[Federal Register Volume 60, Number 17 (Thursday, January 26, 1995)]
[Rules and Regulations]
[Pages 5256-5261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1878]




[[Page 5255]]

_______________________________________________________________________

Part II

Tennessee Valley Authority



18 CFR Part 1312

Department of Defense



32 CFR Part 229

Department of Agriculture



Forest Service



36 CFR Part 296

Department of the Interior



Office of the Secretary



43 CFR Part 7



_______________________________________________________________________



Protection of Archaeological Resources; Uniform Regulations; Final Rule

  Federal Register / Vol. 60, No. 17 / Thursday, January 26, 1995 / 
Rules and Regulations   
[[Page 5256]] 

TENNESSEE VALLEY AUTHORITY

18 CFR Part 1312

DEPARTMENT OF DEFENSE

32 CFR Part 229

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 296

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 7

RIN 1024-AA51


Protection of Archaeological Resources; Uniform Regulations

AGENCIES: Departments of the Interior, Agriculture, and Defense and 
Tennessee Valley Authority.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises the uniform regulations that implement 
the Archaeological Resources Protection Act of 1979 (ARPA) to 
incorporate the recent amendments. Principally, these changes amend the 
description of prohibited acts in the final uniform regulations to 
include attempt to excavate, remove, damage, or otherwise alter or 
deface archaeological resources, address the lower threshold for felony 
violations of ARPA, public awareness programs, archaeological surveys 
and schedules, the Secretary of the Interior's report to Congress about 
federal archeology, and guidance to Federal land managers about the 
disposition of Native American human remains and other ``cultural 
items'' as defined by the Native American Graves Protection and 
Repatriation Act (NAGPRA).

EFFECTIVE DATE: The final rule becomes effective February 27, 1995.

FOR FURTHER INFORMATION CONTACT: Francis P. McManamon, National Park 
Service, Department of the Interior, Washington, D.C., 202-343-4105; 
Lars Hanslin, Office of the Solicitor, Department of the Interior, 
Washington, D.C., 202-208-7957; Evan I. DeBloois, U.S. Forest Service, 
Department of Agriculture, Washington, D.C., 202-205-1754; Peter Walsh, 
Assistant Deputy Undersecretary of Defense for Environmental Quality, 
Department of Defense, Washington, D.C., 703-604-5753; or Bennett 
Graham, Tennessee Valley Authority, Norris, Tennessee, 615-632-1585.

SUPPLEMENTARY INFORMATION:

