13 TAC §§28.1 - 28.7
The Texas Historical Commission (THC) adopts the creation
of new Sections 28.1 - 28.7 (concerning Historic Shipwrecks) of Title 13,
Part 2, Chapter 28 of the Texas Administrative Code with changes to the text
as published in the November 15, 2002 issue of the
Texas Register
(27TexReg10688).
No written comments were received regarding these rules, but the Commission
did receive a verbal comment from a member of the Antiquities Advisory Board
suggesting that specific references to the Galveston District of the Corps
of Engineers were not necessary and that the rules should only generically
refer to, "the Corps of Engineers." The Commission agrees with this comment
and removed all specific references to the Galveston District.
The new rules are proposed under §442.005(q), Title 4, Chapter
442 of the Texas Government Code, which provides the Texas Historical Commission
with the authority to promulgate rules to reasonably effect the purposes of
this chapter.
No other statutes, articles or codes are affected by the adoption of these
rules.
§28.1.Purpose and Scope.
(a)
Purpose. The purpose of these sections is to describe avoidance
or protection procedures applicable to persons who conduct or cause to be
conducted any activity which would cause damage to sunken or abandoned pre-twentieth
century ships and other historically significant wrecks of the sea.
(b)
Scope. These sections apply only to activities that would
cause damage to sunken or abandoned pre-twentieth century ships and other
historically significant wrecks.
(c)
Claim of title. These sections do not purport to alter
any ownership or claim of title by the state to any sunken or abandoned pre-twentieth
century ships and wrecks of the sea.
§28.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Avoidance Margin--the area around a significant magnetic
anomaly or sonar target in which the proposed activity cannot occur, i.e.
the anomaly or target must be avoided by the margin, unless the source of
the anomaly or target is investigated and shown, to the satisfaction of the
commission, to be not historically significant or is mitigated in some fashion
approved by the commission.
(2)
Commission--the Texas Historical Commission.
(3)
Person--any individual, firm, partnership, association,
corporation that is public or private and profit or nonprofit, trust, political
subdivision, agency of the state, or agency of the federal government who
conducts or causes to be conducted any activity which would cause damage to
a state archeological landmark.
(4)
Shipwreck--any watercraft or aircraft that is 50 years
old or older, including any part of them or contents of them, and is sunken
or abandoned in, on, or under the surface of any land, including submerged
land, belonging to the State of Texas or to any county, city, or other political
subdivision of the state.
(5)
Significant magnetic anomaly--best engineering judgment
should be used to determine if the source of a magnetic anomaly might be historically
significant. Determination of magnetic anomaly source significance must be
made by a person experienced in the archeological interpretation of magnetometer
data, taking into consideration the amplitude, duration, and complexity of
each anomaly or anomaly cluster.
(6)
Significant sonar target--best engineering judgment should
be used to determine if the source of a sonar target might be historically
significant. Determination of potential target source significance must be
made by a person experienced in the archeological interpretation of sonar
data, taking into consideration the size and shape of the visible target and
any associated magnetometer data which might reveal the potential for buried,
unseen parts of the target.
(7)
State Archeological Landmark--any cultural resource located
in, on, or under the surface of any land, including submerged land, belonging
to the State of Texas or to any county, city, or other political subdivision
of the state, or a site officially designated as a landmark at an open public
hearing before the commission. Any pre-twentieth century shipwreck is automatically
a state archeological landmark. Any shipwreck, as defined in paragraph (4)
of this section, that is not pre-twentieth century but is determined to be
historically significant by the Commission is also eligible to be officially
designated as a state archeological landmark.
(8)
Submerged land--land belonging to the State of Texas, including
its tidelands, submerged land, and the beds of its rivers and the sea within
jurisdiction of the State of Texas or any political subdivision of the State
of Texas.
§28.3.Procedures.
After consultation with affected persons and after due reflection on
the commission's obligations under the Antiquities Code of Texas, the commission
makes the following determinations of fact and policy:
(1)
It is the in the public interest of the State of Texas
to locate, protect, and preserve all shipwrecks in Texas' submerged lands.
