Information for Managers

This section describes the responsibilities of the NPS regional directors and park managers in issuing and monitoring Permits for Archeological Investigations (hereafter referred to as a “Permit”).

A Permit is required for archeological investigations carried out on parklands by non-NPS personnel (archeologists who are not employed by the NPS), unless carried out under a contract or a cooperative agreement specifically written for the investigation. (A cooperator may be any state or local government, tribal government, public or private agency, organization, institution, corporation, individual, or other entity who enters into a cooperative agreement with a unit of the NPS.)

Permits are issued under the Archaeological Resources Protection Act of 1979 (ARPA) or the Antiquities Act of 1906, or both. Research projects on archeological resources that are 50-100 years old are issued Permits under the Antiquities Act. Research projects on archeological resources that are greater than 100 years old are issued Permits under ARPA.

The Permit is a legal document that spells out the nature and location of the archeological research that is permitted, the manner in which the research is to be conducted, and under what conditions the project can be suspended. Thus, the Permit can be, and is, used in court to establish elements of cultural resource law violations, should they occur.

The park manager is responsible for ensuring that all proposed activities comply with Federal laws and regulations that protect archeological resources before issuing other types of permits, leases, licenses, or entitlements. When a park manager authorizes a third party activity without considering the effects of that activity on archeological resources, the manager may be in violation of ARPA, NHPA, NEPA, or other laws.

The park manager is responsible for all activities occurring within park boundaries and works closely with archeologists in the park or regional center to review proposed projects and permit applications. Regional directors issue Permits based on the recommendations of park managers and NPS archeologists. The regional director cannot delegate this responsibility for issuing Permits for Archeological Investigations.

Who Needs a Permit?

Permits are required for all archeological investigations that are not initiated by or under the control of the NPS. For example, Permits are required for:

• Independent archeological projects, including field schools;

• Archeological investigations to fulfill requirements for NHPA Section 106 compliance for projects initiated by other parties, such as commercial enterprises, or for Federal undertakings initiated by the NPS but contracted to a second party; and

• Archeological investigations initiated by other Federal agencies (except, under certain circumstances, the Environmental Protection Agency (EPA) (see below);

• Projects initiated by or paid for by a park friends group;

• Cooperative agreements, unless to fulfill an agreement written by the park;

• Archeological investigations of sunken or terrestrial military craft that are under the jurisdiction of the NPS. Authorization from both the U.S. Navy and the NPS may be required. Applicants may approach either the U.S. Navy or the NPS to initiate a joint permitting process and receive further guidance.

A regional director also may issue a Permit to the governor of any state, or to a designee that the governor deems qualified to carry out the intent of ARPA, for purposes of conducting archeological research, excavating and/or removing archeological resources, and safeguarding and preserving any materials and data collected by a university, museum, or other scientific or educational institution approved by the Federal land manager (43 CFR 7.5 (b)(5)).

The park manager is responsible to ensure that archeological projects carried out under contract or cooperative agreement are in alignment with ARPA regulations and do not conflict with park management. Non-archeologist NPS personnel responsible for administration of an archeological contract should coordinate with the park or regional archeologist to ensure that the project is properly carried out.

Park managers are responsible to ensure that any park project with potential to impact cultural resources complies with National Historic Preservation Act Section 106. Archeological projects must also comply with NHPA Section 106, and obtain appropriate permits. Park managers who fail to ensure that projects comply with NHPA Section 106 and that non-NPS archeological projects maintain a Permit are subject to criminal penalties under ARPA.

Who Doesn't Need a Permit?

A Permit is not required in every situation that potentially involves archeological resources (43 CFR 7.5 (b)(4)).

• Permits are not required for investigations under the direct control of the NPS, either carried out by NPS archeologists, or by archeologists working on archeological projects under a contract or a cooperative agreement written for the project.

• The EPA, under the Comprehensive Environmental Response, Compensational Liability Act (CERCLA), is not required to obtain a Permit for archeological investigations related to the on-site portion of removal or remedial action related to site contamination (42 USC 9621(e)(1)). If circumstances permit, however, EPA staff are encouraged to apply for a Permit for any archeological activity carried out as part of the undertaking.

• Any remedial action, however, must comply with the substantive portions of both ARPA and NHPA. Offsite remedial activity, such as building a road to remove contaminated materials, also requires Section 106 compliance and, if archeological investigations are involved, a Permit.

