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2361.28 - Protection.

All available legal means to protect cultural resources should be considered. In addition to general measures to safeguard cultural properties, Forest Supervisors and District Rangers will consult with professional cultural resource specialists and law enforcement officers to develop Forest or District cultural resource protection methods.

1. Protection Methods.

a. Give consideration to fencing sensitive sites, administrative closure of damaged sites, posting sites, offering rewards for information leading to vandals, and actively pursuing prosecution of vandals and pothunters.

b. When physical protection measures are used, consider signing to educate the public of the necessity for protection.

c. Where appropriate, patrol, surveillance, and visitation of sensitive properties should occur. Cultural resource specialists should receive appropriate law enforcement training (FSM 5370 and 5386.3).

d. Post signs at various locations on the Forest to reasonably inform the public that damage of cultural resource sites is prohibited. Forest and District sign plans should incorporate cultural resources protection signing (FSH 7109.11a).

e. Where appropriate, avoid publicity about the location of cultural properties.

f. Use closure measures as needed to protect cultural properties, including 36 CFR 261.50.

g. Gain public understanding and support through education.

2. Protection of Site Location Information.

a. Mark all files, maps, and other records containing site locational information "For Official Use Only." Site locations are exempt, as provided by P.L. 96-95, (16 U.S.C. 460) from mandatory disclosure in Freedom of Information Act requests. Records containing information on exact locations of cultural resources shall be protected from unauthorized use.

Such records should not be made available to the public unless determined that disclosure will not result in degradation of the resource due to increased public use or vandalism. Coordinate all requests for cultural resources documents through the Supervisor's Office.

b. Confidentiality shall be exercised for:

(1) Cultural Resource Inventory Forms.

(2) Cultural Resource Atlas.

(3) Cultural resource reports which contain precise information on locations of cultural resources.

c. Requests for documents containing site location information must be submitted in writing and shall be processed through the Freedom of Information Officer (FSM 6271.2). Forest Supervisors shall develop policies as needed for in-Service use of these records. Land management plans, environmental reports, and other public documents should not contain exact site location information.

3. Protection of Sites in Undertaking Areas.

a. Include in each contract, permit, or lease a statement of the operating conditions required to protect cultural resources in the project area.

Also include the pertinent clause notifying the operator of his or her responsibility to protect marked sites when working in the area, and of his or her liability for damage.

b. No disturbing activity may be allowed within marked site boundaries except as specified in a no adverse effect or no effect finding to which the SHPO and ACHP have agreed.

c. In each project area, before any disturbing work begins, mark sites to be protected in accordance with FSH 2309.24, chapter 10. For paraprofessional surveys, this marking must be done, or directly inspected by, a professional cultural resources specialist (PCRS) prior to recommending clearance. The Forest Archeologist's signature on the IS&A form (R3-FS-2300-4) certifies that this has been done.

d. If a previously undiscovered site is found during the course of a project, the project administrator shall halt any work that might potentially damage the site. The Forest Supervisor shall immediately consult the SHPO. The halted work may not resume until SHPO consultation has been completed and the Forest Supervisor authorizes resumption. The project administrator should keep the contractor, permittee, or lessee informed of anticipated delays in work resumption.

4. Coordination with Contractors, Permittees, and Lessees.

a. During the pre-work conference for an undertaking, all contractors or applicants will be given at least the following:

(1) Site location maps and legends.

(2) Explanation of the method(s) and color(s) used to mark sites on the ground.

(3) Explanation of the protection and liability clause(s) in the contracts or authorizations applicable to the contractor's or applicant's action.

(4) Explanation of how and when the Forest Service will do monitoring.

(5) Explanation of the contractor's or applicant's responsibilities should an unrecorded site be found by either the Forest Service, the contractor, or holder.

(6) Special protection conditions that may be applicable to the contract or authorization.

b. Forests will provide the following information at users' meetings, such as timber purchasers', special use authorization holders', or livestock permittee meetings:

(1) Update on the status of cultural resource management applicable to the users' activities.