(2)
The commission shall determine and designate the site of
state archeological landmarks in Texas' submerged lands and remove from the
designation certain sites.
(3)
The commission shall evaluate lease sales proposed to be
conducted in Texas' submerged lands by the School Land Board and may recommend
developmental restrictions to be applied to each designated tract which will
be published in the Notice for Bids booklet which is distributed by the General
Land Office 30 days before each lease sale, and which will forewarn potential
lessees of developmental restrictions that apply to the tract.
(4)
The commission shall evaluate proposed activities in Texas'
submerged lands, and may comment favorably, conditionally, or adversely on
applications for permits submitted to the U.S. Army Corps of Engineers, in
accordance with applicable rules and orders.
(5)
The commission may require persons working in the area
of a known shipwreck in Texas' submerged lands to take action approved by
the commission to avoid damaging the shipwreck. The commission may require
similar action of persons working in an area where there is a likelihood that
a shipwreck exists in Texas' submerged lands.
(6)
All persons shall conduct their activities in Texas' submerged
lands in a manner that will avoid damage to shipwrecks in Texas' submerged
lands, and that will protect and preserve the cultural resources of Texas.
§28.4.State Land Tracts Designated by the Commission as Shipwrecks in Texas' Submerged Lands.
(a)
The commission has determined there is substantial evidence
of the presence of shipwrecks in certain state land tracts of Texas' submerged
lands. Such tracts are designated as sensitive tracts by the commission. The
list of sensitive tracts is maintained by the Texas General Land Office as
part of that agency's Resource Management Code system for state-owned submerged
lands and is updated as necessary by the commission. This list is available
from the Texas General Land Office, Resource Management Division.
(b)
The commission shall take action to determine the site,
or probable site, of shipwrecks in Texas' submerged lands within a designated
state land tract and remove from the designations certain state land tracts
in which there has been a determination there is not a substantial probability
of finding a shipwreck.
(c)
The list of sensitive state tracts in state-owned submerged
lands is considered only a guide to the probability of the presence or absence
of a state archeological landmark or eligible property within a given tract.
(d)
If, during the conduct of activities in submerged state
land tracts, a person discovers the existence of a shipwreck, the person shall
promptly notify the commission of the existence of the historic property and
shall conduct the activities in a manner that will avoid damage to the shipwreck.
(e)
The commission possesses information related to shipwrecks
in Texas' submerged lands. Access to such information, with the exception
of the list of sensitive tracts described in subsection (a) of this section,
is limited to registered researchers as specified in Chapter 24 of this title.
The commission's shipwreck reference file will be available for review by
registered researchers at the commission during regular business hours.
(f)
Any non-shipwreck historic or prehistoric cultural resources
in, on, or under the surface of any land, including submerged land, belonging
to the State of Texas or to any county, city, or other political subdivision
of the state is protected under Chapter 26 of this title.
§28.5.Conduct of Activities.
(a)
All persons shall conduct their activities in Texas' submerged
lands in a manner designed to avoid damage to shipwrecks in Texas' submerged
lands, and to protect and preserve the cultural resources of Texas.
(b)
When a person submits an application for a permit from
the U.S. Army Corps of Engineers, the person shall describe the proposed activity
in sufficient detail to enable the commission to review the U.S. Army Corps
of Engineers, public notice publication, and determine if the proposed activity
may impact a shipwreck.
(c)
If the proposed activity is in an area where a shipwreck
is known to exist, or where there is a likelihood that a shipwreck exists,
the commission may require a survey, the purpose of which is to locate shipwrecks.
(d)
Conduct of such a survey may be recommended by the commission
to the U.S. Army Corps of Engineers, and may be required as a condition of
issuance of the permit from the U.S. Army Corps of Engineers. Such survey
must be done under a Texas Antiquities Permit issued by the commission. The
Texas Antiquities Permit is issued only to a qualified archeologist and allows
the commission to monitor the quality and results of the survey.
(e)
The commission has set the following minimum standards
for conducting a survey.
