[Federal Register: August 2, 2007 (Volume 72, Number 148)]
[Rules and Regulations]
[Page 42298-42306]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au07-8]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 229
Protection of Archaeological Resources: Uniform Regulations
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This rule reinstates 32 CFR part 229, ``Protection of
Archaeological Resources: Uniform Regulations,'' which was
inadvertently removed by the Department of Defense in 2006. Except for
certain formatting updates, the requirements in this document are
consistent with those removed in 2006.
DATES: Effective Date: This rule is effective August 2, 2007.
FOR FURTHER INFORMATION CONTACT: Ms. Maureen Sullivan, OSD, 703 604
5419, Maureen.sullivan@osd.mil.
SUPPLEMENTARY INFORMATION: On Friday, March 10, 2006 (71 FR 12280), the
Department of Defense removed 32 CFR part 229. This was done because
the corresponding DoD issuance, DoD Directive 4710.1, was canceled and
removed from the DoD Directives System. The current corresponding
issuance is DoD Instruction 4715.3, Environmental Conservation Program,
issued May 3, 1996.
List of Subjects in 32 CFR Part 229
Administrative practice and procedure, Historic preservation,
Indians--lands, Penalties, Public lands, Reporting and recordkeeping
requirements.
0
Accordingly, subchapter M of title 32 of the Code of Federal
Regulations, is amended to add part 229 to read as follows:
PART 229--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM
REGULATIONS
Sec.
229.1 Purpose.
229.2 Authority.
229.3 Definitions.
229.4 Prohibited acts and criminal penalties.
229.5 Permit requirements and exceptions.
229.6 Application for permits and information collection.
229.7 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural
importance.
229.8 Issuance of permits.
229.9 Terms and conditions of permits.
229.10 Suspension and revocation of permits.
229.11 Appeals relating to permits.
229.12 Relationship to section 106 of the National Historic
Preservation Act.
229.13 Custody of archaeological resources.
229.14 Determination of archaeological or commercial value and cost
of restoration and repair.
229.15 Assessment of civil penalties.
229.16 Civil penalty amounts.
229.17 Other penalties and rewards.
229.18 Confidentiality of archaeological resource information.
229.19 Report.
229.20 Public awareness programs.
229.21 Surveys and schedules.
Note: The information collection and reporting requirements in
this part were approved by the Office of Management and Budget under
control number 1024-0037.
Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat.
2983 (16 U.S.C. 470aa-mm) Sec. 10(a). Related Authority: Pub. L. 59-
209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat.
220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L.
89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204
(1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467
(1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42
U.S.C. 1996).
Sec. 229.1 Purpose.
(a) The regulations in this part implement provisions of the
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C.
470aa-mm) by establishing the uniform definitions, standards, and
procedures to be followed by all Federal land managers in providing
protection for archaeological resources, located on public lands and
Indian lands of the United States. These regulations enable Federal
land managers to protect archaeological resources, taking into
consideration provisions of the American Indian Religious Freedom Act
[[Page 42299]]
(92 Stat. 469; 42 U.S.C. 1996), through permits authorizing excavation
and/or removal of archaeological resources, through civil penalties for
unauthorized excavation and/or removal, through provisions for the
preservation of archaeological resource collections and data, and
through provisions for ensuring confidentiality of information about
archaeological resources when disclosure would threaten the
archaeological resources.
(b) The regulations in this part do not impose any new restrictions
on activities permitted under other laws, authorities, and regulations
relating to mining, mineral leasing, reclamation, and other multiple
uses of the public lands.
Sec. 229.2 Authority.
(a) The regulations in this part are promulgated pursuant to
section 10(a) of the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470ii), which requires that the Secretaries of the Interior,
Agriculture and Defense and the Chairman of the Board of the Tennessee
Valley Authority jointly develop uniform rules and regulations for
carrying out the purposes of the Act.
(b) In addition to the regulations in this part, section 10(b) of
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall
promulgate such rules and regulations, consistent with the uniform
rules and regulations in this part, as may be necessary for carrying
out the purposes of the Act.
Sec. 229.3 Definitions.
As used for purposes of this part:
(a) Archaeological resource means any material remains of human
life or activities which are at least 100 years of age, and which are
of archaeological interest.
(1) Of archaeological interest means capable of providing
scientific or humanistic understandings of past human behavior,
cultural adaptation, and related topics through the application of
scientific or scholarly techniques such as controlled observation,
contextual measurement, controlled collection, analysis, interpretation
and explanation.
(2) Material remains means physical evidence of human habitation,
occupation, use, or activity, including the site, location, or context
in which such evidence is situated.