(2) Explanation of the potential consequences to the resource, the Forest Service, and to Forest users when damage occurs to a protected cultural resource site.

(3) Review of procedures for monitoring and assessing damage to cultural sites.

5. Monitoring.

a. A PCRS, or a properly trained project administrator, inspector, or Contracting Officer's Representative, must inspect sites in each project area that have been designated for protection. Inspection standards are as follows:

(1) Inspect at least 20 percent of the sites designated for protection, but not less than one site.

(2) Inspect all sites listed in, or formally determined eligible for, the National Register of Historic Places.

(3) If damage is found, follow procedures specified in FSH 2309.24, chapter 40.

b. Inspection must take place during the course of the undertaking, but may occur at the close of undertakings that take less than 72 working hours to complete.

c. Forest Service inspection of in-Service projects will be documented on appropriate inspection forms. A copy of each form or letter documenting site monitoring will be routed to the Forest Archeologist who will forward copies to the SHPO. Examples of the forms include:

(1) Contract Daily Diary, form FS-6300-20; see exhibit 1.

(2) Timber Sale Administration Agreement and/or Notice, R3-FS-2400-7; see exhibit 2.

(3) Inventory Standards and Accounting Form (R3-FS-2300-4).

(4) Forest-specific inspection form.

d. Project monitoring by out-Service proponents under permit will be documented by a signed, written report from a professional archeologist holding a cultural resource permit that verifies which sites were inspected and their condition. The format of the report will be approved in advance of the project by the Forest Archeologist. A copy of the report will be routed to the Forest Archeologist, who will provide copies to the District Ranger and SHPO.

6. Training for Project Administrators and Inspectors. Forest Service personnel who will have responsibilities to administer in-Service projects or contracts shall attend a training program conducted by Forest Archeologists and others. Training will be documented in EmployeeDevelopment Folders, and consist of the following topics:

a. Forest cultural resources objectives.

b. Role of monitoring.

c. Site recognition.

d. Site marking procedures for sites marked in preparation for the project.

e. Procedures to be followed if new, unrecorded sites are found during the course of a project.

f. Site disturbance and damage recognition.

g. Site documentation procedures including site numbering, site recording, site condition, and special instructions applicable to specific areas.

h. Notification requirements if site damage is encountered.

i. Proper contract or other authorization action if site damage is encountered.

j. Cultural resource laws, regulations, and procedures.

7. Damage Procedures.

a. Cultural resource sites can be damaged by four classes of activity:

(1) In-Service projects.

(2) Approved out-Service projects.

(3) Non-authorized activity that can be attributed to a specific party.

(4) Non-authorized activity that cannot be attributed to a specific party or that results from forces of nature.

b. If an intrusion within marked site boundaries is encountered during project activities the project administrator shall halt work within the area of actual or potential damage and notify the District Ranger immediately. The Forest Supervisor, in consultation with the Forest Archeologist, will prescribe measures to avoid further damage and will decide when work in the affected area may resume.

c. A professional cultural resource specialist (PCRS) will inspect the damage within 14 days.

The professional will prepare a damage assessment report, including a plan for stabilization and repair, within 30 days after the intrusion is discovered, weather permitting. Such assessments should reflect professional judgments, and be oriented toward preventing further deterioration and damage to the site(s) (see 36 CFR 296.14(a, c)). The report will be provided to the Forest Supervisor, the District Ranger, the Forest Archeologist, the SHPO, and to the party that caused the damage. Procedures for damage assessment are in FSH 2309.24, chapter 40.

d. A Forest Service PCRS, or a PCRS approved by the Forest Supervisor, shall inspect at least 25 percent of the protected sites in the area where work has occurred. If any further intrusions are found, all protected sites in areas where work has occurred shall be inspected.

e. If intrusions are discovered at 10 percent or more of all protected sites in the project area, the undertaking shall be promptly halted. Work will not resume until the Forest Supervisor, in consultation with a Forest Service PCRS and the SHPO, determines that no additional damage is likely to occur.