(1)
Horizontal positioning.
(A)
Texas' submerged lands within bays and rivers and within
one mile of shore in the Gulf of Mexico. The avoidance margin in this area
is 50 meters.
(i)
Site-specific activities (drilling site, platform site,
localized dredging, etc.). A differentially corrected global positioning system
(GPS) receiver or system of equal or greater accuracy will be used for navigation
and positioning. Survey line spacing will be no greater than 30 meters. The
geographical extent of the survey are must be adequate to allow movement of
the proposed activity such that it is outside of the avoidance margin of any
significant magnetic anomaly or sonar target yet fully within the area surveyed.
If avoidance of the anomaly or target is not feasible, further investigation
of the anomaly or target will be required as stated in subsections (f) - (h)
of this section. Such further investigation must also be conducted under a
permit issued by the commission.
(ii)
Linear projects (pipelines, dredged channels, buried utility
lines, etc.). A differentially corrected global positioning system (GPS) receiver
or system of equal or greater accuracy will be used for navigation and positioning.
Under guidance of the GPS, the survey boat will travel the centerline of the
project route and at least one offset line no more than 30 meters each side
of the centerline. The number of offset lines required will be determined
by the width of the proposed activity corridor, taking into account the construction
activities at the margin of the primary activity (e.g. anchor patterns of
construction barges along a pipeline route), and by the size of the avoidance
margin for this area. If significant magnetic anomalies or sonar targets are
recorded, the proposed activity must avoid those anomalies or targets by the
avoidance margin. The geographical extent of the survey area, therefore, must
be adequate to allow avoidance. If avoidance of the anomaly or target is not
feasible, further investigation of the anomaly or target will be required
as stated in subsections (f) - (h) of this section. Such further investigation
must also be conducted under a permit issued by the commission.
(B)
Texas' submerged lands offshore (one mile or more offshore
in the Gulf of Mexico). The avoidance margin in this area is 150 meters.
(i)
Site-specific activities (drilling site, platform site,
localized dredging, etc.). A differentially corrected global positioning system
(GPS) receiver or system of equal or greater accuracy will be used for navigation
and positioning. Survey line spacing will be no greater than 50 meters. The
geographical extent of the survey are must be adequate to allow movement of
the proposed activity such that it is outside of the avoidance margin of any
significant magnetic anomaly or sonar target yet fully within the area surveyed.
If avoidance of the anomaly or target is not feasible, further investigation
of the anomaly or target will be required as stated in subsections (f) - (h)
of this section. Such further investigation must also be conducted under a
permit issued by the commission.
(ii)
Linear projects (pipelines, dredged channels, buried utility
lines, etc.). A differentially corrected global positioning system (GPS) receiver
or system of equal or greater accuracy will be used for navigation and positioning.
Under guidance of the GPS, the survey boat will travel the centerline of the
project route and at least one offset line no more than 50 meters each side
of the centerline. The number of offset lines required will be determined
by the width of the proposed activity corridor, taking into account the construction
activities at the margin of the primary activity (e.g. anchor patterns of
construction barges along a pipeline route), and by the size of the avoidance
margin for this area. If significant magnetic anomalies or sonar targets are
recorded, the proposed activity must avoid those anomalies or targets by the
avoidance margin. The geographical extent of the survey area, therefore, must
be adequate to allow avoidance. If avoidance of the anomaly or target is not
feasible, further investigation of the anomaly or target will be required
as stated in subsections (f) - (h) of this section. Such further investigation
must also be conducted under a permit issued by the commission.
(2)
Instrumentation and Survey Procedures. Instrumentation
is classified as remote sensing equipment that detects the presence of an
object by its inherent physical properties or by signals reflected from the
object. The preferred suite of remote sensing equipment includes a marine
magnetometer, a high-resolution side-scan sonar, and a recording fathometer.
(A)
The magnetometer should be set to detect and record the
magnetic environment at a minimum of 1-second intervals and the data should
be recorded on computer disc or other appropriate computer media.
(B)
The side-scan sonar should use a transceiver designated
as a 300 kHz transceiver minimum and should be operated in that range or higher.