(3) The following classes of material remains (and illustrative
examples), if they are at least 100 years of age, are of archaeological
interest and shall be considered archaeological resources unless
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this
section:
(i) Surface or subsurface structures, shelters, facilities, or
features (including, but not limited to, domestic structures, storage
structures, cooking structures, ceremonial structures, artificial
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces,
rock alignments, cairns, trails, borrow pits, cooking pits, refuse
pits, burial pits or graves, hearths, kilns, post molds, wall trenches,
middens);
(ii) Surface or subsurface artifact concentrations or scatters;
(iii) Whole or fragmentary tools, implements, containers, weapons
and weapon projectiles, clothing, and ornaments (including, but not
limited to, pottery and other ceramics, cordage, basketry and other
weaving, bottles and other glassware, bone, ivory, shell, metal, wood,
hide, feathers, pigments, and flaked, ground, or pecked stone);
(iv) By-products, waste products, or debris resulting from
manufacture or use of human-made or natural materials;
(v) Organic waste (including, but not limited to, vegetal and
animal remains, coprolites);
(vi) Human remains (including, but not limited to, bone, teeth,
mummified flesh, burials, cremations);
(vii) Rock carvings, rock paintings, intaglios and other works of
artistic or symbolic representation;
(viii) Rockshelters and caves or portions thereof containing any of
the above material remains;
(ix) All portions of shipwrecks (including, but not limited to,
armaments, apparel, tackle, cargo);
(x) Any portion or piece of any of the foregoing.
(4) The following material remains shall not be considered of
archaeological interest, and shall not be considered to be
archaeological resources for purposes of the Act and this part, unless
found in a direct physical relationship with archaeological resources
as defined in this section:
(i) Paleontological remains;
(ii) Coins, bullets, and unworked minerals and rocks.
(5) The Federal land manager may determine that certain material
remains, in specified areas under the Federal land manager's
jurisdiction, and under specified circumstances, are not or are no
longer of archaeological interest and are not to be considered
archaeological resources under this part. Any determination made
pursuant to this subparagraph shall be documented. Such determination
shall in no way affect the Federal land manager's obligations under
other applicable laws or regulations.
(6) For the disposition following lawful removal or excavations of
Native American human remains and ``cultural items'', as defined by the
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L.
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager
is referred to NAGPRA and its implementing regulations.
(b) Arrowhead means any projectile point which appears to have been
designed for use with an arrow.
(c) Federal land manager means:
(1) With respect to any public lands, the secretary of the
department, or the head of any other agency or instrumentality of the
United States, having primary management authority over such lands,
including persons to whom such management authority has been officially
delegated;
(2) In the case of Indian lands, or any public lands with respect
to which no department, agency or instrumentality has primary
management authority, such term means the Secretary of the Interior;
(3) The Secretary of the Interior, when the head of any other
agency or instrumentality has, pursuant to section 3(2) of the Act and
with the consent of the Secretary of the Interior, delegated to the
Secretary of the Interior the responsibilities (in whole or in part) in
this part.
(d) Public lands means:
(1) Lands which are owned and administered by the United States as
part of the national park system, the national wildlife refuge system,
or the national forest system; and
(2) All other lands the fee title to which is held by the United
States, except lands on the Outer Continental Shelf, lands under the
jurisdiction of the Smithsonian Institution, and Indian lands.
(e) Indian lands means lands of Indian tribes, or Indian
individuals, which are either held in trust by the United States or
subject to a restriction against alienation imposed by the United
States, except for subsurface interests not owned or controlled by an
Indian tribe or Indian individual.
(f) Indian tribe as defined in the Act means any Indian tribe,
band, nation, or other organized group or community, including any
Alaska village or regional or village corporation as defined in, or
established pursuant to, the Alaska Native Claims Settlement Act (85
Stat. 688). In order to clarify this statutory definition for purposes
of this part, ``Indian tribe'' means:
[[Page 42300]]
(1) Any tribal entity which is included in the annual list of
recognized tribes published in the Federal Register by the Secretary of
the Interior pursuant to 25 CFR part 54;
(2) Any other tribal entity acknowledged by the Secretary of the
Interior pursuant to 25 CFR part 54 since the most recent publication
of the annual list; and
(3) Any Alaska Native village or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe
which is recognized by the Secretary of the Interior as eligible for
services provided by the Bureau of Indian Affairs.
(g) Person means an individual, corporation, partnership, trust,
institution, association, or any other private entity, or any officer,
employee, agent, department, or instrumentality of the United States,
or of any Indian tribe, or of any State or political subdivision
thereof.
(h) State means any of the fifty states, the District of Columbia,
Puerto Rico, Guam, and the Virgin Islands.
(i) Act means the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470aa-mm).
Sec. 229.4 Prohibited acts and criminal penalties.
(a) Under section 6(a) of the Act, no person may excavate, remove,
damage, or otherwise alter or deface, or attempt to excavate, remove,
damage, or otherwise alter or deface any archaeological resource
located on public lands or Indian lands unless such activity is
pursuant to a permit issued under Sec. 229.8 or exempted by Sec.
229.5(b) of this part.
(b) No person may sell, purchase, exchange, transport, or receive
any archaeological resource, if such resource was excavated or removed
in violation of:
(1) The prohibitions contained in paragraph (a) of this section; or
(2) Any provision, rule, regulation, ordinance, or permit in effect
under any other provision of Federal law.
(c) Under section (d) of the Act, any person who knowingly violates
or counsels, procures, solicits, or employs any other person to violate
any prohibition contained in section 6 (a), (b), or (c) of the Act
will, upon conviction, be fined not more than $10,000.00 or imprisoned
not more than one year, or both: provided, however, that if the
commercial or archaeological value of the archaeological resources
involved and the cost of restoration and repair of such resources
exceeds the sum of $500.00, such person will be fined not more than
$20,000.00 or imprisoned not more than two years, or both. In the case
of a second or subsequent such violation upon conviction such person
will be fined not more than $100,000.00, or imprisoned not more than 5
years, or both.
