Part 2. TEXAS HISTORICAL COMMISSION
Chapter 28. HISTORIC SHIPWRECKS
The Texas Historical Commission (hereafter referred to as the Commission) proposes amendments to §§28.2 - 28.4 and new §§28.5 - 28.9, concerning Historic Shipwrecks. The amendments and new sections are being proposed in an effort to update and modify the rules associated with historically significant shipwrecks that are either submerged under the waterways or contained on, in, or under the public lands of the State of Texas. The amendments and new sections should improve the quality of underwater archeological investigations by streamlining and clarifying the responsibilities of principal investigators.
F. Lawerence Oaks, Executive Director, has determined that for the first five-year period the rules are in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules. There will also be no effect on small businesses or micro-businesses. There are no anticipated economic costs to persons who are required to comply with the rules as proposed.
Mr. Oaks has also determined that for each year of the first five year period the rules are in effect the public benefit anticipated as a result of the amendments and new sections will be an increased efficiency and effectiveness in the implementation of the Antiquities Code of Texas.
Comments on the proposal may be submitted to F. Lawerence Oaks, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711, (512) 463-6100. Comments will be accepted for 30 days after publication in the Texas Register.
The amendments and new sections are proposed under Title 4, Chapter 442, §442.005(q) of the Texas Government Code and Title 9, Chapter 191, §191.052 of the Texas Natural Resources Code, which provides the Texas Historical Commission with the authority to promulgate rules and conditions to reasonably affect the purposes of these chapters.
No other statutes, articles or codes are affected by the proposal.
§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. The avoidance area will generally be defined by a circle or oval, the outer limits of which are separated from the approximate outer edges of the contoured magnetic anomaly by the appropriate avoidance margin.
(2) - (4) (No change.)
(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, orientation, and complexity of each anomaly or anomaly cluster.
(6) (No change.)
(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
meets the criteria under §26.9 of this title [
is determined to be historically significant by the Commission
] is also eligible to be officially designated
as a state archeological landmark.
(8) (No change.)
§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) - (4) (No change.)
(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 or where a remote-sensing survey conducted under the provisions of §28.6 of this title has indicated the possible presence of a shipwreck.
(6) (No change.)
(7) 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.
§28.4.State Land Tracts Designated as High Probability [ 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
high probability [sensitive] tracts by the commission.
The list of high probability [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 high probability [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) Texas' submerged lands not contained within
defined state land tracts are generally considered high probability
areas and the commission shall determine if a survey is needed within
those waters for any given undertaking. [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.Access to Information.
The commission possesses information related to shipwrecks in Texas' submerged lands. Access to such information, with the exception of the list of high probability tracts described in §28.4(a) of this title, 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.
§28.6.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. 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.
(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 an archeological 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 the 3 nautical mile line in the Gulf of Mexico.
(i) The avoidance margin in this area is fifty (50) meters.
(ii) The maximum survey line spacing in this area is twenty (20) meters.
(B) Texas' submerged lands offshore beyond the 3 nautical mile line in the Gulf of Mexico.
(i) The avoidance margin in this area is one-hundred and fifty (150) meters.
(ii) The maximum survey line spacing in this area is thirty (30) meters.
(C) The geographical extent of an archeological survey must take include the construction impacts (e.g. anchor patterns of construction barges) at the margin of the primary activity and the size of the avoidance margin. Survey for a linear project (e.g. pipelines, dredged channels, and utility lines) must include the centerline of the project route and at least one offset line each side of the centerline. The survey area 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.
(D) If avoidance of an anomaly or target determined to be significant by the archeologist holding the survey permit is not feasible, further investigation of the anomaly or target will be required as stated in subsections (g), (i) and (j) 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 1-second intervals or less 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 frequency or a higher frequency if available and the data should be recorded on computer disc or other appropriate computer media.
(C) The fathometer must be capable of recording bathymetric data 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.
(E) A differentially corrected global positioning system (GPS) receiver or system of equal or greater accuracy will be used for navigation and positioning.
(F) The positioning system must collect accurate position data at the same time interval as the magnetometer to preclude the necessity of interpolating positions between more widely spaced position fixes.
(3) Variance from the parameters specified in 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 beyond the 3 nautical mile line 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 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 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.
(j) Investigation by archeological divers to identify the source of an anomaly or sonar target is appropriate under a survey permit. Such investigations may involve removal of overburden to expose small section of a buried object but shall not involve extensive excavation or artifact recovery. Survey level diving investigations must be approved as part of the survey permit issued to the archeologist or as a separate survey permit.
§28.7.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 §28.6(e) of this title.
§28.8.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.
§28.9.Analysis and Presentation of Data.
Analysis and presentation of magnetometer and side-scan sonar data upon completion of a survey to locate submerged cultural resources, in addition to requirements under §26.24 of this title.
