Local Government Code, Chapter 211, which empowers municipal governments to adopt zoning regulation for the purpose of promoting the public health, safety, morals, or general welfare and protecting and preserving places and areas of historical, cultural, or architectural importance and significance. Section 214.00111 of the Texas Local Government Code also provides additional authority specifically to participating local governments for the purpose of preserving substandard buildings that are historic properties.

(c) County participation. Counties may participate in the Program through compliance with the Texas Local Government Code, Chapter 318, which empowers the Commissioners Court of each county to appoint a County Historical Commission, for the purpose of initiating and conducting programs suggested by the Court and the THC for the preservation of the county's historic cultural resources that are consistent with the statewide preservation plan.

(d) Indian Tribe participation. Indian tribes that effectively meet the definition of a local government in Section 301(3) of the Act may participate in the Program in accordance with Section 101(d)(1)(A) of the Act to establish a program and promulgate regulations to assist Indian tribes in preserving their historic properties.

(e) Eligibility for certification of Local Governments. Any city, county, township, municipality, Indian tribe, or any other general-purpose political subdivision of Texas may apply to become a Certified Local Government (CLG) by submitting a Request for Certification to the Texas SHPO. To be considered eligible, the local government must meet the minimum Program requirements pursuant to Title 36, Code of the Federal Regulations, Part 61, and outlined in the HPF grants manual. The Texas SHPO may expand or prescribe additional state requirements and responsibilities. The following are the minimum federal requirements local governments must satisfy for certification:

(1) Enforces appropriate State or local legislation for the designation and protection of historic properties;

(2) Has established an adequate and qualified historic preservation review commission by State or local legislation;

(3) Maintains a system for the survey and inventory of historic properties;

(4) Provides for adequate public participation in the local historic preservation program, including the process of recommending properties for nomination to the National Register; and

(5) Satisfactorily performs the responsibilities delegated to it under the Act.

(f) Certification process of Certified Local Governments. All eligible local governments must submit a completed Request for Certification and Certification Agreement, signed by the chief elected official of the applying local government, along with all necessary requested materials, to the THC. A Request for Certification may be submitted at any time throughout the year. Texas SHPO shall have a reasonable opportunity to review and respond to the request. If the local government meets the minimum requirements for participation in the Program, the Texas SHPO shall forward the Request for Certification and Certification Agreement to the NPS with a recommendation for certification. The NPS shall make the final certification decision. The local government shall become a CLG upon receipt of written notice from the NPS, completing the certification process.

(g) Annual requirements for Certified Local Governments for participation in Program. All annual requirements for participation and Program procedures are found in the Texas SHPO's Certified Local Government Preservation Handbook (Handbook), which shall be provided to each CLG upon its certification into the Program.

(1) The Texas SHPO shall provide a 60-day period for all CLGs to comment on any proposed significant changes or amendments to the Handbook, keep a record of its consultation process, and follow the procedures outlined in the HPF grant manual.

(2) Written notification from the Texas SHPO to the CLGs is sufficient for minor changes, technical corrections and amendments to the Handbook.

(h) Monitoring and evaluating CLG performance. The Texas SHPO shall monitor the performance of each CLG on an on-going basis to assure that CLGs fulfill their responsibilities in accordance with the requirements found in the Handbook and the terms of the Certification Agreement. In addition the performance of the CLG shall be reviewed by the Texas SHPO on the basis of recognized standards for historic preservation activities. These standards shall include but not be limited to the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation; National Register criteria for evaluation in reviewing the local government's role in the National Register Program; state survey [grant] requirements in assessing the local government's execution of the survey requirement of the CLG regulations; and the Secretary of the Interior's Standards for the Treatment of Historic Properties in considering the local government's role in overseeing work to locally designated landmarks and districts. Evaluation of the performance of the CLG shall include the ability to maintain an adequate and qualified commission as called for in subsection (e)(2) of this section with all commission members having a demonstrated interest, competence, or knowledge in historic preservation.

(1) The Texas SHPO shall conduct a full evaluation of each CLG no less than once every four years. Written procedures and standards for evaluating CLG performance in program operation and administration shall be included in the Certification Agreement and in the Handbook.

(2) The Texas SHPO shall promptly notify the CLG in writing of the results of the evaluation and must maintain written records for all evaluations.

(3) If the performance of a CLG is unsatisfactory, the Texas SHPO shall suggest ways the CLG can improve its performance and stipulate a time frame in which the improvements are to be made.

(i) Decertification. If the Texas SHPO determines that a CLG has not complied with the terms of the Certification Agreement, and/or has not improved sufficiently within a reasonable stipulated time frame as recommended during the monitoring process, the Texas SHPO must notify the CLG in writing of its intent to recommend decertification to the NPS. During the decertification process:

(1) The Texas SHPO may begin procedures for the suspension and termination of financial assistance to that local governmental entity in accordance with the HPF grants manual.

(2) Recertification shall not be permitted until all previously identified inadequacies have been addressed to the satisfaction of the Texas SHPO, and a demonstrated effort has been made by the local government to strengthen local preservation efforts above and beyond previous attempts.

(j) Funds for Certified Local Governments. The Act provides that at least 10 percent of the Texas SHPO's annual HPF allocation be made available in the form of sub grants to CLGs to provide financial assistance for local activities associated with the identification, evaluation, designation, and protection of historic and prehistoric properties. Although each CLG is eligible to receive funds from this allocation, there is no requirement that funds be awarded to all local governments that are eligible. All procedures, terms and conditions for application to receive a sub grant as part of the Program shall be found in the Handbook.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702882

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 16. HISTORIC SITES

13 TAC §§16.2, 16.3, 16.11

The Texas Historical Commission (hereafter referred to as the "Commission") proposes amendments to §§16.2, 16.3, and 16.11 of Title 13, Part 2, Chapter 16 of the Texas Administrative Code concerning historic sites. These amendments are needed as part of the Commission's overall effort to clarify language in order to implement necessary updates, additions and changes to more precisely reflect the procedures of the historic sites division.

In this issue of the Texas Register, the Commission concurrently proposes amendments to the rules in Chapter 16 pursuant to Texas Government Code §2001.039.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rule changes are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wolfe has also determined that for each year of the first five year period these rule changes are in effect the public benefit anticipated as a result of the implementation of these rules will be improvements in the administration of the Commission. There will be minimal effects on small businesses or micro-businesses. There are no anticipated economic costs to persons who are required to comply with the amendments to these rules as proposed.

Comments on the proposal may be submitted to Joseph Bell, Deputy Executive Director of Historic Sites, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendments to these rules are proposed under §442.005(q), of the Texas Government Code which provides the Commission with the authority to promulgate rules and conditions to reasonably effect the purposes of those chapters; §442.0056, relating to the acquisition of historic sites; §442.005(p), providing the Commission with the authority to accept gifts and donations; and §442.105, which allows the Commission to set fees for historic sites.

No other statutes, articles or codes are affected by these amendments.

§16.2Historic Sites Admission and Use

(a) Admission Fees.

(1) An admission fee may be levied at the Commission's historic sites. The fee will grant entry and provide certain privileges for a specific date or part thereof.

(2) Reduced fees may be established for visitors in the following categories:

(A) Children under 6 years old;

(B) Youth 6 through 18 years of age;

(C) School children visiting as part of a school activity (field trip); [and]

(D) Groups of 10 or more who have made advance reservations;[.]

(E) Seniors 65 years or older;

(F) Family groups (adult and children combinations);

(G) Veterans of the US. Armed Forces;

(H) Active military member and family; and

(I) State Historic Sites Annual Pass.

(3) The Commission may enter into agreements with non-profit organizations, in particular friends groups associated with the Commission's historic sites, to admit members of the organization without payment of an admission fee.

(4) An admission fee will be set by the Executive Director and advertised for each historic site, except the National Museum of the Pacific War. The fee will be based on the location, size, facilities and development of each individual historic site.

(5) The fee for admission to the National Museum of the Pacific war will be established by agreement between the Commission and the Admiral Nimitz Foundation.

(6) The Executive Director may at his discretion waive any admission fees or conditions thereof established in this section at any historic site where circumstances adversely affect public enjoyment of the site. The Executive Director may designate other agency personnel to discount or waive admission fees.

(7) The Executive Director may discount or waive entrance or other use fees in order to enhance utilization, promote future visitation of historic sites or facilitate contribution of volunteer services. The Executive Director may designate other agency personnel to discount or waive admission fees.

(8) Upon finding a need for public safety or welfare or preservation of site resources the Executive Director or his/her designee may impose restrictions on public activity and conduct and may limit the use of any area or facility in any historic site or portion thereof. It is an offense for an unauthorized person to enter or remain in an area or participate in any activity so restricted by the Executive Director.

(9) Commission employees and emergency personnel are exempt from this chapter when this chapter conflicts with the discharge of their official duties to the extent of that conflict.

(10) The Executive Director may establish an annual admission fee for certain historic sites. The annual permit will admit its holder unlimited admission to a specific property during the calendar year beginning at the date of purchase.

(11) The historic sites may accept cash, credit cards, or checks for payment of fees depending on the capability of each site.

(12) The Executive Director will establish use fees for historic sites with overnight camping facilities, overnight room rental or additional recreational facilities, including but not limited to RV hook ups, boat launches, and equipment rental.

(13) Hours and days of operation of each historic site will be determined by the Executive Director or his/her designee and advertised in a prominent way for each historic site.

(b) Activity and Facility Use Fees.

(1) Use of the Commission's historic sites by groups for personal or organizational purposes, such as picnics, reunions, receptions, etc. is encouraged as a way to engage a wider audience for the historic sites and increase communities' enjoyment and understanding of the sites and their mission. A reasonable fee may be charged for such use to help offset the Commission's costs and to generate revenue to support a site's primary mission.

(2) Facility use may not conflict with the commission's primary mission to preserve and interpret a historic site including:

(A) The routine operation of a site for public enjoyment;

(B) The ability of visitors to have an enjoyable and educational experience;

(C) The safety of staff, visitors, and users; and

(D) The availability of site staff to coordinate and oversee these events.

(3) The Executive Director or his/her designee will establish guidelines governing circumstances when rentals are appropriate, the times and activities allowed, and special conditions related to preservation and use of a site. This chapter must be consistent with the mission stated in paragraph (2) of this subsection.

(4) The Executive Director may establish reasonable use fees for individual historic site activities or facilities. Fees may be established on an hourly, daily, overnight, weekly, monthly, seasonal or annual basis. The Executive Director or his/her designee may waive or reduce the fees where it is in the best interests of the historic site or program.

(c) Reservations.

(1) Reservations for historic site facilities may be accepted for sites with facilities available for public use. The Executive Director or his/her designee is authorized to prescribe such procedures and conditions for reservations, deposits and partial or full refunds as needed.

(2) A written facility use application must be signed and submitted by the requestor describing the purpose of the event or activity, the facilities requested, the number of people anticipated to participate, all activities that are part of the event, schedule of the activity, and duration of the event including time for set up and take-down.

(3) The Executive Director or his/her designee will establish site specific requirements and guidelines, in addition to the rules stated in this section for participants in facility use activities.

(d) Routine or Low Impact Events.

(1) Routine events including picnics, use of pavilions, shelters or designated areas for social gatherings involving fewer than 50 people and commercial still photography that involves only hand-held equipment, no props and no more than 5 people, including the photographer will be approved by the site manager where the following conditions are met:

(A) No significant staff time is needed to set up or take down the area;

(B) Applicant agrees to leave the premises in the condition it was found, free of trash and debris;

(C) No electrical or other utility hookups are required;

(D) The activity will not interfere with the normal operation of the site or access to the site by visitors during normal open hours; and

(E) No alcohol will be consumed.

(2) A fee will be charged based on a site's approved facility use fee program.

(3) General liability insurance coverage by the applicant with Commission named as an additional insured may be required if deemed necessary by the Site Manager.

(4) The site manager will approve or deny a use application for routine/low impact events.

(e) Major or High Impact Events.

(1) A Facility Use will be considered a major event if it includes any of the following:

(A) Commercial photography involving 6 or more people including the photographer, large props, or any stationary equipment, or motion picture filming for sale or profit;

(B) Events involving more than 50 people;

(C) Use of site staff to set up or take down furniture, tents, equipment, etc.;

(D) Historic Site owned tents, furniture, equipment, or utility connections;

(E) Serving alcohol; or

(F) Interfering with the normal operation of the site or disrupts visitor services.

(2) Sponsors/applicants for use of a Commission historic site for a major event must sign a written agreement with the Commission to be approved by the Executive Director or his/her designee. The sponsor must be provided a copy of the site's Facility Use Rules.

(3) The sponsor must provide general liability insurance coverage in an amount determined by the Executive Director or his/her designee naming the Commission as an additional insured. If alcohol will be served, the sponsor or caterer must provide liquor liability insurance with a minimum limit of $1 million per occurrence. A certificate of insurance coverage must be included in the written agreement for facility use.

(4) Alcohol (wine and beer only) may only be served at a private event. The site manager will determine if and how many security personnel are required for any event at which alcohol is served. Security personnel will be hired and paid by the program/activity sponsor.

(5) Minors may attend events where alcohol is served, only if the minor's parent or guardian is present.

(6) A fee will be collected based on a site's approved facility use fee program. In addition, sponsors will pay the cost of all staff overtime required to properly set up, take down and supervise the event as determined by the Executive Director or his/her designee.

(f) Facility uses including the following activities are permitted at Commission historic sites only with the express permission of the Executive Director or his/her designee:

(1) Events that pose a risk of damage to the site or injury to persons attending the event.

(2) Fundraising events for other non-Commission affiliated non-profit organizations.

(3) Events involving firearms.

(g) The following activities are not permitted as part of a facility use activity at Commission Historic Sites:

(1) Events that are incompatible with or conflict with the public service, preservation and educational mission of the historic site;

(2) Events that may endanger natural or cultural resources of the site through physical impact, over use, or overcrowding;

(3) Events involving live ammunition or pyrotechnic displays;

(4) Political events or activities;

(5) Events involving unsupervised or inadequately supervised minor children;

(6) Events or activities that involve domestic animals without appropriate controls or supervision, or wild animals under any circumstances; or

(7) Commercial activities including selling, recruiting, soliciting or promoting products or services to visitors, in particular, activities that promote cigarette smoking, alcohol consumption, or behavior inappropriate at a State Historic Site.

§16.3Addition of Historic Sites to the Texas Historical Commission Historic Sites Program

(a) Criteria. The addition of new Historic Sites will follow the "Historic Sites Division Property Collection Plan" as posted on the Texas Historical Commission's website at thc.texas.gov detailing themes and subthemes in Texas history, site assessment, operational and managerial evaluations processes and the following criteria: [Consideration for accepting a historic property for development as a Commission historic site will be based on the following criteria:]

(1) The property must have recognized statewide or national significance based on the standards of the National Register of Historic Places.

(2) The property should be able to provide interpretation of a significant theme or event of Texas history that is not fully represented by the Commission's existing historic sites or other historic sites accessible to the public. The Commission will strive to maintain a geographic, cultural and thematic balance in its program.

(3) The property should have exceptional integrity of location (including surrounding environment), design, material, setting, feeling, and association.

(4) The property should have appropriate collections (objects, manuscript material, artifacts) associated with the historic site or necessary artifacts related to the site's history and period of significance should be identified and available.

(5) The property must be appropriate for use as an interpretive museum or historic site, have high potential to attract and accommodate diverse and new audiences, and be accessible to travelers as well as to the local community.

(6) The property must be available without restrictions that would limit the Commission's options for preservation and interpretation as a historic site (for example, a life estate retained by the grantor, restrictions against future sale or conveyance, or limits on alterations deemed appropriate by the Commission). The Commission encourages the use of easements or other restrictions to ensure the preservation of historic sites.

(7) Financial resources must be available or assured, including an endowment fund where appropriate, or sources of funding must be identified in a comprehensive funding plan to ensure the restoration, interpretation, development, long term operation and preservation of the site.

(8) The property must have the potential for strong supporting partnerships including community support.

(b) Evaluation Process. To evaluate the site against these criteria, the Commission will follow a two-step process as follows.

(1) A staff committee will be appointed to conduct a preliminary review of the property with reference to criteria noted in subsection (a) of this section. The committee will make a recommendation to the Commission whether to proceed with the second step evaluation.

(2) Staff will obtain and use the following information:

(A) A description of the property, including land, structures and other features.

(B) A preliminary inventory of collections and equipment.

(C) A statement of significance or reference to its designation on the National Register of Historic Places/National Historic Landmark and an evaluation of the site's integrity.

(D) A statement from the current owner indicating a willingness to transfer the real and relevant personal property and the terms and conditions for such a transfer.

(E) Needed and available funding for development costs and continuing operational costs.

(F) Letters of support from interested parties, including an indication of willingness to create an appropriate support group.

(G) A statement identifying how the property would support the educational mission of the Historic Sites Program to serve a broad and diverse audience.

(H) A preliminary estimate of the visitation and costs for development and operation of the site.

(3) Upon positive action by the Commission on the recommendation noted in paragraph (1) of this subsection, the staff will prepare or have prepared a management plan for the site including:

(A) Evaluation of the site, including buildings, support facilities, infrastructure (including roads, trails, utility service/water and sewer systems), landscape features, and collections.

(B) Merits of the proposed site compared to other sites in Texas that embody the same or similar historical or physical characteristics.

(C) Preservation and facility development needs.

(D) Costs and timeline for making the property available to the public.

(E) Any limitation on site development, such as environmental regulations and local restrictions (zoning, land use).

(F) Needed staffing and consultant services for development of the site.

(G) Needed staffing and services for operation of the site, including ongoing costs of preservation operation, and marketing.

