Protection of Archaeological Resources: Uniform Regulations, 42298-42306 [E7-14811]
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42298
Federal Register / Vol. 72, No. 148 / Thursday, August 2, 2007 / Rules and Regulations
§ 26.2654–1 Certain trusts treated as
separate trusts.
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CFR part or section where
identified and described
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(b) * * *
(4) Examples. * * *
Example 3. Formula severance. T’s will
establishes a testamentary marital trust
(Trust) that meets the requirements of
qualified terminable interest property (QTIP)
if an election under section 2056(b)(7) is
made. Trust provides that all trust income is
to be paid to T’s spouse for life. On the
spouse’s death, the trust corpus is to be held
in further trust for the benefit of T’s thenliving descendants. On T’s date of death in
January of 2004, T’s unused GST tax
exemption is $1,200,000, and T’s will
includes $200,000 of bequests to T’s
grandchildren. Prior to the due date for filing
the Form 706, ‘‘United States Estate (and
Generation-Skipping Transfer) Tax Return,’’
for T’s estate, T’s executor, pursuant to
applicable state law, divides Trust into two
separate trusts, Trust 1 and Trust 2. Trust 1
is to be funded with that fraction of the Trust
assets, the numerator of which is $1,000,000,
and the denominator of which is the value
of the Trust assets as finally determined for
federal estate tax purposes. Trust 2 is to be
funded with that fraction of the Trust assets,
the numerator of which is the excess of the
Trust assets over $1,000,000, and the
denominator of which is the value of the
Trust assets as finally determined for federal
estate tax purposes. On the Form 706 filed for
the estate, T’s executor makes a QTIP
election under section 2056(b)(7) with
respect to Trust 1 and Trust 2 and a ‘‘reverse’’
QTIP election under section 2652(a)(3) with
respect to Trust 1. Further, T’s executor
allocates $200,000 of T’s available GST tax
exemption to the bequests to T’s
grandchildren, and the balance of T’s
exemption ($1,000,000) to Trust 1. If the
requirements of paragraph (b) of this section
are otherwise satisfied, Trust 1 and Trust 2
are recognized as separate trusts for GST tax
purposes. Accordingly, the ‘‘reverse’’ QTIP
election and allocation of GST tax exemption
with respect to Trust 1 are recognized and
effective for generation-skipping transfer tax
purposes.
(c) Cross reference. For rules
applicable to the qualified severance of
trusts (whether or not includible in the
transferor’s gross estate), see § 26.2642–
6.
PART 602—OMB CONTROL NUMBERS
UNDER THE PAPERWORK
REDUCTION ACT
Par. 7. The authority citation for part
602 continues to read as follows:
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Authority: 26 U.S.C. 7805.
Par. 8. In § 602.101, paragraph (b) is
amended by adding entries in numerical
order to the table to read as follows:
Current OMB
Control No.
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1.1001–1 ...............................
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26.2642–6 .............................
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1545–1902
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26.2654–1 .............................
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1545–1902
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1545–1902
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Linda E. Stiff,
Acting Deputy Commissioner for Services and
Enforcement.
Approved: July 24, 2007.
Eric Solomon,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. E7–14852 Filed 8–1–07; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 229
Protection of Archaeological
Resources: Uniform Regulations
Department of Defense.
Final rule.
AGENCY:
ACTION:
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.
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I
List of Subjects in 32 CFR Part 229
§ 602.101
Administrative practice and
procedure, Historic preservation,
Indians—lands, Penalties, Public lands,
Reporting and recordkeeping
requirements.
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OMB Control numbers.
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(b) * * *
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Accordingly, subchapter M of title 32
of the Code of Federal Regulations, is
amended to add part 229 to read as
follows:
I
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).
§ 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
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(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.
§ 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.
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§ 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
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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
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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:
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(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).
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§ 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 § 229.8 or exempted by § 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
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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.
§ 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 § 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 earthmoving 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
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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 § 229.6.
However, the Federal land manager
shall insure that provisions of § 229.8
and § 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 § 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
§§ 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.
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§ 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 § 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
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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.
§ 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
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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 § 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 § 229.9(c),
for permittees to notify the Federal land
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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
jlentini on PROD1PC65 with RULES
§ 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
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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.
§ 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,
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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 § 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.
§ 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 § 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 § 229.15 upon the
permittee’s conviction under section 6
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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.
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.
§ 229.11
§ 229.14 Determination of archaeological
or commercial value and cost of restoration
and repair.
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.
§ 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.
jlentini on PROD1PC65 with RULES
§ 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
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(a) Archaeological value. For
purposes of this part, the archaeological
value of any archaeological resource
involved in a violation of the
prohibitions in § 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 § 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;
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(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.
§ 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 § 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
§ 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:
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(1) The facts and conclusions from
which it was determined that a violation
did occur;
(2) The basis in § 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
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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.
§ 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 § 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
§ 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
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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.
jlentini on PROD1PC65 with RULES
§ 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
§ 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.
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§ 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]
§ 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 § 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
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actions taken pursuant to section 14 of
the Act.
§ 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.
§ 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.
