Objectives of This Presentation

Clarify roles of various entities in Section 106 compliance

Discuss specific permit conditions

Clarify the roles of the Field Office and State Office relating to permit violations, suspension and revocation

Role of BFO in NHPA ComplianceMust follow consultation procedures with

SHPO as outlined in the Wyoming ProtocolResponsible to make determinations of

eligibility and effect to historic properties as a result of a federal undertaking

Must review contracted reportsMust ensure reports comply with standardsBFO is legally responsible for any

determinations once the report is accepted

Role of BFO in NHPA ComplianceBLM has sole responsibility to determine the “area

of potential effect.”This could mean that additional survey will be

required when the project application is submitted to BLMFor example, if a permittee conducts a survey and

sends the report in to BLM, it may sit in the office until the project is submitted by industry. There is no undertaking until the project application comes in to BLM. At that point BLM will determine the area of potential effect and may require additional fieldwork.

Also, in order to create a “no adverse effect” or “no effect” situation, BLM may require additional fieldwork to ensure the project does not affect historic properties.

Role of SHPO in NHPA complianceMust follow consultation procedures with

BLM as outlined in the Wyoming ProtocolDue to the new protocol, SHPO’s focus is

nearly entirely on historic sites – for the most part, they trust BFO to make the proper determination for prehistoric sites

SHPO does not make determinations of eligibility or effect, they either concur with BFO’s determinations, or consultation continues

Role of an applicant in the NHPA compliance process

Applicants are mentioned three times in the regulations at 36CFR 800:

Federal agencies may use the services of applicants to, “..to prepare information, analyses, and recommendations.”

Applicants are entitled to be consulting parties in the process

A process to resolve intentional adverse effects by applicants (Section 110(k) of the NHPA) is outlined

Role of contractors in the NHPA compliance process

Contractors are mentioned twice in the regulations at 36CFR 800:Agencies are responsible for ensuring all actions

taken by contractors meet professional standardsAgencies may use the services of contractors,

although the agency is legally responsible for all findings and determinations

The reports that contractors write are exclusively for the federal agency to use as consultation documents. The applicant may pay for the work, however, that payment does not entitle them to a copy of the report.

36CFR800.2(a)(3) Participants in the Section 106 process

Use of contractors. Consistent with applicable conflict of interest laws, the agency official may use the services of applicants, consultants, or designees to prepare information, analyses and recommendations under this part. The agency official remains legally responsible for all required findings and determinations. If a document or study is prepared by a non-Federal party, the agency official is responsible for ensuring that its content meets applicable standards and guidelines.

Summary of Roles in 106 ComplianceBFO makes determinations of eligibility and effect

and is legally responsibly for those determinations.SHPO’s role is to provide oversight and to comment

on BFO’s determinations. If SHPO disagrees with BFO’s determination, the consultation process continues until there is an agreement.

Applicants can speed up the review process by supplying services to the agency

Contractors can create reports with recommendations of eligibility and effect, but the legal responsibility for determinations is on BFO.

Permit ConditionsThe new permit conditions were written with

the assistance of a DOI Solicitor.By adhering to these conditions, you will help

ensure that BLM meets its responsibilities under various laws and regulations.

And that is your responsibility under the relationship formed through the cultural resource use permit.

Part One (b)All standards will be used by the BLM to

comply with laws and regulations, including but not limited to the National Historic Preservation Act, the National Environmental Policy Act, and the Federal Land Policy and Management ActThe creation of the EA can result in cultural

resource issues that don’t involve the NHPANon-NHPA issues need to be reported such as

Description of sites that are not historic properties (NEPA)

Description of sites that may fall under additional statutes (NAGPRA)

Description of sites that may have importance to tribes (AIRFA, EO 13007, etc.)

Part One (c)The permittee and this permit are subject to all

other Federal, State, and local laws and regulations applicable to the public lands and resources.This includes BLM road closuresThis includes restrictions during fire seasonsThis includes wildlife timing restrictions

Operators should already know what areas have wildlife timing restrictions Raptors Big game Sage grouse Ute-Ladies’-Tresses

If in doubt, check with BFO

Part One (h)This condition was previously on the face of the

permit (#12 for permits prior to 2003) or on the back of permits issued since 2003 (Permit Stipulations #2).

BLM is concerned about maintaining correct contact information, such as address and phone numbers.

Monitor the permit for personnel changes. Let us know if people leave your company.

We will not suspend, revoke or not renew your permit because you didn’t tell us that someone left your company. Just be aware of the legal nature of the permit.

Part Two (b)All persons working under this permit are

prohibited from revealing information on the nature and location of archaeological resources to the general public unless or until the BLM has given approval.Do not disclose site information to members of

the publicDo not give copies of reports or site forms to any

landowners unless the information relates ONLY to their property

Do not give any more information to operators than is allowed for in the permit condition at Part Three (t)

Part Two (e)The BLM will be afforded the opportunity to

review drafts of conference presentations and both printed and internet-based publications prior to presentation or publication in order to ensure confidentiality of cultural resource location information. This applies to any work done under a CRUP

on private landBFO will not critique content, they will only

ensure that site locations are not disclosed

Part Two (i-t)

These permit conditions are National Special Conditions attached to all DOI permits.