(H) Business plan for the site identifying projected audience/annual visitation, sources of funds for all aspects of the program including available community support, potential to generate revenue, and endowment.

(4) This plan will be reviewed by a panel of experts including an independent Texas historian, museum professional, and expert in heritage tourism and their recommendation will be taken into consideration by the Commission to determine whether the property should be accepted.

(5) The decision to accept a site is within the sole discretion of the Commission, including determining whether acceptance of a property that meets all technical criteria is in the best interest of the State.

(c) A property that is adjacent to an existing THC State Historic Site that will enhance the preservation, protection or interpretation of the existing site, may be acquired by purchase or donation by action of the Commission on recommendation of the Executive Director, without the evaluation process described in subsection (b) of this section.

(d) A right of way or easement required to allow for installation or connection of necessary utilities at a THC State Historic Site between regular meetings of the Commission, may be approved by the Executive Director with the approval of the Chairman. This action will be ratified at the next meeting of the Commission.

§16.11Philanthropic Naming of State Historic Site Facilities

(a) Philanthropic naming refers to the naming of a property or some component of a property for an individual or civic or charitable group in exchange for financial or other consideration.

(b) The term "civic or charitable group" shall mean a nonprofit entity, family or group. For-profit entities shall not be considered civic or charitable groups for purposes of this section.

(c) Only non-historic features at State Historic Sites may be named pursuant to these rules, such as new visitor centers, meeting rooms, theaters, galleries, plazas, and other similar features designed for public use.

(d) Philanthropic naming rights may only be granted as part of a philanthropic naming rights plan developed in support of a particular project at a State Historic Site and approved by the Commission.

(e) Philanthropic naming rights plans shall establish an aggregate campaign goal, taking into consideration capital costs, annual operating and maintenance costs, desirability and marketability, and visibility and prominence of the features to be named.

(f) Subsequent to the approval of a philanthropic naming rights plan by the Commission, the Executive Director and the Deputy Executive Director for Historic Sites, working with the agency's Development Director, shall have the authority to independently review and approve naming proposals consistent with said plan. In reaching this decision, they shall consider whether the gift is from a potentially controversial source, how the donation is to be acknowledged on the site, and any other relevant factors. If, in the opinion of the staff the gift could be controversial, staff may refer the proposed gift to the Commission for final approval.

(g) All assets for which naming rights will be offered shall be valued as a function of the aggregate campaign goal within the philanthropic naming rights plan.

(h) All naming rights shall be approved for a specific term, which shall not be longer than the useful life of the property or facility, as determined by the Commission, unless otherwise established in the naming rights plan approved by the Commission.

(i) The Commission shall have the authority to rescind the naming of any property or component of any property if, in the Commission's opinion, the individual, civic or charitable group is found to have participated in any behavior which would have a negative impact on the site or agency or would discredit the work of the agency in any way.

(j) Guidelines in the recognition and acknowledgement of gifts and donations dedicated to State Historic Sites are detailed in the "Texas Historical Commission Donor Recognition Policy" as posted on the Texas Historical Commission's website at thc.texas.gov. Design guidelines for State Historic Sites donor recognition are detailed and incorporated into the "Texas Historical Commission Donor Recognition Policy" to include general guidelines, specific design guidelines, recognition of campaign/endowment donors at historic sites facilities and recognition of annual operating gifts at historic sites facilities.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702885

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 17. STATE ARCHITECTURAL PROGRAMS

13 TAC §17.1

The Texas Historical Commission (hereafter referred to as the Commission) proposes amendments to §17.1 (relating to Texas Preservation Trust Fund) of Title 13, Part 2, Chapter 17 of the Texas Administrative Code (relating to State Architectural Programs). These changes are needed to clarify the two-step application process, update the name of the State Antiquities Landmark designation, and make minor changes to text for clarification purposes.

In this issue of the Texas Register, the Commission concurrently proposes amendments to the rules in Chapter 17 pursuant to Texas Government Code §2001.039.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wolfe has also determined that for each year of the first five year period the rules are in effect the public benefit anticipated as a result of the implementation of these rules will be primarily a better understanding of the grant application process. There will be minimal effects on small businesses or micro-businesses, and there are minimal anticipated economic costs to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendments are proposed under §442.005(q) and §442.015(f) of the Texas Government Code, which provides the Commission with the authority to promulgate rules and conditions to reasonably effect the purposes of this chapter and provides the Commission with the authority to administer the Texas Preservation Trust Fund Account.

No other statutes, articles or codes are affected by these new rules.

§17.1.Texas Preservation Trust Fund.

(a) Definition. The Texas preservation trust fund (hereinafter referred to as trust fund or fund) is a fund in the state treasury, created by enactment of Senate Bill 294 by the 71st Texas Legislature (1989), which amended the Texas Government Code, Chapter 442, by adding §442.015. The trust fund shall consist of transfers made to the fund, including state and federal legislative appropriations, grants, donations, proceeds of sales, loan repayments, interest income earned by the fund, and any other monies received. Funds may be received from federal, state, or local government sources, organizations, charitable trusts and foundations, private individuals, business or corporate entities, estates, or any other source.

(b) Purpose. The purpose of the Texas preservation trust fund is to serve as a source of funding for the Texas Historical Commission (Commission) to provide financial assistance to qualified applicants for the acquisition, survey, restoration, preservation, or for planning and educational activities leading to the preservation, of historic properties and associated collections in the State of Texas.

(c) Types of assistance. Commission shall provide financial assistance in the form of grants or loans. Grant recipients shall be required to follow the terms and conditions of the Preservation Trust Fund Grants and other terms and conditions imposed by Commission at the time of the grant award. Loans shall have a term not to exceed five years at an interest rate at the prime interest rate at the time the loan is made.

(d) Allowable use of trust fund monies. In all cases when no specification is made or the specified amount is less than $5,000 the proceeds and/or interest on such gifts or monies shall be unencumbered and shall accrue to the benefit of the entire fund. Money deposited to the fund for specific projects shall only be used for the projects specified, provided that the specific project has received approval of the Commission, there is or will be a dedicated account within the Trust Fund for that project, and all other requirements herein are met. Money deposited to specified projects in amounts of $5,000 or greater shall retain all proceeds or interest earned for that specified project unless the donor stipulates that all proceeds or interest earned shall be unencumbered and accrue to the benefit of the entire fund.

(e) Organization. The Texas preservation trust fund shall be administered by the Commission through its Executive Committee. The trust fund advisory board and commission staff shall provide support and input as needed.

(f) All actions of the Executive Committee are subject to ratification by the full Texas Historical Commission with the exception of emergency grants. Duties of the Executive Committee are:

(1) to approve all policies and guidelines for the administration of the fund or any of its associated boards and committees;

(2) to approve the acceptance of grants or other donations of money, property, and/or services from any source. Money received shall be deposited to the credit of the Texas preservation trust fund; and

(3) to provide final approval of all trust fund allocations based on advisory board and commission staff recommendations.

(g) Texas Preservation Trust Fund Advisory Board (hereinafter referred to as advisory board) as established per Texas Government Code §442.015, which created the Texas preservation trust fund. Members of the advisory board shall serve a two-year term expiring on February 1 of each odd-numbered year. Advisory board members may be reappointed. Advisory board members will continue to serve until a new appointment is made or until reappointed. A member of the advisory board is not entitled to compensation for his service, but is entitled to reimbursement for reasonable expenses incurred while attending advisory board meetings subject to any limit provided by the General Appropriations Act. The advisory board shall meet annually in the fall of each year or at other times as determined by the commission or Executive Director. Duties of the advisory board are:

(1) to make recommendations to the Commission through the Executive Committee on all trust fund project allocations with the exception of emergency grants, as per the trust fund statute;

(2) to consult with and advise the Executive Committee and Commission staff on matters relating to more efficient utilization or enhancement of the trust fund in order to further the cause of historic preservation throughout Texas; and

(3) to provide advice and guidance in their respective area of expertise.

(4) Code of conduct--The Commission Code of Conduct shall apply to members of the advisory board.

(5) Vacancies--Any vacancy on the advisory board may be filled at any time in the same manner as the incumbent member was appointed.

(h) Texas preservation trust fund staff. The executive director of the Texas Historical Commission shall organize and supervise the staff for the Texas preservation trust fund.

(i) Eligible property or projects. To be considered eligible for grant assistance, a property or project must:

(1) be included in the National Register of Historic Places; or

(2) be designated as a Recorded Texas Historic Landmark; or

(3) be designated as a State Archeological Landmark (also known as a State Antiquities landmark); or

(4) be determined by the commission to qualify as an eligible property under criteria for inclusion in the National Register of Historic Places or for designation as a Recorded Texas Historic Landmark or a State Archeological Landmark (also known as a State Antiquities landmark); or

(5) be determined by the commission to qualify as a heritage [an] education grant per subsection (n)(4) [(m)(4)] of this section; or

(6) be determined by the commission to qualify as an eligible curation management project per subsection (n)(5) [(m)(5)] of this section; or

(7) be determined by the commission to qualify as an emergency grant project per subsection (n)(6) [(m)(6)] of this section; or

(8) be determined by the commission to qualify as a planning grant project per subsection (n)(3) [(m)(3)] of this section.

(j) Eligible Applicants: Any public or private entity that is the owner, manager, lessee, maintainer, potential purchaser of an eligible property, or any public or private entity whose purpose includes historic preservation is eligible for fund assistance. If applicant is not the owner of the eligible property, written approval must be submitted by the owner at time of application agreeing to follow all rules and conditions of the commission required for receipt of funds.

(k) Submission of initial grant [Grant] applications.

(1) Initial grant application [Application ] schedules and deadlines will be set by the commission. Application forms are to be received by the commission at its offices by these deadlines.

(2) Applicants [To remain eligible for potential funding, applicants] must complete the initial grant application form and include all required documentation [attachments] as stated in the grant application instruction packet [booklet].

(3) Initial grant [Grant] applications that are incomplete and/or received after the application deadline are ineligible for review [funding].

[(4) Grant applications with budgets showing a high percentage of administrative costs will be considered to be less competitive than applications having little or no administrative costs.]

(l) Submission of project proposals.

(1) Once initial grant applications are selected to proceed to the project proposal stage, commission staff will confer with applicants to review the instruction manual for preparation of the project proposal.

(2) Project proposal schedule and deadlines will be set by the commission. Project proposals are to be received by the commission at its offices by these deadlines.

(3) To remain eligible for potential funding, project proposals must have a complete application form and include all required attachments as stated in the instructions manual.

(4) Project proposals that are incomplete and/or received after the proposal deadline are ineligible for funding.

(5) Project proposals with budgets showing a high percentage of administrative costs will be considered to be less competitive than applications having little or no administrative costs.

(6) In kind match request: although not normally allowed, in exceptional cases an applicant may make a written request for up to one-half of the total required match to be provided in-kind by donated materials and labor. The in-kind match form must be included with the project proposal for consideration by the commission.

(m) [(l)] Grant awards.

(1) Grants are awarded on a competitive basis to eligible properties or projects judged by the Commission to provide the best use of limited grant funds or on an emergency basis for properties or collections deemed highly significant and/or endangered by the Commission. The Executive Director, with the approval of the Executive Committee or Commission, will have the authority to award grants on an emergency basis in accordance with subsection (n)(6) [(m)(6)] of this section.

(2) Meeting the eligibility criteria and submissions of a grant application does not guarantee award of a grant in any amount.

(3) The commission may consider an appropriate distribution of funds across geographic area, discipline, or type of preservation grant when making awards.

(n) [(m)] Types of preservation grants. Preservation grants shall be awarded only for:

(1) architectural or archeological development ("preservation," "restoration," "rehabilitation," and "reconstruction," as defined by the Secretary of the Interior's Standards for The Treatment of Historic Properties, latest edition or Secretary of the Interior's Standards for Preservation Planning and Standards for Archeological Documentation, latest edition); the costs include professional fees to [prepare an acceptable project proposal and] supervise actual construction, the costs of construction, and related expenses approved by the commission; or

(2) architectural or archeological acquisition of absolute ownership of an eligible property (that is what is defined in subsection (i) of this section) and related costs and professional fees approved by the commission; or

(3) planning costs necessary for the preparation of a historic structure reports, historic or cultural resource reports, preservation plans, maintenance studies, resource surveys, local and regional preservation plans or surveys, and/or feasibility studies as approved by the commission; or

(4) heritage education costs necessary for training individuals and organizations about historic resources and historic preservation techniques; or

(5) curation management cost necessary for a professional inventory and/or rehabilitation of state associated held-in-trust archeological collections (such as processing, cataloging and collections housing improvements). Held-in-trust collections refer to those State associated collections under the authority of the Texas Historical Commission that are placed in a curatorial facility for the care and management; or

(6) emergency costs necessary for the acquisition, evaluation, planning or repair of eligible property or projects as defined in subsection (i) of this section, to reduce or eliminate an immediate threat, resulting from a natural or man-made disaster. In consideration of the emergency nature, the commission may develop and adopt policy and procedures to implement this type of preservation grant with requirements separate from those in this rule.

(o) [(n)] Eligible match for grant assistance. Applicants eligible to receive grant assistance shall provide a minimum of one dollar in cash match to each state dollar for approved project costs. The commission or the Executive Director upon designation by the Commission, by written policy, may approve in-kind match for projects involving highly significant and endangered properties. In exceptional circumstances and upon recommendation by the Executive Director of the Commission, the Commission may also waive the one to one cash match requirement completely, and/or approve any combination of matching cash or in-kind contribution percentages that the Commission deems appropriate.

(p) [(o)] Initial grant allocations. Grants shall be allocated by vote of the Commission at large upon the recommendation of the Executive Committee at any duly noticed meeting of the commission. Reallocation of returned funds may be made by the Executive Committee of the commission upon the recommendation of the Executive Director of the commission.

(q) [(p)] Starting project work. [Final grant approval].

(1) The funding agreement must be executed prior to starting any project work.

(2) The project start date is typically the date of the executed funding agreement.

(3) Commencement of project work. Project work as approved shall commence within 90 days of the assigned start date unless otherwise approved in writing by the commission. Approved project work may not begin before the assigned project start date.

(4) If any expenses enumerated in the project proposal detailed budget do not qualify for grant funds, these expenses with be identified by the commission and should be either omitted from the scope of work or separated into a bid alternate for exclusion from the grant funded work.

(5) Any changes in the scope of work or significant changes (greater than 10 percent) in the detailed budget must receive the written approval of the commission prior to implementation.

[(1) Submission of project proposal, scope of work, or research design.]

[(A) For architectural projects to remain eligible for the grant allocation, an acceptable project proposal, consistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties, latest edition, and consisting of plans/specifications, appraisal, unexecuted contract documents, and/or other material as required shall be submitted to the commission for review and approval. An acceptable project proposal must be submitted within three months of the allocation by the Commission unless otherwise approved in writing by the commission.]

[(B) For archeological projects to remain eligible for the grant allocation, modifications to the scope of work and research design as required by the commission shall be submitted to the commission for review and approval.]

[(C) For educational projects to remain eligible for the grant allocation, an acceptable project proposal must be submitted within three months of the allocation by the Commission unless otherwise approved in writing by the commission.]

[(D) For planning projects to remain eligible for the grant allocation, an acceptable project proposal must be submitted within three months of the allocation by the Commission unless otherwise approved in writing by the commission.]

[(2) Review and approval of project proposal, scope of work, or research design. Upon completion of the review, approved projects will be notified of the assigned project start date, as well as the project expenses eligible for grant funding (allowable expenses) and those expenses not eligible (unallowable expenses).]

[(3) Commencement of project work. Project work as approved shall commence within 90 days of the assigned start date unless otherwise approved in writing by the commission. Approved project work may not begin before the assigned project start date, except for planning work required by the project proposal.]

(6) [(4)] Forfeiture of grant allocation. Failure to comply with the deadline for submission of an acceptable project proposal, or to meet the deadline for starting the project work, or to perform any part of the project work as approved, or to receive permission from the commission before commencing additional work may result in forfeiture of the full grant amount.

(r) [(q)] Award of contract.

(1) Architectural development grant projects. Despite no specific procurement requirements, state, local, or other public entities are responsible for following appropriate procurement methods as required by the Texas Government Code or Local Government Code as applicable for the respective property owned. This may also apply to a non-profit organization that is funding construction on a publicly owned property [All project work as approved in the project proposal shall be awarded subsequent to formal advertising for bids or other method approved in writing by the commission.].

(2) Architectural planning grant projects. The commission recommends that contract [Contract] for work described in the [approved] project proposal [shall] be awarded subsequent to interview with at least three professional firms[, or other method approved in writing by the commission].

(s) [(r)] Grant reimbursement procedures.

[(1) Reimbursement of allowable project expenses. The only expenditures made before a start date that are reimbursable are for planning work required by the project proposal after the initial grant allocation notification.]

(1) [(2)] All payment of grant funds shall be strictly on a reimbursement basis with the exception of emergency grants in accordance with subsection (n)(5) of this section for which the Executive Committee or Commission may determine other payment methods. Reimbursement may be made after the competitive award of contract and submission of proof of all incurred allowable expenses in increments of at least $2,500 or at least 10% of the total project cost, whichever is lesser; or according to a schedule as determined by the Executive Director of the Commission; or at the completion of the project after an acceptable required completion report and/or planning documents have been received by the commission.

(2) [(3)] Deadline for submission of requests for reimbursement. Allowable project expenses equal to two times the grant amount shall be incurred by the deadlines announced by the commission. Proof of those incurred expenses and corresponding payments shall be submitted to the commission by the deadlines announced by the commission.

