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Laws

  

Knowing the Requirements

          Complying with Regulations

                      Abiding by the Law

 


 

Archaeology, Cultural Resource-Historic Preservation Management Guidelines

 

Completing a project on public land or with public money requires certain steps to protect our cultural heritage. 

When a federal agency funds, licenses or permits an activity that may affect cultural resources, the agency must consult with the State Historic Preservation Officer. State agencies must consult with the the lead historical state agency (New Mexico Historic Preservation Department, Colorado Historical Society, Arizona State Parks, Utah Division of State History) when their activities involve nominated or listed State Register properties. In certain circumstances, local governments may be included in the consultation process.

Federal and state agencies and their applicants have responsibilities to discover and protect some heritage properties. This process involves a series of steps that include:

  1. Discovering which resources are or might be affected
  2. Evaluating the eligibility of the cultural (heritage) resources.
  3. Determining effects of proposed work on eligible or listed properties.
  4. Seeking alternatives to avoid, minimize, or mitigate effects to such properties.

A variety of different permits, studies, and approvals are required. cultgu4

Dykeman Roebuck Archaeology LLC can partner with you through this process, ensure your compliance and reduce delays to help you finish on time.

Call 505 330 1825.


As background it may help to become familiar with following:
 

Laws, Regulations, Orders

 

1906

Antiquities Act of 1906 (PL 59-209; 34 Stat. 225; 16 USC 431-433)

The earliest US legislation enacted to protect cultural resources, this act provides for the protection of historic or prehistoric remains or any object of antiquity on Federal lands. It establishes criminal sanctions for unauthorized destruction or appropriation of antiquities and authorizes scientific investigation of antiquities on Federal land.

1916

National Park Service Organic Act (PL 64-235; 39 Stat 535; 16 USC 1)  

36 CFR 2.5 (NPS Act of 1916) 

National Stolen Property Act (18 USC 2314 and 2315)

1935

  Historic Sites Act of 1935 (PL 74-292; 49 Stat. 666; 16 USC 461-467)

This act declares as national policy the preservation of historic (including prehistoric) sites, buildings and objects of national significance. The act directs the National Park Service to establish a mechanism for cataloging and identifying historic and Archaeological properties.

As a result of this directive, the National Park System Advisory Board and the National Park Service Advisory Council were established.

  36 CFR Part 65.

Indian Arts and Crafts Board Act (PL 74-292; 49 Stat. 891; 25 USC 305)

1949

National Historic Preservation Trust Act 1949 (PL 81-408; 63 Stat 927; 16 USC 468 et seq.)

1953

Submerged Lands Act of 1953 (PL 83-31; 67 Stat 29; 43 USC 1301 et seq)

Outer Continental Shelf Lands Act (PL 83-212; 67 Stat 462; 43 USC 1331 et seq.)

1954

43 CFR 3 Preservation of American Antiquities

1955

Management of Museum Properties Act of 1955 (PL 84-69;16 USC 18f)

1956

Federal Aid Highway Act of 1956 (PL 85-767; 72 Stat. 913; 23 USC 305)

1960

Reservoir Salvage Act of 1960 (PL 86-523; 74 Stat. 220; 16 USC 469-469c)

This act provides for the recovery and preservation of historical and Archaeological data, including relics and specimens, that might be lost or destroyed as a result of the construction of dams, reservoirs and attendant facilities and activities.

1964

National Arts and Cultural Development Act (PL 88-579; 78 Stat. 905)

1965

Housing and Urban Development Act (PL 89-117)

National Foundation for Arts and Humanities Act (PL 89-209; 79 Stat. 845-855; 20 USC 951-959)

Federal Water Project Recreation Act (PL 89-72; 79 Stat. 213; 16 USC 460-12 et seq. 662)

1966

NHPA National Historic Preservation Act of 1966 (PL 89-665; 80 Stat. 915; 16 USC 470 et seq.,

as amended by Public Law 91-243,Public Law 93-54, Public Law 94-422, Public Law 94-458, Public Law 96-199, Public Law 96-244, Public Law 96-515, Public Law 98-483, Public Law 99-514, Public Law 100-127, Public Law 102-575.

This act is the single most important law governing the policies of Federal agencies toward historic preservation.  

