TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 16. HISTORIC SITES

13 TAC §16.13

The Texas Historical Commission (hereafter referred to as the "Commission") proposes amendments to §16.13 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.

The amendments add language regarding the assignment of proceeds from the sale of deaccessioned objects to align with a requirement in HB 1422 of the 86th Legislative Session. That law requires that the proceeds from any sale at auction of deaccessioned objects benefit the source collections from which the objects were removed. The amendments also recognize that Texas Government Code §442.015, is a source of authority for the Commission's ownership of certain collections.

FISCAL NOTE. There will be no fiscal impact. The proposed revisions seek to clarify that proceeds from the sale of deaccessioned items will benefit the site from which the items were removed and add a source of authority for the Commission's ownership of certain collections. 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 governments as a result of enforcing or administering the rules, as proposed.

PUBLIC BENEFIT/COST NOTE. Mr. Wolfe has also determined that for each year of the first five-year period the amended rules are in effect, the public benefit will be the implementation of a transparent process for the sale of deaccessioned items. There are no anticipated costs to persons who are required to comply with the rule because participation in the transfer of deaccessioned items is voluntary.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the amendments to these rules as proposed. There is no effect on the local economy for the first five years that the proposed amendments are in effect; therefore, no local employment impact statement is required under Texas Government Code §§2001.022 and 2001.024(a)(6).

COSTS TO REGULATED PERSONS. The proposed amendments do not impose a cost on regulated persons or entities as participation in the transfer of deaccessioned items is voluntary; therefore, they are not subject to Texas Government Code §2001.0045.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Wolfe has also determined that there will be no negative impact on rural communities, small or micro-businesses because of implementing these rules amendments and therefore no regulatory flexibility analysis, as specified in Texas Government Code §2006.002, is required. There are no anticipated economic costs to the public in compliance with the amendments to these rules, as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT. During the first five years that the amendments would be in effect, the proposed amendments: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the amendments would be in effect, the proposed amendments will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. THC has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. Comments on the proposal may be submitted in writing 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.

STATUTORY AUTHORITY. This amendment is proposed under Texas Government Code §§442.201 and 442.202, which allow the THC to establish rules for the conservation, preservation, and use of state property related to Historic Sites entrusted to the THC's care. This rule is further proposed under the Texas Natural Resources Code §§191.051 and 191.052, which establish the THC as legal custodian over historic and archeological objects recovered and retained by the State of Texas and permit the THC to establish rules to reasonably effect the appropriate management of the archeological and historical resources of Texas. The amendment is further authorized under Texas Government Code §2175.909 (included in HB 1422 of the 86th Legislative Session to be effective September 1, 2019), which allows for the deaccessioning and transfer of items within an agency's qualifying collection. Finally, Texas Government Code §442.005(q), authorizes the Commission to adopt rules to administer Chapter 442 of the Texas Government.

CROSS REFERENCE TO STATUTE. Texas Government Code §442.0053(a), provides the Commission with the authority to adopt the criteria to determine the eligibility for real property's inclusion into the state historic sites system and Texas Government Code §442.0056(a), provides the Commission with the authority to acquire historic sites. No other statutes, articles, or codes are affected by this new rule.

§16.13.Management of Collections.

(a) Ownership. The Commission is responsible for the management of archeological, archival, architectural, historic furnishing, and fine arts collections associated with historic sites overseen by the Commission. The Commission is granted authority over these collections by this section and §29.7 of this title (relating to State Associated Collections)

(b) Governance. Statutory and administrative authority over state-owned collections that are managed by the Commission is established in Texas Natural Resources Code §§191.051, 191.058, 191.091, 191.092 [191.091-092]; Texas Government Code §§442.007, 442.015, 442.075, 2175.909; and in Chapter 26 and 29 of the Texas Administrative Code. Operational and procedural requirements related to the care and management of state-owned collections overseen by the Commission are outlined in the Commission's Collections Management Policy (CMP).

(c) Deaccessioning. The Commission recognized the special responsibility associated with the receipt and maintenance of objects of cultural, historical, and scientific significance in the public trust. The decision to deaccession state-associated held-in-trust object and collections is the responsibility of the Commission and is governed by this section and §26.5 of this title (relating to Antiquities Advisory Board).

(d) Final disposition of deaccessioned collections. Following confirmation that a collection object is not subject to any conditions established at the time of acquisition that may affect its disposition and that there is sufficient documentation to a sure clear title to the object, a deaccessioned collection object will be disposed of in accordance with this section. All efforts will be made to contact the original donor to provide notification of pending collections disposition. ln accordance with U.S. income tax policy, the Commission is not able to return deaccessioned object to their original donors or donors' estates.

(1) Transfer or exchange. A deaccessioned collection object may be offered for transfer or exchange to another public institution within the State of Texas. Any such transfer or exchange will occur only on the written understanding that the object must remain within the public domain for a period of ten years, Recipient institutions will incur all transportation costs, unless otherwise agreed, and are expected to provide appropriate preservation and/or exhibit facilities.

(A) Qualified institution. Recipient institutions must have an established collections policy. The collection object(s) being transferred should fall within the recipient institution's scope of collections and the objects should be candidates for exhibition or study within the institution.