(3) [4] Forfeiture of grant. Failure to expend the full grant amount by the deadlines as announced by the commission or to submit to the commission all required material by the deadline as announced by the commission may result in forfeiture of the remaining grant amount unless otherwise approved in writing by the commission.

(t) [(s)] Deed restrictions/designations/conservation easements. Acquisition and development projects shall be encumbered, prior to reimbursement of any project expenses, with a protective designation, deed restriction, conservation easement (as defined in Title 8, Natural Resources Code, Chapter 183), or other appropriate covenants in favor of the state in a format acceptable to the commission. The deed restriction shall run with the land, be enforceable by the State of Texas, and its duration will be based upon the cumulative amount of grant assistance. The terms of the deed restrictions/designations/conservation easements shall be set by the commission.

(u) [(t)] Repayment penalty for resale of property within one year of acquisition. If a property acquired with a preservation grant is sold within one year of the purchase date, the project owner may be required to repay the State of Texas the amount of the grant allocation.

(v) [(u)] Completion reports. Projects assisted with acquisition or development grants will be required to submit a project completion report with copies as determined by the commission, consisting of photo documentation and project summary prepared by the supervising project professional, to the commission no later than deadlines announced by the commission. The commission may require completion reports with appropriate documentation for planning, heritage education, curation, or emergency grants. Final reimbursement, in the amount of 10% of the grant allocation, may be retained until receipt of an acceptable completion report by the commission.

(w) [v] Professional standards.

(1) Project personnel for development, curation, and planning grants. Project proposal documents for development and planning grants shall be prepared by, and development work supervised by, appropriate personnel in compliance with the following criteria except as otherwise approved by the Executive Director:

(A) History. The minimum professional qualifications in history are a graduate degree in history or closely related field; or a bachelor's degree in history or closely related field plus one of the following:

(i) at least two years of full-time experience in research, writing, teaching, interpretation, or other demonstrable professional activity with an academic institution, historical organization or agency, museum, or other professional institution; or

(ii) substantial contribution through research and publication to the body of scholarly knowledge in the field of history.

(B) Archeology. The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology, or closely related field plus:

(i) at least one year of full-time professional experience or equivalent specialized training in archeological research, administration, or management of archeological collections;

(ii) at least four months of supervised field and analytic experience in general North American archeology; and

(iii) demonstrated ability to carry research to completion.

(iv) In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the prehistoric period. A professional in historic archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the historic period.

(C) Architectural history. The minimum professional qualifications in architectural history are a graduate degree in architectural history, art history, historic preservation, or closely related field plus one of the following:

(i) at least two years of full-time experience in research, writing, or teaching in American architectural history or restoration architecture with an academic institution, historical organization or agency, museum, or other professional institution; or

(ii) substantial contribution through research and publication to the body of scholarly knowledge in the field of American architectural history.

(D) Architecture. The minimum professional qualifications in architecture are a professional degree in architecture plus at least two years of full-time professional experience in architecture; or a state license to practice architecture.

(2) Project personnel for acquisition grants. The single appraisal required for acquisition grants shall be prepared by a professional appraiser.

(3) Project personnel for education and emergency projects shall be approved by the Executive Director.

(x) [(w)] Performance standards. All development and planning projects must be in conformance with the Secretary of the Interior's Standards for the Treatment of Historic Properties, latest edition. All archeological projects must be in conformance with the Secretary of the Interior's Standards for Preservation Planning and Standards for Archeological Documentation, latest edition.

(y) [(x)] Compliance with requirements for accessibility to facilities by persons with disabilities. All projects must be in compliance with or in receipt of appropriate variance from the regulations issued by the Texas Department of Licensing and Regulation, under Texas Government Code Chapter 469, Elimination of Architectural Barriers.

(z) [(y)] Compliance with Uniform Grant and Contract Management Act. All projects by political subdivisions of the state must be in compliance with the Uniform Grant and Contract Management Act, Texas Government Code Chapter 783.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702883

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 21. HISTORY PROGRAMS

SUBCHAPTER B. OFFICIAL TEXAS HISTORICAL MARKER PROGRAM

13 TAC §21.7, §21.9

The Texas Historical Commission (Commission) proposes amendments to §21.7, concerning application requirements for Official Texas Historical Markers, and to §21.9, concerning the application evaluation procedures for Official Texas Historical Markers. These amendments clarify vague and inaccurate language in the Texas Administrative Code.

The proposed amendment to §21.7 removes inaccurate language regarding the Commission website address and the type of application file accepted and provides clarification on the year-long acceptance of Historic Texas Cemetery name and date plaque applications and the owner consent requirement for Recorded Texas Historic Landmarks as related to the Official Texas Historical Marker application requirements.

The proposed amendment to §21.9 revises the Commission website address and includes details that clarify Official Texas Historical Marker application evaluation procedures.

Mark Wolfe, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

Mr. Wolfe has also determined that for the first five-year period the amended rules are in effect, the public benefit will be the preservation of and education about state historic resources.

Mr. Wolfe has also determined that there will be no impact on small or micro-businesses as a result of implementing these rules and there are no anticipated economic costs to persons who are required to comply with the amendments to these rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

These amendments are proposed under the authority of Texas Government Code §442.005(b), which designates the Commission as the agency responsible for the administration of the Antiquities Code of Texas; Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission; Texas Government Code §442.006(h), which requires the Commission to adopt rules for the historical marker program; Texas Government Code §442.0051, which allows the Commission, by rule, to establish reasonable fees for commission purposes; Texas Natural Resources Code §191.092, which requires the Commission to adopt rules to establish the criteria for designation for publicly-owned landmarks; and Texas Natural Resources Code § 191.096, which requires any site on private land which is designated a landmark to be marked as a landmark.

No other statutes, articles, or codes are affected by these amendments.

§21.7.Application requirements.

(a) Any individual, group or county historical commission may apply to the commission for an Official Texas Historical Marker. The application shall include:

(1) a completed current Official Texas Historical Marker application form;

(2) supporting documentation as provided in program guidelines, criteria and procedures adopted by the commission;

(3) an application fee in the amount of $100.

(b) Historic Texas Cemetery markers. A marker may be awarded to a cemetery only if the commission has designated the cemetery as an Historic Texas Cemetery. See §22.6 of this title for information concerning Historic Texas Cemetery designation. Historic Texas Cemetery name and date plaque applications are accepted year-round. The marker must be located either at or immediately adjacent to the designated cemetery.

(c) The following procedures shall be observed for the marker application process. Potential sponsors should check the commission web site at www.thc.texas.gov [www.thc.state.tx.us ] for current information on the Official Texas Historical Marker Program.

(1) The sponsor must contact the county historical commission (CHC) to obtain a marker application form, to review basic program requirements and to discuss the county's review process and procedures, which differ from county to county. The commission does not mandate a specific review process at the county level, so the sponsor will need to work closely with the CHC to be sure all local concerns and procedures are addressed properly. The CHCs cannot send the application forward until they can certify that the history and the application have been adequately reviewed. Applications for Recorded Texas Historic Landmarks (RTHL) for sites located on private land must include written owner consent of the landowner.

(2) CHC reviews the marker application for accuracy and significance, and either approves the application or works with the sponsor to develop additional information as necessary.

(3) CHC-approved applications are forwarded [online as a Word document] to the History Programs Division of the commission. Once the application is received by the commission, additional notifications and correspondence will be between the CHC contact and the commission staff contact only, unless otherwise noted.

(4) Commission staff makes a preliminary assessment to determine if the topic is eligible for review and if all required elements are included. The commission will notify the applicant through the CHC whether the application is accepted.

(5) Upon notification the application has been accepted for review, a $100 application fee is due within ten days.

(6) Eligible applications receive further review, and additional information may be requested via email. Failure to provide all requested materials as instructed [within 45 days, unless a longer period is approved by the commission,] will result in cancellation of the application.

(7) Commission staff and commissioners review applications and determine:

(A) eligibility for approval;

(B) size and type of marker for each topic; and

(C) priorities for work schedule on the approved applications.

(8) CHC and sponsor will be notified via email of approval and provided a payment form for the casting of the marker.

(9) The payment must be received in commission offices within 45 days or the application will be cancelled.

(10) Commission staff will write the marker inscription. One review copy will be provided via email to the CHC contact only for local distribution as needed. Inscription review is for accuracy of content only; the commission determines the content, wording, punctuation, phrasing, etc.

(A) Upon approval of the inscription, the CHC contact provides additional copies as necessary for committee, commission, or sponsor review and conveys a single response to the commission.

(B) Upon receipt of emailed approval by the CHC, the commission proceeds with the order.

(C) If changes recommended by the CHC are approved by the commission, staff will send a revised copy for content review. Because inscription reviews are for content only, only two reviews should be necessary to complete this step of the process. Additional requests for revisions are subject to approval by the commission, which will be the sole determiner of warranted requests for changes. Excessive requests for change, or delays in response, may, in the determination of the commission, result in cancellation of the order.

(D) Only the authorized CHC contact - chair or marker chair - can make the final approval of inscriptions at the county level. Final approval will be construed by the commission to mean concurrence by any interested parties, including the sponsor.

(11) After final approval, the order is sent to marker supplier for manufacturing. Subject to the terms of the commission vendor contract, only authorized commission staff may contact the manufacturer relative to any aspect of Official Texas Historical Markers, including those in process or previously approved.

(12) Commission staff reviews galley proofs of markers. With commission approval, manufacturing process proceeds. Manufacturer inspects, crates and ships completed markers and notifies commission, which in turn notifies CHC contact.

(13) With shipment notice, planning can begin on marker dedication ceremony, as needed, in conjunction with CHC, sponsors and other interested parties.

(14) Information on planning and conducting marker ceremonies is provided by the commission through its web site.

(15) Once the planning is complete, the CHC posts the information to the commission web site calendar.

(16) Commission staff enters marker information into the Texas Historic Sites Atlas at website atlas.thc.texas.gov [atlas.thc.state.tx.us], an online inventory of marker information and inscriptions.

(d) Application content.

(1) Each marker application must address the criteria specified in §21.9 of this chapter in sufficient detail to allow the commission to judge the merit of the application.

(2) Documentation. Each marker application must contain sufficient documentation to verify the assertions about the above criteria. If the claims in the application cannot be verified through documentation, the application will be rejected.

(e) Limitation of markers awarded.

(1) The commission will set a numerical limit on the number of markers that will be approved annually.

(2) No markers in excess of the limit may be approved except by vote of the commission to amend the limit.

§21.9.Application evaluation procedures.

(a) The commission adopts the following criteria governing evaluation for approval or rejection of applications for Official Texas Historical Markers, Recorded Texas Historic Landmarks (RTHLs), or Historic Texas Cemetery designations.

(1) Age: Structures eligible for the RTHL designation and marker must be at least 50 years old. Older structures may be awarded additional weight in evaluation and scoring.

(2) Historical significance/Architectural Significance: The RTHL designation is awarded to properties which demonstrate architectural and historical significance and architectural and historical integrity. Architectural significance alone is not enough to qualify a structure for the RTHL designation. It must have an equally significant historical association, and that association can come from an event that occurred at the site; through individuals who owned or lived on the property; or, in the case of bridges, industrial plants, schoolhouses and other non-residential properties, through documented significance to the larger community. Structures deemed architecturally significant are outstanding examples of architectural history through design, materials, structural type or construction methods. In all cases, eligible architectural properties must display integrity; that is, the structure should be in a good state of repair, maintain its appearance from its period of significance and be considered an exemplary model of preservation. Architectural significance is often best determined by the relevance of the property to broader contexts, including geography. Any changes over the years should be compatible with original design and reflect compliance with accepted preservation practices, e.g., the Secretary of the Interior's Standards for Rehabilitation.

(3) State of repair/Integrity: Structures not considered by the commission to be in a good state of repair are not eligible for RTHL designation. The commission reserves the sole right to make that determination relative to eligibility for RTHL markers. Subject marker topics placed at the appropriate site help maintain site integrity. Topics properly documented and understood by the public also help maintain a high degree of integrity. [Subject marker topics placed at the appropriate site (site integrity) or topics that are documented and understood by the public maintain a high degree of integrity.]

(4) Diversity of topic for addressing gaps in historical marker program. This criterion addresses the extent to which topic relates to an aspect or area of Texas history that has not been well represented by the marker program.

(5) Value of topic as an undertold or untold aspect of Texas history. This criterion addresses the extent to which topic addresses undertold facets of Texas history and increases the diversity of history and cultures interpreted through the marker program.

(6) Endangerment level of property, site or topic. This criterion addresses the extent to which the property (RTHLs), site or story is in danger of being lost if its history and significance are not documented [addressed] through the marker program.

(7) Available documentation and resources. This criterion addresses the quality and balance of the research and documentation for the application.

(8) Diversity among this group of candidates. This criterion addresses the extent to which this topic represents an undertold story of Texas history among the applications received during that year's marker cycle.

(9) Relevance to other commission programs. This criterion addresses the extent to which the topic coordinates with other significant programs and initiatives of the agency.

(10) Relevance to the commission's current thematic priorities. This criterion addresses the extent to which the topic coordinates with the thematic priorities set by the commission each year (varies by year).

(b) Applications and topics with exceptional significance directly address established statewide themes, promote undertold stories of Texas history and have exceptional ability to educate the public on aspects of Texas history not fully addressed by the marker program. Applications and topics with high significance address statewide themes, promote undertold stories of Texas history and have some ability to educate the public on aspects of Texas history not fully addressed by the marker program. Applications and topics that meet requirements have been found to fulfill the basic application requirements and guidelines, relate to statewide themes but do not necessarily directly address topics that have not been widely addressed by the marker program. Applications and topics deemed not eligible do not relate to statewide themes and/or do not meet the basic program application requirements and guidelines. All markers must relate to the statewide themes established by the commission. These themes are available on the commission's web site at www.thc.texas.gov. [www.thc.state.tx.us. ] From time to time the commission may establish thematic priorities for the marker program. Additional points will be awarded to projects falling within these priorities.

(c) The scoring system for ranking applications is as follows:

(1) Age - 5 pts. max;

(2) Historical Significance/Architectural Significance - 10 pts. max;

(3) State of Repair/Integrity - 10 pts. max;

(4) Diversity of topic for addressing gaps in historical marker program - 10 pts. max;

(5) Value of topic as an undertold or untold aspect of Texas history - 15 pts. max;

(6) Endangerment level of property, site or topic - 10 pts. max;

(7) Available documentation and resources - 10 pts. max;

(8) Diversity among this group of candidates - 10 pts. max;

(9) Relevance to other commission programs - 5 pts. max; and

(10) Relevance to the commission's current thematic priorities - 15 pts. max.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702884

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 22. CEMETERIES

13 TAC §§22.1 - 22.5

The Texas Historical Commission (Commission) proposes amendments to §§22.1 - 22.5, concerning cemeteries. These amendments clarify the Commission’s role in evaluating unverified cemeteries.

The proposed amendment to §22.1 adds definitions for "burials" and "burial pits," "cemetery," "historic cemetery," "human remains," "interment," "nonperpetual care cemetery," "perpetual care" and "endowment care," "perpetual care cemetery" and "endowment care cemetery," "unidentified grave," "unverified cemetery," and "verified cemetery." It revises the definition of "cemetery" and eliminates the definitions of "state registrar" and "unmarked grave."

The proposed amendment to §22.2 includes "unverified" cemeteries as under the Commission’s authority.

The proposed amendment to §22.3 includes "unverified" graves along with marked and unmarked graves among the items that will help the Commission determine whether to request the Attorney General of Texas to intervene on the Commission’s behalf in legal action in regards to abating a cemetery as a nuisance.

The proposed amendment to §22.4 includes "unverified" cemeteries along with discussion of unknown and abandoned cemeteries. It provides procedure in discovery of unverified cemeteries and clarifies procedure for discovery of unknown or abandoned cemeteries.

Section 711.10 of the Health and Safety Code includes wording regarding the removal of remains from an abandoned or unknown cemetery. The proposed amendment to §22.5 includes new wording to reflect those changes to the Health and Safety Code, and also removes language that does not apply to abandoned, unknown, or unverified cemeteries.

In this issue of the Texas Register, the Commission concurrently proposes amendments to the rules in Chapter 22 pursuant to Texas Government Code §2001.039.

Mark Wolfe, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

Mr. Wolfe has also determined that for the first five-year period the amended rules are in effect, the public benefit will be the preservation of and education about state historic resources.

Mr. Wolfe has also determined that there will be minimal impact on small or micro-businesses as a result of implementing these rules and there are minimal anticipated economic costs to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendments are proposed under §442.005(q) of the Texas Government Code which provides the Texas Historical Commission with the authority to promulgate rules to reasonably effect the purposes of the commission, §442.017 of the Texas Government Code relating to the commission’s authority to adopt rules related to abandoned cemeteries, and §711.012 of the Texas Health and Safety Code which provides the commission with the authority to adopt rules to enforce and administer §711.010 and §711.011 of the Texas Health and Safety Code.

No other statutes, articles, or codes are affected by these amendments.

§22.1Definitions.

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

(1) "Abandoned cemetery" means a non-perpetual care cemetery containing one or more graves and possessing cemetery elements for which no cemetery organization exists and which is not otherwise maintained by any caretakers. It may or may not be recorded in deed records of the county in which it lies.

(2) "Antiquities Permit" means a permit issued by the Texas Historical Commission under the jurisdiction of the Antiquities Code of Texas, Natural Resources Code ch. 191.

(3) "Atlas" means the Texas Historic Sites Atlas which is a cultural resource database that is maintained by the Commission and contains historic properties.