In addition to expanding the national policy of historic preservation at the Federal level, it encourages preservation on the State and private levels, in part through grants for preparing comprehensive statewide surveys and plans for historic preservation.  The 1992 amendments to this act aimed to extend Federal Government concern to Indian tribal properties.

Section 101(a) in Title I of the act authorizes the Secretary of the Interior to expand and maintain a National Register of Historic Places for cultural resources. 

Section 106 in Title I amended: 16 U.S.C. 470f (P.L. 89-665, P.L. 91-243, P.L. 93-54, P.L. 94-422, P.L. 94-458, P.L. 96-199, P.L. 96-244, P.L. 96-515,  P.L. 102-575) outlines specifications required of Federal agencies to protect cultural resources, defined as any district, site, building, structure, or object included in the National Register. To satisfy these requirements, an Environmental Impact Assessment (E.I.A.) or Environmental Impact Statement (E.I.S.) must consider the effects of a proposed Federal undertaking on the resources.  

Section 108 in Title I establishes a Historic Preservation Fund.  

Section 110 in Title I makes Federal agencies responsible for the preservation and use of historic buildings, thereby complying with Section 106.

Title II of the act establishes the Advisory Council on Historic Preservation to comment on Federal actions having an effect on cultural resources. The Advisory Council has implemented procedures to facilitate compliance with this section. 

Title III of the act authorizes the provision of a National Museum for the Building Arts to collect and disseminate information concerning the building arts. 

Title IV of the 1992 amendments to the act establishes a National Center for Preservation Technology and Training to promote research into and serve as a clearinghouse for information on historic preservation.  The act outlines the purposes of the National Center, located at Northwestern State University of Louisiana in Nachitoches, Louisiana.

Also, under the 1992 amendments, Indian tribes are encouraged to preserve their cultural and historic property.  They established a program whereby a tribe may assume the duties of the State Historic Preservation Officer, as well as nominate traditional properties to the National Register of Historic Places.  This Title also complies with the Native American Graves Protection and Repatriation Act.  The Secretary of the Interior is authorized to make grants to Indian tribes for the preservation of religious properties listed in the National Register.

Section 106 Regulations Summary 36 CFR Part 800

36 CFR Part 60.

36 CFR 18  

Department of Transportation Act of 1966 (PL 89-670; 80 Stat. 574; 80 Stat 931)

Section 4(f) of the Department of Transportation Act of 1966 declares the maintenance and preservation of land traversed by transportation lines a national policy goal.  

It prohibits the use of a historic site for Federally funded transportation programs unless 1) there is not a feasible alternative use for the site and 2) the program includes all possible planning to minimize potential harm to the resource. 

Federal Aid Highway Act of 1966 (PL 89-574; 80 Stat. 771; 23 USC 135)

1967

Elementary and Secondary Education Amendments (PL 90-247; 81 Stat. 783)

1968

Federal Aid Highway Act (PL 90-495; 82 Stat. 815; 23 USC 138)

National Trail Systems Act of 1968

Wild and Scenic Rivers Act of 1968

1969

National Environmental Policy Act of 1969 (PL 90-190; 83 Stat. 852; 16 USC 470)  

This act declares a National Environmental Policy. Under it, Federal agencies are compelled to factor into their planning process the impact of a project on the environment.  Included in the definition of "environment" are important historic and cultural aspects of our national heritage.  

The act directs Federal agencies to consult with agencies such as the National Park Service and the Advisory Council on Historic Preservation as a part of the process to assess environmental impact of a project.

1970

Department of Transportation Act Amendments

Urban Mass Transportation Assistance Act (PL 91-543; 84 Stat. 962; 49 USC 161)

1971

Executive Order 11593 Protection and Enhancement of the Cultural Environment (36 FR 8921)

The second most important legal document aimed at ensuring the protection of cultural resources, the order requires all Federal agencies to survey properties under their jurisdiction and nominate appropriate candidates to the National Register of Historic Places.  Until the surveys are completed and the nominations made, each agency must ensure that no resources that may be eligible for the National Register are inadvertently damaged, destroyed, or transferred.  Whenever possible and economically feasible, any properties transferred are to be used "in a manner compatible with preservation objectives."  If National Register properties will be unavoidably altered or destroyed as a result of Federal action, all agencies must provide for the recording of vital information in the appropriate NPS catalog.