(B) Object title. Title to deaccessioned objects will be transferred along with the deaccessioned collection(s) to the recipient institution. In the event that the recipient institution is unwilling or unable to appropriately maintain the transferred collection(s) for the requisite ten years, title will revert back to the Commission and the Commission will assume responsibility for managing the objects' final disposition.

(2) Sale. If a deaccessioned collection object cannot be transferred or exchanged, it may be sold as a means of disposition, preferable by public auction, in consultation with the Texas Facilities Commission and following the provisions outlined by Texas Government Code §2175.909 (relating to Sale of Certain Historic Property, Proceeds of Sale). All proceeds from any sale at auction of such deaccessioned objects would benefit the source collections from which the objects were removed.

(A) Coordination with the Texas Facilities Commission (TFC). The Commission will work with the TFC to ensure that all sales of deaccessioned collection items will be most advantageous to the state under the circumstances. The Commission will also provide the TFC all documentation necessary for verification that the deaccession of the item is appropriate under the Commission's written policy governing the care and preservation of the collection. The Commission will report any sale to the TFC, including a description of the property disposed of, the reasons for disposal, the price paid for the property disposed of, and the recipient of the property disposed of.

(B) Vendor qualifications. When selecting a vendor to sell the deaccessioned collection(s) by competitive bid, auction, or direct sale to the public, the Commission must publish a Request for Qualifications (RFQ) to ensure that the sale is conducted by a qualified vendor. Selection of the vendor should be the most advantageous to the state under the circumstances.

(C) Appraisal. Object whose estimated fair market value could potentially exceed $500.00 must be appraised by: a qualified, independent appraiser. Objects whose estimated fair market value could potentially exceed $25,000.00 must be appraised by two separate qualified, independent appraisers.

(D) Dedicated account. The Commission shall create a dedicated fund in the general revenue fund for the deposit of any money resulting from the sale of deaccessioned items. All proceeds from any sale at auction of such deaccessioned objects would benefit the source collections from which the objects were removed. The Commission must ensure that money in the fund is appropriated only for the purposes prescribed by Texas Government Code §2175.909(f), including the care and preservation of the Commission's qualifying collection.

(3) Assignment to other historic site operations. If a deaccessioned collection object cannot be transferred or exchanged, it may also be made available for other operational purposes within the Commission. The deaccessioned collection object may be used for interpretive programming, exhibition props, restoration of another collection item, or similar purposes.

(4) Destruction. Disposal of a collection object by destruction is the final recourse and is permitted under the following circumstances:

(A) all reasonable efforts were made to dispose of the object through other means;

(B) the object is environmentally hazardous and poses a danger to other collections or staff; and

(C) the object has no residual heritage, preservation, or market value 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 February 4, 2020.

TRD-202000421

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: March 22, 2020

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


CHAPTER 24. RESTRICTED CULTURAL RESOURCE INFORMATION

13 TAC §24.17

The Texas Historical Commission (Commission) proposes an amendment to §24.17, concerning Criteria for Access to Restricted Information.

The proposed change corrects a numbering error in the citation referencing the definition of professional archeologist, or principal investigator, found in Chapter 26 of the Commission's rules.

The current, incorrect, citation found in §24.17(a)(2) references the definition of professional archeologist or principal investigator as defined by §26.5. The correct citation is §26.4.

FISCAL NOTE. Mark Wolfe, Executive Director, has determined that for each of the first five-years the proposed amendment is in effect, there will not be a fiscal impact on state or local government as a result of enforcing or administering these amendments, as proposed.

PUBLIC BENEFIT/COST NOTE. Mr. Wolfe has also determined that for the first five-year period the amended rules are in effect, the public benefit will be clarification in the process for the destructive analysis of human remains that are part of held-in-trust collections by referencing the correct definition in the Commission's rules.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the amendment to these rules, as proposed. There is no effect on local economy for the first five years that the proposed new section is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022 and 2001.024(a)(6).

COSTS TO REGULATED PERSONS. The proposed amendment does not impose a cost on regulated persons, including another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Wolfe has also determined that there will be no impact on rural communities, small businesses, or micro-businesses as a result of implementing this amendment and therefore no regulatory flexibility analysis, as specified in Texas Government Code §2006.002, is required.

GOVERNMENT GROWTH IMPACT STATEMENT. THC staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking, as specified in Texas Government Code, §2006.0221. During the first five years that the amendment would be in effect, the proposed amendment: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the amendment would be in effect, the proposed amendment will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. THC has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

REQUEST FOR PUBLIC COMMENT. Comments on the proposed amendment 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.

STATUTORY AUTHORITY. This amendment is 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 and Texas Government Code §442.005(q), which authorizes the Commission to adopt rules to carry out its duties.

CROSS REFERENCE TO STATUTE. This amendment is 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. The proposed amendment implements Sections 191.091 and 191.092 of the Texas Natural Resources Code. No other statutes, articles, or codes are affected by these amendments.

§24.17.Criteria for Access to Restricted Information.

(a) Qualified applicants meeting one or more of the following criteria may be granted access by the THSA Coordinator:

(1) Meet the Secretary of Interior's Professional Qualifications Standards (36 CFR Part 61) for Archeology.

(2) Meet the definition of professional archeologist, or principal investigator as defined by §26.4 [§26.5 ] of this title (relating to Definitions).

(3) Be a current member of the Texas Archeological Stewardship Network.