(C)
The fathometer must be capable of recording bathymetric
data either on a paper printout, or, preferably, through digital output to
a computer.
(D)
The magnetometer, side-scan sonar, and fathometer, to the
extent possible, should be interfaced, either directly or through computer
files, with the global positioning system receiver to coordinate positions
with the remote sensing equipment data.
(3)
Variance from the parameters specified in subsection (e)(1)
and (2) of this section may be requested from the commission. Such variance
must be based on quantifiable factors, e.g. the water is too shallow for effective
use of side-scan sonar. Likewise, the commission may modify the parameters
for a given survey area based on information held by the commission, e.g.
survey line spacing may be decreased in the immediate vicinity of a known
state archeological landmark more than one mile offshore in the Gulf of Mexico.
(f)
The commission has determined that a person who conducts
a survey to determine the possible presence of hazards which would be dangerous
to the safety of human life and equipment in the area where the proposed activity
will be performed has also conducted a survey to determine the possible existence
of shipwrecks in Texas' submerged lands, provided that the data from the survey
is reviewed by a qualified archeologist under a permit issued by the commission
and that such survey meets the minimum standards specified in this section.
(g)
If a person detects a significant anomaly or sonar target
as a result of conducting the survey described in this section, the person
shall record a specific UTM, Latitude/Longitude, or state plane coordinate
position, along with the geodetic datum in which the coordinates were recorded,
and either:
(1)
Conduct a thorough and good faith effort to search out
the object causing the anomaly or sonar target and identify whether the object
might possibly be a state archeological landmark or eligible property in Texas'
submerged lands. Excavation in order to make an identification at this stage
of investigation is prohibited without a permit issued by the commission.
Or, the person may:
(2)
Relocate the activity to an area outside of the appropriate
avoidance margin in order to avoid disturbance of the object causing the anomaly
or sonar target and thereby avoid damage to a shipwreck.
(h)
If the person determines, through actions conducted under
subsection (e) of this section, that the object causing the significant anomaly
or sonar target is definitely not a shipwreck, and if the commission concurs
with that determination, the person may perform the activity in a normal,
routine manner.
(i)
If the person determines, through actions conducted under
subsection (e) of this section, that the object causing the significant anomaly
or sonar target is a shipwreck or might be a shipwreck, the person shall either:
(1)
Notify the commission of the possible existence of a shipwreck
or possible shipwreck, report the coordinate position to the commission and
relocate the activity to an area outside of the appropriate avoidance margin
in order to avoid disturbance of the object causing the significant anomaly
or sonar target and thereby avoid damage to a shipwreck; or
(2)
Notify the commission of the possible existence of a shipwreck
or possible shipwreck and report the coordinate position to the commission;
whereupon the commission can perform its activities described in Subchapter
C, Powers and Duties, and Subchapter E, Prohibitions, of the Antiquities Code
of Texas. The commission may require additional archeological investigations
of the shipwreck or possible shipwreck, or, if the commission concurs that
no damage will occur to the shipwreck from the proposed activity, the commission
may authorize the person to proceed with the proposed activity in a normal,
routine manner.
§28.6.Remote Sensing Survey for Pure Research Purposes.
A person may conduct a survey for the sole purpose of pure historical
or archeological research on shipwrecks and not for review and compliance
clearance. Such pure research surveys must be conducted under a Texas Antiquities
Permit issued to a qualified archeologist by the commission. The minimum standards
for conducting such a survey may vary from those set forth in §28.5(e)
of this chapter.
§28.7.Activities Conducted on Shipwrecks beyond the Survey Level.
Any activity conducted on a shipwreck beyond that authorized under
the survey permit issued by the commission must be authorized under a separate
permit issued by the commission specifically for that activity as discussed
under §26.20 of this title.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 19, 2003.
TRD-200301260
F. Lawrence Oaks
Executive Director
Texas Historical Commission
Effective date: March 18, 2003
Proposal publication date: November 15, 2002
For further information, please call: (512) 463-5711