(4) "Burials" and "Burial pits" mean marked and unmarked locales set aside for a human burial or burials purposes. Burials and burial pits may contain the remains of one or more individuals located in a common grave in a locale. The site area encompasses the human remains present and also may contain gravestones, markers, containers, coverings, garments, vessels, tools, and other grave objects which may be present. or could be evidenced by the presence of depressions, pit feature stains, or other archeological evidence.

(5) "Cemetery" means a place that is used or intended to be used for interment, and includes a graveyard, burial park, unknown cemetery, abandoned cemetery, mausoleum, or any other area containing one or more graves or unidentified graves.

(6) [(4)] "Commission" means the Texas Historical Commission.

(7) [(5)] "Declaration of Dedication" means a notarized statement submitted to the appropriate county clerk's office, in which the state verifies and acknowledges that the named cemetery contains human burials at least 50 years old.

(8) [(6)] "Department" means the Texas Department of State Health Services.

(9) [(7)] "Disinterment Permit" means a permit issued by the State Registrar that authorizes the exhumation of human remains from a grave location.

(10) [(8)] "Family cemetery" means a cemetery containing members of a single family or kinship group, usually located on land belonging to the family or occupied by the family when established.

(11) [(9)] "Funerary objects" means physical objects associated with a burial, such as a casket, whether whole or deteriorated into pieces, personal effects, ceremonial objects, and any other objects interred with human remains.

(12) [(10)] "Grave" means a space of ground that contains interred human remains or is in a burial park and this is used or intended to be used for interment of human remains in the ground.

(13) [(11)] "Identified grave" means a grave that is marked with name of the individual interred in the grave or for which there is other evidence of the name of the individual interred in the grave.

(14) [(12)] "Interment" means the permanent disposition of human remains by entombment, burial, or placement in a niche, but does not include the location of displaced or disarticulated human remains.

(15) "Historic cemetery" means a cemetery with at least one grave that is 50 years old or older.

(16) "Human remains" means the body of a decedent.

(17) [(13)] "Marked grave" means a grave that has some physical object or objects identifying it as a grave, including a headstone, wooden or metal marker, arrangement of field stones, plantings, or other such indicia, whether or not the individual in the grave is identified.

(18) "Nonperpetual care cemetery" means a cemetery that is not a perpetual care cemetery.

(19) "Perpetual care" or "endowment care" means the maintenance, repair, and care of all places in the cemetery.

(20) "Perpetual care cemetery" or "endowment care cemetery" means a cemetery for the benefit of which a perpetual care trust fund is established as provided by Chapter 712.

(21) [(14)] "Physical anthropologist" means an individual who has a graduate degree in anthropology or archaeology with a concentration of study in the assessment of human skeletal remains. This person must be qualified to obtain measurements of the skeleton and obtain a biological profile, including sex, age, ancestry, stature, and anomalous pathological and traumatic conditions.

(22) [(15)] "Professional archeologist" means an individual who has a degree in anthropology, archeology, or a closely related field if that degree also included formal training in archeological field methods, research, and site interpretation, and who conducts archeological investigations as a vocation.

(23) "Unidentified grave" means a grave that is not marked in a manner that provides the identity of the interment.

[(16) "State Registrar" means the State Registrar for graves and cemeteries of the Texas Department of State Health Services.]

(24) [(17)] "Unknown cemetery" means an abandoned cemetery evidenced by the presence of marked or unmarked graves that does not appear on a map or in deed records.

(25) "Unverified cemetery" means a location having some evidence of human burial interments, but in which the presence of one or more unmarked graves has not been verified by a person described by §711.0105(a) of the Health and Safety Code of Texas or by the commission.

(26) "Verified cemetery" means the location of a human burial interment or interments as verified by the commission.

[(18) "Unmarked grave" means a grave that is not identifiable as a grave from the surface of the ground, due to lack of physical markings, cemetery elements, or other indication of the presence of a grave.]

§22.2.Authority of Commission.

(a) The authority of the Commission and this chapter apply only to non-perpetual care cemeteries. Its authority includes previously unknown cemeteries, abandoned cemeteries, historic cemeteries,unverified cemeteries, and all other graves not located in a perpetual care cemetery.

(b) For information concerning perpetual care cemeteries, members of the public should contact the Texas Finance Commission or the Texas Funeral Services Commission.

(c) For information concerning city or county cemeteries, members of the public should contact the appropriate city or county government.

§22.3.Abatement of Cemetery as Nuisance.

(a) If the Commission receives notice of legal action under Health and Safety Code §711.007 to abate a cemetery as a nuisance, the Commission will commence an investigation to determine whether it should request the Attorney General of Texas to intervene on the Commission's behalf in the legal action.

(b) In its investigation, the Commission will attempt to determine:

(1) whether the cemetery contains marked, [or] unmarked, and/or unverified graves that are more than 50 years old;

(2) whether the cemetery has historical significance to the local area or the State;

(3) whether repair and restoration of the cemetery is physically possible;

(4) whether the cost of repair and restoration of the cemetery is unreasonable;

(5) whether there is a cemetery organization or other party financially responsible for the repair and restoration of the cemetery;

(6) whether the cemetery is used or maintained in violation of Health and Safety Code Chapter 711 or 712;

(7) whether the cemetery is neglected so that it is offensive to the inhabitants of the surrounding section; and

(8) the impact to affected parties of the removal of the graves to a perpetual care cemetery and abatement of the cemetery.

(c) The Commission may present the results of its investigation to the Court whether or not it intervenes in the lawsuit.

(d) All repairs and restoration in a non-perpetual care cemetery should comply with the Standards for Preservation of Historic Cemeteries, Texas Historical Commission.

(e) The extent allowed by the rules of the perpetual care cemetery to which the remains are moved, the original relationship of the various elements of the cemetery, such as monuments and fencing, should be retained and reinstalled in the perpetual care cemetery.

§22.4.Unknown, [and] Abandoned, and Unverified Cemeteries.

(a) Discovery of Unknown or Abandoned Cemeteries. §711.010 of the Health and Safety Code requires that a person who discovers an unknown or abandoned cemetery shall file notice of the discovery of the cemetery with the county clerk of the county in which the cemetery is located and concurrently mail notice to the landowner on record in the county appraisal district not later than the 10th day after the date of the discovery. The notice must contain a legal description of the land on which the unknown or abandoned cemetery was found and describe the approximate location of the cemetery and the evidence of the cemetery that was discovered.

[(a)] [A person discovering a previously unknown or abandoned cemetery should file notice of the cemetery with the county clerk of the county in which the cemetery lies within ten days of the date of discovery.]

(1) The Commission may provide assistance to any party [a person] required to file this notice.

(2) The Notice of Existence of Cemetery form available on the Commission's website may be used to file this notice.

(3) The county clerk must provide a copy of the notice to the Commission within 15 days after the filing of the notice with the clerk, by mailing it to the following address: Cemetery Preservation Coordinator, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711-2276.

(b) If one or more graves are discovered during construction of improvements on a property, construction must stop and may only proceed in a manner that would not further disturb the grave or graves unless the graves are removed in accordance with §711.0105 of the Health and Safety Code [this chapter].

(c) Agricultural (including ranching), construction, utility lines, industrial, and mining operations may not be conducted in a manner that will disturb a grave or cemetery unless the graves and dedication of the cemetery are removed in accordance with §711.035 of the Health and Safety Code [this chapter].

(d) Discovery of Unverified Cemeteries. §711.0111 of the Health and Safety Code of Texas requires that any person that discovers an unverified cemetery shall file a notice and evidence of the discovery with the commission on a form provided by the commission. §711.0111 also requires that any person that discovers an unverified cemetery shall concurrently provide a copy of the notice of the filing with the landowner on record in the county appraisal district on whose land the unverified cemetery is located. The commission shall evaluate the notice and the evidence submitted with the notice, and consider the response of the landowner, if any is received not later than the 30th day after notice, and shall determine whether there is sufficient evidence to support the claim of the existence of a cemetery. If the commission determines that sufficient evidence supports the existence of a cemetery, the commission shall notify the landowner and may file notice of the existence of the cemetery under §711.011 of the Health and Safety Code. If a notice of existence has already been filed under §711.011 and the commission has determined that there is not sufficient evidence of a cemetery the commission shall notify the landowner of its determination, amend the notice to include the commission’s determination, and file the amendment with the county clerk to correct the dedication.

(1) The Commission may provide assistance to a person required to file this notice.

(2) The Notice of Unverified Cemetery form, which is available on the Commission's website, shall be used to file this notice.

(3) The Texas Historical Commission, with consent of the landowner, may investigate a suspected but unverified cemetery or may delegate the investigation to a qualified person described by §711.0105(a).

(e) The commission shall use one or more of the following criteria when assessing the verification of the existence of a cemetery:

(1) the location contains interment(s) that is/are confirmed through assessments or investigations consented by the landowner and performed by a professional archeologist or other individuals as defined by §711.0105(a) of the Health and Safety Code of Texas;

(2) the location contains human burial caskets or other containers or vessels that contain human remains or are contextually known to have been used to inter human remains;

(3) the location contains articulated human remains that were deliberately interred; or

(4) the location contains a burial pit or burial pit features.

(f) The commission shall use one or more of the following criteria when assessing the verification of the existence of a cemetery:

(1) the location contains interments that are confirmed through assessments or investigations performed by a professional archeologist or other individuals as defined by §711.0105(a) of the Health and Safety Code of Texas

(2) the location contains human burial caskets or other containers or vessels that contain human remains or are contextually known to have been used to inter human remains;

(3) the location contains articulated human remains that were deliberately interred

(4) the location contains a burial pit or burial pit features

§22.5.Removal of Remains from an Abandoned or Unknown Cemetery.

(a) §711.010 of the Health and Safety Code requires that, on petition of the owner of the property, a district court of the county in which an unknown cemetery is discovered or an abandoned cemetery is located may order the removal of any dedication for cemetery purposes that affects the property if the court finds that the removal of the dedication is in the public interest. If a court orders the removal of a dedication of a cemetery and all human remains in that cemetery have not previously been removed, the court shall order the removal of the human remains from the cemetery to a perpetual care cemetery or a municipal or county cemetery.

[(a) Disinterment permits for the removal of unmarked graves must be obtained from the State Registrar.]

[(1) The State Registrar may issue disinterment permits for the removal of unmarked graves contained within unknown and abandoned cemeteries if it determines that all legal requirements for the removal of the human remains have been met.]

[(2) A person wanting to remove human remains from an unmarked grave shall apply to the State Registrar for a disinterment permit on a form provided by the State Registrar.]

[(3) The disinterment permit must be obtained from the State Registrar before the removal of any human remains.]

(b) Commission role in removal of remains.

(1) The Commission may consider alternatives to the removal of human remains such as preservation of the remains in place and recommend to the State Registrar that a disinterment permit not be issued.

(2) The Commission shall ensure that a reasonable effort has been made to identify the remains and that the next of kin is [and State Registrar are] notified if the name of the decedent is determined.

(c) Method of Removal of Remains.

(1) When human remains are to be removed under a disinterment permit from the State Registrar, the exhumation of graves must take place as required by this section.

(2) Removal of remains for Antiquities Code permitted projects.

(A) When removal of remains is requested during a project with an Antiquities Permit under Chapter 26 of this title (relating to Rules of Practice and Procedures) and under the jurisdiction of the Health and Safety Code [Antiquities Code] of Texas, graves must be removed under the procedures described in §711.0105 [that chapter].

(B) Remains must be exhumed by a professional archeologist, and, when appropriate, with the assistance of a physical anthropologist, who is capable of gathering basic demographic data from the human remains being exhumed. Additionally, casket morphology, casket hardware, and any funerary objects must be examined and identified in a report. This policy applies to both marked and unmarked graves unless otherwise specified by the Commission.

(C) Unless otherwise specified, all physical anthropological investigations of human remains that fall under the Commission's jurisdiction will use noninvasive techniques. If invasive techniques are proposed, the Commission must give approval.

(D) Funerary objects will be reburied with the human remains after they have been documented unless the Commission approves other disposition.

(E) Decisions regarding the appropriateness of the reburial of human remains will be made in consultation with the Commission, but the Commission has no formal role in decisions about the methods or ceremonies associated with reburials.

(F) A reasonable, good faith effort should be made to define the boundaries of the cemetery within all accessible portions of land on which a previously unknown or abandoned cemetery exists.

(i) If the cemetery is being investigated for compliance with state or federal environmental or cultural resource laws, the investigator need only document those portions of the cemetery within the project area.

(ii) If the cemetery is being investigated for compliance with state or federal environmental or cultural resource laws, complete definition of a cemetery's boundaries may be deferred until previously inaccessible portions of the cemetery are made accessible during construction.

(iii) Notice of the cemetery's location shall be sent to the THC and concurrently to the landowner on record in the county’s appraisal district [county clerk] within 10 days following completion of discovery efforts.

(G) For cemeteries 50 years in age or older or whose age cannot be determined, a cemetery record for the Texas Historic Sites Atlas and request for a cemetery number or a Texas Archeological Research Laboratory trinomial shall be completed and submitted to the Commission. The survey shall record all "cemetery elements" to be moved in drawings and photographic record. Both the drawings and photographic record should be in a form that is expected to last seventy-five years or longer.

(i) The site record or request for a cemetery number shall be submitted within ten days of completion of fieldwork at the cemetery.

(ii) Upon receipt of an official number for the cemetery, the recorder shall submit a formal notice of the number to the county clerk.

(iii) The formal notice to the county clerk shall take the form of a notice to be placed in the county deed record files that documents the assignment of a cemetery number to a cemetery in the county and instructs interested parties to contact the commission for further information.

(H) For unmarked graves found during projects under the jurisdiction of the National Historic Preservation Act, 16 U.S.C. §470, et seq., (hereafter NHPA) and/or Native American Graves Protection and Repatriation Act, 25 U.S.C. §3001, et seq., (hereafter NAGPRA), the final disposition of remains will be determined in consultation with appropriate federally-recognized tribes and other appropriate consulting parties. Agencies may satisfy this requirement through their regular consultation process for compliance with these laws.

(3) Removal of remains outside Antiquities permitted projects.

(A) The exhumation of identified graves in a cemetery where a cemetery organization or other governing body exists or in a family cemetery may be performed by a cemetery keeper, licensed funeral director, medical examiner, coroner or professional archeologist.

(B) The exhumation of unmarked graves should be performed by a professional archeologist and, when appropriate, with the assistance of a physical anthropologist who is capable of gathering basic demographic data (i.e., sex, age, height, possible cause of death, etc.) from the human remains being exhumed.

(C) Notice of exhumation of graves shall be made in accordance with subsection (c)(2) of this section.

[(4) Emergency removals.]

[(A) The emergency removal provisions of §711.004(k) of the Health and Safety Code apply for all unknown and abandoned cemeteries covered under this chapter.]

[(B) Remains recovered during emergencies must be held at a secure location for the length of time necessary to complete consultations with appropriate parties regarding the final disposition of the remains.]

(d) If remains are to be reburied in the same cemetery as permitted by law, this section does not apply.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702877

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-6100


CHAPTER 25. STATE ARCHEOLOGICAL PROGRAM

13 TAC §25.1, §25.9

The Texas Historical Commission (hereafter referred to as the commission) proposes amendments to §25.1, relating to Definitions and the addition of a new §25.9, relating to Discovery and Evaluation of Unverified Cemeteries) of Title 13, Part 2, Chapter 25 of the Texas Administrative Code, relating to the State Archeological Program.

In §25.1, definitions are amended to clarify the commission's role in evaluating cemeteries in accordance with amendments to the Texas Health and Safety Code, §§711.001, 711.004, 711.010, and 711.0111.

The addition of new §25.9 is to clarify procedures for reporting the discovery of unverified cemeteries and the commission's role in evaluating and verifying cemeteries in accordance with amendments to the Texas Health and Safety Code, §711.011 and §711.0111.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

Mr. Wolfe has also determined that for each year of the first five year period the rules are in effect the public benefit anticipated as a result of the implementation of these rules will be better preservation of unknown and abandoned cemeteries. There will be minimal effects on small businesses or micro-businesses, and there are minimal anticipated economic costs to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendments and new rule are proposed under §442.005(q) of the Texas Government Code which provides the Texas Historical Commission with the authority to promulgate rules to reasonably effect the purposes of the commission, §442.017 of the Texas Government Code relating to the commission's authority to adopt rules related to abandoned cemeteries, and §711.012 of the Texas Health and Safety Code which provides the commission with the authority to adopt rules to enforce and administer §711.010 and §711.011 of the Texas Health and Safety Code.

No other statutes, articles or codes are affected by this proposal.

§25.1.Definitions.

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

(1) Abandoned cemetery--A non-perpetual care cemetery containing one or more graves and possessing cemetery elements for which no cemetery organization exists and which is not otherwise maintained by any caretakers. It may or may not be recorded in the deed records of the county in which it lies.

(2) [(1)] Antiquities--The tangible artifacts and objects of the past that relate to human life and culture.

(3) [(2)] Archeological investigation--Any research activity applied to archeological sites and the material remains in or removed from such sites, including survey, excavation, documentation, conservation, mapping, and analysis.

(4) [(3)] Archeological preservation--The protection and conservation of the archeological and heritage of Texas.

(5) [(4)] Archeological site--Any land or marine-based place that contains material remains of past human life or activities in their original or historical context that are at least 50 years of age or a place that has been determined by the commission to be of transcendent historical or cultural significance.

(6) [(5)] Archeology division--A division of the commission that includes the office of the state archeologist.

(7) [(6)] Artifact--A tangible object that relates to human life and culture of the past. Examples include, but are not limited to items constructed, altered, created, or used by humans. Paleontological remains and geological specimens are not included unless occurring in or related to an archeological context.

