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March 27, 2013
In Reply Refer To:
8100 (240) P         
Instruction Memorandum No. 2013-103       
Expires: 09/30/2014
To:                  All Field Office Officials
From:               Principal Deputy Director
Subject:           8100 Manual Section Revisions Implementing the Revised Programmatic Agreement Regarding the Manner in which the Bureau of Land Management will meet its Compliance Responsibilities under the National Historic Preservation Act                     


Program Area:  Cultural Resources Management and Tribal Consultation. 

Purpose: Make narrowly focused interim changes to selected pages of the Bureau of Land Management (BLM) 8100 and 8140 Manual sections to meet the requirements of the February 9, 2012, revision to the national Programmatic Agreement (PA) which the BLM 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). 
Policy/Action: The 2012 PA requires the BLM to initiate revision of the 8100 Manual sections to incorporate the definition of “adverse effect” and “consulting parties” from the 2004 amendments to 36 CFR Part 800. The attached changes are only to incorporate the referenced definitions and also update references to the PA itself.
Timeframe: Changes are effective immediately.
Budget Impact: No budget impact is anticipated as a result of the attached changes to the 8100 and 8140 Manual sections.  There will be long term savings resulting from maintaining the regulatory efficiencies of the BLM alternative process authorized by the 2012 national PA. 
Background: The 1997 national PA guided the BLM compliance with the NHPA for 15 years. During that time, the 36 CFR Part 800 regulations that implement Section 106 of the NHPA were revised, most significantly in 2004. As noted in IM 2012-061, Revised Programmatic Agreement Regarding the Manner in which the Bureau of Land Management will meet its Responsibilities under the National Historic Preservation Act (February 13, 2012), the 2012 revised PA includes the BLM commitment to revise relevant manual sections to be consistent with the definitions of “adverse effect” and “consulting parties” in 36 CFR Part 800, as amended in 2004. The BLM is currently undertaking a comprehensive review and revision of this entire 8100 Manual series to accommodate current regulations, recent policy changes, and organizational structure. The BLM will incorporate this interim guidance into the 8100 and 8140 manuals as they are completed.
The change to the definition of adverse effect is accomplished by removing Appendix 3 from the 8140 Manual section. The change is consistent with the 2004 amendments, which will eliminate the provision in the 1986 regulations (51 FR 31118) providing that an undertaking otherwise found to be adverse may be considered not adverse, when:  (1) a historic property is of value only for its potential contribution to archeological, historical, or architectural research; (2) such value can be substantially preserved through the conduct of appropriate research; and (3) such research is conducted in accordance with applicable professional standards and guidelines.  
The current 36 CFR Part 800 regulations also include a responsibility to notify the public about NHPA Section 106 undertakings and actively identify individuals and organizations as consulting parties. An efficient process for aligning public notification and input under NHPA with the parallel requirements under the National Environmental Policy Act (NEPA) is provided in IM 2012-108, Coordinating National Historic Preservation Act and National Environmental Policy Act Compliance (May 1, 2012). State, District and Field Office NEPA logs and web-based notification systems may be modified to provide advance notice of pending actions and solicit initial statements of interest in an opportunity to participate in the section 106 process.  Public notification efforts should be tailored to the scale of the undertaking, anticipated level of public interest, and confidentiality concerns of affected parties.
Consulting parties fall into two broad categories:  (1) parties with a right to participate (see 36 CFR 800.2(c) (1)-(4)), and (2) other appropriate parties who may choose to participate. The first group consists of:  (a) the relevant SHPO, consistent with the BLM-SHPO protocol; (b) the Tribal Historic Preservation Officer, or an officially designated tribal representative for undertakings where historic properties on tribal lands may be affected; (c) officially designated tribal representatives where historic properties of religious and cultural significance to an Indian tribe may be affected, regardless of location; (d) representatives of local governments with jurisdiction over the area in which the effects of an undertaking may occur; and (e) the applicant for Federal assistance, permits, licenses and other approvals.  The second group consists of individuals and organizations with a demonstrated legal or economic interest in the undertakings or affected historic properties or with a concern about the effects on the undertaking on historic properties.  Such individuals and organizations may be invited to become consulting parties, or may submit written requests for consulting party status directly to the BLM for consideration. Designated consulting parties are involved in findings and determinations made during the section 106 process.
The attached changes are considered interim until additional changes are developed to update the 8100 Manual Series and H-8120-1 Handbook consistent with the Department of the Interior Tribal Consultation policy and other recent policy changes.  


Manual/Handbook Sections Affected: The execution of the revised PA requires immediate revision of the 8100 and 8140 Manual sections. 

Coordination: This IM was developed by WO-240 in coordination with the BLM Preservation Board.
Contact: If you or your staffs have any questions, please contact Kate Winthrop, Preservation Officer, at (202) 912-7409 or kwinthrop@blm.gov.
Signed by:                                                       Authenticated by:
Jamie E. Connell                                              Robert M. Williams
Acting, Deputy Director Operations                   Division of IRM Governance,WO-560
4 Attachment

Last updated: 04-16-2013