f. Damage assessment reports will be prepared for identified cases of damage in non-undertaking contexts. Procedures are in FSH 2309.24, chapter 40.

g. Immediately forward copies of all damage assessment reports to the SHPO except for damage reports relating to criminal investigations. These reports will be maintained by the case agent and not released without prior approval.

h. Restoration and repair, or recovery of threatened materials, will begin within 90 days of collection of damages, weather permitting. This work will be accomplished promptly to the extent consistent with Federal fiscal procedures.

i. Ensure that 36 CFR 800 consultation requirements are completed prior to initiating restoration or repair work.

8. Collection of Damages.

a. Each Forest will adhere to the following procedures in collecting damages and will make a good-faith effort to adhere to the following schedules:

(1) The party conducting the undertaking shall be liable for the costs of restoration and repair, or the archeological value as appropriate, of any site marked for protection within a project boundary that is damaged by his or her actions.

(2) The Forest Supervisor or designated official will determine responsibility for damage within 45 days after completing the damage assessment, weather permitting. Within 90 days after completing the damage assessment the Forest Supervisor or designated official will send the responsible party a Bill for Collection for damages.

(3) In the case of a contractor, if payment is not made within 30 days, the Contracting Officer shall demand payment from the surety company. The contractor has the choice of appealing within 90 days to the Board of Contract Appeals, or within 1 year to the Claims Court.

(4) If all administrative procedures and appeals have been completed the bill remains unpaid, the Forest Supervisor shall submit the matter to the Office of General Counsel for referral to the Department of Justice.

(5) Where the Forest Supervisor suspects that damage may have been willful, a Forest Service Special Agent or other certified law enforcement specialist shall conduct an investigation. The Special Agent will determine within 60 days of completion of the investigation whether criminal prosecution should be recommended. If criminal prosecution is appropriate, the matter shall be referred to the Department of Justice.

b. administrative pleadings and papers filed in any administrative actions or other legal pleadings initiated to prosecute damage claims so these may be provided to the Parties in the Settlement Agreement.

9. General Site Inspections.

a. Each site listed in or nominated to the National Register must be inspected every 2 years. Reports of inspections are to be sent to the SHPO.

b. Sites formally determined eligible for the National Register must be inspected periodically. A site has been formally determined eligible only if it has been through the procedures specified in 36 CFR 63. Inspections are not required for sites that have been collected or excavated, and analyzed and reported, to a level sufficient to document the characteristics that qualify them for the National Register. Reports of inspection are to be sent to SHPO.

c. All other sites, except those determined ineligible for the National Register (through 36 CFR 63), will be inspected when the Forest Supervisor concurs with the Forest Archeologist's or SHPO's recommendation to inspect, or when field personnel have an opportunity to inspect.

d. Any site found to have been damaged will be inspected by the Forest Archeologist, who will notify the SHPO and prepare a damage assessment report within 30 days.

10. Site Stabilization.

a. Each Forest shall identify site stabilization priorities in the planning assessment (FSM 2361.21). This shall include:

(1) A list of five sites that are the highest priorities for stabilization.

(2) A list of 35 additional sites that have sustained severe damage (if identifiable).

(3) A list of up to 60 additional sites that have sustained less severe damage.

b. The following characteristics will be used to evaluate sites for stabilization priority: National Register eligibility, extent of damage, recentness of damage, susceptibility to further damage, scientific value of site, local interest in site, and public interpretive value of site, Native American religious or cultural value of site.

c. As funded by the Regional Office, stabilize sites identified in the priority list. Forests may also fund stabilization as opportunity arises. Stabilization requires the completion of all necessary studies of materials disturbed or uncovered by the work, and the preparation of a professional report.

d. Qualified professional cultural resource specialists shall carry out or directly supervise stabilization and repair.

e. The Region annually will commit at least 5 percent of the programmed 074 funds for stabilization and repair with a minimum of $50,000.

2361.28 - Exhibit 1

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