No. 28697 (New Rule): R694-1. Archeological Permits

DAR File No.: 28697
Filed: 05/01/2006, 10:46
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

H.B. 139, 2006 General Session, transferred the authority to issue permits for the survey and excavation of archeological resources on state lands from the Division of State History to the Public Lands Policy Coordination Office effective 07/01/2006. This proposed rule will allow the Public Lands Policy Coordination Office to administer the permit program. (DAR NOTE: H.B. 139 (2006) is found at Chapter 292, Laws of Utah 2006, and was effective 05/01/2006.)

 

Summary of the rule or change:

This is a proposed rule which establishes supplementary criteria and process for the issuance and revocation of the permits necessary to work with archeological resources.

 

State statutory or constitutional authorization for this rule:

Section 9-8-305

 

Anticipated cost or savings to:

the state budget:

H.B. 139 transferred the existing authority to issue permits from the Division of State History to the Public Lands Policy Coordination Office. Because the authority was simply transferred, there will be no effect to the state budget.

 

local governments:

Local government was not affected by the permit process before the permitting authority was transferred, and similarly will not be affected after the transfer.

 

other persons:

Individuals who were required to obtain a permit from the Division of State History will now be required to obtain a permit from the Public Lands Policy Coordination Office. Because permits were also issued to corporations before the transfer of authority and the corporations might have had a number of qualified individuals covered by that permit, and because only individuals will be able to obtain a permit after the transfer, some individuals who did not need to obtain a permit before will be required to obtain a permit after the transfer of authority. This will require the time and effort to apply for the permit.

 

Compliance costs for affected persons:

Individuals who wish to obtain a permit to survey or excavate archeological resources in the state will be required to apply for the permit from the Public Lands Policy Coordination Office, and comply with the terms of its provisions. The proposed rule provides for a process to suspend or revoke a permit for noncompliance, and individuals who do not comply may be affected by the cost of a noncompliance proceeding.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

The rule will allow independent operators and businesses with qualified employees who work with archeological resources to obtain the necessary permits to operate. The businesses and independent operators currently must obtain this permit from another state agency with the necessary cost in time and effort to apply. There is no cost for the permit, so the only fiscal impact will be the ongoing requirement of the time necessary to apply for the permit. Additionally, because permits may now be granted for an additional year, total time of compliance may be decreased. Any noncompliance proceedings which may be initiated pursuant to the rule will require the time to participate. Lynn Stevens, Public Lands Policy Coordinator

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Lands Policy Coordinating Office
Administration
Room 5110 STATE OFFICE BUILDING
SALT LAKE CITY UT 84114

 

Direct questions regarding this rule to:

John Harja at the above address, by phone at 801-537-9275, by FAX at 801-537-9226, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2006

 

Interested persons may attend a public hearing regarding this rule:

5/24/2006 at 6:00 PM, Division of State History, 300 Rio Grande, Zephyr Room, Salt Lake City, UT

 

This rule may become effective on:

06/23/2006

 

Authorized by:

John Harja, Assistant Director for Planning and Policy

 

 

RULE TEXT

R694. Public Lands Policy Coordination Office, Administration.

R694-1. Archeological Permits.

R694-1-1. Authority.

These rules are authorized by Section 9-8-305(5).

 

R694-1-2. Purpose.

The purpose of these rules is to establish requirements for the issuance of survey and excavation permits for all lands in the State of Utah, and to insure compliance with permit provisions and the underlying rules and law.

 

R694-1-3. Definitions.

(a) Terms used in this rule are defined in Section 9-8-302.

(b) In addition:

(i) "Full-time professional experience" means work within a position requiring responsibility for progress and completion of a project involving archeological resources.

 

R694-1-4. Qualifications of Permit Holders.

(a) Permits will be issued to those individuals who qualify as a principal investigator, except for those who may otherwise qualify but who have had a permit suspended or revoked pursuant to R694-1-11.

(b) As authorized by Section 9-8-305(2)(b), in lieu of a graduate degree in anthropology, archeology or history, a person requesting a permit may submit evidence demonstrating the ability to design and execute a research project in anthropology, archeology or history, including the collection and analysis of information, presentation of results in an approved and reviewed format, and the subsequent curation of specimens.