(b) Applications from persons not meeting the criteria set forth in subsection (a) of this section must have a clear and legitimate scientific or legal interest in being granted access to RCRI. Their applications will be reviewed by the access committee, and access will be granted or denied by the committee as specified in §24.19 of this title (relating to Restricted Information Application Submission and Review Procedures).

(c) If an applicant is denied access to RCRI, the applicant may appeal that decision before the commission at one of its regularly scheduled public meetings. Appeals must be submitted in writing to the commission at least 30 days prior to a scheduled meeting of the commission.

(d) Limitations on access to RCRI.

(1) Firms engaged in the business of cultural resource management for profit that do not have a qualified staff archeologist do not have a legitimate scientific or legal interest and may not be granted access to RCRI.

(2) Entities granted access to RCRI solely on the basis of ownership shall be granted access only to information on the sites they actually own, to the extent it is practical to limit such access. They shall not be granted statewide access to the restricted portion of the THSA.

(3) Technical support personnel working with and under the supervision of a currently authorized RCRI user who has a legitimate scientific or legal interest may be granted access.

(4) College students must submit a letter from a sponsoring professor, verifying their need to access the restricted data of the THSA together with the RCRI application form. If access is approved, students must work under the supervision of a currently-authorized RCRI user.

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 February 4, 2020.

TRD-202000418

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: March 22, 2020

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


CHAPTER 26. PRACTICE AND PROCEDURE

SUBCHAPTER C. ARCHEOLOGY

13 TAC §§26.13, 26.15, 26.17

The Texas Historical Commission (Commission) proposes amendments to §§26.13, 26.15, and 26.17, relating to Practice and Procedure for Archeology.

This change establishes requirements for research designs and Antiquities Code permits relating to the use of destructive techniques for analysis for all collections, but particularly human remains.

The proposed amendment to §26.13 for Application of Archeological Permits clarifies that any permitted archeological investigation employing destructive methods to conduct analysis on human remains must include the proposed analysis as part of the research design of the project, or address this through a permit amendment prior to initiation of analysis.

The proposed amendments to §26.15 for Archeological Permit Categories reiterate the responsibility of the permitee or sponsor to fund and provide the support necessary to complete permitted projects. Additionally, a new permit type, the Human Remains Testing permit, is established to ensure that the Commission has clear authority over any destructive analysis of human remains that are held-in-trust.

The amendment to §26.17 for Principal Investigator's Responsibilities for Disposition of Archeological Artifacts and Data clarifies the circumstances and processes for the use of destructive analysis on held-in-trust and permitted archeological collections, including human remains, referenced in 13 TAC 26.17(f).

FISCAL NOTE. Mark Wolfe, Executive Director, has determined that for each of the first five-years the proposed amendments are in effect, there will not be a fiscal impact on state or local government as a result of enforcing or administering these amendments, as proposed.

PUBLIC BENEFIT/COST NOTE. Mr. Wolfe has also determined that for the first five-year period the amended rules are in effect, the public benefit will be clarification in the process and circumstances for the destructive analysis of artifacts and particularly human remains. The amendments will also allow permitees and the public to obtain a greater amount of scientific knowledge in the execution of permit activities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the amendments to these rules as proposed. There is no effect on local economy for the first five years that the proposed amendments are effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022 and §2001.024(a)(6).

COSTS TO REGULATED PERSONS. The proposed amendments do not impose a cost on regulated persons, including another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Wolfe has also determined that there will be no impact on rural communities, small businesses, or micro-businesses as a result of implementing these amendments and therefore no regulatory flexibility analysis, as specified in Texas Government Code §2006.002, is required.

GOVERNMENT GROWTH IMPACT STATEMENT. The Commission staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking, as specified in Texas Government Code, §2006.0221. During the first five years that the amendments would be in effect, the proposed amendments: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the amendments would be in effect, the proposed amendments will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. The Commission has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

REQUEST FOR PUBLIC COMMENT. Comments on the proposed amendments 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.

STATUTORY AUTHORITY. 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. Natural Resources Code §191.054 allows the Commission to issue permits for the survey and discovery, excavation, demolition, or restoration of, or the conduct of scientific or educational studies at, in, or on landmarks. The amendments are further authorized by Texas Government Code §442.005(q), which grants the Commission the power to adopt rules to administer Chapter 442 of the Texas Government Code.

CROSS REFERENCE TO STATUTE. 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. The proposed amendments implement Sections 191.054 and 191.055 of the Texas Natural Resources Code. No other statutes, articles, or codes are affected by these amendments.

§26.13.Application for Archeological Permits.

(a) Justification for investigation. Investigations undertaken on publicly owned cultural resources or to locate or discover such resources must be oriented toward solving a particular research problem, preparation of a site for public interpretation, or for the purpose of salvaging information and specimens from a site threatened with immediate destruction.

(b) Eligibility for application. Permits to conduct investigations of any nature on landmarks or for the discovery of potential landmarks, or on lands owned or controlled by agencies or political subdivisions of the state will be issued exclusively by the Commission [commission] under the conditions provided in the Antiquities Code of Texas and in this chapter.