• A Permit is not required for the collection, for private purposes, of any rock, coin, bullet, or mineral from park lands that is not defined as an archeological resource, provided that such collection does not result in the disturbance of an archeological site (43 CFR 7.5(b)(2)). Collectors, however, may be violating other laws, such as theft of government property.

• Permits are not required for any person conducting NPS-authorized activities on parklands when those activities are for purposes other than the excavation and/or removal of archeological resources, even though those activities might accidentally result in the disturbance of archeological resources. This does not, however, affect the park manager’s responsibility to comply with other authorities such as NHPA, NEPA, and the NPS Organic Act that protect archeological resources, prior to issuing the authorization to conduct those activities (43 CFR 7.5 (b)(1)).

In circumstances where a Permit is not required for archeological investigations, the land manager must still ensure that:

• Legal mandates of natural and cultural resource law compliance requirements are met and that proposed projects administered through contracts are reviewed by NPS archeologists who meet the Secretary of the Interior’s professional standards.

• NPS archeologists and non-NPS archeologists working on archeological projects on NPS lands through a contract meet the provisions of ARPA Regulations Sections 7.8 and 7.9 (43 CFR 7.8 and 43 CFR 7.9); regarding professional standards and training, and that investigations, reporting, and curation of collected archeological materials also comply with ARPA requirements.

• The appropriate tribal authorities have been notified of potential harm or destruction to sites of religious or cultural importance to Indian tribes (43 CFR 7.7); (43 CFR 10.3).

• Reports that are submitted by NPS archeologists are reviewed for compliance with the provisions of the park’s management plan by the park manager or peer reviewed, whichever is more suitable or practical.

• All pertinent archeological site information is collected and entered into the Cultural Resources Information System (CRIS) in a timely manner and is complete, accurate, and reliable.

• Site locations and survey areas are recorded in a GPS system and raw and differentially corrected GPS data, exported to a GIS format as either a shapefile or GeoDatabase, are provided to the park.

• All material remains and associated records are cataloged with NPS Museum Collections Management System (MCMS) in a timely manner.

What Kinds of Activities Require a Permit?

The Permitting process is a good way for land managers to monitor activities on land for which they are responsible, and the range of investigations that require a Permit should be inclusive. Permits are required for both invasive and ground-disturbing investigations that remove artifacts, and non-invasive investigations that do not involve ground disturbance or artifact collection. Examples of ground-disturbing investigations include excavation, shovel testing, coring, trenching, and pedestrian survey with artifact removal. Non-invasive examples of archeological investigations include remote sensing, LiDAR documentation, photo-documentation, and underwater and terrestrial survey without artifact removal.

A Federal undertaking is a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency (36 CFR 800.16(y)). The issuance of a Permit is also a Federal undertaking. ARPA, however, exempts the act of issuing a Permit from compliance with NHPA Section 106. Issuance of a permit in accordance with the Act [ARPA] and this part does not constitute a undertaking requiring compliance with section 106 of [NHPA] (43 CFR 7.12). The project requiring the Permit, however, must comply with NHPA Section 106.

Reviewing Permit Applications

The Permit application is submitted in writing to the office of the regional director. If submitted to park personnel, the application is forwarded to the regional director. The regional director acknowledges receipt of an application in writing. When the Permit application describes a project to be carried out on NPS fee simple land and other Federal land with which the NPS shares a boundary, the NPS regional director coordinates the issuance of a Permit with the other land managing agency (43 CFR 7.8 (b)).

American sunken military craft are the property of the Navy unless property rights are extinguished. Requests to investigate sunken military craft on NPS land are submitted to the NPS using an application for a Permit for Archeological Investigation. NPS personnel will forward the request to the Naval History and Heritage Command for consideration. Find more information about Navy Archeological Research Permits.

The regional director may delegate technical review of the permit application to the park or other NPS archeologist. For issues relating to curation and handling of material remains and associated records, NPS curators may also be included. The regional director consults with the park or other NPS archeologist and the park manager about project feasibility. A Permit may be denied if the application does not meet Permit requirements (See 43 CFR 7.8).

The decision to issue a Permit is made by the regional director. Before issuing a Permit, the regional director verifies that: If the archeological project is anticipated to impact a site that is listed or eligible for listing on the National Register of Historic Places or if the project involves archeological excavations, compliance with Section 106 of NHPA or NEPA is required. The regional director or the regional director's appointed delegate will consult with the appropriate historic preservation officer(s) about compliance requirements. If compliance procedures are required, the applicant will be requested to prepare background documentation.

