The Texas Department of Transportation (department) adopts the repeal of §2.24, Memorandum of Understanding with the Texas Historical Commission. The department simultaneously adopts and replaces the repealed section with new Subchapter H, §§2.251 - 2.278, Memorandum of Understanding with the Texas Historical Commission. The repeal of §2.24 and new §§2.251 - 2.278 are adopted without changes to the proposal as published in the February 15, 2013, issue of the Texas Register (38 TexReg 807) and will not be republished.

EXPLANATION OF ADOPTED REPEAL AND NEW SECTIONS

Transportation Code, §201.607 requires the department to adopt a memorandum of understanding (MOU) with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic or archeological resources. Transportation Code, §201.607 also requires the department to adopt the MOU and all revisions to it by rule and to periodically evaluate and revise the MOU. In order to meet the legislative intent and to ensure that historic and archeological resources are given full consideration in accomplishing the department's activities, the department has evaluated its MOU with the Texas Historical Commission (THC), adopted in 2004, and finds it necessary to repeal existing §2.24 and simultaneously adopt new Subchapter H, §§2.251 - 2.278.

The new MOU between THC and the department satisfies the statutory requirements for reviewing and revising MOUs with resource agencies. It is intended to replace the existing MOU, which has been in effect since May 20, 2004, with an MOU that more effectively streamlines THC's review of the department's projects and simultaneously better allows THC to focus on those projects most likely to affect historic or archeological resources. The MOU has several new provisions and procedures that were developed based on experience gained from numerous projects that the department has submitted and THC has reviewed since the 2004 MOU was executed. It is also better organized than the existing MOU, with different subject areas broken into separate sections. Additionally, the MOU reflects changes made by the department's recent revision of its environmental review rules, published in the March 9, 2012, issue of the Texas Register (37 TexReg 1727).

SECTION BY SECTION EXPLANATION OF MOU

Section 2.251 sets out the purpose of the MOU, identifies the statutory provisions under which the MOU is adopted, and explains that the MOU supersedes the 2004 MOU.

Section 2.252 sets forth the applicability of the MOU by explaining that it applies to any transportation project for which an environmental review is performed under the department's environmental review rules and any other project coordinated at the department's request. Whether coordination for a given project is required under the MOU is addressed in §2.255, concerning Coordination Responsibilities, §2.257, concerning Projects Excluded from Review for Archeological Resources and Cemeteries, and §2.270, concerning Projects Excluded from Review for Non-Archeological Historic Properties. Section 2.252 also clarifies that federally funded, licensed, or permitted projects may follow the procedures set forth in the MOU only if doing so would not conflict with the lead federal agency's environmental rules.

Section 2.253 explains that, for federally funded projects, the terms of a programmatic agreement among the department, the Federal Highway Administration, the Texas State Historic Preservation Officer, and the Advisory Council on Historic Preservation, if applicable, will control rather than terms of the MOU. The section also obligates the department and THC to seek to revise the existing programmatic agreement to reflect the procedures of the MOU.

Section 2.254 contains definitions of various terms used in the MOU.

Section 2.255 sets forth the department's and THC's coordination responsibilities under the MOU. It explains that the department shall coordinate with THC on all transportation projects for which the department is the project sponsor under 43 TAC §2.7 unless the project is of a type that is exempt from coordination under another section of the MOU. Section 2.255 also specifies that coordination required by the MOU must be conducted by or through the department's Environmental Affairs Division, unless otherwise agreed to by THC. The section also clarifies that coordination of work in department right-of-way associated with a project for which the department is not the project sponsor under 43 TAC §2.7 is the responsibility of the project sponsor, and not the department, unless the department and THC agree that the department will coordinate the project. Finally, the section generally describes THC's coordination responsibilities under the MOU, such as to conduct any required review in an efficient manner.

Section 2.256 sets parameters on staff qualifications and the use of consultants for cultural resource investigations undertaken in accordance with the MOU. For example, all staff conducting such an investigation must meet certain professional standards detailed in the section.

Section 2.257 exempts certain types of routine projects from the requirement to conduct a project-specific review for impacts to archeological resources or cemeteries. Examples of exempt project types include installation, repair, or replacement of fencing, resurfacing, and replacement, upgrade, or repair of safety barriers. The section further explains that project types exempted from review under the MOU are also exempt from other THC rules regarding project-specific investigations or coordination for potential impacts to cemeteries, unless certain conditions are present.

Section 2.258 sets forth the procedures for project coordination when review for archeological resources and cemeteries is required. If, after conducting an evaluation of the area for potential effects for a given project, the department determines that the project will not affect archeological historic properties and that the area of potential effects contains no cemeteries, the department may approve the project to proceed to construction without review by THC. The department must submit to THC a quarterly report of projects so evaluated and internally approved.

If the department determines that a given project may affect archeological historic properties, or that the area of potential effects contains a cemetery, the department must submit to the THC a request for review of the project. Section 2.258 explains the different types of findings, determinations, and recommendations that the department must include in its request for review. If the project will have an adverse effect on an archeological historic property or cemetery within the area of potential effects, the department must recommend to THC appropriate means by which to resolve the potential adverse effect. The section specifies the various forms the resolution of adverse effects may take and prescribes various requirements for cases in which data recovery is the selected means for resolving adverse effects. Finally, §2.258 sets parameters on when and how THC must respond to a request for review submitted by the department.