(1) Permits may be issued by the Commission [commission] to scientific and educational institutions, nonprofit corporations and organizations, investigative firms, and governmental agencies which have demonstrated their ability to carry out proper archeological investigations through their own staffs, including one or more professional archeologists who can serve as principal investigators, and who will supervise the project, or through a contract with a professional archeologist who can serve as a principal investigator. Permits may also be issued to individuals and private corporations who:

(A) retain a professional archeologist who can serve as a principal investigator for the investigations, and can be in direct charge of the project from field investigation through preservation of collections and analysis of data to reporting of results; and

(B) if required by the Commission [commission ] or the terms or conditions of a Memorandum of Understanding, provide proof that adequate funds, equipment, facilities, and personnel are available to properly conduct the investigation as proposed to the Commission [commission], and to report the results. The Commission [commission] may require a performance bond to be posted as part of the application process.

(2) State or local archeological societies and archeological stewards wishing to conduct investigations on landmarks must have a principal investigator and be limited to non-compliance, investigation activities.

(3) Principal investigators holding one or more defaulted permits are not eligible to be issued additional permits until all terms and conditions of defaulted permits are met.

(4) Principal investigators and investigative firms that are currently censured due to permit application offenses are not eligible to be issued a permit. Once the censure period has lapsed the censured principal investigator or investigative firm will be eligible to be issued a permit.

(5) No permits will be issued if the principal investigator and/or investigative firm cannot commit to direction of the permitted investigations by the principal investigator.

(c) Application for permit. Permit application forms may be obtained from the Commission [commission]. Any institution, corporation, organization, museum, investigative firm, or individual desiring a permit for investigations must file a completed application with the Commission [commission] prior to the proposed beginning date of the project. Special circumstances may require that a permit be issued on short notice when a site is threatened with immediate destruction. When a permit is issued for emergency salvage of a site threatened with destruction, the same rules apply as with all permits. The permit application must include:

(1) a statement of the purpose of the investigation;

(2) an outline of the proposed work and research design;

(3) the proposed beginning date for the fieldwork and the length of time that will be devoted to the entire project;

(4) name, address, and telephone number of the principal investigator, sponsor, and landowning or controlling agency;

(5) an accurate plotting of the particular site or area to be investigated on a 7.5' USGS quadrangle map and locational data indicating the universal transverse mercator (UTM) coordinates;

(6) the name of the facility where the specimens, material, and data will be kept during analysis of results of the investigation; and

(7) evidence of adequate funds, personnel, equipment, and facilities to properly complete the proposed investigation.

(d) Research design. Research designs prepared prior to implementation of a field study and submitted with an Archeological Permit Application Form are essential to the success of scientific objectives, resource management decision-making, and project management. The following points should be considered during formulation of a research design.

(1) Research designs present the essential objectives of a project or study and the means by which those objectives will be attained. As such, the research design is an efficient means of communicating with resource managers and the professional community at large.

(2) The research design provides a logical basis for detailed project planning and assessment of resource significance.

(3) Research designs may contain a wide range of theoretical and methodological approaches. Similarly, research designs may address general research objectives, as well as more focused types of problem orientation. The following criteria shall be met.

(A) Care should be taken to link the research design to existing topical and geographical bodies of data.

(B) The nature of the resources under investigation should be considered.

(C) The need to address a wide range of cultural and scientific resources should be considered.

(D) Applied research that addresses cultural resource management and impact-related issues should be recognized as necessary and incorporated into research designs whenever possible.

(E) The skills of the investigative personnel must be appropriate to the project goals and specifications in the research design. In many cases it may be desirable to include provisions for consultants with special expertise.

(4) Research designs should not be conceived as rigid, unchanging plans. Although research designs may place relatively greater emphasis on certain kinds of scientific questions and certain kinds of data collection, as circumstances warrant, the investigator is not relieved of responsibility to recognize other research. Whether such alternative questions and data warrant changes in the ongoing investigation is a question that should be explicitly addressed and answered in the context of pertinent resource management objectives and research goals. It is expected that research designs will be modified as projects develop. A conscious effort should be made to modify research designs to exploit new information efficiently. It is to be expected that some research objectives will, for many reasons, prove less productive than anticipated, while other objectives will become more important than anticipated or perhaps materialize for the first time. The crucial objectives in the modification process are:

(A) demonstrated progress in solving stated problems; and

(B) subsequent modification of a research design on the basis of explicit, rational decisions intended to attain stated goals.

(5) Research designs that anticipate encountering human remains must contain a detailed treatment and preservation plan developed in consultation with the Commission. Any analytical methodologies resulting in the destruction of human remains to obtain the maximum amount of scientific knowledge must be explicitly addressed in the research design for the Antiquities Permit or must be approved by the Commission with a permit amendment prior to initiation.

§26.15.Archeological Permit Categories.

Several categories of permits oriented toward specific types of investigation are issued by the Commission [commission ]. Pursuant to 13 TAC §26.13 (relating to Application for Archeological Permits), the permit applicant or project sponsor is responsible for ensuring that all permitted projects are undertaken by qualified personnel and with adequate funds and material support. The following is a list of permits associated with archeological investigations:

(1) Annual permit. A public agency or institution may be granted an Annual Permit, allowing for survey, recording, study, protection, stabilization, or conservation projects that cover a number of similar investigations at different locations. The annual permit will be issued for a specific period of time and may be developed by the public agency or institution, and the Commission [commission] either under the auspices of a Memorandum of Understanding (MOU) or by means of a letter agreement. Annual Permits may also be used to govern the survey, recording, study, protection, stabilization, and conservation projects related to designated landmarks or eligible landmarks. The Annual Permit will adhere to, but not be limited to, the Commission’s [commission’s] rules. The standards described in an Annual Permit will be administered by a qualified archeologist on the staff of or contracted by that public agency or institution. The Commission [commission] will be informed through an annual report of all projects completed under the authority of the Annual Permit with details adequate to confirm compliance.