Background

    This final rule revises the uniform regulations that implement the 
Archaeological Resources Protection Act of 1979 (ARPA; Pub. L. 96-95, 
as amended by Pub. L. 100-555, Pub. L. 100-588; 93 Stat. 721; 102 Stat. 
2983; 16 U.S.C. 470aa-mm). It was prepared by representatives of the 
Secretaries of the Interior, Agriculture, and Defense, and the Chairman 
of the Board of the Tennessee Valley Authority, as directed in section 
10(a) of the Act.
    The first purpose of ARPA is ``to secure, for the present and 
future benefit of the American people, the protection of archaeological 
resources and sites which are on public lands and Indian lands'' 
[section 2(b)]. On November 3, 1988, amendments to ARPA were enacted 
which have the purpose ``to improve the protection and management of 
archaeological resources'' (Pub. L. 100-555) and ``to strengthen the 
enforcement provisions of ARPA'' (Pub. L. 100-588).
    Section 10(a) of ARPA requires the Secretaries of the Interior, 
Agriculture, and Defense and the Chairman of the Tennessee Valley 
Authority, after consultation with other Federal land managers, Indian 
Tribes, representatives of concerned State agencies, and after public 
notice, to promulgate uniform regulations as may be appropriate to 
carry out the purposes of ARPA. The uniform regulations are to be 
promulgated after consideration of the provisions of the American 
Indian Religious Freedom Act (92 Stat. 469; 42 U.S.C. 1996). The 
uniform regulations for ARPA originally were published on January 6, 
1984.
    The six areas revised by this rulemaking include: (1) Expanding the 
description of prohibited acts to include attempts to excavate, remove, 
damage, or otherwise alter or deface archaeological resources, (2) 
adding the lower threshold provided for felony violations of ARPA, (3) 
adding public awareness programs, (4) adding archaeological surveys and 
schedules, (5) the Secretary of the Interior's report, and (6) 
providing guidance to Federal land managers about the disposition of 
Native American human remains and other ``cultural items'', as defined 
by NAGPRA [Pub. L. 101-601; 104 Stat. 3050; 25 U.S.C. 3001-13]. These 
topics are covered by adding paragraphs to Secs. ____.3, ____.4, 
____.7, ____.13, and ____.19; revising Secs. ____.4 and ____.19; and 
adding new Secs. ____.20 and ____.21.
    (1) Expanding prohibited acts. The prohibited acts section of the 
uniform regulations is revised to conform to the recent amendments to 
ARPA. Federal land managers can pursue criminal and civil penalties 
against persons that attempt to excavate, remove, damage, alter, or 
otherwise deface archaeological resources.
    (2) Lower felony threshold. Statutory amendments reduced the figure 
for distinguishing criminal penalties based upon calculations of damage 
to archaeological resources caused through violations of ARPA. The 
figure was reduced from $5,000.00 to $500.00. A new paragraph in 
Sec. ____.4 restates the criminal penalties section in ARPA as well as 
incorporates the lower felony threshold in the uniform rule. This 
paragraph was added to the uniform regulations to inform Federal land 
managers about the criminal provisions of the Act. Those preparing the 
regulations felt that Federal land managers use the regulations, thus, 
it was important to restate the penalties section.
    (3) Public awareness programs. New Sec. ____.20 identifies the 
requirements in ARPA for Federal land managers to establish programs to 
increase public awareness about archaeological resource protection. 
Federal agencies are already developing public awareness programs. As 
examples, the Bureau of Land Management implemented the Heritage 
Education Program and the Forest Service developed Passports in Time. 
There were numerous other examples of public outreach efforts by field 
personnel from the land management agencies. The development of 
regulations defining the types of public awareness programs to be used 
by Federal land managers was not feasible. Rather, public awareness 
programs including volunteerism, formal education, interpretation, 
tourism, and others should be part of any archaeological resource 
activity and incorporated into other current programs where 
appropriate. The Secretary of the Interior will report to Congress 
about these programs on behalf of Federal agencies.
    (4) Archaeological surveys and schedules. New Sec. ____.21 
discusses the requirements in ARPA for the Departments of the Interior, 
Agriculture, and Defense and the Tennessee Valley Authority to develop 
plans and schedules for surveying archaeological resources to determine 
their nature and extent for purposes of agency resource planning. The 
surveys should be conducted systematically and cover areas where the 
most scientifically valuable archaeological resources are likely to 
exist. For example, the surveys may focus on lands where there is 
little knowledge of the resource base, on [[Page 5257]] lands that 
contain archaeological resources that are vulnerable to vandalism and 
looting, or on lands that contain archaeological resources significant 
in local, state or regional cultural history. Other Federal land 
managing agencies are encouraged to develop such plans and schedules.
    (5) The Secretary of the Interior's report. Section ____.19 is 
revised to enable the Secretary of the Interior to report 
comprehensively to Congress regarding Federal agencies archaeological 
activities. This section specifically addresses reporting on Federal 
agency public awareness programs, surveys and schedules and systems for 
documenting violations of ARPA.
    (6) Treatments for Native American human remains and other 
``cultural items''. Sections ____.3, ____.7 and ____.13 include 
guidance to Federal land managers on treatments for Native American 
human remains and other ``cultural items'', as defined by NAGPRA.
    Finally, the reference to the U.S. Code is revised in 
Sec. ____.1(a) and Sec. ____.3(i) to reflect changes by the amendments 
to ARPA.
    Public comment was sought for a 30-day period following publication 
of Sec. ____.4 of the proposed rules on January, 29, 1990 (55 FR 2848), 
and for a 90-day period following publication of the remaining sections 
of the proposed rules on September, 11, 1991 (56 FR 46259). Written 
comments were received from seven Federal agencies, one State agency, 
three Indian councils and associations, one educational institution, 
two utility companies and associations, and one private cultural 
resources management firm. The authority citation for 43 CFR Part 7 was 
addressed in 2 comments, Sec. 7.3 was addressed in 9 comments, Sec. 7.7 
was addressed in 9 comments, Sec. 7.13 was addressed in 24 comments, 
Sec. 7.19 was addressed in 3 comments, Sec. 7.20 was addressed in 1 
comment, and Sec. 7.21 was addressed in 5 comments. The proposed rules 
were published immediately prior to the enactment of NAGPRA, and thus, 
many of the public comments focused on relationships between ARPA and 
NAGPRA.
    Many comments were directed at the apparent inconsistencies between 
NAGPRA and ARPA regarding notification and consultation with Indian 
Tribes as well as the extent of Federal land managers' authority in 
making determinations of custody. Other comments were directed at 
further defining terms regarding types of land and archaeological 
objects. The remaining comments dealt with elaborating on the 
implementation and funding of reports, public awareness programs, and 
surveys and schedules.
    All the comments were considered, and most contributed to some 
degree in the rulemaking process. All the comments and the changes made 
in response to public comments are discussed below.