Sec. 229.5 Permit requirements and exceptions.
(a) Any person proposing to excavate and/or remove archaeological
resources from public lands or Indian lands, and to carry out
activities associated with such excavation and/or removal, shall apply
to the Federal land manager for a permit for the proposed work, and
shall not begin the proposed work until a permit has been issued. The
Federal land manager may issue a permit to any qualified person,
subject to appropriate terms and conditions, provided that the person
applying for a permit meets conditions in Sec. 229.8(a) of this part.
(b) Exceptions:
(1) No permit shall be required under this part for any person
conducting activities on the public lands under other permits, leases,
licenses, or entitlements for use, when those activities are
exclusively for purposes other than the excavation and/or removal of
archaeological resources, even though those activities might
incidentally result in the disturbance of archaeological resources.
General earth-moving excavation conducted under a permit or other
authorization shall not be construed to mean excavation and/or removal
as used in this part. This exception does not, however, affect the
Federal land manager's responsibility to comply with other authorities
which protect archaeological resources prior to approving permits,
leases, licenses, or entitlements for use; any excavation and/or
removal of archaeological resources required for compliance with those
authorities shall be conducted in accordance with the permit
requirements of this part.
(2) No permit shall be required under this part for any person
collecting for private purposes any rock, coin, bullet, or mineral
which is not an archaeological resource as defined in this part,
provided that such collecting does not result in disturbance of any
archaeological resource.
(3) No permit shall be required under this part or under section 3
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or
removal by any Indian tribe or member thereof of any archaeological
resource located on Indian lands of such Indian tribe, except that in
the absence of tribal law regulating the excavation or removal or
archaeological resources on Indian lands, an individual tribal member
shall be required to obtain a permit under this part;
(4) No permit shall be required under this part for any person to
carry out any archaeological activity authorized by a permit issued
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the
enactment of the Archaeological Resources Protection Act of 1979. Such
permit shall remain in effect according to its terms and conditions
until expiration.
(5) No permit shall be required under section 3 of the Act of June
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit
is issued under this part.
(c) Persons carrying out official agency duties under the Federal
land manager's direction, associated with the management of
archaeological resources, need not follow the permit application
procedures of Sec. 229.6. However, the Federal land manager shall
insure that provisions of Sec. 229.8 and Sec. 229.9 have been met by
other documented means, and that any official duties which might result
in harm to or destruction of any Indian tribal religious or cultural
site, as determined by the Federal land manager, have been the subject
of consideration under Sec. 229.7.
(d) Upon the written request of the Governor of any State, on
behalf of the State or its educational institutions, the Federal land
manager shall issue a permit, subject to the provisions of Sec. Sec.
229.5(b)(5), 229.7, 229.8(a)(3), (4), (5), (6), and (7), 229.9, 229.10,
229.12, and 229.13(a) to such Governor or to such designee as the
Governor deems qualified to carry out the intent of the Act, for
purposes of conducting archaeological research, excavating and/or
removing archaeological resources, and safeguarding and preserving any
materials and data collected in a university, museum, or other
scientific or educational institution approved by the Federal land
manager.
(e) Under other statutory, regulatory, or administrative
authorities governing the use of public lands and Indian lands,
authorizations may be required for activities which do not require a
permit under this part. Any person wishing to conduct on public lands
or Indian lands any activities related to but believed to fall outside
the scope of this part should consult with the Federal land manager,
for the purpose of determining whether any authorization is required,
prior to beginning such activities.
[[Page 42301]]
Sec. 229.6 Application for permits and information collection.
(a) Any person may apply to the appropriate Federal land manager
for a permit to excavate and/or remove archaeological resources from
public lands or Indian lands and to carry out activities associated
with such excavation and/or removal.
(b) Each application for a permit shall include:
(1) The nature and extent of the work proposed, including how and
why it is proposed to be conducted, proposed time of performance,
locational maps, and proposed outlet for public written dissemination
of the results.
(2) The name and address of the individual(s) proposed to be
responsible for conducting the work, institutional affiliation, if any,
and evidence of education, training, and experience in accord with the
minimal qualifications listed in Sec. 229.8(a).
(3) The name and address of the individual(s), if different from
the individual(s) named in paragraph (b)(2) of this section, proposed
to be responsible for carrying out the terms and conditions of the
permit.
(4) Evidence of the applicant's ability to initiate, conduct, and
complete the proposed work, including evidence of logistical support
and laboratory facilities.
(5) Where the application is for the excavation and/or removal of
archaeological resources on public lands, the names of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store all collections, and copies of records,
data, photographs, and other documents derived from the proposed work.
Applicants shall submit written certification, signed by an authorized
official of the institution, of willingness to assume curatorial
responsibility for the collections, records, data, photographs and
other documents and to safeguard and preserve these materials as
property of the United States.
(6) Where the application is for the excavation and/or removal of
archaeological resources on Indian lands, the name of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store copies of records, data, photographs, and
other documents derived from the proposed work, and all collections in
the event the Indian owners do not wish to take custody or otherwise
dispose of the archaeological resources. Applicants shall submit
written certification, signed by an authorized official of the
institution, or willingness to assume curatorial responsibility for the
collections, if applicable, and/or the records, data, photographs, and
other documents derived from the proposed work.