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(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]
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[CGD05–07–025]
RIN 1625–AA09
Drawbridge Operation Regulations;
Wicomico River (North Prong),
Salisbury, MD
Coast Guard, DHS.
Final rule.
AGENCY:
SUMMARY: The Coast Guard is changing
the drawbridge operation regulations of
two Maryland Department of
Transportation (MDOT) bridges: The
Main Street and U.S. 50 Bridges, at mile
22.4, across Wicomico River (North
Prong) in Salisbury, MD. This final rule
will allow the bridges to open on signal
if four hours advance notice is given
and eliminate the continual attendance
of draw tender services while still
providing the reasonable needs of
navigation.
This rule is effective September
4, 2007.
ADDRESSES: Comments and material
received from the public, as well as
documents indicated in this preamble as
being available in the docket, are part of
jlentini on PROD1PC65 with RULES
DATES:
VerDate Aug<31>2005
16:10 Aug 01, 2007
Jkt 211001
FOR FURTHER INFORMATION CONTACT:
Waverly W. Gregory, Jr., Bridge
Administrator, Fifth Coast Guard
District, at (757) 398–6222.
SUPPLEMENTARY INFORMATION:
Regulatory History
On April 5, 2007, we published a
notice of proposed rulemaking (NPRM)
entitled ‘‘Drawbridge Operation
Regulations; Wicomico River (North
Prong), Salisbury, MD’’ in the Federal
Register (72 FR 16752). We received no
comments on the proposed rule. No
public meeting was requested, and none
was held.
Background and Purpose
BILLING CODE 5001–06–P
ACTION:
docket CGD05–07–025 and are available
for inspection or copying at Commander
(dpb), Fifth Coast Guard District,
Federal Building, 1st Floor, 431
Crawford Street, Portsmouth, VA
23704–5004 between 8 a.m. and 4 p.m.,
Monday through Friday, except Federal
holidays. The Fifth Coast Guard District
maintains the public docket for this
rulemaking.
The State Highway Administration
(SHA), a division under MDOT, is
responsible for the operation of both the
Main Street and U.S. 50 Bridges, at mile
22.4, across Wicomico River in
Salisbury. SHA requested advance
notification for vessel openings and a
reduction in draw tender services due to
the infrequency of requests for vessel
openings of the drawbridges.
The Main Street and U.S. 50 Bridges
have vertical clearances of four feet,
above mean high water, in the closedto-navigation position. The existing
operating regulations for these
drawbridges are set out in 33 CFR
§ 117.579, which requires the draws to
open on signal, except from 7 a.m. to 9
a.m., from 12 noon to 1 p.m. and from
4 p.m. to 6 p.m., the draw need not be
opened for the passage of vessels, except
for tugs with tows, if at least three hours
of advance notice is given, and the
reason for passage through the bridges
during a closure period is due to delay
caused by inclement weather or other
emergency or unforeseen circumstances.
Bridge opening data supplied by SHA
revealed a significant decrease in yearly
openings. In the past three years from
2004 to 2006, the bridges opened for
vessels 522, 282 and 157 times,
respectively. Due to the infrequency of
requests for vessel openings of the
drawbridges, SHA requested to change
the current operating regulations by
requiring the draw spans to open on
signal if at least four hours notice is
given year-round by calling the contact
telephone number at (410) 430–7561.
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
Discussion of Comments and Changes
The Coast Guard did not receive any
comments on the NPRM. Therefore, no
changes were made to the final rule.
Discussion of Rule
The Coast Guard is amending 33 CFR
117.579, which governs the Main Street
and U.S. 50 Bridges, by revising the
paragraph to read that the draws shall
open on signal if at least four hours
notice is given by calling the telephone
contact number at (410) 430–7461.
Under this revision, there will no longer
be closure periods. All vessels will be
required to provide at least four hours
notice.
Regulatory Evaluation
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order. It is not ‘‘significant’’ under the
regulatory policies and procedures of
the Department of Homeland Security
(DHS).
This conclusion is based on the fact
that these changes have only a minimal
impact on maritime traffic transiting the
bridges. Mariners will no longer have to
wait for closure periods to end, which
will allow them to plan their trips
without requiring a stop, so long as the
four hour notice is provided. ′′
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
The Coast Guard certifies under 5
U.S.C. 605(b) that this rule would not
have a significant economic impact on
a substantial number of small entities.
This conclusion is based on the fact
the rule would not have a significant
economic impact on a substantial
number of small entities because the
rule relieves restrictions to the
movement of navigation, as mariners
will no longer have to wait for closure
periods to end, which will allow them
to plan their trips without requiring a
stop, so long as the four hour notice is
provided.
E:\FR\FM\02AUR1.SGM
02AUR1
]]>Agencies
[Federal Register Volume 72, Number 148 (Thursday, August 2, 2007)]
[Rules and Regulations]
[Pages 42298-42306]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14811]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 229
Protection of Archaeological Resources: Uniform Regulations
AGENCY: Department of Defense.
ACTION: Final rule.
-----------------------------------------------------------------------
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,
[[Page 42304]]
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