(8) [(7)] Avocational archeologist--Any individual with demonstrated training, skill and/or experience in archeological investigation who is not a professional archeologist.

(9) Burials and burial pits--Marked and unmarked locales of a human burial or burials. Burials and burial pits may contain the remains of one or more individuals located in a common grave in a locale. The site area may contain gravestones, markers, containers, coverings, garments, vessels, tools, and other grave objects or could be evidenced by the presence of depressions, pit feature stains, or other archeological evidence.

(10) Cemetery--A place that is used or intended to be used for interment, and includes a graveyard, burial park, unknown cemetery, abandoned cemetery, mausoleum, or any other area containing one or more graves or unidentified graves.

(11) [(8)] Conservation easement--A nonpossessory interest in real property that imposes limitations or affirmative obligations on the person holding the possessory or fee interest, as defined and authorized in Texas Natural Resources Code Chapter 183.

(12) [(9)] Curatorial facility--A museum or repository that holds and maintains archeological collections.

(13) [(10)] Historic preservation--The protection and conservation of the archeological and historical heritage of Texas.

(14) [(11)] Historic resource--Any site, complex, building or structural remains of historical or archeological interest and its contents. Examples include, but are not limited to, prehistoric habitation sites, mounds, open campsites and rock shelters; mines, quarry areas and lithic procurement areas; game procurement and processing sites; petroglyph and pictograph sites; historic shipwrecks; remnants of historic buildings and structures; cemeteries; dumps and trash heaps; and military sites. Only resources at least 50 years old, or which have been determined by the state archeologist to be of transcendent historic importance, are considered historical resources within the meaning of this chapter.

(15) [(12)] History (historic, historical)--The recording and study of past cultures, events, or resources created in the past and includes prehistory, relating to events occurring prior to written history.

(16) Human remains--The body of a decedent.

(17) Interment--The intended permanent disposition of human remains by entombment, burial or placement in a niche.

(18) [(13)] Inventory of sites--Any form of tabulating, collecting, and holding archeological site records, and all activities which maintain that inventory, including restricted data contained within the Texas Historic Sites Atlas electronic database.

(19) [(14)] Professional archeologist--An archeologist certified by the Register of Professional Archeologists (RPA) for the level of required investigation; anyone determined a professional archeologist by the state archeologist, according to the criteria of the RPA; or anyone meeting required qualifications and standards detailed in pertinent state rules (§26.4 of this title) or federal requirements specified in the Secretary of Interior's Professional Qualifications Standards (36 CFR Part 61, Appendix A) for archeological investigations.

(20) [(15)] Site records--All data and information relating to the character, condition, and location of any archeological site or other historic resource and all data and information pertinent to collections of material remains. Site records include, but are not limited to, artifact catalogues, photographs, digital imagery, maps, spatial imagery, notes, drawings, site data forms, TexSite electronic forms, documents, audio data, and electronic data.

(21) [(16)] State archeologist--The position authorized by Texas Government Code §442.007, responsible for the administration of the state archeological program.

(22) [(17)] Steward--A current member of the Texas Archeological Stewardship Network.

(23) [(18)] Texas Archeological Stewardship Network or TASN--A volunteer program administered by the commission. The TASN is composed of volunteer avocational archeologists selected for their demonstrated skills, experience and abilities to assist the commission with archeological investigations, research, preservation efforts, training, and public outreach endeavors.

(24) [(19)] TexSite form--The standardized electronic form for recording archeological site information as developed by the commission and Texas Archeological Research Laboratory of The University of Texas.

(25) Unknown cemetery--An abandoned cemetery evidenced by the presence of marked or unmarked graves that does not appear on a map or in deed records.

(26) Unverified cemetery--A location having some evidence of human burial interments, but in which the presence of one or more unmarked graves has not been verified by a person described by §711.0105(a) of the Health and Safety Code of Texas or by the commission.

(27) Unidentified grave--A grave that is not marked in a manner that provides the identity of the interment.

(28) Verified cemetery--The location of a human burial interment or interments as verified by the commission.

§25.9.Discovery and Evaluation of Unverified Cemeteries.

(a) Discovery of Unverified Cemeteries. Section 711.0111 of the Health and Safety Code of Texas requires that any person that discovers an unverified cemetery shall file a notice and evidence of the discovery with the commission on a form provided by the commission. Section 711.0111 also requires that any person that discovers an unverified cemetery shall concurrently provide a copy of the notice of the filing with the landowner on record in the county appraisal district on whose land the unverified cemetery is located. The commission shall evaluate the notice and the evidence submitted with the notice, and consider the response of the landowner, if any is received not later than the 30th day after notice, and shall determine whether there is sufficient evidence to support the claim of the existence of a cemetery. If the commission determines that sufficient evidence supports the existence of a cemetery, the commission shall notify the landowner and may file notice of the existence of the cemetery under §711.011 of the Health and Safety Code. If a notice of existence has already been filed under §711.011 and the commission has determined that there is not sufficient evidence of a cemetery the commission shall notify the landowner of its determination, amend the notice to include the commission's determination, and file the amendment with the county clerk to correct the dedication.

(b) Criteria for Evaluating and Verifying Cemeteries. The commission shall use one or more of the following criteria when assessing the verification of the existence of a cemetery:

(1) the location contains interment(s) that is/are confirmed through assessments or investigations consented by the landowner and performed by a professional archeologist or other individuals as defined by §711.0105(a) of the Health and Safety Code of Texas;

(2) the location contains human burial caskets or other containers or vessels that contain human remains or are contextually known to have been used to inter human remains;

(3) the location contains articulated human remains that were deliberately interred; or

(4) the location contains a burial pit or burial pit features.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 4, 2017.

TRD-201702939

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-8882


CHAPTER 26. PRACTICE AND PROCEDURE

The Texas Historical Commission (hereafter referred to as the commission) proposes amendments to §26.1 (Object), §26.2 (Scope), §26.3 (Definitions), §26.5 (Antiquities Advisory Board), §26.7 (Location and Discovery of Cultural Resources and Landmarks), §26.10 (Criteria for Evaluating Archeological Sites), §26.14 (Issuance and Restrictions of Archeological Permits), §26.16 (Reports Relating to Archeological Permits), §26.17 (Principal Investigator's Responsibilities for Disposition of Archeological Artifacts and Data), §26.19 (Criteria for Evaluating Historic Buildings and Structures), §26.20 (Application for Historic Buildings and Structures Permits), and §26.23 (Reports Relating to Historic Buildings and Structures Permits) of Title 13, Part 2, Chapter 26 of the Texas Administrative Code (relating to Practice and Procedure) under the jurisdiction of the Antiquities Code of Texas (Title 9, Chapter 191, of the Texas Natural Resources Code). Sections 26.1 - 26.3, and 26.5 are under Subchapter A; §26.7 is under Subchapter B; §§26.10, 26.14, 26.16, and 26.17 are under Subchapter C; and §§26.19, 26.20, and 26.23 are under Subchapter D.

Section 26.1: Object is amended to add reference to the Health and Safety Code of Texas.

Sections 26.2: Scope, 26.20: Application for Historic Buildings and Structures Permits, and 26.23: Reports Relating to Historic Buildings and Structures Permits are amended to update website addresses.

Section 26.3: Definitions are amended to clarify the commission's role in evaluating unverified cemeteries, curation of artifacts, and review of work to historic buildings and structures.

Section 26.5: Antiquities Advisory Board is amended to eliminate a reauthorization conflict with the Texas Government Code.

Section 26.7: Location and Discovery of Cultural Resources and Landmarks is amended to clarify notification requirements and review procedures for political subdivisions of the state, as well as the commission's role in evaluating unverified cemeteries.

Section 26.10: Criteria for Evaluating Archeological Sites is amended to also address verification of cemeteries.

Section 26.14: Issuance and Restrictions of Archeological Permits is amended to address the potential need to censure investigative firms working under Antiquities Permits.

Section 26.16: Reports Relating to Archeological Permits and §26.17: Principal Investigator's Responsibilities for Disposition of Archeological Artifacts and Data are amended to address the curation of artifacts.

Section 26.19: Criteria for Evaluating Historic Buildings and Structures is amended to clarify when certain requirements apply.

In this issue of the Texas Register, the Commission concurrently proposes amendments to the rules in Chapter 26 pursuant to Texas Government Code §2001.039.

Mark Wolfe, Executive Director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering these rule amendments.

Mr. Wolfe has also determined that for each year of the first five year period the rules are in effect the public benefit anticipated as a result of the implementation of these rules will be better preservation of unknown and abandoned cemeteries, and to clarify the responsibilities that investigative firms have with regard to Antiquities permits. There will be minimal effects on small businesses or micro-businesses, and there are minimal anticipated economic costs to persons who are required to comply with the rules as proposed.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

13 TAC §§26.1 - 26.3, 26.5

The amendment of these rules is proposed under §442.005(q) of the Texas Government Code which provides the Texas Historical Commission with the authority to promulgate rules to reasonably effect the purposes of the commission; §191.052 of the Natural Resources Code, which provides the commission with the authority to promulgate rules for the implementation and administration of the Antiquities Code of Texas; §442.017 of the Texas Government Code relating to the commission's authority to adopt rules related to abandoned cemeteries; and §711.012 of the Texas Health and Safety Code which provides the commission with the authority to adopt rules to enforce and administer §711.010 and §711.011 of the Texas Health and Safety Code.

No other statutes, articles or codes are affected by this proposal.

§26.1.Object.

As authorized in Title 9, Chapter 191 (§191.052), of the Texas Natural Resources Code, otherwise known as the Antiquities Code of Texas, and Title 4, Subtitle D, Chapter 442 (§442.005(q) and §442.017) of the Texas Government Code, the Texas Historical Commission, hereafter referred to as the commission, is specifically empowered to adopt rules and conditions related to the administration and enforcement of the Antiquities Code of Texas and provisions within Chapter 442 of the Government Code and Chapter 711 of the Health and Safety Code.

§26.2.Scope.

For purposes of implementing the Antiquities Code of Texas, the commission is the statutorily created body responsible for protecting and preserving State Antiquities Landmarks (landmarks) under the Texas Natural Resources Code, Title 9, Chapter 191.

(1) Section 191.092 of the Texas Natural Resources Code declares that it is the public policy and in the public interest of the State of Texas to locate, protect, and preserve landmarks, including sites, objects, buildings, structures and historic shipwrecks, and locations of historical, archeological, educational, or scientific interest including, but not limited to, prehistoric American Indian or aboriginal campsites, dwellings, and habitation sites, aboriginal paintings, petroglyphs, and other marks or carvings on rock or elsewhere which pertain to early American Indian or other archeological sites of every character, treasure imbedded in the earth, sunken or abandoned ships and wrecks of the sea or any part of their contents, maps, records, documents, books, artifacts, and implements of culture in any way related to the inhabitants, prehistory, history, government, or culture in, on, or under any of the lands of the State of Texas, including the tidelands, submerged land, and the bed of the sea within the jurisdiction of the State of Texas.

(2) Section 191.093 of the Texas Natural Resources Code states that all landmarks are afforded some level of consideration prior to being affected by a proposed project.

(3) Section 191.0525 of the Texas Natural Resources Code requires that notice be provided to the commission before breaking ground at a project location on state or local public land. This step ensures that project effects on landmarks, whether or not they have currently been identified, are appropriately considered. Upon notification, the commission will determine if the project affects a landmark or whether the project area warrants a survey to identify potential landmarks. Section 26.7 of this title (relating to Location and Discovery of Cultural Resources and Landmarks) describes the notification requirements and review process.

(4) Section 191.091 and §191.092 of the Texas Natural Resources Code provide that archeological sites and historic buildings and structures on lands belonging to state agencies or political subdivisions of the State of Texas are landmarks or may be eligible to be designated as landmarks. Landmark designation may be initiated by the public agency, the commission, or a third party. Section 191.094 of the Texas Natural Resources Code allows for the designation of landmarks on private property. Section 26.8 and §26.9 of this title describe the designation procedures for landmarks.

(5) Section 191.054 and §191.055 of the Texas Natural Resources Code state that the commission oversees investigations or project work though a permitting process. The commission uses permits to establish the terms under which work may proceed. Subchapters C and D of this chapter describe the permitting process for archeological permits and historic buildings and structures permits, respectively.

(6) Documents referenced in this chapter, including landmark nomination and permit application forms, are available on the commission website at www.thc.texas.gov [www.thc.state.tx.us ] or by contacting the commission.

§26.3.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. These definitions also clarify the interpretation of terms and phrases used in the Antiquities Code of Texas but not defined therein.

(1) Accession--The formal acceptance of a collection and its recording into the holdings of a curatorial facility and generally includes a transfer of title. For held-in-trust collections, stewardship but not title is transferred to the curatorial facility.

(2) Antiquities Advisory Board--A ten-member board that advises the commission in reviewing matters related to the Antiquities Code of Texas.

(3) Antiquities Permit or Permit--Authorization for work on a designated or potential State Antiquities Landmark, or survey investigations to determine if cultural resources are present. Permit types include Archeological Permits (§26.15 of this title) and Historic Buildings and Structures Permits (§26.22 of this title).

(4) Applicant--Relative to an Antiquities Permit, an applicant is the controlling agency, organization, or political subdivision having administrative control over a publicly owned landmark or the owner of a privately owned landmark. Applicant may also refer to an individual or private group that desires to nominate a building or site for landmark designation.

(5) Archeological site--Any land or marine-based place containing evidence of prehistoric or historic human activity, including but not limited to the following:

(A) Habitation sites. Habitation sites are areas or structures where people live or have lived on a permanent or temporary basis.

(B) Native American open campsites which were occupied on a temporary, seasonal, or intermittent basis.

(C) Rock shelters, in general, are a special kind of campsite. These sites are located in caves or under rock overhangs and have been occupied either: temporarily, seasonally, or intermittently.

(D) Non-Native American campsites are the cultural remains of activities by people who are not Native American.

(E) Residence sites are those where routine daily activities were carried out and which were intended for year-round use.

(F) Non-Native American sites may include, in addition to the main structure, outbuildings, water systems, trash dumps, garden areas, driveways, and other remains that were an integral part of the site when it was inhabited.

(G) Non-habitation sites. Non-habitation sites result from use during specialized activities and may include standing structures.

(i) Rock art and graffiti sites consist of symbols or representations that have been painted, ground, carved, sculpted, scratched, or pecked on or into the surface of rocks, wood, or metal, including but not limited to Native American pictographs and petroglyphs, historical graffiti and inscriptions.

(ii) Mines, quarry areas, and lithic procurement sites are those from which raw materials such as flint, clay, coal, minerals, or other materials were collected or mined for future use.

(iii) Game procurement and processing sites are areas where game was killed or butchered for food or hides.

(iv) Fortifications, battlefields, training grounds and skirmish sites including fortifications of the historic period and the central areas of encounters between opposing forces, whether a major battleground or areas of small skirmishes.

(v) Cache--A collection of artifacts that are deliberately hidden for future use. Caches are often discovered in burials or in caves and usually consist of ceremonial and ritual objects, functional objects or emergency food supplies.

(6) Archeological Survey Standards for Texas--Minimum survey standards developed by the commission in consultation with the Council of Texas Archeologists.

(7) Artifacts--The tangible objects of the past that relate to human life and culture. Examples include, but are not limited to projectile points, tools, documents, art forms, and technologies.

(8) Board--The Antiquities Advisory Board.

(9) Building--A structure created to shelter any form of human activity, such as a courthouse, city hall, church, hotel, house, barn, or similar structure. Building may refer to a historically related complex such as a courthouse and jail or a house and barn.

(10) Burials and burial pits--Marked and unmarked locales of a [set aside for] human burial or burials [purposes]. Burials and burial pits may contain the remains of one or more individuals located in a common grave in a locale. The site area may contain [encompasses the human remains present and also] gravestones, markers, containers, coverings, garments, vessels, tools, and other grave objects or could be evidenced by the presence of depressions, pit feature stains, or other archeological evidence [which may be present].

(11) Cemetery--A place that is used or intended to be used for interment, and includes a graveyard, burial park, unknown cemetery, abandoned cemetery, mausoleum, or any other area containing one or more graves or unidentified graves. [Cemeteries are considered historic if interments within the cemetery occurred at least fifty (50) years ago. Individual burials within a cemetery are not considered historic unless the interments occurred at least fifty years ago.]

(A) Abandoned cemetery--A non-perpetual care cemetery containing one or more graves and possessing cemetery elements for which no cemetery organization exists and which is not otherwise maintained by any caretakers. It may or may not be recorded in the deed records of the county in which it lies.

(B) Unidentified grave--A grave that is not marked in a manner that provides the identity of the interment.

(C) Unknown cemetery--An abandoned cemetery evidenced by the presence of marked or unmarked graves that does not appear on a map or in deed records.

(12) Commission--The Texas Historical Commission and its staff.

(13) Committee, or Antiquities Committee, or Texas Antiquities Committee--As redefined by the 74th Texas Legislature within §191.003 of the Texas Natural Resources Code, committee means the commission and/or staff members of the commission.

(14) Conservation--Scientific laboratory processes for cleaning, stabilizing, restoring, preserving artifacts, and the preservation of buildings, sites, structures and objects.

(15) Council of Texas Archeologists--A non-profit voluntary organization that promotes the goals of professional archeology in the State of Texas.

(16) Council of Texas Archeologists Guidelines--Professional and ethical standards which provide a code of self-regulation for archeological professionals in Texas with regard to field methods, reporting, and curation.

(17) Cultural landscape--A geographic area, associated with a historic event, activity, or person or exhibiting other cultural or aesthetic values. Cultural landscapes include historic sites, historic designed landscapes, and historic vernacular landscapes, as further described in the National Park Service's Preservation Brief 36: Protecting Cultural Landscapes.