(c) The Federal land manager may require additional information,
pertinent to land management responsibilities, to be included in the
application for permit and shall so inform the applicant.
(d) Paperwork Reduction Act. The information collection requirement
contained in this section of these regulations has been approved by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. and
assigned clearance number 1024-0037. The purpose of the information
collection is to meet statutory and administrative requirements in the
public interest. The information will be used to assist Federal land
managers in determining that applicants for permits are qualified, that
the work proposed would further archaeological knowledge, that
archaeological resources and associated records and data will be
properly preserved, and that the permitted activity would not conflict
with the management of the public lands involved. Response to the
information requirement is necessary in order for an applicant to
obtain a benefit.
Sec. 229.7 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural
importance.
(a) If the issuance of a permit under this part may result in harm
to, or destruction of, any Indian tribal religious or cultural site on
public lands, as determined by the Federal land manager, at least 30
days before issuing such a permit the Federal land manager shall notify
any Indian tribe which may consider the site as having religious or
cultural importance. Such notice shall not be deemed a disclosure to
the public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be
sent to the chief executive officer or other designated official of the
tribe. Indian tribes are encouraged to designate a tribal official to
be the focal point for any notification and discussion between the
tribe and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native
American group that is known by the Federal land manager to consider
sites potentially affected as being of religious or cultural
importance.
(3) Upon request during the 30-day period, the Federal land manager
may meet with official representatives of any Indian tribe or group to
discuss their interests, including ways to avoid or mitigate potential
harm or destruction such as excluding sites from the permit area. Any
mitigation measures which are adopted shall be incorporated into the
terms and conditions of the permit under Sec. 229.9.
(4) When the Federal land manager determines that a permit applied
for under this part must be issued immediately because of an imminent
threat of loss or destruction of an archaeological resource, the
Federal land manager shall so notify the appropriate tribe.
(b)(1) In order to identify sites of religious or cultural
importance, the Federal land manager shall seek to identify all Indian
tribes having aboriginal or historic ties to the lands under the
Federal land manager's jurisdiction and seek to determine, from the
chief executive officer or other designated official of any such tribe,
the location and nature of specific sites of religious or cultural
importance so that such information may be on file for land management
purposes. Information on sites eligible for or included in the National
Register of Historic Places may be withheld from public disclosure
pursuant to section 304 of the Act of October 15, 1966, as amended (16
U.S.C. 470w-3).
(2) If the Federal land manager becomes aware of a Native American
group that is not an Indian tribe as defined in this part but has
aboriginal or historic ties to public lands under the Federal land
manager's jurisdiction, the Federal land manager may seek to
communicate with official representatives of that group to obtain
information on sites they may consider to be of religious or cultural
importance.
(3) The Federal land manager may enter into agreement with any
Indian tribe or other Native American group for determining locations
for which such tribe or group wishes to receive notice under this
section.
(4) The Federal land manager should also seek to determine, in
consultation with official representatives of Indian tribes or other
Native American groups, what circumstances should be the subject of
special notification to the tribe or group after a permit has been
issued. Circumstances calling for notification might include the
discovery of human remains. When circumstances for special notification
have been determined by the Federal land manager, the Federal land
manager will include a requirement in the terms and conditions of
permits, under Sec. 229.9(c), for permittees to notify the Federal
land
[[Page 42302]]
manager immediately upon the occurrence of such circumstances.
Following the permittee's notification, the Federal land manager will
notify and consult with the tribe or group as appropriate. In cases
involving Native American human remains and other ``cultural items'',
as defined by NAGPRA, the Federal land manager is referred to NAGPRA
and its implementing
Sec. 229.8 Issuance of permits.
(a) The Federal land manager may issue a permit, for a specified
period of time appropriate to the work to be conducted, upon
determining that:
(1) The applicant is appropriately qualified, as evidenced by
training, education, and/or experience, and possesses demonstrable
competence in archaeological theory and methods, and in collecting,
handling, analyzing, evaluating, and reporting archaeological data,
relative to the type and scope of the work proposed, and also meets the
following minimum qualifications:
(i) A graduate degree in anthropology or archaeology, or equivalent
training and experience;
(ii) The demonstrated ability to plan, equip, staff, organize, and
supervise activity of the type and scope proposed;
(iii) The demonstrated ability to carry research to completion, as
evidenced by timely completion of theses, research reports, or similar
documents;
(iv) Completion of at least 16 months of professional experience
and/or specialized training in archaeological field, laboratory, or
library research, administration, or management, including at least 4
months experience and/or specialized training in the kind of activity
the individual proposes to conduct under authority of a permit; and
(v) Applicants proposing to engage in historical archaeology should
have had at least one year of experience in research concerning
archaeological resources of the historic period. Applicants proposing
to engage in prehistoric archaeology should have had at least one year
of experience in research concerning archaeological resources of the
prehistoric period.