The regional director verifies that the leadership of affected Indian tribes have been notified of possible effect on sites having religious or cultural importance. Tribes have 30 days to respond to the notification (43 CFR 7.7). Depending on the response, further consultation may be required that may affect the timing and conditions of the issuance of the Permit. Regional directors may require applicants to participate in consultations.

Regional directors have 60 days to review a Permit application. If there are special circumstances, or in the event of disasters, a Permit can be issued immediately to help protect and preserve archeological resources.

If the application does not meet qualifications and standards for issuing a Permit for Archeological Investigations, the regional director must deny the application for a Permit in writing. Depending on the nature of the denial, such as a conflict with other events in the park, or because of an incomplete application, the regional director may invite the applicant to submit a revised proposal. If the research proposal conflicts with the park's management plan, the regional director will not encourage the applicant to re-submit an application. The regional director must send copies to the park manager of all letters to the applicant.

Issuing a Permit

The regional director prepares the Permit and consults the park or other NPS archeologist and the park manager regarding appropriate terms and conditions for conducting fieldwork including dates, responsibilities, and a schedule for monitoring fieldwork and laboratory activities. Standard conditions and any special conditions are listed on the Permit. The regional director ensures that the terms and conditions relating to the interests and concerns of affiliated Indian tribes about archeological resources affected by the work were considered in developing the final scope of work.

The regional director sends the original Permit to the applicant, a copy to the manager of the park where the research project will take place, and retains a copy for the regional director’s files.

NPS Inspections

The regional director is responsible for ensuring that inspections occur during the field and laboratory phases of a permitted project to verify that the project is in compliance with stipulations of the Permit. These inspections are conducted by NPS archeologists and, when appropriate and feasible, an NPS curator. The archeologist and curator also monitor project–related laboratory activities. Laboratory inspection includes verification that all the NPS standards for collections management outlined in Curation of Federally-Owned and Administered Archaeological Collections (36 CFR Part 79), the NPS Museum Handbook, and other NPS region-specific guidelines are met to ensure proper management and security of the collection.

If park personnel observe activities at variance with the terms and conditions of the Permit, the individual reports their findings immediately to the park manager. The park manager provides the regional director with information necessary to suspend the Permit and all associated activities in writing in a timely manner. The regional director has authority for suspension or revocation of Permits (see Enforcement, Suspension, and Revocation of Permits).

Reports and Products

The regional director is responsible for ensuring that all deliverables conform with the Permit terms and conditions. Fulfillment of this responsibility will be based on reviews and recommendations from the park or other NPS archeologist who has monitored the permitted project. Upon completion of the project and after all reports and/or products, such as field forms, CRIS site records, or the field data to create CRIS site records, have been submitted and accepted, the regional director sends a letter to the applicant and park manager stating that the conditions of the Permit have been met.

Results of archeological investigations on parklands must be accessible to a broad range of users, including Federal, tribal, state, and local agencies, the professional community, and the general public. Results must be communicated in reports that summarize the objectives, methods, techniques, and research results. Information relating to curation, such as any on-site conservation of items, MCMS catalog records, name of the curatorial repository, and collection accession numbers should also be included in the final report in order that additional detailed information can be obtained, if necessary.

Information about specific site locations and other site information that would endanger the integrity of the archeological resource, must be reported in a manner that allows the park manager to withhold that information. Permit-holders must consult the park manager regarding any request from an outside party for potentially protected information before releasing it, whether pursuant to a FOIA request or oral or written request.

Information contained in the reports is considered to be confidential by the NPS and is not to be released to any entity outside of the NPS without written approval in accordance with NPS Director's Order #66.

Federal and partner agencies need to consult the regional director regarding any request from an outside party for potentially protected information before releasing it, whether pursuant to a FOIA request or any other oral or written request.

The NPS exercises its discretion to withhold specific information contained in this file from public release pursuant to authority granted within one or more of the following:

• National Parks Omnibus Management Act, Section 207 (54 U.S.C. 100707), which prohibits the release under FOIA of information regarding the nature and specific location of certain cultural and natural resources in the National Park System;

• National Historic Preservation Act, (54 U.S.C. 307103), which prohibits the release of information about the location, character, or ownership of certain historic resources;

• Archaeological Resource Protection Act, (16 U.S.C. § 470hh), which prohibits the release under FOIA or any other law information concerning the nature and location of certain archaeological resources;

• Executive Order No. 13007: Indian Sacred Sites, which instructs agencies to maintain the confidentiality of Indian sacred sites.