Changes in Response to Public Comments

    Two commentors noted that Pub. L. 101-601 (NAGPRA) should be 
included in the authority citation for 43 CFR Part 7. The authority for 
43 CFR Part 7 is directed by Pub. L. 96-95; 93 Stat. 721, as amended; 
102 Stat. 2983; 16 U.S.C. 470aa-mm (section 10(a)). Related authorities 
are those that ARPA influences, such as the Antiquity Act (16 U.S.C. 
432,433), the Archeological and Historic Preservation Act (16 U.S.C. 
469, as amended) and the National Historic Preservation Act (16 U.S.C. 
470, as amended). The language in NAGPRA refers to the statute and its 
regulations but does not affect the implementation of ARPA and is not 
cited as a Related Authority. NAGPRA and its implementing regulations 
are referred to in the revisions of Secs. ____.3, ____.7 and ____.13.

Section ____.3  Definitions

    Two commentors noted that Sec. ____.3(a)(6) of the uniform 
regulations, which states that Federal land managers may determine that 
particular human remains and directly associated material remains are 
to be treated differently from other archaeological resources, is in 
direct contradiction with NAGPRA which states that Native American 
human remains and graves must be treated differently from 
archaeological resources. One commentor noted that the definition of 
``Indian lands'' in Sec. ____.3(a)(5)(e) of the uniform regulations is 
different from the definition of ``tribal lands'' in NAGPRA, thus 
provisions in NAGPRA would cover graves on ``tribal lands'' as defined 
in NAGPRA but would not cover graves located on ``Indian lands'' as 
defined in the uniform regulations. This same commentor also noted that 
the uniform regulations, unlike NAGPRA, do not include: (1) Fee 
patented lands within the exterior boundaries of Indian reservations; 
(2) lands within dependent Indian communities that may not be in the 
boundaries of a reservation; and (3) certain lands administered for the 
benefit of Native Hawaiians. Three commentors noted that ``associated 
funerary objects'' as defined in NAGPRA should be used rather than the 
terms ``directly associated material remains'', ``associated objects'', 
and ``funerary objects'' in the uniform regulations. One of these same 
commentors also noted that the terms ``unassociated funerary objects'', 
``sacred objects'' and ``objects of cultural patrimony'' should be 
added to the uniform regulations. Another of these three commentors 
above noted that the definition for ``human remains'' should be better 
defined in the uniform regulations.
    The commentors are correct in observing that the definitions of 
certain terms vary between the uniform regulations and NAGPRA. The 
terms used in the final rule follow the statutory definitions provided 
in ARPA and its amendments. The terms ``associated funerary objects'', 
``unassociated funerary objects'', ``sacred objects'', and ``objects of 
cultural patrimony'' have particular statutory meaning in NAGPRA but 
not in ARPA. ``Material remains'' is defined in ARPA, but not 
``associated objects'' or ``funerary objects''. In response to comments 
concerning the consistency of this section with NAGPRA, the term 
``cultural items'', as defined in NAGPRA, is used in the final rule to 
distinguish material remains that are to be treated under NAGPRA and 
its implementing regulations.