(2) The proposed work is to be undertaken for the purpose of
furthering archaeological knowledge in the public interest, which may
include but need not be limited to, scientific or scholarly research,
and preservation of archaeological data;
(3) The proposed work, including time, scope, location, and
purpose, is not inconsistent with any management plan or established
policy, objectives, or requirements applicable to the management of the
public lands concerned;
(4) Where the proposed work consists of archaeological survey and/
or data recovery undertaken in accordance with other approved uses of
the public lands or Indian lands, and the proposed work has been agreed
to in writing by the Federal land manager pursuant to section 106 of
the National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)
(2) and (a) (3) shall be deemed satisfied by the prior approval.
(5) Written consent has been obtained, for work proposed on Indian
lands, from the Indian landowner and the Indian tribe having
jurisdiction over such lands;
(6) Evidence is submitted to the Federal land manager that any
university, museum, or other scientific or educational institution
proposed in the application as the repository possesses adequate
curatorial capability for safeguarding and preserving the
archaeological resources and all associated records; and
(7) The applicant has certified that, not later than 90 days after
the date the final report is submitted to the Federal land manager, the
following will be delivered to the appropriate official of the approved
university, museum, or other scientific or educational institution,
which shall be named in the permit:
(i) All artifacts, samples, collections, and copies of records,
data, photographs, and other documents resulting from work conducted
under the requested permit where the permit is for the excavation and/
or removal of archaeological resources from public lands.
(ii) All artifacts, samples and collections resulting from work
under the requested permit for which the custody or disposition is not
undertaken by the Indian owners, and copies of records, data,
photographs, and other documents resulting from work conducted under
the requested permit, where the permit is for the excavation and/or
removal of archaeological resources from Indian lands.
(b) When the area of the proposed work would cross jurisdictional
boundaries, so that permit applications must be submitted to more than
one Federal land manager, the Federal land manager shall coordinate the
review and evaluation of applications and the issuance of permits.
Sec. 229.9 Terms and conditions of permits.
(a) In all permits issued, the Federal land manager shall specify:
(1) The nature and extent of work allowed and required under the
permit, including the time, duration, scope, location, and purpose of
the work;
(2) The name of the individual(s) responsible for conducting the
work and, if different, the name of the individual(s) responsible for
carrying out the terms and conditions of the permit;
(3) The name of any university, museum, or other scientific or
educational institutions in which any collected materials and data
shall be deposited; and
(4) Reporting requirements.
(b) The Federal land manager may specify such terms and conditions
as deemed necessary, consistent with this part, to protect public
safety and other values and/or resources, to secure work areas, to
safeguard other legitimate land uses, and to limit activities
incidental to work authorized under a permit.
(c) The Federal land manager shall include in permits issued for
archaeological work on Indian lands such terms and conditions as may be
requested by the Indian landowner and the Indian tribe having
jurisdiction over the lands, and for archaeological work on public
lands shall include such terms and conditions as may have been
developed pursuant to Sec. 229.7.
(d) Initiation of work or other activities under the authority of a
permit signifies the permittee's acceptance of the terms and conditions
of the permit.
(e) The permittee shall not be released from requirements of a
permit until all outstanding obligations have been satisfied, whether
or not the term of the permit has expired.
(f) The permittee may request that the Federal land manager extend
or modify a permit.
(g) The permittee's performance under any permit issued for a
period greater than 1 year shall be subject to review by the Federal
land manager, at least annually.
Sec. 229.10 Suspension and revocation of permits.
(a) Suspension or revocation for cause. (1) The Federal land
manager may suspend a permit issued pursuant to this part upon
determining that the permittee has failed to meet any of the terms and
conditions of the permit or has violated any prohibition of the Act or
Sec. 229.4. The Federal land manager shall provide written notice to
the permittee of the suspension, the cause thereof, and the
requirements which must be met before the suspension will be removed.
(2) The Federal land manager may revoke a permit upon assessment of
a civil penalty under Sec. 229.15 upon the permittee's conviction
under section 6
[[Page 42303]]
of the Act, or upon determining that the permittee has failed after
notice under this section to correct the situation which led to
suspension of the permit.
(b) Suspension or revocation for management purposes. The Federal
land manager may suspend or revoke a permit, without liability to the
United States, its agents, or employees, when continuation of work
under the permit would be in conflict with management requirements not
in effect when the permit was issued. The Federal land manager shall
provide written notice to the permittee stating the nature of and basis
for the suspension or revocation.
Sec. 229.11 Appeals relating to permits.
Any affected person may appeal permit issuance, denial of permit
issuance, suspension, revocation, and terms and conditions of a permit
through existing administrative appeal procedures, or through
procedures which may be established by the Federal land manager
pursuant to section 10(b) of the Act and this part.
Sec. 229.12 Relationship to section 106 of the National Historic
Preservation Act.
Issuance of a permit in accordance with the Act and this part does
not constitute an undertaking requiring compliance with section 106 of
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere
issuance of such a permit does not excuse the Federal land manager from
compliance with section 106 where otherwise required.
Sec. 229.13 Custody of archaeological resources.
(a) Archaeological resources excavated or removed from the public
lands remain the property of the United States.
(b) Archaeological resources excavated or removed from Indian lands
remain the property of the Indian or Indian tribe having rights of
ownership over such resources.
(c) The Secretary of the Interior may promulgate regulations
providing for the exchange of archaeological resources among suitable
universities, museums, or other scientific or educational institutions,
for the ultimate disposition of archaeological resources, and for
standards by which archaeological resources shall be preserved and
maintained, when such resources have been excavated or removed from
public lands and Indian lands.