(c)(i) As authorized by Section 9-8-305(2)(iii), applicants for a permit may submit evidence of training related to proper methodologies for field procedures, laboratory analysis and reporting within projects involving archeological resources.

(ii) An applicant for a permit wishing to submit evidence pursuant to R694-1-4(c)(i) must demonstrate that the training was of a sufficient duration and a sufficiently broad scope of subject matter to substitute for a full year of full time professional experience.

(d) Experience in Utah prehistoric or historic archeology shall include basic field, associated laboratory analysis and reporting work based within any portion of the general physiographic and cultural regions found within the state boundaries.

 

R694-1-5. Application for Permit to Survey.

(a) A person who wishes to obtain a permit to survey shall obtain and complete an application form and submit the form and all other information required by the form to the Public Lands Policy Coordination Office.

(b) Other required information may include:

(i) Projects initiated under previous permits issued by the State of Utah which remain incomplete as of the date of application.

(ii) The applicant's employer or the name of the applicant's business, if self-employed.

(iii) A copy of an agreement to curate with an authorized curation facility in the name of the applicant or the applicant's employer.

 

R694-1-6. Application for Permit to Excavate.

(a)(i) A person who wishes to obtain a permit to excavate shall complete an application form and submit the original and two copies of the form and all other information required by the form to the Public Lands Policy Coordination Office.

(ii) The application form shall require the applicant to provide the information required by Section 9-8-305(3)(a).

(b) The Public Lands Policy Coordination Office shall forward one copy of the form and all other information requested to the Antiquities Section and one copy to the agency.

(c) If the Public Lands Policy Coordination Office has delegated the authority to issue a permit to excavate to another state agency, pursuant to Rule R694-1-8, a person who wishes to obtain a permit to excavate on the lands owned by that agency shall submit an application to that agency.

 

R694-1-7. Review of Permit Applications.

(a) The Public Lands Policy Coordination Office may, at its sole discretion, seek the advice of one or more principal investigators as part of the review of an application for a permit to survey or a permit to excavate.

(b) Principal investigators who are authorized to provide advice on permits must hold a valid permit issued by the Public Lands Policy Coordination Office and must volunteer for the task.

(c) The Public Lands Policy Coordination Office shall keep a list of those principal investigators who volunteer, and shall make use of their services on a rotational basis, except that the Office shall avoid using the advice of any particular volunteer if a conflict of interest would thereby arise.

(d)(i) The Public Lands Policy Coordination Office shall notify the applicant within 30 calendar days whether or not the application is approved.

(ii) This time may be extended if additional information is required from the applicant.

 

R694-1-8. Delegation of Authority to Issue a Permit to Excavate.

(a) An agency which owns land within the state of Utah may request the delegation of the authority to issue permits to excavate for the lands it owns.

(b) The agency shall request the delegation by letter signed by the agency's authorized representative.

(c) The letter shall contain the proposed terms and conditions of the delegation, which shall include the information required by Section 9-8-305(3)(c)(ii), and agreement with the following conditions:

(i) each person approved for a permit to excavate by the agency shall hold a valid permit to survey from the Public Lands Policy Coordination Office at all times prior to and including the expiration date of the permit, including any extensions; and

(ii) the agency shall consult with the Antiquities Section regarding the research design of the proposed project prior to issuing the permit, and

(iii) permits issued by the agency pursuant to delegation shall contain the provisions required by R694-1-10(a), and for purposes of compliance and enforcement of the provisions of R694-1-10(a), a permit issued by the agency shall be considered a permit issued by the Public Lands Policy Coordination Office, and

(iv) the agency shall refer issues about performance of work by the permit holder to the Public Lands Policy Coordination Office through the process described in R694-1-11, and shall agree to amend, suspend, or revoke a permit according to the final results of that process, and to reinstate a permit only with the concurrence of the Public Lands Policy Coordination Office after compliance with the provisions of R694-1-12, and

(v) the agency and the Public Lands Policy Coordination Office shall review the operations of the delegation agreement at least annually, and

(vi) the Public Lands Policy Coordination Office may revoke the delegation at any time without cause, as provided by Section 9-8-305(3)(d).

(d) The agency and the Public Lands Policy Coordination Office shall formalize the terms of the delegation through a Memorandum of Understanding.

 

R694-1-9. Time Period for Permits.