(18) Cultural resource--Any building, site, structure, object, artifact, historic shipwreck, landscape, location of historical, archeological, educational, or scientific interest, including, but not limited to, prehistoric and historic Native American or aboriginal campsites, dwellings, and habitation sites, archeological sites of every character, treasure embedded in the earth, sunken or abandoned ships and wrecks of the sea or any part of the contents thereof, maps, records, documents, books, artifacts, and implements of culture in any way related to the inhabitants' prehistory, history, government, or culture. Examples of cultural resources include Native American mounds and campgrounds, aboriginal lithic resource areas, early industrial and engineering sites, rock art, early cottage and craft industry sites, bison kill sites, cemeteries, battlegrounds, all manner of historic buildings and structures, local historical records, cultural landscapes, etc.

(19) Curatorial facility--A museum or repository.

(20) Default--Failure to fulfill all conditions of a permit or contract, issued or granted to permittee(s), sponsors, and principal investigator or investigative firm, before the permit has expired.

(21) Defaulted permit--A permit that has expired without all permit terms and conditions having been met before the permit expiration date.

(22) Designated historic district--An area of archeological, architectural, or historical significance that is listed in the National Register of Historic Places, either individually or as a historic district; designated as a landmark, or nominated for designation as a landmark; or identified by State agencies or political subdivisions of the State as a historically sensitive site, district, or area. This includes historical designation by local landmark commissions, boards, or other public authorities, or through local preservation ordinances.

(23) Destructive analysis--Destroying all or a portion of an object or sample to gain specialized information. For purposes of this chapter, it does not include analysis of objects or samples prior to their being accessioned by a curatorial facility.

(24) Discovery--The act of locating, recording, and reporting a cultural resource.

(25) Disposal--The discard of an object or sample after being recovered and prior to accession, or after deaccession.

(26) District--A significant concentration, linkage, or continuity of sites, buildings, structures, or objects unified historically or aesthetically by plan or physical development. See also "designated historic district."

(27) Eligible--Archeological sites or other historic properties that meet the criteria set forth in §§26.10 - 26.12 and 26.19 of this title, are eligible for official landmark designation.

(28) Exhumation--The excavation of human burials or cemeteries and its associated funerary objects by a professional archeologist, or principal investigator.

(29) Groundbreaking--Construction or earth moving activities that disturb lands[, buildings, or structures] owned or controlled by state agencies or political subdivisions of the state.

(30) Held-in-trust collection--Those state-associated collections under the authority of the commission that are placed in a curatorial facility for care and management; stewardship is transferred to that curatorial facility but not ownership.

(31) Historic buildings and structures permit--Historic [Unless clearly specified otherwise, historic] buildings and structures permits are those issued for work [refers] to buildings, structures, cultural landscapes, and non-archeological sites, objects, and districts designated or nominated for designation as landmarks.

(32) Historic property--A district, site, building, structure or object significant in American history, architecture, engineering, archeology or culture.

(33) Historic time period--For the purposes of landmark designation, this time period is defined as extending from A.D. 1500 to 50 years before the present.

(34) Human remains--The body of a decedent.

(35) [(34)] Integrity--The authenticity of a property's historic identity, evidenced by the survival of physical characteristics that existed during the property's historic or prehistoric period, including the property's location, design, setting, materials, workmanship, feeling, and association.

(36) Interment--The intended permanent disposition of human remains by entombment, burial, or placement in a niche.

(37) [(35)] Investigation--Archeological or architectural activity including, but not limited to: reconnaissance or intensive survey, testing, exhumation, or data recovery; underwater archeological survey, test excavation, or data recovery excavations; monitoring; measured drawings; or photographic documentation.

(38) [(36)] Investigative firm--A company or scientific institution that has full-time experienced research personnel capable of handling investigations and employs a principal investigator, and/or project architect, or other project professional as applicable under "professional personnel" in paragraph (49) of this section. The company or institution holds equal responsibilities with the professional personnel to complete requirements under an Antiquities Permit.

(39) [(37)] Land-owning or controlling agency--Any state agency or political subdivision of the state that owns or controls the land(s) in question.

(40) [(38)] Landmark--A State Antiquities Landmark.

(41) [(39)] Mitigation--The amelioration of the potential total or partial loss of significant cultural resources. For example, mitigation for removal of a deteriorated historic building feature might include photographs and drawings of the feature, and installing a replacement that matches the original in form, material, color, etc. Mitigation for the loss of an archeological site might be accomplished through data recovery actions, to preserve or recover an appropriate amount of data by application of current professional techniques and procedures, as defined in the permit's scope of work.

(42) [(40)] Monuments--Includes markers and structures erected to commemorate or designate the importance of an event, person, or place, which may or may not be located at the sites they commemorate. Included in this category are certain markers erected by the commission and county historical commissions, and markers and statuary located on public grounds such as courthouse squares, parks, and the Capitol grounds.

(43) [(41)] National Register of Historic Places--A register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture maintained by the United States Secretary of the Interior. Information concerning the National Register of Historic Places is available through the commission or from the National Park Service at www.nps.gov/nr.

(44) [(42)] Object--The term "object" can refer to artifacts or is a type of structure that is [used to distinguish from buildings and structures those constructions that are] primarily artistic in nature or are relatively small in scale and simply constructed. Although it may be, by nature or design, movable, an object is associated with a specific setting or environment. Examples of objects include artifacts, monuments, markers, and sculpture.

(45) [(43)] Permit application offense--Failure to properly apply for a permit and/or receive authorization for an emergency permit by the commission, prior to the actual performance of an archeological investigation or other project work.

(46) [(44)] Permit censuring--A restriction in the ability of a principal investigator or other professional personnel and/or an investigative firm or other professional firm to be issued a permit under the auspices of the Antiquities Code of Texas.

(47) [(45)] Permittee--The landowning or controlling individual or, public agency and/or a project sponsor that is issued an Antiquities Permit for an archeological investigation or other project work.

(48) [(46)] Political subdivision--A unit of local government created and operating under the laws of this state, including a city, county, school district, or special district created under the Texas Constitution.

(49) [(47)] Prehistoric time period--For the purpose of landmark designation, a time period that encompasses a great length of time beginning when humans first entered the New World and ending with the arrival of the Spanish Europeans, which has been approximated for purposes of these guidelines at A.D. 1500.

(50) [(48)] Professional firm--A company or scientific institution that has professional personnel who meet the required qualifications for specific types of work. The company or institution holds equal responsibilities with the professional personnel to complete requirements under an Antiquities Permit.

(51) [(49)] Professional personnel--Trained specialists who meet the professional qualifications standards in §26.4 of this title (relating to Professional Qualifications and Requirements) and are required to perform archeological and architectural investigations and project work.

(52) [(50)] Project--Activity on a cultural resource including, but not limited to: investigation, survey, testing, excavation, restoration, demolition, scientific or educational study.

(53) [(51)] Project sponsor--A public agency, individual, institution, investigative firm or other professional firm, organization, corporation, contractor, and/or company paying costs of archeological investigation or other project work, or that sponsors, funds, or otherwise functions as a party under a permit.

(54) [(52)] Public agency--Any state agency or political subdivision of the state.

(55) [(53)] Public lands--Non-federal, public lands that are owned or controlled by the State of Texas or any of its political subdivisions, including the tidelands, submerged land, and the bed of the sea within the jurisdiction of the State of Texas.

(56) [(54)] Recorded archeological site--Sites that are recorded, listed, or registered with an institution, agency, or university, such as the Texas Archeological Research Laboratory of the University of Texas at Austin.

(57) [(55)] Register of professional archeologists--A voluntary national professional organization of archeologists which registers qualified archeologists.

(58) [(56)] Research design--A written theoretical approach and a plan for implementing fieldwork that also explains the goals and methods of the investigation. A research design is developed prior to the implementation of the field study and submitted with a completed Archeological Permit Application.

(59) [(57)] Ruins--A historic or prehistoric site, composed of both archeological and structural remains, in which the building or structure is in a state of collapse or deterioration to the point that the original roof and/or flooring and/or walls are either missing, partially missing, collapsed, partially collapsed, or seriously damaged through natural forces or structural collapse. Ruins are considered archeological sites, and historic buildings or structures recently damaged or destroyed are not classified as ruins.

(60) [(58)] Scope of work--A summary of the methodological techniques used to perform the archeological investigation or outline of other project work under permit.

(61) [(59)] Significance--Importance attributed to sites, buildings, structures and objects of historical, architectural, and archeological value which are landmarks and eligible for official designation and protection under the Antiquities Code of Texas. Historical significance is the importance of a property to the history, architecture, archeology, engineering or culture of a community, state or the nation, and is a trait attributable to properties listed or determined eligible for listing in the National Register of Historic Places or for state landmark designation.

(62) [(60)] Site--Any place or location containing physical evidence of human activity. Examples of sites include: the location of prehistoric or historic occupations or activities, a group or district of buildings or structures that share a common historical context or period of significance, and designed cultural landscapes such as parks and gardens.

(63) [(61)] Shipwrecks--The wrecks of naval vessels, Spanish treasure ships, coastal trading schooners, sailing ships, steamships, and river steamships, among other remains of any waterborne craft that sank, ran aground, was beached or docked.

(64) [(62)] State agency--A department, commission, board, office, or other agency that is a part of state government and that is created by the constitution or a statute of this state. The term includes an institution of higher education as defined by the Texas Education Code, §61.003.

(65) [(63)] State Antiquities Landmark--An archeological site, archeological collection, ruin, building, structure, cultural landscape, site, engineering feature, monument or other object, or district that is officially designated as a landmark or treated as a landmark under the interim protection described in §26.8(d) of this title (relating to Designation Procedures for Publicly Owned Landmarks).

(66) [(64)] State Archeological Landmark--A State Antiquities Landmark.

(67) [(65)] State associated collections--The collections owned by the State and under the authority of the commission. This includes the following:

(A) Permitted collections--Collections that are the result of work governed by the Antiquities Code of Texas on land or under waters belonging to the State of Texas or any political subdivision of the State requiring the issuance of a permit by the commission.

(B) Non-permitted collections--Collections that are the result of work governed by the Antiquities Code of Texas on land or under waters belonging to the State of Texas or any political subdivision of the State conducted by commission personnel without the issuance of a permit.

(C) Purchased collections--Collections that are the result of the acquisition of significant historical items by the commission through Texas Historical Artifacts Acquisition Program or use of other State funds.

(D) Donated collections--Collections that are the result of a gift, donation, or bequest to the commission.

(E) Court-action collections--Collections that are awarded to the commission by a court through confiscation of illegally-obtained archeological artifacts or any other material that may be awarded to the commission by a court of law.

(F) Legislative action collections--Collections that are transferred to the commission through legislative action.

(68) [(66)] Structure--A work made up of interdependent and interrelated parts in a definite pattern of organization. The term "structure" is used to distinguish from buildings those functional constructions made usually for purposes other than creating human shelter. Constructed by man, it is often an engineering project. Examples of structures include bridges, power plants, water towers, silos, windmills, grain elevators, etc. As used herein, "structure" is also understood to include all non-archeological cultural resources that are not buildings, including cultural landscapes and non-archeological sites, objects, and districts.

(69) [(67)] Treasures embedded in the earth--In this context, "treasures" refers to artifacts and objects from submerged archeological sites. This can reference artifacts that are either contained within a ship's hull or are isolated yet associated with submerged historic and/or prehistoric archeological sites. The term "treasures" is not meant to imply that objects of monetary value, such as gold and silver, are separately protected under Antiquities Code of Texas. Additionally, "embedded in the earth" refers to artifacts or objects buried or partially covered in underwater sediments.

(70) Unverified cemetery--A location having some evidence of human burial interments, but in which the presence of one or more unmarked graves has not been verified by a person described by §711.0105(a) of the Health and Safety Code of Texas or by the commission.

(71) Verified cemetery--The location of a human burial interment or interments as verified by the commission.

§26.5.Antiquities Advisory Board.

As permitted by Texas Government Code, §442.005(r), the commission hereby creates the Antiquities Advisory Board (hereafter referred to as the board). The board shall make recommendations to the commission on issues related to the Antiquities Code of Texas, Texas Natural Resources Code, Title 9, Chapter 191. The board is composed of the following ten membership positions: three members of the commission appointed by the chair, a representative of the Texas Archeological Society (TAS) who is nominated in consultation between TAS and the commission, a representative of the Council of Texas Archeologists (CTA) who is nominated in consultation between CTA and the commission, a state agency archeologist who is nominated in consultation between state agencies that employ archeologists and the commission, two historians nominated by the commission from the discipline of Texas history, and two historic architects nominated by the commission, in consultation with the Texas Society of Architects, from the discipline of historic architecture. The chair of the board is appointed by the chair of the commission, from one of the three commission members that serve on the board. The vice chair will be elected each odd year by the board from within their membership. The archeologists, historians and historic architects serve two-year terms that expire on February 1, of either odd or even numbered years, as determined by the commission. All recommendations made by the board are brought to the commission by the board chair, or one of the other commission members who serve on the board. The board will accomplish its specific duties in the following manner.

(1) Consider and discuss all proposed landmark nominations and any non-adjudicative issues or disputes specifically related to Antiquities Code of Texas and associated permitting issues that are brought before them by the commission, members of the board, or the public.

(2) Function as preliminary reviewers for the commission unless otherwise directed by the commission, or refused by a complainant(s).

(3) Vote on final recommendations related to appropriate issues of concern and present those recommendations to the commission.

(4) Conflicts of interest.

(A) Any member of the board who has a conflict of interest related to an issue that comes before the board shall recuse himself/herself from voting and participating in the discussion on that issue. Prior to any deliberations concerning the issue with which a member of the board has a conflict of interest, the member with a conflict shall announce, for the record, that such a conflict exists and physically absent and recuse himself/herself from the decision-making process and not vote on that matter. Board minutes must indicate which member recused himself/herself and the reason(s) for the recusal.

(B) For the purpose of this chapter a conflict of interest would result if a vote by a member of the board is likely to result in a financial benefit or personal gain for any of the following individuals:

(i) the member of the board;

(ii) any person within the second degree of consanguinity or affinity to the person, which includes a spouse, sibling, parent, grandparent, child or grandchild, whether by blood or marriage;

(iii) a business partner of the member; or

(iv) any organization for profit in which the member, or any person of clauses (ii) and (iii) of this subparagraph, that is serving or is about to serve as an officer, director, trustee, partner, or employee. A financial benefit includes, but is not limited to, grant money, contract, subcontract, royalty, commission, contingency, brokerage fee, gratuity, favor, or any other things of real or potential pecuniary value.

[(5) Pursuant to Texas Government Code, §2110.008, the board must be reauthorized by the commission every four years during the commission's first regularly scheduled quarterly meeting of that year.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 7, 2017.

TRD-201702955

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-8882


SUBCHAPTER B. IDENTIFICATION AND DESIGNATION OF LANDMARKS

13 TAC §26.7

The amendment of these rules is proposed under §442.005(q) of the Texas Government Code which provides the Texas Historical Commission with the authority to promulgate rules to reasonably effect the purposes of the commission; §191.052 of the Natural Resources Code, which provides the commission with the authority to promulgate rules for the implementation and administration of the Antiquities Code of Texas; §442.017 of the Texas Government Code relating to the commission's authority to adopt rules related to abandoned cemeteries; and §711.012 of the Texas Health and Safety Code which provides the commission with the authority to adopt rules to enforce and administer §711.010 and §711.011 of the Texas Health and Safety Code.

No other statutes, articles or codes are affected by this proposal.

§26.7.Location and Discovery of Cultural Resources and Landmarks.

(a) It is the public policy and in the interest of the State of Texas to locate archeological sites and other cultural resources, in, on, or under any land within the jurisdiction of the State of Texas per Texas Natural Resources Code, §191.002.

(b) The commission shall provide for the discovery and/or scientific investigation of publicly owned cultural resources in accordance with Texas Natural Resources Code, §191.051.

(c) The commission, state agencies, political subdivisions of the state, and law enforcement agencies shall work together to locate and protect cultural resources when deemed prudent, necessary, and/or in the best interest of the state per Texas Natural Resources Code, §191.174.

(d) To achieve these mandates, the commission shall review construction plans for projects on public lands prior to development to determine the project's potential impact to cultural resources, and invoke its power to issue Antiquities Permits and supervise Antiquities Permit investigations in accordance with Texas Natural Resources Code, §191.054. These mandates and the review of construction plans that may adversely affect archeological sites and historic buildings or structures are accomplished in the following manner.

(1) Project notification. As provided by Texas Natural Resources Code, §§191.0525, 191.054, 191.093, and 191.098, public agencies shall notify the commission before groundbreaking on public land or construction projects that could take, alter, damage, destroy, salvage, or excavate archeological sites, historic buildings or structures, designated historic districts, or other cultural resources or landmarks on non-federal public land in Texas. The notification must contain a brief written scope of work and a copy of the appropriate topographical quadrangle map with clearly marked project boundaries and photographs of the buildings or structures involved in the project work.

(A) State agencies.

(i) State agencies, other than institutions of higher education, shall furnish the commission with documentation of each building possessed by the agency that is 45 years old or older, pursuant to Texas Natural Resources Code, Chapter 31 (General Land Office), §31.153. After an agency's initial report, it must annually furnish documentation on each building that was acquired after the date of the previous submission and is 45 years old or older on the date of the current submission, or is possessed by the agency and has become 45 years old since the date of the previous submission.