Section ____.7 Notification to Indian Tribes of Possible Harm to, or 
Destruction of, Sites on Public Lands Having Religious or Cultural 
Importance

    One commentor noted that Sec. ____.7(b)(4) of the uniform 
regulations is inconsistent with NAGPRA Sec. 3(c) which requires 
consultation and consent from Indian tribes prior to the issuance of an 
ARPA permit, not after one has already been issued. Two commentors 
stated that it is redundant to consult with tribes after an ARPA permit 
has already been issued, especially if it is to comply with NAGPRA. One 
of these commentors stated that amendments to an ARPA permit are 
acceptable only under certain provisions, while the other commentor 
stated it was inappropriate altogether to develop compliance procedures 
through another act when the implementing regulations for NAGPRA have 
not been developed. One commentor noted that the requirement for notice 
to Indian tribes being at the discretion of the Federal land manager is 
not sufficient to carry out NAGPRA. One commentor noted that the 
uniform regulations should require notification to Indian tribes when 
aboriginal land is involved regardless of a finding of potential harm 
or destruction of religious or cultural [[Page 5258]] sites. This same 
commentor also noted that the uniform regulations should reflect 
requirements in NAGPRA that consultation, and not just notification, is 
required before excavation of imbedded materials.
    Two commentors directed their comments at setting conditions for 
consultation. One of these commentors stated that it should identify 
protocols to be followed when special notice is necessary including 
specification of time periods for completion of a tribe's response 
following a notification. The other commentor stated that minimum 
standards should be established setting the ``extent of circumstances'' 
that call for optional circumstances. One commentor inquired how the 
uniform regulations apply to non-Native American human remains and if 
there were any provisions for notification to non-Native American 
groups.
    Section ____.7(a) provides procedures for notification to Indian 
tribes and consultation 30 days prior to the issuance of a permit. 
Section ____.7(b) provides for Federal land managers and Indian tribes 
to cooperate in advance to identify sites of religious or cultural 
importance to prevent harm to them. Existing rules allow for the 
suspension or revocation of permits for management purposes, such as to 
insure consistency with NAGPRA. Also, ARPA requires consent from tribes 
when the permit applies to Indian lands. ARPA stipulates that Federal 
land managers shall seek to identify all Indian tribes having 
aboriginal or historic ties to the lands under their agency's 
jurisdiction. This section of the uniform regulations applies to sites 
on public lands having religious or cultural importance for Indian 
tribes. For cases involving non-Native Americans, the Federal land 
manager may consult with any concerned groups prior to permit issuance. 
In response to comments concerning the consistency of this section with 
NAGPRA, the final rule was modified to clarify the relationship of this 
section with NAGPRA.