(a) A Permit to Survey shall be effective for either

(i) three years from the date of issuance specified in the permit, or

(ii) for any other period of time

(A) as part of the response to an action initiated under Rule R694-1-11, or

(B) for other administrative needs.

(b)(i) A Permit to Excavate shall be effective for the amount of time reasonably necessary to complete the research design's excavation, laboratory analysis, reporting and curation, as specified by a date of expiration in the Permit.

(ii) The time period of a Permit to Excavate may be extended, upon a showing of good cause to the Public Lands Policy Coordination Office, for a period of time to be specified by a new expiration date.

 

R694-1-10. Permit Provisions.

(a) The following provisions shall be included within each permit issued by the Public Lands Policy Coordination Office:

(i) Professional and Ethical Standards

(A) Permit holders shall comply with the individual provisions of the "Code of Conduct" and the "Standards of Research Performance" promulgated by the Register of Professional Archeologists.

(B) If any of the provisions of the Code or Standards is altered, superseded or otherwise affected in any manner by these rules or other law, the rules and law shall take precedence, and permit holders shall comply with the rule or law.

(ii) Persons Employed by the Principal Investigator to Assist in the Field or Laboratory

By engaging in any field or laboratory work under any permit issued by the Public Lands Office, the principal investigator shall insure that persons hired or otherwise engaged to perform such work, or supervise field or laboratory work in the principal investigator's absence, are fully qualified to perform such work, and shall comply with the "Code of Conduct" and "Standards of Research Performance" as required by Rule R694-1-10(a)(i).

(iii) Principal Investigators who are Employed by Others

(Reserved.)

(iv) Survey Methodologies

(Reserved.)

(v) Report and Data Format and Standards

(A) Reports of projects undertaken pursuant to permits issued by the Public Lands Policy Coordination Office shall conform to the format and standards which are attached to and made an integral part of the permit.

(B) The Public Lands Policy Coordination Office may amend the format and standards at any time during the time period of a permit, however, the permit holder shall have the option to continue to use the original format and standards for projects which are well into the reporting phase.

(C) Reports for individual projects and sites must contain an identification number obtained from the Division of State History prior to the commencement of fieldwork.

(D) Reports for individual projects must list all individuals who served in a supervisory capacity on the project.

(vi) Completion of Reports in a Timely Manner

(A) Reports of projects undertaken pursuant to any permit issued by the Public Lands Policy Coordination Office shall be completed and submitted to the agency and the Division of State History in a timely manner.

(B)(1) An agency may establish the parameters of timely manner through an agreement with the Division of State History and the Public Lands Policy Coordination Office.

(2) If an agreement has been finalized, the permit shall reference the agreement as the requirement for submission of reports for projects involving that agency's lands.

(3) For purposes of the requirements of R694-1-10(a)(vi)(B)(1), the term agency shall include an agency or other entity of the federal government.

(vii) Curation of Specimens

(A) The holder of any permit issued by the Public Lands Policy Coordination Office shall either hold a valid agreement with an authorized curation facility, or be covered under the authority of a curation agreement held by the employer of the permit holder, at all times during the time period of the permit.

(B) The holder of any permit issued by the Public Lands Policy Coordination Office shall keep the Office notified of any changes to the expiration date of the curation agreement required by R694-1-10(a)(vii)(A), or a change in employment.

(C) All specimens collected pursuant to any permit issued by the Public Lands Policy Coordination Office shall be deposited with the appropriate curation facility in a timely manner.

(viii) Discovery of Human Remains

Any person working under the authority of any permit issued by the Public Lands Policy Coordination Office who discovers human remains shall cease further activity in the area and shall notify the landowner, the antiquities section, and the appropriate law enforcement agencies, as required by Section 9-9-403 and 76-9-704.

(ix) Access to Sites and Site Records

The holder of any permit issued by the Public Lands Policy Coordination Office agrees to cooperate with the Office to allow authorized Office employees access, at any reasonable time, to field and workings and records for the purpose of assuring compliance with the law, rules or permit provisions, subject to the provisions of other law, regulation or rule.

(x) Compliance with Law, Rule, and Permit Conditions

(A) Any person working under the authority of a permit issued by the Public Lands Policy Coordination Office shall comply with all laws, rules and permit conditions.

(B) Failure to comply may result in amendments to or the suspension or revocation of the permit, in addition to any other penalties authorized by law or rule.

