Revised Programmatic Agreement Regarding the Manner in which the Bureau of Land Management will meet its Responsibilities under the National Historic Preservation Act; DD: August 9, 2012 and February 9, 2013

UNITED STATES DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENTWASHINGTON, D.C.  20240http://www.blm.govJanuary 30, 2012In Reply Refer To:8100 (240) P          EMS TRANSMISSION 02/13/2012Instruction Memorandum No. 2012-061        Expires: 09/30/2013 To:          All State Directors and WO OfficesFrom:        DirectorSubject:    Revised Programmatic Agreement Regarding the Manner in which the Bureau of Land Management will meet its Responsibilities under the National Historic Preservation Act        DD:   August 9, 2012 and February 9, 2013Program Area:  Cultural Resources Management and Tribal Consultation Purpose:  Inform the State Offices that on February 9, 2012, the Bureau of Land Management (BLM) executed a revision to the National Programmatic Agreement (PA) which it maintains with the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO) regarding the manner in which the BLM will meet its responsibilities under the National Historic Preservation Act (NHPA).  This Instruction Memorandum (IM) explains the key differences between the 1997 PA and the revised agreement (attached).  It summarizes the actions that the BLM Washington Office (WO), and state and field offices, must take to fulfill the commitments in the revised PA.  It also institutes a six-month and twelve-month reporting requirement on those actions.  Policy/Action:  The 2012 PA is effective immediately and requires the BLM to initiate revision of the 8100 Manual Sections to incorporate the definition of “adverse effect” and “consulting parties” from the 2004 version of the 36 CFR Part 800 regulations and to provide basic information on the BLM external Website.  The PA also requires the BLM State Offices to take action to review and update as needed their BLM-State Historic Preservation Officer (SHPO) protocols and to enhance tribal relationships, as listed below:  

1. Within 12 months of execution of this agreement, each BLM State Director or his/her designee will meet with the relevant SHPO to review and consider the need for changes in the protocol to meet minimum requirements in this PA and notify the ACHP of the results of the review.  
2. The BLM-SHPO protocols determined to require revision must be changed within 24 months of the date of this agreement.
3. Within 12 months of execution of this agreement and in coordination with other State Directors, as appropriate, each State Director will have begun contacting Indian tribes that are affected by BLM undertakings within his or her jurisdiction on a regular basis for the purpose of initiating a discussion about ways in which the BLM and each Indian tribe can foster better communication, including:

a. Identify geographic areas, types of historic properties, and undertakings of concern to Indian tribes;b. Identify confidentiality concerns;c.  Answer questions on existing BLM-SHPO protocol;d. Provide a tribal point of contact for the State Office and each District and Field Office in his or her jurisdiction;e. Develop a process for providing information and schedules of pending actions, including land exchanges, permits, and approvals on a regular basis; andf. Offer Indian tribes the opportunity to establish a formal ongoing relationship through an agreement for conducting the consultation required under the NHPA Section 106 within the framework of the BLM’s government-to-government relationship with Indian tribes and other authorities.  State Offices must prepare a report six months from the date of this IM explaining their state’s progress in meeting the commitments listed above, and another report within twelve months from the date on this IM on their completion of these commitments.  The State offices must also copy the BLM WO on the result of the review of the BLM-SHPO protocol implementing this agreement and inform the WO when a needed revision is complete.  Timeframe:  State offices are required to report on their progress in completing the actions listed in the previous section.  The initial report is due six months from the date of this IM; the final report is due twelve months from the date of this IM.  Reports may be submitted electronically to Robin Hawks, Ph.D., rhawks@blm.gov.  Budget Impact:  There will be a short term budget impact as a result of this IM, but there will be long term savings resulting from maintaining the efficiencies of state-specific protocols under the BLM alternative process.  Background:  The 1997 PA was in place for fifteen years.  During that time, the 36 CFR part 800 regulations that implement Section 106 of the NHPA were rewritten, most significantly in 2004.  The signatories, the BLM, ACHP, and NCSHPO, believed the PA needed to be updated to align more closely with the regulations; particularly with respect to the role of tribes and consulting parties in the Section 106 process. Following an extensive process of outreach and consultation with tribes and other stakeholders beginning in August 2008 the BLM, ACHP, and NCSHPO published a draft revision strategy in December 2009 a draft in September 2010 and a final draft in December 2011.  The final draft was developed collaboratively by the BLM, ACHP and NCSHPO.  The revised PA includes the following key changes to the BLM’s NHPA Section 106 process when operating under the PA implemented through a BLM-State protocol:    

1. The BLM commitment to initiate a revision of relevant manual sections to be consistent with the definitions of “adverse effect” and “consulting parties” in the 2004 36 CFR part 800 regulations. This change will eliminate the provision that an undertaking otherwise found to be adverse may be considered not adverse, when a historic property is of value only for its potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research, and such research is conducted in accordance with applicable professional standards and guidelines. 
2. The BLM requirement to consult with the relevant SHPO, Indian tribes and other consulting parties for all undertakings that will adversely affect properties that are eligible for listing in the National Register of Historic Places (National Register), and for the development of any procedures such as project-specific PAs.
3. The BLM requirement to invite the ACHP’s participation for:

a.    Non-routine interstate and/or interagency projects or programs; undertakings adversely affecting National Historic Landmarks; b.    Undertakings that the BLM determines to be highly controversial; andc.    Undertakings that will have an adverse effect and with respect to which disputes cannot be resolved through formal agreement between BLM-SHPO, such as a memorandum of agreement.   4. The ACHP authority to participate on its own initiative or at the request of the SHPO, an Indian tribe, a local government, an applicant or other consulting party, in a manner consistent with its role under 36 CFR part 800, and criteria under Appendix A of 36 CFR Part 800.   5.  The BLM requirement to follow the process under 36 CFR 800.14 for the development and approval of program alternatives, including project-specific PAs.6.  The BLM and SHPO requirement that BLM-SHPO protocols implementing this agreement must address the following new items:a.    A means for making a schedule of pending undertakings available to the public and Indian tribes on a regular basis;b.    The manner in which public participation and involvement of consulting parties is addressed for protocol-guided compliance processes; andc.    A commitment to fulfill tribal consultation obligations;d.    Provisions for resolving disagreements between the BLM and SHPO; ande.    The circumstances under which the BLM or the SHPO may choose to operate under the 36 CFR Part 800.3 through 800.7 in place of the BLM-SHPO protocol.Manual/Handbook Sections Affected:  The IM will not itself impact any Manual Sections; however, the execution of the revised PA will require some revision of the 8100 Manual Sections and the H-8120-1 Handbook.  Coordination:  This IM was developed by WO-240 in coordination with the Bureau of Land Management Preservation Board.Contact:  If you or your staffs have any questions, please call Robin Hawks, Ph.D., Preservation Officer, rhawks@blm.gov or (202) 912-7241 Signed by:                Authenticated by:Robert V. Abbey            Robert M. WilliamsDirector                Division of IRM Governance,WO-5601 Attachment     Revised National Programmatic Agreement (17 pp)