Results that include the discovery of new archeological sites and revisiting existing archeological sites must be entered into CRIS as complete, accurate, and reliable site records. Data entry must be done in a timely fashion for national level reporting under the Government Performance and Results Act. Results are also reported for the NPS Annual Report, which is subject to the auditing process for archeological sites as heritage assets as part of the NPS annual Financial Statements. The park manager is responsible for the timely entry of newly discovered sites and withdrawals of destroyed sites each year. Material remains must be cataloged using MCMS.

The reports are public documents and cannot be copyrighted. Information compiled in the final report may be used by the NPS for cultural resource management purposes. Information collected during the research project, however, may be used by permit-holders in other publications that can be copyrighted. However, the permit-holder must not publish, without the prior permission of the regional director, any locational or other identifying archeological site information that could compromise the government's protection and management of archeological sites.

Information contained in the reports is considered to be confidential by the NPS and is not to be released to any entity outside of the NPS without written approval in accordance with NPS DO #66. Federal and partner agencies need to consult the regional director regarding any request from an outside party for potentially protected information before releasing it, whether pursuant to a FOIA request or any other oral or written request.

Artifact and Document Storage

Artifacts and records from the archeological investigations on federally-owned parklands are the property of the United States. Material remains and associated records must be delivered to the appropriate official of the institution responsible for curation no later than 90 days after the final report is submitted to the regional director.

Amendment and Extension of Permits

Any significant change in the project after the issuance of the Permit, such as a change in the scope of the investigation, replacement of the Principal Investigator, or change in the curatorial facility, requires an amendment to the Permit. The permit-holder is responsible for notifying the regional director in writing of changes and for requesting amendments to the Permit. The permit-holder risks suspension or revocation of the original Permit, as well as permission to carry out the research project, if the regional director is not notified of changes and a Permit amendment is not issued.

When the terms of the fieldwork component of the Permit have been met and the permit-holder requests an extension of time, the Permit may be extended for proper cause. The request for an extension must be submitted to the regional director in writing and must include a detailed explanation for the failure to complete the project in the time allotted by the Permit. The regional director reviews the request. If an extension is approved, the regional director will issue an amended Permit with revised dates for project completion.

Enforcement, Suspension, and Revocation of Permits

Regional directors are responsible for enforcing Permits and have the authority to suspend or terminate a Permit (for enforcement of Permits issued under ARPA, see 43 CFR 7.10). Regional directors rely on information provided to them by park managers, who have responsibility for monitoring cultural resource activities on parklands.

In the event of a suspension or revocation of a Permit, the regional director sends a notice to the permit-holder, stating the nature of and reason for suspension or revocation.

A Permit may be suspended by the regional director because:

• The NPS finds that the permit-holder failed to meet any of the terms and conditions of the Permit or has violated any of its prohibitions (43 CFR.7.10 (a) 1).

• Continuation of the permitted work conflicts with decisions regarding park management that were not in effect when the Permit was issued (43 CFR 7.10 (b)).

The project may continue when the terms of the Permit have been met or when the conflict has been resolved.

A Permit may be revoked by the regional director whenever:

• The permit-holder is convicted of a civil or criminal infraction under Section 6 of ARPA or assessed a civil penalty under Section 7 of ARPA (16 U.S.C.470ee).

• The permit-holder fails to correct the situation for which a Permit was suspended (43 CFR 7.10 (a) 2).

• Continuation of the permitted work conflicts with decisions regarding park management that were not in effect when the Permit was issued (43 CFR 7.10 (b)).

Appeals, Reviews, and Disputes

Any affected person may request a review by the Department of the Interior Departmental Consulting Archeologist (DCA) of any professional issues involved in a bureau permitting decision, such as professional qualifications, research design, or other professional archeological matters. The DCA makes a final professional recommendation to the Director of the NPS to consider in making a final decision about the adjudication of the matter (43 CFR 7.36).

Any affected person, an applicant or permit-holder, may appeal a denial, modification, suspension, revocation, or the inclusion of specific terms and conditions of a Permit to the regional director. The disputant may appeal a regional director's appeal decision to the Director of the NPS. (Further guidance on appeals and disputes may be found at 43 CFR 7.11& 7.36 (a)-(c)).