(2) Alternative mitigation permit. A permit issued for a mitigation alternative may require additional conditions including studies, investigations, or other actions as deemed necessary by the Commission [commission], and will be specified in the terms and conditions of the permit. Permission for construction to proceed may be granted depending upon the satisfaction of the terms of the permit. Alternative forms of mitigation may include, but are not limited to:

(A) monitoring of a proposed construction project to record and report the discovery of unanticipated, important archeological deposits;

(B) conducting archival and historical research to document the significance of the site;

(C) capping or burying in place important archeological deposits if deemed appropriate by the Commission [commission];

(D) protecting significant remaining portions of a site by donation of the undisturbed area to a nonprofit organization, state agency, or a political subdivision of the state; and

(E) by acquisition and donation of a site or sites to a nonprofit organization, state agency, or a political subdivision of the state.

(3) Data recovery permit. This permit category is for the purpose of full investigation and extensive excavation of particular archeological site or sites. Data recovery must be based on a research design approved by the Commission [commission]. The evidence from a skillfully accomplished archeological excavation provides a detailed picture of the human activities at the site; emphasis is placed on the information that can be elicited rather than on the artifacts. In data recovery, the archeological deposits are removed by digging and are, therefore destroyed. Permission for construction to proceed may be granted depending upon the results of this level of investigation. Specific requirements may be set forth by the Commission [commission] in the permit. The destruction can be justified only if:

(A) it is done with such care that antiquities and cultural and environmental data in the area excavated are discovered, and if possible, preserved;

(B) information has been accurately recorded, whether its importance is immediately recognized or not, to remain available after the site has disappeared; and

(C) the record and results of the investigation are made available through publication.

(4) Emergency permit. A permit may be authorized by the Commission [commission] for the purposes of performing investigations prior to formal application for a permit. Any of the above-referenced categories of investigations can be authorized under an emergency permit, but an emergency permit will only be issued under conditions where the investigations must be initiated or performed prior to the formal issuance of the permit. Legitimate emergency conditions include those situations when archeological deposits are discovered during development or other construction projects or under conditions of natural or man-made disasters that necessitate immediate action to deal with the situation and findings. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

(5) Exhumation permit. The excavation of human burials or cemeteries and its associated funerary objects by a professional archeologist, or principal investigator in accordance with the Texas Health and Safety Code, Chapter 711.

(6) Human remains testing permit. This permit is issued for the destructive analysis of human remains that are accessioned held-in-trust state associated collections maintained in certified curatorial repositories as described under 13 TAC §29.5 (relating to Disposition of State Associated Collections) and in accordance with the Texas Health and Safety Code, Chapter 711. Destructive analysis may include, but is not limited to, DNA, radiocarbon dating, or isotope analysis. Specific requirements for investigation and reporting may be required by the Commission as part of the permit.

(7) [(6)] Intensive survey permit. This permit category is for the purpose of an intensive 100 percent pedestrian survey of a project or permit area. Components of an intensive survey may include, but are not limited to, archival research, pedestrian survey, shovel and/or mechanical subsurface probing, surface artifact inventories, site recordation, and site assessment. Such a survey can be performed in many ways but must, at a minimum, conform to the Archeological Survey Standards for Texas, which are available through the Commission [commission] and the Council of Texas Archeologists. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

(8) [7] Monitoring permit. Unless otherwise specifically authorized by the Commission [commission ], this permit category is for the purpose of having a professional archeologist on-site to observe construction activities that may or will damage cultural resources. The archeologist is required to report findings and impacts to sites to the Commission [commission ]. Monitoring may be conducted during or after other phases of archeological investigation and may not involve the need for a separate permit. However, if monitoring is the only investigation deemed necessary relative to a construction activity, then a monitoring permit will be required. If previously unrecorded and significant archeological deposits are recorded during a monitoring investigation, construction activities in the immediate area of the find must stop and the principal investigator must notify the Archeology Division of the find within 24 hours. Specific requirements of monitoring may be required by the Commission [commission as part of the permit.

(9) [8] Preservation of rock art. This permit category is for the purposes of preserving, removing, recording, and copying all manner of rock art. Preservation techniques which involve application of brushes, heat, chemicals, water, chalk, petroleum products, or other preparations to the rock surfaces are prohibited unless specifically authorized by the Commission [commission. Specific requirements may be included by the Commission [commission as part of the permit.