(1) If the survey is of sufficient duration, the magnetometer data will be corrected for diurnal variation using either separate data collected concurrently specifically for the purpose of diurnal corrections or through the use of an appropriate algorithm or mathematical formula.
(2) Magnetometer data will be presented on maps in a contour format. Magnetic anomalies recommended for avoidance or investigation shall be illustrated at a scale and showing isolines at appropriate levels to illustrate the complexity and intensity of individual anomalies. Illustrating anomalies at this scale may require separate illustrations from the overall survey map.
(3) Maps illustrating magnetic anomalies will show the actual survey lines followed by the survey vessel and thus the position of each anomaly in relation to the survey lines.
(4) Positive and negative nodes of magnetic anomalies shall be indicated either by different colors of isolines (e.g. red for positive node, blue for negative node) or by variation in line type (e.g. hatched or dashed) for the negative isolines.
(5) A map of the survey area must be included in the survey report showing both the proposed survey lines and the actual survey lines.
(6) A table of anomalies and sonar targets recommended for avoidance or investigation, including the positions of those anomalies or targets, shall be included in the report.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 20, 2008.
TRD-200802632
F. Lawerence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: July 6, 2008
For further information, please call: (512) 463-1858
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Historical Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Historical Commission proposes the repeal of §§28.5 - 28.7, concerning Historic Shipwrecks.
F. Lawerence Oaks, Executive Director, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the repeal. There will also be no effect on small businesses or micro-businesses. There are no anticipated economic costs to persons who are required to comply with the repeal as proposed.
Mr. Oaks has also determined that for each year of the first five year period the repeal is in effect the public benefit anticipated as a result of the repeal will be an increased efficiency and effectiveness in the implementation of the Antiquities Code of Texas.
Comments on the proposal may be submitted to F. Lawerence Oaks, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711, (512) 463-6100. Comments will be accepted for 30 days after publication in the Texas Register.
The repeal is proposed under Title 4, Chapter 442, §442.005(q) of the Texas Government Code and Title 9, Chapter 191, §191.052 of the Texas Natural Resources Code, which provides the Texas Historical Commission with the authority to promulgate rules and conditions to reasonably affect the purposes of these chapters.
No other statutes, articles or codes are affected by the proposal.
§28.5.Conduct of Activities.
§28.6.Remote Sensing Survey for Pure Research Purposes.
§28.7.Activities Conducted on Shipwrecks beyond the Survey Level.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 20, 2008.
TRD-200802631
F. Lawerence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: July 6, 2008
For further information, please call: (512) 463-1858
Chapter 122. TEMPORARY USE OF STATE BUILDINGS AND GROUNDS BY TELEVISION OR FILM PRODUCTION COMPANIES
The Office of the Governor, Texas Film Commission (Commission) proposes an amendment to §122.2, the definitions for Chapter 122; an amendment to §122.4, concerning a projects ineligibility to use a state property for production activity; and an amendment to §122.7, concerning an Applicant's responsibilities. The proposed amendments add language to §122.2(11) and §122.7(d) to clarify the responsibilities of a production company wishing to use a state property. The proposed amendment to §122.4(a)(2) clarifies how an Applicant would be ineligible to use a state property.
Bob Hudgins, Director of the Texas Film Commission, has determined that there will be no fiscal implications to the state or to local governments as a result of these proposed amendments. No cost to either government or the public will result from the proposed amendments. There will be no impact on small businesses or microbusinesses.
Mr. Bob Hudgins has also determined that the public benefit anticipated as a result of the proposed amendments is a clearer understanding of who can use a state property for production activity, and their responsibilities when using a state property. No economic costs are anticipated for persons who are required to comply with the proposed amendments.
Written comments on the proposed amendments may be hand delivered to Office of the Governor, General Counsel Division, 1100 San Jacinto, Austin, Texas 78701, mailed to P.O. Box 12428, Austin, Texas 78711-2428, or faxed to (512) 463-1932 and should be addressed to the attention of Michael Bryant, Assistant General Counsel. Comments must be received within 30 days of publication of the proposed amendments.
The amendments are proposed pursuant to the Texas Government Code §2165.008 which directs the Commission to develop a procedure for the temporary use of state building or grounds by a production company, and Government Code, Chapter 2001, Subchapter B which prescribes the standards for rulemaking by state agencies.
No other codes, statutes, or articles are affected by this proposal.
§122.2.Definitions.
The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:
(1) Actual costs--The costs incurred during production activity that have not already been paid for by the production company prior to the activity.
(2) Applicant--The entity coordinating locations for the Production Company, who acts as the representative of the Production Company for the locations.
(3) Certificate of liability insurance--The paper record showing that the Production Company has purchased insurance, the amount insured for, and who is insured under the policy.