(xi) The holder of the permit shall keep the Public Lands Policy Coordination Office apprised of any changes in the permittee's employment or business address and phone number, and changes in other business information as the Office may require.

(b) Permits issued by the Public Lands Policy Coordination Office may include such other provisions as the Office may deem necessary based on an individual's application.

(c) Permits to excavate issued by the Public Lands Policy Coordination Office shall require that the permit holder also hold a valid permit to survey issued by the Public Lands Policy Coordination Office at all times prior to and including the expiration date of the permit to excavate, including any extensions.

 

R694-1-11. Amendment, Suspension or Revocation of Permits.

(a)(i) Permits may be amended, suspended or revoked pursuant to the terms of this rule.

(ii) Permits may be amended, suspended, or revoked for violations of law, rule or permit provisions, or upon a finding by the Public Lands Policy Coordination Office that a permit holder is unfit to hold a permit due to a judicial or administrative determination concerning the character or competence of the individual.

(b)(i) Any agency may file a petition with the Public Lands Policy Coordination Office concerning the work performed under the provisions of any Permit to Survey or Permit to Excavate if the agency believes the work has been done in a manner which is contrary to law, rule or permit provisions.

(ii) The petition shall state with specificity the facts and circumstances involved and the law, rule or permit provision at issue, and shall be signed by the agency's authorized representative.

(iii) Each agency shall keep the Public Lands Policy Coordination Office informed of the name of the agency's authorized representative on an ongoing basis.

(c) The Public Lands Policy Coordination Office shall investigate the issues raised by the petition.

(d) The Public Lands Policy Coordination Office may initiate investigations into a permit holder's compliance with law, rule and permit provisions at its sole discretion, and may initiate a proceeding to amend, suspend or revoke a permit as a result of those investigations.

(e)(i) The Public Lands Policy Coordination Office may, at its sole discretion, seek the advice of one or more principal investigators as part of an investigation initiated by either petition or itself.

(ii) Principal investigators who are authorized to provide this advice must hold a valid permit issued by the Public Lands Policy Coordination Office and must volunteer for the task.

(iii) The Public Lands Policy Coordination Office shall keep a list of those principal investigators who volunteer, and shall make use of their services on a rotational basis, except that the Office shall avoid using the advice of any particular volunteer if a conflict of interest would thereby arise.

(f) The Public Lands Policy Coordination Office may choose to employ either informal or formal hearings as authorized by Section 63-46b-3(a)(v).

(g) The Public Lands Policy Coordination Office may resolve issues raised by a petition or by its own proceedings by

(i) dismissing the petition or otherwise terminating the proceedings, or

(ii) amending any of the provisions of an existing permit, or

(iii) imposing new conditions within an existing permit, or

(iv) suspending the permit, or

(v) revoking the permit, or

(vi) any other relief the Office may consider appropriate.

(h) The Public Lands Policy Coordination Office will immediately inform the Division of State History if a permit is suspended or revoked.

(i) The final notice of suspension or revocation shall state the reasons for the suspension or revocation.

 

R694-1-12. Reinstatement of Permits.

(a) The final notice of suspension or revocation from a proceeding held pursuant to R694-1-11 shall specify the conditions for reinstatement of the permit.

(b) The holder of the suspended or revoked permit may request reinstatement by submitting a letter to the Public Lands Policy Coordination Office indicating the reasons the reinstatement should be granted.

(c) The Public Lands Policy Coordination Office may request additional information.

(d) Reinstatement shall be granted at the sole discretion of the Public Lands Policy Coordination Office.

(e) A principal investigator who has had a permit suspended or revoked shall not be eligible for another permit until the principal investigator becomes eligible for reinstatement of the original permit.

 

R694-1-13. Waiver of Provisions.

(a) The Public Lands Policy Coordination Office may grant a waiver of the provisions of these rules, except for statutory provisions, in the interest of fairness, impossibility of performance, or other exigent or extenuating circumstances.

(b) This provision is to be employed to allow the Public Lands Policy Coordination Office to deal with generally unforseen circumstances, and should not be employed to grant broad scale general exceptions to the requirements of Rule 694-1.

 

R694-1-14. Confidentiality.

(Reserved.)

 

KEY: archeological permits

Date of Enactment or Last Substantive Amendment: 2006

Authorizing, and Implemented or Interpreted Law: 9-8-305