(10) [9] Reconnaissance survey permit. This permit category is for the purpose of location, inventory, and assessment of cultural resources of a specific area by conducting archival searches and by searching for sites. Reconnaissance is limited to recording site locations, mapping, photographing, controlled surface sampling, and possible limited shovel testing. A reconnaissance survey does not take the place of an intensive survey; it is used to determine whether an intensive survey will be warranted. Specific requirements may be imposed by the Commission [commission as part of the permit. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

(11) [10] Testing permit. This permit category is for the purpose of detailed subsurface examination of cultural resources including systematic test excavations of a particular site or area. Testing must be oriented toward sampling a representative portion of a particular site or sites and may be conducted to determine if a landmark contains significant materials. Specific requirements may be imposed by the Commission [commission as part of the permit. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

(12) [11] Underwater excavations permit. In order to fulfill justified research objectives, or if damage to significant historic and prehistoric sites cannot be avoided, a full-scale underwater archeological excavation must be carried out under the direct supervision of an underwater archeologist. The intensive investigation and excavation must include documentary research and, for shipwrecks, detailed magnetometer work. Excavations must be supported by adequate equipment and supplies to insure proper recording, preservation, and the recovery of the maximum amount of data. Thorough analysis and a complete report are required. Proper antiquities conservation is required for all artifacts, and all specimens recovered are state property. Specific requirements may be included by the Commission [commission as part of the permit. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

(13) [12] Underwater survey permit. Underwater resources include shipwrecks and submerged prehistoric and historic sites. Surveys for these cultural resources are conducted with electronic instrumentation including the proton magnetometer, side-scan and sub-bottom sonar, and positioning systems. In some instances, divers, using scuba gear search for and examine a specific site or structure. Work is conducted under the direct supervision of an underwater archeologist or underwater archeological surveyor. Data acquired are to be rendered to the Commission [commission along with an analysis and report. Specific requirements may be included by the Commission [commission as part of the permit. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

(14) [13] Underwater test excavations permit. Significant magnetic and/or acoustic anomalies discovered during survey must be tested by excavation under the direct supervision of an underwater archeologist in order to determine the source of the anomalies. Inspection by divers, coring, or other appropriate means must be used to test the nature of suspected prehistoric or historic sites. In the case of magnetic anomalies, sediment must be removed to allow identification, approximate dating, and determination of the importance of objects and sites found. Any artifacts recovered from state lands are property of the State of Texas. Extensive recovery during testing is discouraged. Accepted standards for provenience control and archeological data recovery must be maintained. Data must be analyzed and rendered to the Commission [commission in a written report. Proper conservation of any artifacts recovered must be carried out. Specific requirements may be required by the Commission [commission as part of the permit. Permission for construction to proceed may be granted depending upon the results of this level of investigation.

§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 [commission are contained in Texas Natural Resources Code, §191.052(b). The Commission [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 [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 [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 [commission. A variety of special, short-term exhibits may also be authorized by the Commission [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 [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 [commission. Acceptable circumstances for disposal or destructive analysis are provided by this chapter. Exceptions may be considered by the Commission [commission . Under no circumstances will held-in-trust collections be disposed of through sale.

(f) Disposal. The Commission’s [commission’s rules for disposal apply to state-associated collections prior to accessioning from an archeological project on public land or under public water under an Antiquities Permit issued by the Commission [commission.

(1) Disposal of state-associated collections from a site on public land or from public water under an antiquities permit issued by the Commission [commission must be approved by the Commission [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 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 [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) are highly redundant and without additional merit.

(B) lack historical, cultural, or scientific value.

(C) have decayed or decomposed beyond reasonable use and repair or by their condition constitute a hazard to other objects in the collection.

(D) may be subject to disposal as required by federal laws.

(3) State-associated collections disposed of after recovery must be documented in the notes and final report, with copies provided to the curatorial facility.

(4) The Commission [commission relinquishes title for the State to any state-associated collections approved for disposal. The state-associated collections must be disposed of in a suitable manner.

(g) Destructive Analysis. The Commission's rules for destructive analysis apply to state-associated collections that are accessioned and held-in-trust by a certified repository as stated in 13 TAC §29.5(g) (relating to Disposition of State Affiliated Collections). All analysis of artifacts, including human remains, that is destructive in nature and conducted prior to accessioning must be covered by the research design approved for the Antiquities Permit.

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 February 4, 2020.

TRD-202000419

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: March 22, 2020

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


CHAPTER 29. MANAGEMENT AND CARE OF ARTIFACTS AND COLLECTIONS

13 TAC §29.5

The Texas Historical Commission (Commission) proposes amendments to §29.5, concerning Disposition of State Associated Collections.

This amendment establishes a requirement that the Commission review proposals for the destructive analysis of human remains from held-in-trust collections.

The amendment to the current rules for the Disposition of State Associated Collections clarifies the processes for the use of destructive analysis on held-in-trust human remains collections. Given the sensitive and special nature of human remains, the current rules are being amended with a defined process for the destructive analysis of human remains that establishes the Commission's need to review any proposed research and the potential to require issuance of a Human Remains Testing Permit as defined in 13 TAC §26.15.

FISCAL NOTE. Mark Wolfe, Executive Director, has determined that for each of the first five-years the proposed amendments are in effect, there will not be a fiscal impact on state or local government as a result of enforcing or administering these amendments, as proposed.

PUBLIC BENEFIT/COST NOTE. Mr. Wolfe has also determined that for the first five-year period the amended rules are in effect, the public benefit will be clarification in the process for the destructive analysis of human remains that are part of held-in-trust collections. The public will also benefit from Commission supervision of destructive analysis of human remains to ensure the maximum scientific and educational value is obtained from resource analysis.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the amendments to these rules, as proposed. There is no effect on local economy for the first five years that the proposed new section is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022 and 2001.024(a)(6).

COSTS TO REGULATED PERSONS. The proposed new section does not impose a cost on regulated persons, including another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Wolfe has also determined that there will be no impact on rural communities, small businesses, or micro-businesses as a result of implementing these amendments and therefore no regulatory flexibility analysis, as specified in Texas Government Code §2006.002, is required.