(ii) State agencies must send advance notification at least 30 days prior to any groundbreaking per §191.0525, or at least 60 days prior to altering, renovating, or demolishing a building that is 50 years old or older per §191.098 of the Texas Natural Resources Code.

(iii) Once the commission receives a complete notification, a response will be provided within 30 days of receipt of the review request, or within 15 days of receipt for project locations regarding oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline projects. The commission shall review submitted documentation and notify the state agency if archeological sites or historic buildings involved in the work are landmarks or are eligible for landmark designation, and/or of the possible need for a survey to locate cultural resources situated in the proposed development tract. The commission may also issue advisory comments if a building is historically significant but not eligible for landmark designation. If the commission does not respond within the specified timeframe, the state agency may proceed without further notice to the commission. Expedited reviews may be accommodated on a case-by-case basis if warranted.

(B) Political subdivisions.

(i) Political subdivisions must send advance notification at least 30 days prior to any project that may affect potential or designated archeological sites if the project affects a cumulative area larger than five acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is triggered first, or if the project is inside a recorded archeological site or designated historic district[, as defined in §26.3(22) of this title (relating to Definitions)].

(ii) Once the commission receives a complete notification, a response will be provided within 30 days of receipt of the review request, or within 15 days of receipt for project locations regarding oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline projects. The commission shall review submitted documentation and notify the public agency if archeological sites involved in the work are landmarks or are eligible for landmark designation, and/or of the possible need for a survey to locate cultural resources situated in the proposed development tract. If the commission does not respond within the specified timeframe, the public agency may proceed without further notice to the commission. Expedited reviews may be accommodated on a case-by-case basis if warranted.

(C) Categorical exclusions. Since many activities conducted on non-federal public land have little, if any, chance to damage cultural resources, the following activities do not require notification:

(i) water injection into existing oil and gas wells;

(ii) upgrading of electrical transmission lines when there will be no new disturbance of the existing easement;

(iii) seismic exploration activity when there is no ground penetration or disturbance;

(iv) building and repairing fences that do not require construction or modification of associated roads, fire breaks, or previously disturbed ground;

(v) road maintenance that does not involve widening or lengthening the road;

(vi) installation or replacement of meter taps;

(vii) controlled burning of fields;

(viii) animal grazing;

(ix) plowing, if the techniques are similar to those used previously;

(x) installation of monuments and sign posts unless within the boundaries of designated historic districts;

(xi) maintenance of existing trails;

(xii) land sales and trades of land held by the permanent school fund and permanent university fund;

(xiii) permanent school fund and permanent university fund leases, easements, and permits, including mineral leases and pooling agreements, in which the lessee, grantee, or permittee is specifically required to comply with the provisions of this chapter;

(xiv) oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline project in an area where the project will cross state or local public roads, rivers, and streams, unless they contain a recorded archeological site or a designated state land tract in Texas' submerged lands; and

(xv) maintenance, operation, replacement, or minor modification of an existing oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline.

(D) Emergency situations. Advance notification is not required for immediate remediation of a fire, spill, or other emergency associated with an existing facility located on state or local public lands if the emergency requires an immediate response. Notification of actions taken in response to an emergency must be submitted within 15 days of the action. If cultural resources were affected by the emergency or remediation measures, or may be affected by any long-term actions, the commission will respond in accordance with paragraph (2) of this subsection.

[(2) Project review. Once the commission receives a complete notification, a response will be provided within 30 days (unless otherwise provided for within §191.0525 of the Texas Natural Resources Code) of receipt of the review request. The commission shall review submitted documentation and notify the public agency if archeological sites, historic buildings, or structures involved in the work are landmarks or are eligible for landmark designation, and/or of the possible need for a survey to locate cultural resources situated in the proposed development tract. The commission may also issue advisory comments if a building or structure is historically significant but not eligible for landmark designation. If the commission does not respond within 30 days, the public agency may proceed without further notice to the commission. Expedited reviews may be accommodated on a case-by-case basis if warranted.]

(2) [(3)] Project coordination. If a survey investigation or review of project work is required, professional personnel meeting the applicable requirements of §26.4 of this title (relating to Professional Qualifications and Requirements) will perform the investigations or work under an Antiquities Permit in accordance with §§26.13 - 26.18 and §§26.20 - 26.24 of this title.

(3) [(4)] Construction discovery. Any person working on public lands who discovers an archeological site[, building, or structure] that may qualify for designation as a landmark according to the criteria listed in §§26.10 - 26.12 [and §26.19] of this title shall cease work and report such discovery to the state agency or political subdivision owning or controlling the property and to the commission. Upon notification, the commission staff will respond within two business days. The commission may initiate designation proceedings if it determines the site to be a significant cultural or historical property, and/or may issue a permit for mitigative archeological investigation or any other investigation. The cost of a proper investigation, excavation, or preservation of such a landmark or potential landmark will be borne by the owner or developer of the property rather than by the commission.

(4) Discovery of Unverified Cemeteries. Section 711.0111 of the Health and Safety Code of Texas requires that any person that discovers an unverified cemetery shall file a notice and evidence of the discovery with the commission on a form provided by the commission. Section 711.0111 also requires that any person that discovers an unverified cemetery shall concurrently provide a notice of the filing with the landowner on record in the county appraisal district on whose land the unverified cemetery is located. The commission shall evaluate the notice and evidence submitted with the notice, and consider the response of the landowner, if any is received not later than the 30th day after notice, and shall determine whether there is enough evidence to support the claim of the existence of a cemetery. If the commission determines that sufficient evidence supports a determination the commission shall notify the landowner and may file notice of the existence of the cemetery under §711.011 of the Health and Safety Code. If a notice of existence has already been filed under §711.011 and the commission has determined that there is not sufficient evidence of a cemetery the commission will file an amendment with the county clerk to remove the dedication.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 7, 2017.

TRD-201702956

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-8882


SUBCHAPTER C. ARCHEOLOGY

13 TAC §§26.10, 26.14, 26.16, 26.17

The amendment of these rules is proposed under §442.005(q) of the Texas Government Code which provides the Texas Historical Commission with the authority to promulgate rules to reasonably effect the purposes of the commission; §191.052 of the Natural Resources Code, which provides the commission with the authority to promulgate rules for the implementation and administration of the Antiquities Code of Texas; §442.017 of the Texas Government Code relating to the commission's authority to adopt rules related to abandoned cemeteries; and §711.012 of the Texas Health and Safety Code which provides the commission with the authority to adopt rules to enforce and administer §711.010 and §711.011 of the Texas Health and Safety Code.

No other statutes, articles or codes are affected by this proposal.

§26.10.Criteria for Evaluating Archeological Sites and Verifying Cemeteries.

(a) The commission shall use one or more of the following criteria when assessing the appropriateness of official landmark designation, and/or the need for further investigations under the permit process:

(1) the site has the potential to contribute to a better understanding of the prehistory and/or history of Texas by the addition of new and important information;

(2) the site's archeological deposits and the artifacts within the site are preserved and intact, thereby supporting the research potential or preservation interests of the site;

(3) the site possesses unique or rare attributes concerning Texas prehistory and/or history;

(4) the study of the site offers the opportunity to test theories and methods of preservation, thereby contributing to new scientific knowledge; and

(5) there is a high likelihood that vandalism and relic collecting has occurred or could occur, and official landmark designation is needed to ensure maximum legal protection, or alternatively, further investigations are needed to mitigate the effects of vandalism and relic collecting when the site cannot be protected.

(b) The commission shall use one or more of the following criteria when assessing the verification of the existence of a cemetery:

(1) the location contains interments that are confirmed through assessments or investigations consented by the landowner and performed by a professional archeologist or other individuals as defined by §711.0105(a) of the Health and Safety Code of Texas;

(2) the location contains human burial caskets or other containers or vessels that contain human remains or are contextually known to have been used to inter human remains;

(3) the location contains articulated human remains that were deliberately interred; or

(4) the location contains a burial pit or burial pit features.

§26.14.Issuance and Restrictions of Archeological Permits.

(a) Issuance of permit. The commission shall review the permit application submitted pursuant to §26.13 of this title (relating to Application for Archeological Permits) and may issue the permit, issue the permit with special conditions, request additional information for review, request a revised scope of work or research design, or deny the permit application.

(1) Review by commission staff. Within 30 days of the receipt of a permit application, staff shall notify the applicant in writing that the permit application is complete and accepted for filing or that the permit application is incomplete and specify the additional information required for review. The commission will also issue or deny the permit within 30 days. Investigations may commence upon receipt of notification of the assignment of a permit number, and a hard copy of the permit will be mailed to all signatories to the permit application.

(2) Review by the Antiquities Advisory Board. The executive director may choose to submit the permit application to the Antiquities Advisory Board for its consideration. Permits that are denied by commission staff may be appealed by the applicant to the Antiquities Advisory Board. The board shall review such applications at its next scheduled meeting, provided it shall have a minimum of 15 days to prepare for such review. Recommendations of the board shall be taken to the next scheduled meeting of the commission by the chair of the board or by one of the other commissioners who serve on the board for action thereon.

(3) The deadlines in this section may be extended for good cause. In the event a deadline is extended, the commission shall provide notice of the extension and the good cause to the applicant in writing. The applicant may complain directly to the executive director if the staff exceeds the established period for processing permits and may request a timely resolution of any dispute arising from the delay.

(4) Failure to respond. If no response has been made by the commission within 30 days of receipt of any permit application, the permit shall be considered to be granted.

(b) Review by controlling entities. It is the responsibility of the permit applicant to obtain all necessary permissions and signatures prior to submitting an archeological permit application.

(c) Special requirements. When a permit is issued, it will contain all special requirements governing that particular investigation; it must be signed by the director of the Archeology Division of the commission, or his or her designated representative.

(d) Permit period. No permit will be issued for less than one year nor more than ten years, but a permit may be issued for any length of time as deemed necessary by the commission in consultation with the principal investigator.

(e) Transferal of permits. No permit issued by the commission will be assigned by the permittee in whole or in part to any other institution, museum, corporation, organization, or individual without acknowledgement of the original permittee and the consent of the commission. If the investigative firm cannot obtain acknowledgement of the transfer from the original permit holder, documentation of the firm's efforts must be submitted together with the transfer application form.

(f) State site survey forms. TexSite electronic forms for all sites recorded as a result of activities undertaken through an Antiquities Permit will be completed and submitted to the Texas Archeological Research Laboratory at the University of Texas in Austin, upon the completion of field work.

(g) Permit expiration date. The expiration date shall be specified in each permit and is the date by which all terms and conditions must be completed for that permit. It is the responsibility of the permittee, sponsor, investigative firm, and principal investigator to meet any and all permit submission terms and conditions prior to the expiration date listed on the permit.

(1) Expiration date notification. Principal investigators will be notified 60 days in advance of permit expiration date.

(2) Expiration date extension. A principal investigator must complete and submit a First Extension Application Form to the commission if he or she desires an extension of the final due date for the completion of an Antiquities Permit that was issued to him or her. The Archeology Division (AD) of the commission will review the submitted Permit Extension Form, determine whether an extension is warranted and extend the permit expiration date once for no less than one year and no more than ten years as deemed appropriate. In addition, and upon review and recommendations by the Antiquities Advisory Board, the commission may by a majority vote of its members, approve or disapprove an additional extension of the expiration date of an Antiquities Permit beyond the single extension that the AD staff of the commission is authorized to issue under subsection (c) of this section and this paragraph, provided that the following conditions are met:

(A) the principal investigator (PI), and/or the investigative firm listed under an Antiquities Permit must complete and submit a Second Extension Application Form to the commission, and give an oral presentation before the Antiquities Advisory Board justifying why a second permit expiration-date extension is warranted; and

(B) the justification for the second extension must show that the extension is needed due to circumstances beyond the control of the PI. Examples include, but are not limited to: funding problems, death of the PI, and artifact curation problems.

(h) Expiration responsibilities. Investigative firms must ensure that a principal investigator is assigned to a permit at all times, regardless of whether the permit is active or has expired. Both the principal investigator and investigative firm should ensure that a new principal investigator is assigned to the permit if, for any reason, the original principal investigator must leave the project. The assignment of a new principal investigator must be approved by the commission.

(i) Permit amendments. Proposed changes in the terms and conditions of the permit must be approved by the commission.

(j) Permit cancellation. The commission may cancel an Antiquities Permit if one or more of the following events occur:

(1) death or withdrawal of the principal investigator without a new principal investigator being named and approved by the commission;

(2) cancellation of the project by the sponsor or permittee prior to the completion of the archeological field investigations;

(3) violation of §26.18 of this title (relating to Compliance with Rules for Archeological Permits); and/or

(4) destruction of the permit area or associated cultural resources due to natural causes, prior to the substantive completion of the field investigations being performed under the permit.

(k) Permit censuring. The commission may censure a principal investigator and/or investigative firm under the following conditions:

(1) if it is found that two or more permit application offenses have occurred in one calendar year. [Permit application offenses result when investigations are performed without first obtaining a permit from the commission.] Permit censuring will render a principal investigator and investigative firm ineligible for issuance of another permit for six months after a finding by the board that two or more permit application offenses have occurred in a one-year period[.]; or

(2) if an investigative firm does not assign a new principal investigator to a permitted investigation within one month of the departure from the firm by the principal investigator assigned to the permit. Permit censuring will render the investigative firm ineligible for issuance of another permit until a new principal investigator is assigned to the applicable permits.

§26.16.Reports Relating to Archeological Permits.

(a) With the exception of alternative mitigation and rock art preservation permits, a report and transmittal letter must be submitted to the commission describing the results of each permitted investigation. The report should meet the Council of Texas Archeologists (CTA) Guidelines for Cultural Resources Management Full or Short Reports, and must be submitted to the commission meeting the following requirements.

(1) The report must contain:

(A) a title page that includes: the name of the investigation project, the name of the principal investigator and investigative firm, the county or counties in which the investigations were performed, the Antiquities Permit number, and the date of publication;

(B) an abstract containing project field dates, project acreage, descriptions of the findings, a list of the sites recorded (with trinomials) and a clarification concerning which artifacts were curated and where they are or will be curated;

(C) specific recommendations of which sites merit official designation as landmarks; which sites appear to be eligible for inclusion in the National Register of Historic Places; and which sites will be adversely affected by the proposed project;

(D) map(s) with accurate plottings of the project area and archeological sites.

(2) One printed copy of the draft permit report and associated project area shapefiles must be submitted to the commission for review prior to the production of the final report. The draft report does not have to be bound, but should contain all of the basic content elements required for the final report. The final report must also contain any revisions in the draft that are required in writing by the commission.

(3) Upon completion of a permitted project, and at no charge to the commission, the permittee, sponsor, or principal investigator shall furnish the commission and the Texas State Library and Archives Commission, State Publications Depository Program (hereinafter, TSLAC) with one printed copy each of the final report. The commission's copy shall be an unbound copy that contains at least one map with the plotted location of any and all sites recorded, and two copies of a tagged PDF format of the report on an archival quality CD or DVD. One of the tagged PDF CDs or DVDs must include the plotted location of any and all sites recorded and the other should not include the site location data. The TSLAC copy shall be bound and should not contain the plotted location of sites.

(4) A completed Abstracts in Texas Contract Archeology Summary Form must also be submitted with the final report. An electronic copy of the abstract and the completed abstract form must also be forwarded to the commission and, when appropriate, a Curation Form must also be submitted with the final report.

(5) Eleven or more printed copies of all reports without the site location information should be distributed by the permittee, sponsor, or principal investigator, at no cost to the commission, to university-based libraries and archeological research facilities around the state. Recommended libraries include: the Texas Archeological Research Laboratory at the University of Texas, the Center for Archeological Studies at Texas State University, the Center for Archeological Research at UTSA, the Stephen F. Austin State University library, the Texas Tech University library, the Texas A&M University library, the UT El Paso library, the Southern Methodist University library, Dolph Briscoe Center for American History, Sul Ross State University library, and the West Texas A&M University library.

(b) When Antiquities Permit investigations result in negative findings, the report and curation standards shall meet the CTA Guidelines for Cultural Resources Management Short Reports, and Curation Standards and Procedures, and production must follow the same standards as set forth in subsection (a)(3) and (5) of this section.

(c) For reports related to alternative mitigation and rock art preservation permits any requirements will be stated in the permit conditions.

§26.17.Principal Investigator's Responsibilities for Disposition of Archeological Artifacts and Data.

(a) Processing. Principal investigators who receive permits shall be responsible for cleaning, conserving, cataloguing, packaging in archival materials; arranging for the curation of all collections, specimens, samples, and records; and for the reporting of results of the investigation.

(b) Ownership. All specimens, artifacts, materials, samples, original field notes, maps, drawings, photographs, and standard state site survey forms resulting from the investigations remain the property of State of Texas. Certain exceptions left to the discretion of the commission are contained in Texas Natural Resources Code, §191.052(b). The commission will determine the final disposition of all artifacts, specimens, materials, and data recovered by investigations on landmarks or potential landmarks, which remain the property of the State. Antiquities from landmarks are of inestimable historical and scientific value and should be preserved and utilized in such a way as to benefit all the citizens of Texas. Such antiquities shall never be used for commercial exploitation.

(c) Housing, conserving, and exhibiting antiquities from landmarks.

(1) After investigation of a landmark has culminated in the reporting of results, the antiquities will be permanently preserved in research collections at the curatorial facility approved by the commission. Prior to the expiration of the permit, proof that archeological collections and related field notes are housed in a curatorial facility is required through the submission of a curation form. Failure to demonstrate proof before the permit expiration date may result in the principal investigator and co-principal investigator falling into default status.

(2) Institutions housing antiquities from landmarks will also be responsible for adequate security of the collections, continued conservation, periodic inventory, and for making the collections available to qualified institutions, individuals, or corporations for research purposes.