(d) In the absence of regulations referenced in paragraph (c) of
this section, the Federal land manager may provide for the exchange of
archaeological resources among suitable universities, museums, or other
scientific or educational institutions, when such resources have been
excavated or removed from public lands under the authority of a permit
issued by the Federal land manager.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of
this section, the Federal land manager will follow the procedures
required by NAGPRA and its implementing regulations for determining the
disposition of Native American human remains and other ``cultural
items'', as defined by NAGPRA, that have been excavated, removed, or
discovered on public lands.
Sec. 229.14 Determination of archaeological or commercial value and
cost of restoration and repair.
(a) Archaeological value. For purposes of this part, the
archaeological value of any archaeological resource involved in a
violation of the prohibitions in Sec. 229.4 of this part or conditions
of a permit issued pursuant to this part shall be the value of the
information associated with the archaeological resource. This value
shall be appraised in terms of the costs of the retrieval of the
scientific information which would have been obtainable prior to the
violation. These costs may include, but need not be limited to, the
cost of preparing a research design, conducting field work, carrying
out laboratory analysis, and preparing reports as would be necessary to
realize the information potential.
(b) Commercial value. For purposes of this part, the commercial
value of any archaeological resource involved in a violation of the
prohibitions in Sec. 229.4 of this part or conditions of a permit
issued pursuant to this part shall be its fair market value. Where the
violation has resulted in damage to the archaeological resource, the
fair market value should be determined using the condition of the
archaeological resource prior to the violation, to the extent that its
prior condition can be ascertained.
(c) Cost of restoration and repair. For purposes of this part, the
cost of restoration and repair of archaeological resources damaged as a
result of a violation of prohibitions or conditions pursuant to this
part, shall be the sum of the costs already incurred for emergency
restoration or repair work, plus those costs projected to be necessary
to complete restoration and repair, which may include, but need not be
limited to, the costs of the following:
(1) Reconstruction of the archaeological resource;
(2) Stabilization of the archaeological resource;
(3) Ground contour reconstruction and surface stabilization;
(4) Research necessary to carry out reconstruction or
stabilization;
(5) Physical barriers or other protective devices, necessitated by
the disturbance of the archaeological resource, to protect it from
further disturbance;
(6) Examination and analysis of the archaeological resource
including recording remaining archaeological information, where
necessitated by disturbance, in order to salvage remaining values which
cannot be otherwise conserved;
(7) Reinterment of human remains in accordance with religious
custom and State, local, or tribal law, where appropriate, as
determined by the Federal land manager.
(8) Preparation of reports relating to any of the above activities.
Sec. 229.15 Assessment of civil penalties.
(a) The Federal land manager may assess a civil penalty against any
person who has violated any prohibition contained in Sec. 229.4 or who
has violated any term or condition included in a permit issued in
accordance with the Act and this part.
(b) Notice of violation. The Federal land manager shall serve a
notice of violation upon any person believed to be subject to a civil
penalty, either in person or by registered or certified mail (return
receipt requested). The Federal land manager shall include in the
notice:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provision(s) of this part or to a
permit issued pursuant to this part allegedly violated;
(3) The amount of penalty proposed to be assessed, including any
initial proposal to mitigate or remit where appropriate, or a statement
that notice of a proposed penalty amount will be served after the
damages associated with the alleged violation have been ascertained;
(4) Notification of the right to file a petition for relief
pursuant to paragraph (d) of this section, or to await the Federal land
manager's notice of assessment, and to request a hearing in accordance
with paragraph (g) of this section. The notice shall also inform the
person of the right to seek judicial review of any final administrative
decision assessing a civil penalty.
(c) The person served with a notice of violation shall have 45
calendar days from the date of its service (or the date of service of a
proposed penalty amount,
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if later) in which to respond. During this time the person may:
(1) Seek informal discussions with the Federal land manager;
(2) File a petition for relief in accordance with paragraph (d) of
this section;
(3) Take no action and await the Federal land manager's notice of
assessment;
(4) Accept in writing or by payment the proposed penalty, or any
mitigation or remission offered in the notice. Acceptance of the
proposed penalty or mitigation or remission shall be deemed a waiver of
the notice of assessment and of the right to request a hearing under
paragraph (g) of this section.
(d) Petition for relief. The person served with a notice of
violation may request that no penalty be assessed or that the amount be
reduced, by filing a petition for relief with the Federal land manager
within 45 calendar days of the date of service of the notice of
violation (or of a proposed penalty amount, if later). The petition
shall be in writing and signed by the person served with the notice of
violation. If the person is a corporation, the petition must be signed
by an officer authorized to sign such documents. The petition shall set
forth in full the legal or factual basis for the requested relief.
(e) Assessment of penalty. (1) The Federal land manager shall
assess a civil penalty upon expiration of the period for filing a
petition for relief, upon completion of review of any petition filed,
or upon completion of informal discussions, whichever is later.
(2) The Federal land manager shall take into consideration all
available information, including information provided pursuant to
paragraphs (c) and (d) of this section or furnished upon further
request by the Federal land manager.
(3) If the facts warrant a conclusion that no violation has
occurred, the Federal land manager shall so notify the person served
with a notice of violation, and no penalty shall be assessed. (4) Where
the facts warrant a conclusion that a violation has occurred, the
Federal land manager shall determine a penalty amount in accordance
with Sec. 229.16.