GOVERNMENT GROWTH IMPACT STATEMENT. THC staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking, as specified in Texas Government Code, §2006.0221. The amendment establishes a requirement for Commission review of destructive analysis of human remains, however, this process only applies to a small subset of archeological analyses involving human remains. During the first five years that the amendments would be in effect, the proposed amendments: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the amendments would be in effect, the proposed amendments will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. THC has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

REQUEST FOR PUBLIC COMMENT. Comments on the proposed amendments 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.

STATUTORY AUTHORITY. 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 located at Chapter 191 of the Texas Natural Resources Code. Natural Resources Code §191.055 grants the Commission supervisory authority with respect to permits issued under §191.054 and §191.053 to ensure that the maximum amount of historic, scientific, archeological, and educational information may be recovered and preserved. The amendment is further authorized by Texas Government Code §442.005(q), which grants the Commission authority to adopt rules to carry out its duties, including the duty to administer the Antiquities Code of Texas.

CROSS REFERENCE TO STATUTE. 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. The proposed amendments implement Sections 191.091 and 191.092 of the Texas Natural Resources Code. No other statutes, articles, or codes are affected by these amendments.

§29.5.Disposition of State Associated Collections.

(a) Ownership. All specimens, artifacts, materials, and samples plus original field notes, maps, drawings, photographs, and standard state site survey forms, resulting from the investigations remain the property of the State of Texas. Certain exceptions left to the discretion of the Commission are contained in the 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 State Antiquities Landmarks or potential landmarks, which remain the property of the State. These state-associated collections 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. It is the rule of the Commission that such antiquities shall never be used for commercial exploitation. (see also 13 TAC §26.17 (relating to Principal Investigator's Responsibilities for Disposition of Archeological Artifacts and Data))

(b) Housing, conserving, and exhibiting state-associated collections. (see also 13 TAC §26.17)

(1) After investigations conducted under the jurisdiction of the Antiquities Code of Texas have culminated in the reporting of results, these state-associated collections will be permanently preserved in research collections at a curatorial facility certified by the Commission. Prior to the expiration of a permit, proof that state-associated collections are housed in a curatorial facility is required. Failure to demonstrate proof before the permit expiration date may result in the principal investigator and co-principal investigator falling into default status. (see also 13 TAC §26.17)

(2) Institutions housing state-associated collections 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. (see also 13 TAC §26.17)

(3) Exhibits of state-associated collections will be made 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 to 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. (see also 13 TAC §26.17)

(c) Access to state-associated collections for research purposes--collections retained under direct supervision of the Commission will be available under the following conditions:

(1) Request for access to collections must be made in writing to the curatorial facility holding the collections indicating to which collection and what part of the collection access is desired; nature of research and special requirements during access; who will have access, when, and for how long; type of report which will result; and expected date of report.

(2) Access will be granted during regular working hours to qualified institutions or individuals for research culminating in non-permit reporting. A copy of the report will be provided to the Commission.

(3) Data such as descriptions or photos when available will be provided to institutions or individuals on a limited basis for research culminating in nonprofit reporting. A copy of the report will be provided to the Commission.

(4) Access will be granted to corporations or individuals preparing articles or books to be published on a profit-making basis only if there will be no interference with conservation activities or regular research projects; photos are made and data collected in the facility housing the collection; arrangements for access are made in writing at least one month in advance; cost of photos and data and a reasonable charge of or supervision by responsible personnel are paid by the corporation or individual desiring access; planned article or publication does not encourage or condone treasure hunting activity on public lands, State Antiquities Landmarks, or National Register sites, or other activities which damage, alter, or destroy cultural resources; proper credit for photos and data are indicated in the report; a copy of the report will be provided to the Commission.

(5) The Commission may maintain a file of standard photographs and captions available for purchase by the public.

(6) A written agreement containing the appropriate stipulations will be prepared and executed prior to the access.

(7) Curatorial facilities certified by the Commission shall promulgate reasonable procedures governing access to those collections under their stewardship.

(d) Deaccession. The Commission's rules for deaccession recognize the special responsibility associated with the receipt and maintenance of objects of cultural, historical, and scientific significance in the public trust. Although curatorial facilities become stewards of held-in-trust collections, title is retained by the Commission for the State. Thus, the decision to deaccession held-in-trust objects or state-associated collections is the responsibility of the Commission. The Commission recognizes the need for periodic reevaluations and thoughtful selection necessary for the growth and proper care of collections. The practice of deaccessioning under well-defined guidelines provides this opportunity.

(1) Deaccessioning may be through voluntary or involuntary means. The transfer, exchange, or deterioration beyond repair or stabilization or other voluntary removal from a collection in a curatorial facility is subject to the limitations of this rule.

(2) Involuntary removal from collections occurs when objects, samples, or records are lost through theft, disappearance, or natural disaster. If the whereabouts of the object, sample, or record is unknown, it may be removed from the responsibility of the curatorial facility, but the Commission will not relinquish title in case the object, sample, or record subsequently is returned.

(e) Certified curatorial facilities. Authority to deal with deaccessioning of limited categories of objects and samples from held-in-trust collections is delegated to a curatorial facility certified by the Commission to hold state held-in-trust collections through a contractual agreement between the curatorial facility and the Commission. Annual reports will be submitted to the Commission on these deaccessioning actions.