Part Two (j)Permittee shall cease work upon discovering

any human remains and shall immediately notify the BLM authorized officer. Work in the vicinity of the discovery may not resume until the BLM authorized officer has given permission in writing.This also applies to CRUP related activity on

private landEven if the remains obviously appear to be

prehistoric, it must initially be treated as a crime scene

Part Three (a)BLM will not provide a definition of “a single significant

violation.” When BLM cannot meet its responsibilities because a

significant site was missed on the field survey and subsequently damaged or destroyed, that would be serious.

Errors in the report do not constitute a significant violation unless a pattern is shown. BFO treats these as “report deficiencies”, which are sent to the operator.

A BLM Field Office cannot suspend, revoke or not renew a permit. Only the State Office can take this action.

Field Offices will coordinate with the State Office should a permittee reach a level that could trigger a suspension, revocation or non-renewal of a permit.

Part Three (b)Permittees have been required to allow BLM Field

Offices 10 working days to process fieldwork notifications (FWN) since July 2006.

BLM can usually get to the FWN before 10 days goes by.

If your fieldwork notification has been issued and something causes you to change your fieldwork dates, you must notify BLM of the change and provide new dates. Since your FWN has already been approved you do not need to wait another 10 days. For example, if you have said you are going in the field

on 4/1, and your office burns down on 3/31, that probably means you won’t be going in the field on 4/1. Let BLM know of the issue and that you will get back to them with the new fieldwork dates as soon as you can.

Part Three (e)Fieldwork shall occur only when

environmental conditions, such as weather, light conditions, ground visibility, soil conditions, etc., allow for professional quality work.

If you have a question, call the BLM.

Part Three (h)The only exception to this rule is for geophysical

projects. The Wyoming Protocol states that:

“Cultural resource inventories conducted specifically for geophysical exploration projects will not be required to evaluate identified properties provided the properties are avoided by an appropriate distance as defined in BLM Handbook H-3150. Proper avoidance will be regarded as a “no effect” situation. The BLM will submit the report to the SHPO per Section VI.A and proceed with the undertaking. “

Part Three (j)At least one person listed under item 8 of the

Permit for Archeological Investigations shall physically be in the field, within sight and in supervisory control of crew members, at all times when work is in progress. This includes site recordation, subsurface

testing, data recovery and monitoring projectsAll modifications to field methodology must

be discussed with the BLM archaeologist in charge of that project. This communication must occur and new methodology approved by BLM in advance of the project.

Part Three (k)Diagnostic archaeological materials shall be

collected from public lands. All artifacts from shovel tests or auger probes on public lands shall be collected. This is a change from previous BFO policyDo not collect FCR from shovel tests

Artifacts from private land shall not be collected unless a repository donation form has been signed by the landowner.This only applies to collections by the CRUP that

will be analyzed and/or curated in a curation facility

Part Three (n)A site datum shall be placed on all sites

recorded on BLM administered land. Do not place datums on private property

Part Three (o)

GPS points for linear inventories only need to be taken at the beginning and ending of each linear inventory

Part Three (p)Permittee shall remove temporary stakes,

flagging and/or pin flags, which the permittee has installed, immediately upon completion of fieldwork. Prior to entering the field, the permittee must contact the BLM authorized officer to determine if the field office has additional instructions regarding site identification materials left overnight. It is BFO policy that general site locations can

be marked in order to relocate a site, but…No stakes, pin flags, flagging tape or any other

material identifying artifacts or features may be left unsupervised in the field

Part Three (s)This permit condition has been around since

at least 1985 (stip #7 back then, #13 since 2000). A permittee has always had the ability to contact BLM and ask for an extension of the report deadline (it’s the “…unless otherwise negotiated with the Field Manager” clause). If a BLM office plans to deny a request for a report extension, they will contact the State Office prior to the denial. In most cases, the request for report extension will always be approved.

Part Three (t)Copies of reports submitted to the project sponsor

shall contain abbreviated site descriptions only and shall omit references to site features and artifacts. Maps provided to the project sponsor that indicate the relationship of undertaking boundaries or project reroutes to cultural properties shall show only site outlines; feature or artifact locations will not be shown.Information the applicant gets include:

A map showing site locations in relation to the undertaking An abbreviated list of sites without reference to artifacts

or features Nothing else

BLM will not review the project sponsor’s report

Part Three (v)Depositing artifacts, collections, original records,

data, photographs, etc. has been around since 1985 (#5 back then, #6 since 2000).

The change in this condition is that you must now deposit this material no later than 60 days after the date the final report is submitted to the BLM. This time frame allows BLM to come into compliance with 36 CFR 79.

If you have questions about what to curate, please contact the University of Wyoming Archaeological Repository (UWAR).

UWAR is fully aware that they must provide a confirmation regarding deposition of materials.

Report DeficienciesDeficiencies are mistakes in reports that are not

specific permit violations – they most often relate to the SHPO Class III report standards

Deficiencies often arise as large scale projects are permittedDue to project redesign by BLMDue to revisions by the operator

For CBM PODs in BFO, cultural report deficiencies will be included in the deficiency letter that is sent to the operator both before and after the onsite

Permit ViolationsRole of BFO:

Review reports to determine if permit violations are present

Write letters to CRUP’s notifying them of permit violation

Forward violation letters to the State OfficeRole of the State Office:

Review and file violation lettersDetermine if there is a repeated failure to

comply with permit conditions warranting suspension or revocation of the permit

The State Director is responsible for suspending or revoking a permit (pending appeal by the CRUP)