(3) Exhibits of materials recovered from landmarks will be designed in such a way as to provide the maximum amount of historical, scientific, archeological, and educational information to all the citizens of Texas. First preference will be given to traveling exhibits following guidelines provided by the commission and originating at an adequate facility nearest the point of recovery. Permanent exhibits of antiquities may be prepared by institutions maintaining such collections following guidelines provided by the commission. A variety of special, short-term exhibits may also be authorized by the commission.

(d) Pursuant to Texas Natural Resources Code, §§191.091 - 191.092, all antiquities found on land or under waters belonging to the State of Texas or any political subdivision of the State belong to the State of Texas. The commission is charged with the administration of the Antiquities Code of Texas and exercises the authority of the State in matters related to these held-in-trust collections.

(e) Decisions regarding the disposal or destructive analysis of held-in-trust collections are the legal responsibility of the commission. Acceptable circumstances for disposal or destructive analysis are provided by this chapter. Exceptions may be considered by the commission. Under no circumstances will held-in-trust collections be disposed of through sale.

(f) Disposal. The commission's rules for disposal apply to state-associated collections prior to accessioning from an archeological project [objects and samples prior to accessioning that have been recovered from a site] on public land or under public water under an Antiquities Permit issued by the commission.

(1) Disposal of state-associated collections [recovered objects or samples] from a site on public land or from public water under an antiquities permit issued by the commission must be approved by the commission. Approval for anticipated disposal is by means of an approved research design at the time the Antiquities Permit is issued. The manner in which any state-associated collection [the object or sample] is to be disposed must be included in the research design. Additional disposal not included in the approved research design must be approved by the commission prior to any disposal action.

(2) The appropriate reasons for disposal of state-associated collections include, but are not limited to, the following:

(A) [Objects] are highly redundant and without additional merit.

(B) [Objects] lack historical, cultural, or scientific value.

(C) [Objects] have decayed or decomposed beyond reasonable use and repair or by their condition constitute a hazard to other objects in the collection.

(D) [Objects] may be subject to disposal as required by federal laws.

(3) State-associated collections [Items] disposed of after recovery must be documented in the notes and final report, with copies provided to the curatorial facility.

(4) The commission relinquishes title for the State to any state-associated collections [object or sample] approved for disposal. The state-associated collections [object or sample] must be disposed of in a suitable manner.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 7, 2017.

TRD-201702957

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-8882


SUBCHAPTER D. HISTORIC BUILDINGS AND STRUCTURES

13 TAC §§26.19, 26.20, 26.23

The amendment of these rules is proposed under §442.005(q) of the Texas Government Code which provides the Texas Historical Commission with the authority to promulgate rules to reasonably effect the purposes of the commission; §191.052 of the Natural Resources Code, which provides the commission with the authority to promulgate rules for the implementation and administration of the Antiquities Code of Texas; §442.017 of the Texas Government Code relating to the commission's authority to adopt rules related to abandoned cemeteries; and §711.012 of the Texas Health and Safety Code which provides the commission with the authority to adopt rules to enforce and administer §711.010 and §711.011 of the Texas Health and Safety Code.

No other statutes, articles or codes are affected by this proposal.

§26.19.Criteria for Evaluating Historic Buildings and Structures.

Buildings, structures, cultural landscapes, and non-archeological sites, objects, and districts may be designated as landmarks, provided that the following conditions are met:

(1) the property meets [fits within] at least one of the following criteria:

(A) the property is associated with events that have made a significant contribution to the broad patterns of our history, including importance to a particular cultural or ethnic group;

(B) the property is associated with the lives of persons significant in our past;

(C) the property embodies the distinctive characteristics of a type, period, or method of construction, represents the work of a master, possesses high artistic values, or represents a significant and distinguishable entity whose components may lack individual distinction;

(D) the property has yielded, or may be likely to yield, information important in Texas culture or history;

(2) the property retains integrity at the time of the nomination, as determined by the executive director of the commission; and

(3)[for buildings and structures only,] the property must be listed in the National Register of Historic Places, either individually, or as a contributing property within a historic district. Contributing status may be determined by the Keeper of the National Register or the executive director of the commission.

§26.20.Application for Historic Buildings and Structures Permits.

(a) Permit application procedure.

(1) Applicant qualification. Only the controlling agency, organization, or political subdivision having administrative control over a publicly owned landmark or the owner of a privately owned landmark (applicant/permittee) may apply for and be issued a Historic Buildings and Structures Permit. It is the responsibility of the applicant to obtain all necessary permissions and signatures prior to submitting a permit application for work on historic buildings, structures, and their sites.

(2) Notification. The commission must be notified of any anticipated, planned, or proposed work to a landmark or the site associated with a landmark. Notification must also be given for work to buildings or structures that have been nominated for designation as landmarks. Such notice should be made early enough to allow adequate time to prepare the formal application as described in paragraph (4) of this subsection. The notification must include a brief written description of the project and at least one photograph of the building or structure or affected portion of that building or structure. If a permit is required for the proposed scope of work, the commission staff will provide the applicant with the permit application form and notify him or her of the necessary attachments or application reports within 30 days of receipt of notification. Historic Buildings and Structures Permits can only be required for work to a designated landmark, or a building or structure treated as a landmark under the interim protection described in §26.8 (d) of this title (relating to Designation Procedures for Publicly Owned Landmarks); such permits cannot be required for a property that is eligible but not currently nominated for designation.

(A) Normal maintenance and repair. Work that does not have the potential to cause removal, damage or alteration to the integrity, form, or appearance of the materials, features, or landform of the historic building or structure and its site, is considered to be normal maintenance and repair, and therefore exempt from the required notification process, per Texas Natural Resources Code, §191.054. Cleaning surfaces with non-corrosive mild solutions and low-pressure water, repainting window frames or doorways with similar paints, or minor repairs such as replacing putty on windows are examples of normal maintenance and repair. Other work, however, may not constitute normal maintenance and repair. For example, permanent masonry damage can result from use of inappropriate cleaning methods, such as sandblasting, high pressure water cleaning, or the use of unsuitable chemicals, or from use of damaging repointing techniques and materials. Replacing historic windows damages the historical integrity of a building, and painting previously unpainted surfaces constitutes alteration. Such work is not considered normal maintenance or repair.

(B) Interior spaces. Nonpublic interior spaces are spaces that are inaccessible to the public, and alterations to those spaces are exempt from the required notification process, per Texas Natural Resources Code, §191.054. The interior spaces to be considered public and therefore not exempt are those spaces that are or were accessible to the public (lobbies, corridors, rotundas, meeting halls, courtrooms, offices of public officials, public employees, and services, etc.), or those that are important to the public because of any significant historical, architectural, cultural, or ceremonial value.

(3) Advance review. For more complex projects, it is advisable that the commission staff be consulted early in the planning or design process in order to avoid delays in issuing the final permit.

(4) Formal application. All applications should be submitted on the Historic Buildings and Structures Permit application form approved by the commission at least 60 days prior to the commencement of work or issuance of bid documents, whichever comes first. The application form may be submitted in hard copy with original signatures, or electronically with scanned signatures, to the mailing or email address indicated on the form. The project professional personnel must be a project architect who has the required experience on historic buildings and structures in the type of project work proposed, or other professional as provided for in §26.4(3) of this title (relating to Professional Qualifications and Requirements). At the request of commission staff, the professional personnel must submit a resume demonstrating the required education and experience.

(5) Emergency application. If emergency preservation or hazard abatement work must be performed quickly in a crisis situation or due to extenuating circumstances, the minimum 60 day submission requirement may be waived with approval from the commission staff. Staff shall determine appropriate procedures for issuance of emergency permits based on the specific circumstances and urgency of the work.

(6) Attachments. All permit applications must be accompanied by plans, specifications, or other documents prepared for the project that adequately describe the full scope of work. Large-format drawings or lengthy attachments must be submitted in hard copy. In addition, 4 by 6 inch color photographs of the overall building or structure and all areas of proposed work are required. Photographs may be taken with a 35 mm or digital camera. Digital photographs should have a resolution of at least 300 pixels per inch and may be printed on an inkjet or laser printer on high-quality paper.

(7) Application reports. See §26.23(a) of this title (relating to Reports Relating to Historic Buildings and Structures Permits) for a discussion of each type of report. In the case of more complex projects, one or more of the following reports may be required with the permit application:

(A) historic structure report;

(B) historical documentation;

(C) architectural documentation; and/or

(D) archeological documentation.

(8) Project reports. Depending upon the scope of work, one or more of the following reports may be required as a condition of a permit to be prepared during the course of a project and to be submitted upon completion of that project prior to expiration of the permit. All Historic Buildings and Structures Permits require a completion report. For projects that receive a grant under the Texas Historic Courthouse Preservation Program, described in Chapter 12 of this title, the completion report for the grant may suffice in lieu of a separate permit completion report, when specified by the commission. Any other required reports will be specified when the permit is issued. See §26.23(b) of this title for a discussion of each type of report:

(A) architectural documentation;

(B) archeological documentation;

(C) storage report; and/or

(D) completion report.

(9) Issuance of contract documents. Contract documents should not be issued for bidding purposes before a permit has been issued by the commission under §26.21 of this title (relating to Issuance and Restriction of Historic Buildings and Structures Permits). Since changes may be required for issuance of a permit, the commission will not be responsible for delay caused by amending contract documents after issuance, price increases caused by reissuance of contract documents, or any other such consequences.

(b) Standards for the treatment of historic properties. The Secretary of the Interior's Standards for the Treatment of Historic Properties (1995 and subsequent revisions; codified at 36 Code of Federal Regulations Part 68 [36 Code of Federal Regulations Part 67]) are hereby adopted by reference by the commission and shall be considered to be a part of this chapter. Copies of these standards are available on the National Park Service website at www.nps.gov/tps/standards.htm [www.nps.gov/tps/standards.html].

§26.23.Reports Relating to Historic Buildings and Structures Permits.

(a) Application reports. It is important in the case of complex projects to ensure the historical accuracy and/or appropriateness of the project by gathering and assessing important information relating to the property through investigation, research, and documentation. Based on the scope of a project, one or more of the following application reports may be required to be submitted as a part of the permit application. A permit may not be issued before all required application reports have been received. All application reports must be prepared under the supervision of professionally qualified individuals as specified in §26.4 of this title (relating to Professional Qualifications and Requirements).

(1) Historic structure report.

(A) Purpose. This report should be utilized to evaluate the existing conditions of the building or structure, to understand the changes to a property over time, to establish preservation objectives for the property, to schedule the accomplishment of these preservation objectives, and to better support the proposed work.

(B) When required. When a proposed rehabilitation, restoration, or reconstruction project involves fabricating significant missing architectural or landscape features, recapturing the appearance of a property at one particular period of its history, removing later additions, or significant changes to the building for rehabilitation, a historic structure report must be completed prior to application for a Historic Buildings and Structures Permit.

(C) Minimum report requirements. Documentation must follow the guidance of the National Park Service's Preservation Brief 43: The Preparation and Use of Historic Structure Reports (available on the National Park Service website at https://www.nps.gov/tps/how-to-preserve/briefs/43-historic-structure-reports.htm [www.nps.gov/history/hps/tps/briefs/brief43.htm]) and should include the following:

(i) historical background and context, including:

(I) name of the original architect and date of construction;

(II) information on important historical events or persons associated with the property;

(III) copies of extant historic plans and photographs of the property; and

(IV) oral history documentation, when possible;

(ii) chronology of development and use;

(iii) physical description;

(iv) evaluation of significance;

(v) condition assessment, including:

(I) photographic documentation of the existing conditions (Photographs must be at least 4 by 6 inches and may be taken with a 35 mm or digital camera. Digital photographs should have a resolution of at least 300 pixels per inch and may be printed on an inkjet or laser printer on high-quality paper.); and

(II) architectural drawings of the existing conditions;

(vi) historic preservation objectives;

(vii) requirements for work; and

(viii) work recommendations and alternatives, including intended modifications to the building or structure.

(2) Historical documentation.

(A) Purpose. Historical research and documentation assist in understanding the changes to a historic property over time and can better support proposed project work.

(B) When required. Historical documentation may be required at the request of the commission's staff, executive director, or the Antiquities Advisory Board to support work proposed under a permit.

(C) Minimum report requirements. Historical documentation must include the following:

(i) name of original architect and date of construction;

(ii) history of the use of and known modifications to the structure;

(iii) brief history including information on important historical events or persons associated with the structure;

(iv) copies of extant historic plans and photographs of the building or structure and site, or documentation of the specific historic features, areas or materials to be affected by proposed restoration or reconstruction work; and

(v) oral history documentation to support proposed restoration or reconstruction work, or to document historic structures and buildings proposed for relocation or demolition.

(3) Architectural documentation.

(A) Purpose. Documentation of cultural resources that will be lost or damaged due to rehabilitation, relocation, or demolition will ensure that a record of the cultural resource continues to exist after the loss or damage.

(B) When required. Architectural documentation must precede any work that will damage, alter, obscure, or remove significant architectural configurations, elements, details, or materials. Documentation that meets the required standards must be submitted for rehabilitation and restoration projects that will significantly alter a building, structure, or other cultural resource, and for all relocation and demolition permits.

(C) Minimum report requirements. Architectural documentation must meet the Secretary of the Interior's Standards and Guidelines for Architectural and Engineering Documentation (available on the National Park Service website at https://www.nps.gov/HDP/ [www.nps.gov/history/hdp]), also referred to as Historic American Buildings Survey (HABS), Historic American Engineering Record (HAER), and Historic American Landscapes Survey (HALS) standards and guidelines. The commission will assign the level of documentation required (levels I-IV) based on the project work proposed and the significance of the cultural resource.

(4) Archeological documentation.

(A) Purpose. Many standing structures have an archeological component, and archeological remains exist in urban areas as well as rural areas. The information available from archeological investigations in and around a building or structure is important in conjunction with architectural and historical documentation for the synthesis and study of all related material.

(B) When required. When development or historic preservation treatment of a historic property makes disturbance of the earth unavoidable, the specific areas affected may need to be tested archeologically to determine if the undertaking will disturb or destroy archeological remains, including subsurface features of an aboveground structure. If the exploratory tests indicate the area has archeological value and if the development plans cannot be altered, the archeological data and artifacts directly affected by the project are to be recovered.

(b) Project reports. When the situation indicates it is advisable, one or more of the following project reports may be required to be compiled during the course of a project and submitted along with the completion report. All project reports must be compiled under the supervision of professionally qualified individuals as specified in §26.4 of this title.

(1) Architectural documentation. When investigation and documentation is not possible prior to commencement of work because of physical obstruction, or when previously obscured conditions are subsequently discovered, architectural documentation may be required during the course of a project (see subsection (a)(3) of this section).

(2) Archeological documentation. When investigation and documentation are not possible prior to commencement of work because of physical obstruction, or when previously obscured evidence is subsequently discovered, archeological documentation may be required during the course of a project. Archeological documentation may be required for relocation or demolition permits (see subsection (a)(4) of this section).

(3) Storage report.

(A) Purpose. Historic features or materials original to the building or structure or otherwise significant to the building or structure's evolution are important to the understanding of Texas culture and history.

(B) When required. When historic features or materials original or otherwise significant to the building or structure's history are removed during the course of a project, selected samples must be stored at the site or at a site approved by the commission, and a storage report must be filed.

(C) Minimum report requirements. Documentation must include the following:

(i) photo documentation of the structural or architectural elements to be removed in their original position and in storage (Photographs must be at least 4 by 6 inches and may be taken with a 35 mm or digital camera. Digital photographs should have a resolution of at least 300 pixels per inch and may be printed on an inkjet or laser printer on high-quality paper.);

(ii) written documentation of the existing condition of the elements prior to removal; and

(iii) written documentation of the storage (preservation) efforts, including the method and location of storage and any conservation efforts made.

(4) Completion report.

(A) Purpose. When work is done to a historic building or structure, it is important to record the changes that take place so that the building or structure's historic evolution might be completely documented for future study.

(B) When required. All Historic Buildings and Structures Permits require completion reports.

(C) Minimum report requirements. Written documentation must include the following:

(i) title page, including:

(I) project name;

(II) city, county;

(III) permit number;

(IV) date of report;

(ii) text, including:

(I) property name and location;

(II) primary personnel (names, titles, addresses, and telephone numbers), including:

(-a-) owner;

(-b-) lessee;

(-c-) architect;

(-d-) engineer;

(-e-) contractor;

(-f-) consultant(s);

(-g-) others;

(III) scope of work (major categories with corresponding costs);

(IV) project dates (beginning and ending);

(V) project narrative, including:

(-a-) description of work and description of anticipated future work (if any);

(-b-) description of special products, materials, and/or building techniques;

(-c-) description of intended use of the property; and

(VI) index of photographs.

(D) Photographic record. Photographic documentation is a significant part of the record of the project work. Representative views, before, during, and after project work, should be of the same area, to clearly illustrate the work as it progresses. Photographs must be at least 4 by 6 inches and may be taken with a 35 mm or digital camera. Digital photographs should have a resolution of at least 300 pixels per inch and may be printed on an inkjet or laser printer on high-quality paper. Photographs must include:

(i) before construction conditions;

(ii) during construction; and

(iii) after construction is complete.

(E) Report submittal. Submit the required completion report with original photographic documentation; photocopies are not acceptable. All completion reports must be printed on high-quality paper, submitted unbound, and accompanied by the report as a pdf (portable document format) file [on compact disc]. Submit the printed report and pdf [disc] to the commission.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 7, 2017.

TRD-201702958

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: September 17, 2017

For further information, please call: (512) 463-8882