Implementing Subpart B of the Archaeological Resources Protection Act 43 CFR § 7.33 Determination of Loss or Absence of Archaeological Interest

The ARPA regulations at 43 CFR 7.33 establish a multi-step evaluation and public notification process for an agency’s determination that archaeological resources lack or have lost archaeological interest and are therefore no longer “archaeological resources’ under ARPA. HQ-IM 2022-034 clarifies roles for BLM managers and staff implementing those regulations. To address requests to relocate material remains during post-review project activities, BLM CA managers will ensure that archaeological investigations carried out in accordance with Section 106 of NHPA also incorporate the requirements and/or criteria outlined in ARPA Section 7.33. When applicable, implementation of this policy should also coincide with environmental planning carried out under NEPA, which will document all Section 7.33 coordination, determinations, and public notices for discharging material remains from management. The intent of this policy is to ensure that any archaeological investigations made to address NHPA and NEPA requirements are designed to address the requirements of Section 7.33 as well. Early consultation with Tribes, consulting parties, and stakeholders prior to undertaking archaeological investigations will help field offices determine whether there is an interest in the relocation of material remains. Where there is an interest in relocation, this policy directs that archaeological evaluations conducted on BLM-managed lands under Section 106 of NHPA will incorporate the requirements identified in Section 7.33(c)(1), which states:

A professional archaeological evaluation of material remains and similar materials within the area under consideration shall be completed, consistent with the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 29, 1983) and with 36 CFR parts 60, 63, and 65.

Material remains that have been determined not eligible under NHPA and no longer of archaeological interest under ARPA may be discharged from management, per MS 8110.42F – Identifying and Evaluating Cultural Resources (Attachment 1) and will not be collected for long-term curation without the approval of the Deputy Preservation Officer. Additionally, discharged material remains may, at the discretion of the District or Field Manager, be removed and relocated out of the area of direct project effects following the process outlined in the applicable planning document. Relocation processes will include specific measures to ensure that the removal and relocation of discharged material remains will avoid impacts to other natural, cultural, and environmental resources.

Decisions on or options for relocation of material remains should be considered during Section 106 consultation and NEPA processes for both review and post-review periods associated with these mandates. Discharged material remains will remain federal property and are not subject to casual collection or collection without authorization of the BLM jurisdictional authority. Detailed information regarding National Register eligibility determinations is considered confidential and will only be shared with consulting parties or through data sharing agreements or other data access methods for Tribes. Relocation or removal of discharged material remains without formal approval of BLM California is strictly forbidden and those found in violation of this requirement may be prosecuted under federal law. Material remains that have not undergone formal evaluation for inclusion in the National Register shall remain protected under ARPA.

This policy excludes human remains, funerary objects, sacred objects, and objects of cultural patrimony subject to the Native American Graves Protection and Repatriation Act (NAGPRA).

General Actions and Guidelines
Where an interest to relocate non-eligible material remains has been expressed and agreed to by BLM, BLM managers will adhere to the following general policy actions and guidelines:

I. Coordination and Planning During the NEPA and Section 106 Review Process – District and Field Managers will coordinate with Tribes, consulting parties, and stakeholders during the initial NEPA and Section 106 review to determine whether there is interest in relocating non-eligible discharged material remains. Where there is interest, BLM will work with interested parties to develop project-specific treatment procedures for the removal and relocation of discharged material remains. Such treatment procedures will be detailed in the applicable Historic Properties Management-Treatment Plans (HPMPs-HPTPs), and Monitoring Discovery Plans (MDPs), and may also be included in related National Environmental Policy Act (NEPA) actions and mitigations.

II. Determining Loss or Absence of Archaeological Interest Under Subpart B – In accordance with IM 2022-034 Federal Land Manager and Staff Roles in Determining Loss or Absence of Archaeological Interest Under Subpart B of the Archaeological Resources Protection Act Regulations (Attachment 2), the Deputy Preservation Officer will review the archaeological evaluations under Section 7.33 in consultation with the BLM Federal Preservation Officer and prepare recommendations to the State Director or Deputy State Director for determinations of loss or absence of archaeological interest. BLM California cultural resource managers will ensure that archeological investigations completed as part of compliance activities will be designed to meet the requirements of ARPA Section 7.33 as well as other applicable laws and regulations. Archaeological reports making or recommending National Register eligibility determinations including HPMPs-HPTPs, MDPs, and associated compliance documents will include specific language referencing archaeological determinations per 43 CFR 7.33.

III. Public Notice of Determination of Loss or Absence of Archaeological Interest – As per IM 2022-034, the BLM California State Director will make public notice of determinations of loss or absence of archaeological interest, “including any permitting requirements of activities associated with the materials determined not to be archaeological resources,” (43 CFR 7.33) for determinations that have been made under Section 7.33.

IV. Coordination and Planning During the Post-Review Process – Where coordination procedures have not been identified in early project planning and, or the Section106 review process and NEPA analyses and mitigations, Field Offices will coordinate with Tribes and stakeholders to develop treatment procedures for removal and relocation of discharged material remains to be included in MDPs or equivalent planning documents.

V. Documentation and Disposition of relocated Discharged Material Remains – Removal and relocation of discharged material remains also need to be fully documented, and the location of relocated material remains will be updated within the GIS database. Field Offices should consider redundant storage of records to ensure long-term records management of relocated items. Decisions regarding the relocation and disposition of discharged material remains are made solely at the discretion of the BLM.

VI. Establish Implementation Guidance – The Deputy Preservation Officer will continue to work with State, District, and Field Office Managers to develop appropriate methods to implement this policy and may further develop additional guidance documents, templates, or FAQs. District and Field Managers will coordinate with the Deputy Preservation Officer when implementing this policy. The Deputy Preservation Officer will advise the State Director and coordinate with the BLM Federal Preservation Officer on initiating the formal procedures for public notification in accordance with 43 CFR § 7.33.