The regional director's decision shall stand during the appeals process. The NPS Director's decision is the final administrative decision on appeals.

Civil Penalties Provisions of ARPA

The regional director may assess a civil penalty for violation of the terms of the Permit (16 U.S.C. 470ff). The maximum amount of the penalty is based on the commercial or archeological value of the archeological resources involved in the violation, plus the costs of restoration and repair of such resources. For a second, or subsequent violation, the maximum penalty is double the value plus restoration and repair (43 CFR 7.16 (a)(1)&(2)). Under ARPA, the regional director may assess a penalty amount that is less than the maximum amount of the penalty or to mitigate or remit the penalty altogether (43 CFR 7.16(b)).

In addition to civil penalties for Permit violations, the regional director may assess civil penalties against persons who, regardless of whether the action was intentional or accidental, violate any prohibitions contained in ARPA and ARPA regulations (and see 43 CFR 7.15 & 7.4). In order to prevail in a civil penalty assessment, the NPS need only prove its case by a preponderance of the evidence, rather than the “beyond a reasonable doubt” standard required in a criminal prosecution. The regional director may use both civil penalty assessment and criminal prosecution to address the same prohibited conduct.

Criminal Penalties Provisions of ARPA

In the NPS, responsibility for the criminal enforcement of ARPA has been delegated to NPS law enforcement personnel (DO #9 Law Enforcement Program). Law enforcement personnel confer with park staff to determine whether circumstances of Permit violations warrant assessment of civil penalties or whether to refer cases to a district Assistant U.S. Attorney's office for criminal prosecution.

In the NPS, an ARPA criminal violation is either a felony or a Class A misdemeanor. If either the commercial value or the archeological value of the archeological resource involved in the offense plus the cost of restoration and repair of the archeological resource exceeds $500, the crime is a felony. If the total amount is $500 or less, the crime is a misdemeanor. A second or subsequent ARPA offense is automatically a felony.

ARPA provides for the forfeiture of all archeological resources that were the object of an ARPA violation, as well as vehicles and equipment that were used in connection with the violation (16 U.S.C. 470gg(b)).

Storing Permit Records

Archeological investigations on parklands are an important part of the history of a park and the information gained from the investigations often contribute to fulfilling the park's management plans. Applications for Permits, copies of correspondence, Permit documents, and final reports document research on parklands. Regional director's offices and park managers maintain complete Permit files. Per the NPS records schedule, these records are to be maintained indefinitely at the park. The regional director assigns a unique identification number to each permit, and uses this number to organize associated correspondence. The identification number is based on the year of issuance, the park acronym, and the sequential number of permits issued (year/acronym/number).

Treasure Trove

Treasure trove usually consists of gold or silver in the form of coin, plate, bullion, or negotiable currency that is hidden and whose origin is not known. Treasure trove is often buried in soil or submerged lands or concealed elsewhere. Park managers consult park archeologists and other cultural resource staff regarding the identity of treasure trove. Assistance in responding to real or potential treasure trove issues is available from the Chief Archeologist.

Requests to Search for Treasure Trove

Individuals, organizations, and businesses that make requests to parks to search for treasure trove should be advised that NPS policy does not normally allow searching for treasure trove on parklands. Treasure trove discovered on federally-owned parklands remains Federal property. Individuals who wish to pursue the matter further should contact GSA for information on submitting an application for treasure trove investigations.

The potential applicant should not proceed with any search activities on parklands without first obtaining the required permissions, authorizations, Permits, and contracts; otherwise, they risk violating applicable Federal laws and regulations.

Inadvertent Discovery of Treasure Trove

When NPS staff learn that potential treasure trove objects have been discovered on parklands, the park manager and/or a law enforcement officer immediately takes custody of the objects and secure the area where the objects were found. The park manager and the law enforcement officer obtain as much information as possible about the circumstances of discovery. The information facilitates identification of the objects as authentic treasure trove, lost or abandoned property whose owner is known, other type of government property, or an archeological resource (and, therefore, possible cultural resources law violation). The park manager or law enforcement officer inventories the property taken into custody and gives the finder receipts for the property, as necessary.

All abandoned property brought to the attention of the park by the finder is recorded on a Lost and Found Report (NPS Form 10-166).

The regional director is notified of the discovery of treasure trove as soon as possible. The regional director notifies the Associate Director, Cultural Resources of the incident within 3 working days. The Associate Director subsequently notifies GSA, as necessary.