Federal agencies are required to institute procedures to assure that Federal plans and programs "contribute to the preservation and enhancement" of non-Federally owned cultural resources "of . . . significance."  The act also sets forth requirements for consultation and review of any Federal actions affecting properties that might be found eligible for the Register.

Alaska Native American Claims Settlement Act (PL 92-203; 85 Stat 688; 43 USC 1601-1624)

1970

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (19 USC 2601).

1972

Coastal Zone Management Act of 1972 (PL 92-583; 86 Stat. 1280)

Marine Protection Research and Sanctuaries Act (PL 92-532; 86 Stat. 1052; 33 USC 1401 et seq.)

Pre-Columbian Monumental and Architectural Sculpture & Murals Act (PL 92-587)

Preservation of Historic Monuments and Other Purposes Act, 86 Stat. 503, 40 U.S.C. 484 (k)(3) et seq. (1972).

This Act authorizes the administration of the General Services Administration to convey to local public bodies at no cost historic surplus properties listed on the National Register and deemed appropriate by the Secretary of the Interior for preservation purposes.

1973

American Revolution Bicentennial Act (PL 93-179; 87 Stat. 697)

1974

Housing and Community Development Act of 1974 (PL 93-383; 88 Stat. 633; 42 USC 5301)

Historical and Archaeological Data Preservation Act of 1974  

This act extends the requirements of the Reservoir Salvage Act of 1960 to all Federal or federally assisted or licensed construction projects. 

The act places coordinating responsibility with the Secretary of the Interior and, for the first time, authorizes all Federal agencies to seek appropriations, obligate available funds, or reprogram existing appropriations for the recovery, protection, and preservation of significant scientific, prehistoric, or Archaeological resources. 

Agencies can either undertake these efforts themselves or transfer one percent of the total authorized appropriation for each project (over $50,000) to the Secretary of the Interior for such purposes.

Amtrak Improvement Act of 1974 (PL 93-496; 49 USC 1653)

This act authorizes the Federal rail transportation agencies and the National Endowment for the Arts to dispense grants and technical assistance for the preservation of railroad passenger terminals and for their reuse as civic and cultural activity centers. 

1975

Indian Self-Determination and Education Assistance Act of 1975 (PL 93-638; 88 Stat 2206)

1976

National Historic Preservation Act Amendments (PL 94-422) enact Executive Order 11593 into law

Tax Reform Act of 1976 (PL 94-455;90 Stat. 1525; 26 USC 1)

American Folklife Preservation Act (PL 94-201; 20 USC 2101-2107)

Mining in National Parks Act (PL 94-429; 16 USC 1908)

This act protects nationally significant property from irreparable damage due to surface mining activity. 

General Authorities Act Amendments (PL 94-458)  

This act seeks to monitor the welfare of areas of national significance and to recommend those which may have potential for inclusion in the National Park System.

Public Buildings Cooperative Use Act (PL 94-541; 40 USC 601a) 

The Act encourages adaptive use of existing structures of architectural, historical or cultural interest; encourages multiple-use facilities on the site and shared-use facilities with the host community; and authorizes an alternative to new construction for Federal projects.

Federal Land Policy and Management Act of 1976  

1977

Surface Mining Control and Reclamation Act (PL 95-87; 91 Stat. 445; 30 USC 1201 et seq.)

36 CFR 63 Determination of eligibility for inclusion in the national register of historic places

1978

American Indian Religious Freedom Act (PL 95-341; 92 Stat 46a; 42 USC 1996)

1979

Archaeological Resources Protection Act of 1979 (PL96-95; 93 Stat. 721; 16 USC 470)  

This act provides for the protection of archaeological resources on public lands and Indian lands from excavation and pillage. 

It also seeks to foster exchange of archaeological information between governmental authorities, professional archaeologists and private individuals.

43 CFR Part 7

1980

National Historic Preservation Act Amendments (PL 96-515;94 Stat 2987;16 USC 470 et seq.)