(f) Notice of assessment. The Federal land manager shall notify the
person served with a notice of violation of the penalty amount assessed
by serving a written notice of assessment, either in person or by
registered or certified mail (return receipt requested). The Federal
land manager shall include in the notice of assessment:
(1) The facts and conclusions from which it was determined that a
violation did occur;
(2) The basis in Sec. 229.16 for determining the penalty amount
assessed and/or any offer to mitigate or remit the penalty; and
(3) Notification of the right to request a hearing, including the
procedures to be followed, and to seek judicial review of any final
administrative decision assessing a civil penalty.
(g) Hearings. (1) Except where the right to request a hearing is
deemed to have been waived as provided in paragraph (c)(4) of this
section, the person served with a notice of assessment may file a
written request for a hearing with the adjudicatory body specified in
the notice. The person shall enclose with the request for hearing a
copy of the notice of assessment, and shall deliver the request as
specified in the notice of assessment, personally or by registered or
certified mail (return receipt requested).
(2) Failure to deliver a written request for a hearing within 45
days of the date of service of the notice of assessment shall be deemed
a waiver of the right to a hearing.
(3) Any hearing conducted pursuant to this section shall be held in
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil
penalty assessed shall be determined in accordance with this part, and
shall not be limited by the amount assessed by the Federal land manager
under paragraph (f) of this section or any offer of mitigation or
remission made by the Federal land manager.
(h) Final administrative decision. (1) Where the person served with
a notice of violation has accepted the penalty pursuant to paragraph
(c)(4) of this section, the notice of violation shall constitute the
final administrative decision;
(2) Where the person served with a notice of assessment has not
filed a timely request for a hearing pursuant to paragraph (g)(1) of
this section, the notice of assessment shall constitute the final
administrative decision;
(3) Where the person served with a notice of assessment has filed a
timely request for a hearing pursuant to paragraph (g)(1) of this
section, the decision resulting from the hearing or any applicable
administrative appeal therefrom shall constitute the final
administrative decision.
(i) Payment of penalty. (1) The person assessed a civil penalty
shall have 45 calendar days from the date of issuance of the final
administrative decision in which to make full payment of the penalty
assessed, unless a timely request for appeal has been filed with a U.S.
District Court as provided in section 7(b)(1) of the Act.
(2) Upon failure to pay the penalty, the Federal land manager may
request the Attorney General to institute a civil action to collect the
penalty in a U.S. District Court for any district in which the person
assessed a civil penalty is found, resides, or transacts business.
Where the Federal land manager is not represented by the Attorney
General, a civil action may be initiated directly by the Federal land
manager.
(j) Other remedies not waived. Assessment of a penalty under this
section shall not be deemed a waiver of the right to pursue other
available legal or administrative remedies.
Sec. 229.16 Civil penalty amounts.
(a) Maximum amount of penalty. (1) Where the person being assessed
a civil penalty has not committed any previous violation of any
prohibition in Sec. 229.4 or of any term or condition included in a
permit issued pursuant to this part, the maximum amount of the penalty
shall be the full cost of restoration and repair of archaeological
resources damaged plus the archaeological or commercial value of
archaeological resources destroyed or not recovered.
(2) Where the person being assessed a civil penalty has committed
any previous violation of any prohibition in Sec. 229.4 or of any term
or condition included in a permit issued pursuant to this part, the
maximum amount of the penalty shall be double the cost of restoration
and repair plus double the archaeological or commercial value of
archaeological resources destroyed or not recovered.
(3) Violations limited to the removal of arrowheads located on the
surface of the ground shall not be subject to the penalties prescribed
in this section.
(b) Determination of penalty amount, mitigation, and remission. The
Federal land manager may assess a penalty amount less than the maximum
amount of penalty and may offer to mitigate or remit the penalty.
(1) Determination of the penalty amount and/or a proposal to
mitigate or remit the penalty may be based upon any of the following
factors:
(i) Agreement by the person being assessed a civil penalty to
return to the Federal land manager archaeological resources removed
from public lands or Indian lands;
(ii) Agreement by the person being assessed a civil penalty to
assist the Federal land manager in activity to preserve, restore, or
otherwise contribute to the protection and study of
[[Page 42305]]
archaeological resources on public lands or Indian lands;
(iii) Agreement by the person being assessed a civil penalty to
provide information which will assist in the detection, prevention, or
prosecution of violations of the Act or this part;
(iv) Demonstration of hardship or inability to pay, provided that
this factor shall only be considered when the person being assessed a
civil penalty has not been found to have previously violated the
regulations in this part;
(v) Determination that the person being assessed a civil penalty
did not willfully commit the violation;
(vi) Determination that the proposed penalty would constitute
excessive punishment under the circumstances;
(vii) Determination of other mitigating circumstances appropriate
to consideration in reaching a fair and expeditious assessment.
(2) When the penalty is for a violation on Indian lands, the
Federal land manager shall consult with and consider the interests of
the Indian landowner and the Indian tribe having jurisdiction over the
Indian lands prior to proposing to mitigate or remit the penalty.