Section 2.259 contains provisions governing the department's investigations of a project's area of potential effects, including provisions for determining when field investigations are required and when background information such as maps and project-area photographs may be used.

Section 2.260 sets forth procedures for THC's issuance of antiquities permits to the department. Under these procedures, the department is not required to submit an antiquities permit application provided that certain conditions are satisfied, such as that the department provides THC with notification of the work and that the work is overseen by the archeological staff of the department's Environmental Affairs Division. The section also includes provisions allowing the department to initiate work under an emergency permit when conditions of natural disasters, man-made disasters, or post-review discovery necessitate immediate action. Provisions governing the department's work under permits issued by THC, such as provisions explaining when work under a permit will be considered complete, are also included in §2.260.

Section 2.261 contains provisions governing the department's conduct of surveys to investigate archeological resources and cemeteries. For example, the section explains that subsurface investigation is not required where it can be demonstrated that the portion of the site to be affected is not likely to have sufficient integrity to be eligible for designation as a State Antiquities Landmark.

Section 2.262 prescribes methods to be used by the department when conducting test excavations. The section allows the department to depart from the specified methods in cases where it is deemed appropriate, but requires the department to justify deviations in the resulting written report. Section 2.262 also requires data from test excavation projects to be made available to qualified researchers.

Section 2.263 requires the department, under certain conditions, to develop public educational outreach projects for significant data recovery investigations. Section 2.263 requires data from data recovery projects to be made available to qualified researchers.

Section 2.264 concerns exhumation, which is a form of investigation to resolve a project's adverse effects on a cemetery. The section explains when exhumation efforts may begin and identifies tasks that represent a sufficient, reasonable, and good faith effort to identify remains and any next of kin associated with burials in unknown or abandoned cemeteries.

Section 2.265 prescribes the procedures the department must follow when it discovers an archeological site after it has awarded a construction contract. The department must immediately suspend construction or any other activities that would affect the site and perform various specified tasks before resuming.

Section 2.266 concerns standard treatments for particular resource types. It sets forth standards to be followed by the department when encountering isolated wells or cisterns unassociated with other remains or burnt rock midden features that have not been obviously destroyed by modern disturbances.

Section 2.267 sets standards for the department's recovery and curation of artifacts. For example, while the department may temporarily house artifacts and samples during laboratory analysis and research, it must transfer them to a permanent curatorial facility upon completion of the analysis.

Section 2.268 establishes minimum documentation requirements for projects subject to review for archeological resources and cemeteries under the MOU.

Section 2.269 requires the department to submit to THC quarterly reports listing all projects for which the department documented that no historic properties are present in the area of potential effects or that the project will have no adverse effects on archeological historic properties or cemeteries.

Section 2.270 pertains to review for impacts to non-archeological historic properties. It lists a number of project types that pose limited potential to affect historic properties and provides that, for listed project types, if qualified department staff determine that no evaluation of a given project is needed, then none is required under the MOU or under other THC rules.

Section 2.271 explains the procedure for review of a project for impacts to non-archeological historic properties when an evaluation is required. The section sets forth two different levels of review: internal review and coordinated review. For a project subject to review for impacts to non-archeological historic resources, if department personnel determine that the project will have no effect or no adverse effect on historic properties, then only internal review is required. Such a project is required to be recorded on a quarterly report.

If a project is determined by department personnel to have an adverse effect on a historic property, then coordinated review is required. Under the §2.271 procedures, THC must respond within 20 calendar days of the department's request for review by indicating whether an affected historic property will require a historic structures permit or whether THC intends to initiate a State Antiquities Landmark nomination for the affected property. If THC does not respond within 20 days, the department may assume THC's concurrence with its determinations and proceed with construction of the project. Section 2.271 also contains provisions governing notification of work affecting a county courthouse, projects that may subsequently require a federal permit or change to federal funding and that involve a direct taking of an historic property, and required documentation both for projects internally reviewed and for projects for which coordinated review is conducted.

Section 2.272 explains that, in cases in which the department cannot gain access to private land needed to complete an investigation under the MOU prior to approval of the environmental review document, it must complete the investigation once access is obtained, but prior to any construction-related impacts.

Section 2.273 provides that if the department utilizes the procedures set forth in the MOU, then it will be considered to be in compliance with any other applicable THC requirements. In other words, with respect to department projects, the terms of the MOU control over THC's generally applicable rule requirements.

Section 2.274 specifies that any project-specific agreements reached between the department and THC will supersede the requirements of the MOU.

Section 2.275 obligates the department and THC to collaborate on improvements to their programs and development of innovative solutions for expedited review procedures, such as using project outcomes to refine approaches to resource identification, evaluation, treatment methods, programmatic mitigation measures and interagency agreements that facilitate early coordination, streamlining, and expedited review of the department's transportation projects.

Section 2.276 allows THC to review department project files for specific undertakings carried out under the MOU and recommend process improvements based on issues identified during the review.

Section 2.277 provides that THC and department staff will be responsible for attempting to resolve any conflict between THC and the department that results from the implementation of this subchapter before elevating to agency management.

Section 2.278 provides that THC and the department will convene every four years to review, update, or extend this agreement. This review cycle is shorter than the five-year review cycle prescribed by Transportation Code, §201.607(a).

COMMENTS

No comments on the proposed repeal or new sections were received.

Subchapter B. MEMORANDA OF UNDERSTANDING WITH NATURAL RESOURCE AGENCIES