(4) Commercials--Either an individual commercial, series of commercials, music video, infomercial, interstitial, or still shoot, that is made for the purpose of promoting a product, service, or idea.
(5) Desired location--The building or grounds that a production company is applying to use.
(6) Episodic television--A project, either narrative or documentary, consisting of a series of installments usually following the same story arc that is intended for distribution via broadcast or digital distribution via cable, satellite, the internet, or mobile electronic device.
(7) Film--Either a narrative or documentary project intended for distribution in theaters or by DVD, internet, or mobile electronic device.
(8) Filming days--The phase of the project during which the content is recorded.
(9) Fiscal year--The period between September 1st and August 31st of the next calendar year.
(10) In-state spending--The amount of money spent by a production company in Texas during all stages of the project.
(11) Licensing Fee--An amount charged to the Applicant for the use of the state property's likeness and image.
(12) [(11)] Location--A building
or ground where production activity will take place.
(13) [(12)] Location fee--An
amount charged to the Applicant for each day production activity occurs
on the property.
(14) [(13)] Production activity--Any
activity the production company engages in while on location, including,
but not limited to, preparation, filming, parking, catering, and take down.
(15) [(14)] Production company--The
entity producing and creating the project, who is ultimately responsible
for all production activity.
(16) [(15)] Production insurance--A
financial transaction between a production company and an external
company securing all responsibility of damages and accidents while
on location to the production company.
(17) [(16)] Request for Use Application--The
application that will be completed by the Applicant to ask for the
use of a state property for production activity.
(18) [(17)] Security deposit--A
monetary amount given to the state property before commencement of
production activity at that location which gives the state agency
some protection for damage done to the location by the Production Company.
(19) [(18)] State property--All
locations owned and operated by the State of Texas for public or private use.
(20) [(19)] Support location--An
area of the property that is being used for production activity other
than filming that can either be part of the filming location or a
stand-alone location.
(21) [(20)] Television project--Either
a narrative or documentary project, including, but not limited to
episodic series, miniseries, television movie (MOW), television pilot,
or television episode, that is intended for distribution via broadcast
or digital distribution via cable, satellite, the internet, or mobile
electronic device.
§122.4.Ineligibility.
(a) A production company will not be eligible to conduct production activity on a state property if they fall under one of the following conditions.
(1) The production company does not have production insurance in the amount required by the desired location that names the State of Texas as an additionally insured; and/or
(2) The content of the project is obscene [pornographic
] in nature, as defined by Texas Penal Code §43.21.
(b) A production company is ineligible to receive a waiver of location fees if they fall under one of the following conditions.
(1) The production company does not have production insurance in the amount required by the desired location that names the State of Texas as an additionally insured; and/or
(2) The production company does not meet the minimum in-state spending requirements.
§122.7.Applicant's Responsibilities.
(a) The Applicant is responsible for paying location fees.
(1) The Texas Film Commission, in conjunction with the Applicant's desired location and the state agency governing that property, will determine the fee to be charged for each day that production activity will occur on the property based on the length of use, loss of business, and impact on the property. The location fee will be stated in the contract between the Applicant and the state property, and is non-negotiable after that point.
(2) The Applicant shall deposit the location fees to the credit of the State of Texas, Comptroller of Public Accounts, and is expected to do so on or before the first day of production activity. Failure to follow these rules may result in the immediate disqualification of the Applicant or similar consequences.
(b) An Applicant may be required to pay a security deposit to the state agency governing the desired location in the amount determined by the Texas Film Commission and the agency. Failure to follow these rules may result in the immediate disqualification of the Applicant or similar consequences.
(c) The Applicant is responsible for paying any actual costs.
(1) An Applicant is required to reimburse the state property for actual costs incurred during the use of the location. These costs include, but are not limited to, repairs to the property from damage, trash removal, and excessive electricity and water use.
(2) The state agency shall notify the Applicant in writing of any actual costs that the Applicant is responsible for reimbursing. The Applicant must reimburse the cost no later than the 21st day after the date on which the written notification is received.
(d) The Applicant may be required to pay a licensing fee to the state agency governing the desired location in the amount determined by the Texas Film Commission and the agency. Failure to follow these rules may result in the immediate disqualification of the Applicant or similar consequences.
(e) [(d)] The Applicant, Production
Company and its employees are required to maintain a code of conduct
any time they are on location that includes, but is not limited to,
the following:
(1) no smoking;
(2) no alcohol;
(3) no illegal drugs;
(4) no soliciting;
(5) following location-specific dress code; and
(6) any other code of conduct required by the specific location.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 23, 2008.
TRD-200802727
Michael Bryant
Assistant General Counsel
Texas Film Commission
Earliest possible date of adoption: July 6, 2008
For further information, please call: (512) 463-9200