1981

36 CFR 60  

1983

US Convention on Cultural Property Implementation Act (PL 97-446; 96 Stat 2350-2363; 19 USC 2601-2613)

National Trail Systems Act Amendments

36 CFR 61

36 CFR 65 

1984

Arctic Research Policy Act (PL 98-373)

43 CFR 7 Protection of Archaeological Resources (Archaeological Resources Protection Act, as amended), 

36 CFR 296 Protection of Archaeological Resources

1985

36 CFR 78 Waiver of Federal Agency Responsibilities under section 110 of the National Historic Preservation Act

1986

Sec. 48(g) and 170(h) Internal Revenue Code of 1986 (94 Stat. 3204; 26 USC 170(h))

Section 48(g) establishes which certified historic structures can qualify for preservation tax incentives. To qualify for the tax incentives, a property owner must have certification of both the historic structure and the completed rehabilitation.

Section 170(h)spells out the conditions under which charitable contributions of interests in historic property can qualify for income and estate tax deductions.  In general, such donations are said to be "charitable contributions" only for conservation purposes.

1987

Amendments to Department of Transportation Act (PL 100-17; 49 USC 303)

Abandoned Shipwrecks Act of 1987 (PL 100-298; 102 Stat. 432; 43 USC 2101) 

This act establishes the title of States in certain abandoned shipwrecks, including those in submerged lands eligible for inclusion in the National Register.  The law of salvage and the law of finds shall not apply to such abandoned shipwrecks.

1988

Archaeological Resources Protection Act Amendments (PL 100-555; 100-588; 102 Stat. 2778; 102 Stat. 2983; 16 USC 470 mm)

Federal Cave Resources Protection Act of 1988 (PL 100-691)

Section 110 of the National Historic Preservation Act

1989

National Museum of the American Indian Act of 1989 (PL 101-85)

1990

Native American Graves Protection and Repatriation Act (PL 101-601; 25 USC 3001) NAGPRA

  43 CFR Part 10

Food, Agriculture, Conservation and Trade Act of 1990 (PL 101-508)

Section 47 of the Internal Revenue Code (PL 101-508; 104 Stat. 1388-536, 541; 26 USC 47) revised rehabilitation tax credits

36 CFR 67 Historic Preservation Certifications Pursuant To Sec. 48(G) And Sec. 170(H) Of The Internal Revenue Code Of 1986

36 CFR 79 Curation of Federally-Owned and Administered Archaeological Collections

1991

Intermodal Surface Transportation Efficiency Act of 1991 (PL 102-240)

1992

National Historic Preservation Act Amendments

The 1992 amendments to this act aimed to extend Federal Government concern to Indian tribal properties. 

Title IV of the 1992 amendments to the act establishes a National Center for Preservation Technology and Training to promote research into and serve as a clearinghouse for information on historic preservation.  The act outlines the purposes of the National Center, located at Northwestern State University of Louisiana in Nachitoches, Louisiana.

Also, under the 1992 amendments, Indian tribes are encouraged to preserve their cultural and historic property.  They established a program whereby a tribe may assume the duties of the State Historic Preservation Officer, as well as nominate traditional properties to the National Register of Historic Places.  This Title also complies with the Native American Graves Protection and Repatriation Act.  The Secretary of the Interior is authorized to make grants to Indian tribes for the preservation of religious properties listed in the National Register.

As amended in 1992, Section 110 of the Act 

1995

36 CFR 68 The Secretary of the Interior's Standards for treatment of Historic Properties

1996

Executive Order 13007

Chapter 51 Part 5 Cultural Resources Museum Of New Mexico Archaeological Records Repository And Cultural Resource Information System

1997

National Wildlife Refuge System Improvement Act of 1997

2000

Executive Order 13175 

36 CFR 800 

Issued by the Advisory Council on Historic Preservation, these regulations represent the most important document needed to perform an analysis of the environmental impact of a project on a cultural resource. 

Pursuant to Section 106 of the National Historic Preservation Act, Sections 1(3) and 2(b) of Executive Order 11593, and the President's Memorandum of July 12, 1978, "Environmental Quality and Water Resources Management," the Advisory Council sets forth regulations for their review of Federal undertakings that might affect either federally owned or leased or non-federally owned historic and cultural resources eligible for or listed in the National Register of Historic Places.

The Council procedures define terms used in the National Historic Preservation Act; describe initial procedures for identifying cultural properties; restate the criteria for eligibility to the Register established by the Secretary of the Interior; establish criteria for determining the effect on the property of the Federal action; set forth procedures for Council review of the determination of effect; and define legal obligations for consultation, discussion of alternatives, and determination of mitigating measures.

2003

Executive Order 13287

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