(3) When the penalty is for a violation which may have had an
effect on a known Indian tribal religious or cultural site on public
lands, the Federal land manager should consult with and consider the
interests of the affected tribe(s) prior to proposing to mitigate or
remit the penalty.
Sec. 229.17 Other penalties and rewards.
(a) Section 6 of the Act contains criminal prohibitions and
provisions for criminal penalties. Section 8(b) of the Act provides
that archaeological resources, vehicles, or equipment involved in a
violation may be subject to forfeiture.
(b) Section 8(a) of the Act provides for rewards to be made to
persons who furnish information which leads to conviction for a
criminal violation or to assessment of a civil penalty. The Federal
land manager may certify to the Secretary of the Treasury that a person
is eligible to receive payment. Officers and employees of Federal,
State, or local government who furnish information or render service in
the performance of their official duties, and persons who have provided
information under Sec. 229.16(b)(1)(iii) shall not be certified
eligible to receive payment of rewards.
(c) In cases involving Indian lands, all civil penalty monies and
any item forfeited under the provisions of this section shall be
transferred to the appropriate Indian or Indian tribe.
Sec. 229.18 Confidentiality of archaeological resource information.
(a) The Federal land manager shall not make available to the
public, under subchapter II of chapter 5 of title 5 of the U.S. Code or
any other provision of law, information concerning the nature and
location of any archaeological resource, with the following exceptions:
(1) The Federal land manager may make information available,
provided that the disclosure will further the purposes of the Act and
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-
469c), without risking harm to the archaeological resource or to the
site in which it is located.
(2) The Federal land manager shall make information available, when
the Governor of any State has submitted to the Federal land manager a
written request for information, concerning the archaeological
resources within the requesting Governor's State, provided that the
request includes:
(i) The specific archaeological resource or area about which
information is sought;
(ii) The purpose for which the information is sought; and
(iii) The Governor's written commitment to adequately protect the
confidentiality of the information.
(b) [Reserved]
Sec. 229.19 Report.
(a) Each Federal land manager, when requested by the Secretary of
the Interior, will submit such information as is necessary to enable
the Secretary to comply with section 13 of the Act and comprehensively
report on activities carried out under provisions of the Act.
(b) The Secretary of the Interior will include in the annual
comprehensive report, submitted to the Committee on Interior and
Insular Affairs of the United States House of Representatives and to
the Committee on Energy and Natural Resources of the United States
Senate under section 13 of the Act, information on public awareness
programs submitted by each Federal land manager under Sec. 229.20(b).
Such submittal will fulfill the Federal land manager's responsibility
under section 10(c) of the Act to report on public awareness programs.
(c) The comprehensive report by the Secretary of the Interior also
will include information on the activities carried out under section 14
of the Act. Each Federal land manager, when requested by the Secretary,
will submit any available information on surveys and schedules and
suspected violations in order to enable the Secretary to summarize in
the comprehensive report actions taken pursuant to section 14 of the
Act.
Sec. 229.20 Public awareness programs.
(a) Each Federal land manager will establish a program to increase
public awareness of the need to protect important archaeological
resources located on public and Indian lands. Educational activities
required by section 10(c) of the Act should be incorporated into other
current agency public education and interpretation programs where
appropriate.
(b) Each Federal land manager annually will submit to the Secretary
of the Interior the relevant information on public awareness activities
required by section 10(c) of the Act for inclusion in the comprehensive
report on activities required by section 13 of the Act.
Sec. 229.21 Surveys and schedules.
(a) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Board of the Tennessee Valley Authority will
develop plans for surveying lands under each agency's control to
determine the nature and extent of archaeological resources pursuant to
section 14(a) of the Act. Such activities should be consistent with
Federal agency planning policies and other historic preservation
program responsibilities required by 16 U.S.C. 470 et seq. Survey plans
prepared under this section will be designed to comply with the purpose
of the Act regarding the protection of archaeological resources.
(b) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Tennessee Valley Authority will prepare schedules
for surveying lands under each agency's control that are likely to
contain the most scientifically valuable archaeological resources
pursuant to section 14(b) of the Act. Such schedules will be developed
based on objectives and information identified in survey plans
described in paragraph (a) of this section and implemented
systematically to cover areas where the most scientifically valuable
archaeological resources are likely to exist.
(c) Guidance for the activities undertaken as part of paragraphs
(a) through (b) of this section is provided by the Secretary of the
Interior's Standards and Guidelines for Archeology and Historic
Preservation.
(d) Other Federal land managing agencies are encouraged to develop
plans for surveying lands under their jurisdictions and prepare
schedules for surveying to improve protection and management of
archaeological resources.
[[Page 42306]]
(e) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Tennessee Valley Authority will develop a system
for documenting and reporting suspected violations of the various
provisions of the Act. This system will reference a set of procedures
for use by officers, employees, or agents of Federal agencies to assist
them in recognizing violations, documenting relevant evidence, and
reporting assembled information to the appropriate authorities. Methods
employed to document and report such violations should be compatible
with existing agency reporting systems for documenting violations of
other appropriate Federal statutes and regulations. Summary information
to be included in the Secretary's comprehensive report will be based
upon the system developed by each Federal land manager for documenting
suspected violations.
Dated: July 25, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E7-14811 Filed 8-1-07; 8:45 am]
BILLING CODE 5001-06-P