(1) If the Commission determines that a curatorial facility has acted in violation of the contractual agreement and this rule, the contractual agreement will be terminated. From that date forward, the Commission will review and decide on all deaccession actions of that curatorial facility concerning held-in-trust objects and samples. A new contractual agreement may be executed at such time as the Commission determines that the curatorial facility has come into compliance with this rule.

(2) Curatorial facilities not yet certified by the Commission to hold state held-in-trust collections shall submit written deaccession requests of objects and samples from held-in-trust collections to the Commission.

(3) Requests to deaccession a held-in-trust collection in its entirety must be submitted to the Commission.

(4) The reasons for deaccessioning all or part of held-in-trust collections include, but are not limited to, the following:

(A) Objects lacking provenience that are not significant or useful for research, exhibit, or educational purposes in and of themselves;

(B) Objects or collections that do not relate to the stated mission of the curatorial facility. Objects or collections that are relevant to the stated mission of the curatorial facility may not be deaccessioned on the grounds that they are not relevant to the research interests of current staff or faculty;

(C) Objects that have decayed or decomposed beyond reasonable use or repair or that by their condition constitute a hazard in the collections;

(D) Objects that have been noted as missing from a collection beyond the time of the next collections-wide inventory are determined irretrievable and subject to be deaccessioned as lost;

(E) Objects suspected as stolen from the collections must be reported to the Commission in writing immediately for notification to similar curatorial facilities, appropriate organizations, and law enforcement agencies. Objects suspected as stolen and not recovered after a period of three years or until the time of the next collections-wide inventory are determined irretrievable and subject to being deaccessioned as stolen;

(F) Objects that have been stolen and for which an insurance claim has been paid to the curatorial facility;

(G) Objects that may be subject to deaccessioning as required by federal laws; and

(H) Deaccession for reasons not listed above must be approved on a case-by-case basis by the Commission.

(f) Title to Objects or Collections Deaccessioned. If deaccessioning is for the purpose of transfer or exchange, Commission retains title for the State to the object or collection. A new held-in-trust agreement must be executed between the receiving curatorial facility and the THC.

(1) If deaccessioning is due to theft or loss, the Commission will retain title for the State to the object or collection in case it is ever recovered, but the curatorial facility will no longer be responsible for the object or collection.

(2) If deaccessioning is due to deterioration or damage beyond repair or stabilization, the Commission relinquishes title for the State to the object or collection and the object or collection must be discarded in a suitable manner.

(g) Destructive Analysis. The Commission's rules for destructive analysis apply only to samples and objects from held-in-trust collections accessioned into the holdings of a curatorial facility. Destructive analysis of samples or objects prior to placement in a curatorial facility is covered by the research design approved for the Antiquities Permit. Authority to deal with destructive analysis requests of approved categories of objects and samples from state-associated held-in-trust collections is delegated to a curatorial facility certified by the Commission to hold state held-in-trust collections through a contractual agreement between the curatorial facility and the Commission. Annual reports will be submitted to the Commission on these destructive analysis actions.

(1) A written research proposal must be submitted to the curatorial facility stating research goals, specific samples or objects from a held-in-trust collection to be destroyed, and research credentials in order for the curatorial facility to establish whether the destructive analysis is warranted.

(A) Any proposal for destructive analysis of human remains must be reviewed by the Commission.

(B) The Commission will only issue permission to a qualified applicant of an Antiquities Code Human Remains Testing permit pursuant to 13 TAC §26.13 and §26.15 (relating to Application for Archeological Permits and Archeological Permit Categories, respectively).

(2) If the Commission determines that a curatorial facility has acted in violation of the contractual agreement and this rule, the contractual agreement will be terminated. From that date forward, the Commission will review and decide on all destructive analysis actions of that curatorial facility concerning held-in-trust objects and samples. A new contractual agreement may be executed at such time as the Commission determines that the curatorial facility has come into compliance with these rules.

(3) Curatorial facilities not yet certified by the Commission to hold state held-in-trust collections shall submit destructive analysis requests of objects and samples from held-in-trust collections to the Commission.

(4) Conditions for approval of destructive analysis may include qualifications of the researcher, uniqueness of the project, scientific value of the knowledge sought to be gained, and the importance, size, and condition of the object or sample.

(5) Objects and samples from held-in-trust collections approved for destructive analysis purposes are loaned to the institution where the researcher is affiliated. Objects and samples will not be loaned to individuals for destructive analysis.

(6) If the curatorial facility denies a request for destructive analysis of a sample or object from a held-in-trust collection, appeal of the decision is through the Commission.

(7) Information gained from the analysis must be provided to the curatorial facility as a condition of all loans for destructive analysis purposes. After completion of destructive analysis, the researcher must return the information (usually in the form of a research report) in order for the loan to be closed. Two copies of any publications resulting from the analysis must be sent to the curatorial facility. If the object or sample is not completely destroyed by the destructive analysis, the remainder must be returned to the curatorial facility.

(8) It is the responsibility of the curatorial facility to monitor materials on loan for destructive analysis, to assure their correct use, and to note the returned data in the records.

(9) The Commission does not relinquish title for the State to an object or sample that has undergone destructive analysis and the object or sample is not deaccessioned.

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 February 4, 2020.

TRD-202000420

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: March 22, 2020

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