Section ____.13  Custody of Archaeological Resources

    Two commentors stated that Sec. ____.13(a) should be amended to 
read that archaeological resources that are excavated or removed from 
pubic lands will remain the property of the United States ``except when 
lineal descendants have rights of ownership'' or ``except in those 
instances where NAGPRA recognizes ownership or control in a lineal 
descendent or Indian tribe'' in order to conform with NAGPRA. One of 
these same commentors noted that the Federal land manager is given too 
much power to decide the custody of items when no descendants can be 
identified and that NAGPRA has a resolution process, whereas, ARPA does 
not. This commentor also said that Federal land managers should be 
charged with identifying all aboriginal lands within their jurisdiction 
that meet the standards in NAGPRA and be instructed to defer decisions 
regarding custody to the appropriate tribe. Two commentors noted that 
Sec. ____.13(e) should read that the Federal land manager shall 
determine, not may determine, that human remains and directly 
associated material remains need not be preserved and maintained in a 
scientific or educational institution. Seven commentors noted that the 
procedures for reaching a determination in Sec. ____.13(e)(2) should be 
consistent with NAGPRA. One of these commentors noted that allowing 
Federal land managers alone to consider religious and cultural 
importance is inconsistent with NAGPRA, which reserves this right to 
Native American individuals and groups. Another of these commentors 
stated that while the uniform regulations allow Federal land managers 
the right to consider remains as a ``source of information about the 
past'', NAGPRA does not give this consideration. Another of these 
commentors stated that Sec. ____.13(e)(2), in general, sets the context 
for allowing the study and curation of remains to be more important 
than repatriation. Three of these commentors stated that it needs to 
define conditions for applicability with regard to the disposition of 
human remains. Regarding Sec. ____.13(e)(4), one commentor noted that 
NAGPRA provides the basis for reaching a determination of custody. 
Three commentors noted that the cancellation of the agreement by the 
Federal land manager over the tribe's failure to comply is 
contradictory to NAGPRA. Two commentors stated that there is a written 
agreement provision implied on activity pursuant to Section 106 of the 
National Historic Preservation Act, and that they were opposed to any 
process involving the Advisory Council or the SHPO. Another comment, 
regarding the same topic, suggested that written agreements should not 
rule out face-to-face communications. Two commentors stated that 
Sec. ____.13(e)(4) appears to allow Federal land managers to impose 
``appropriate terms and conditions'' to dictate the manner of 
repatriation, when tribal religious practices should govern, instead, 
and that this would be contrary to Section 3 of NAGPRA. Regarding 
Sec. ____.13(e)(5), one commentor stated that it needs to explain how, 
when, and who determines the custody of ``remains'' during a criminal 
investigation. One commentor stated that Sec. ____.13 needs to include 
procedures for custody of resources on Indian lands, not just public 
lands.
    Federal land managers are ultimately responsible for archaeological 
resources under their agencies' jurisdictions. When Native American 
human remains and other ``cultural items'', as defined by NAGPRA, are 
returned to lineal descendants or culturally affiliated Indian tribes, 
then these items are no longer the responsibility of the United States. 
The claimants have complete authority over their future treatment. 
Archaeological resources excavated or removed from Indian lands remain 
the property of the Indian or Indian tribe having rights of ownership 
over such resources, and who, as stated in ARPA, determine the 
appropriate treatment. Under ARPA the Federal land manager will 
identify tribes with historic or aboriginal ties to the lands under the 
Federal land manager's jurisdiction and through consultation will 
determine if there are religious or cultural sites which could be 
harmed.
    The commentors are correct in noting that the term ``when 
applicable'' is too general to provide useful guidance for the Federal 
land manager to consider the manner of disposition of the remains as 
proposed by the Indian tribe, group or individual. ARPA also is 
intended to enhance the protection of archaeological resources that are 
a source of information about the past. With regard to the custody of 
material remains during a criminal investigation, the status of 
archaeological resources is determined through law enforcement. Only 
when archaeological resources that are secured as evidence in a civil 
or criminal proceeding have been released officially by law 
enforcement, may they then be considered for treatment under this 
section. As for criminal proceedings involving Native American human 
remains and other ``cultural items'', as defined by NAGPRA, the Federal 
land manager is referred to the requirements in NAGPRA and its 
implementing regulations.
    In response to the comments, the final rule includes guidance to 
Federal land managers about treatments of Native American human remains 
and other ``cultural items'', as defined by NAGPRA. 
Section____.13(e)(1)-(4) was deleted from the final rule. The Federal 
land manager is referred to the requirements in NAGPRA and its 
implementing regulations. [[Page 5259]] 

Section ____.19  Report

    One commentor noted that a statistics-keeping requirement is the 
``last thing Federal land managers need or want.'' Another commentor 
noted that ``available information'', in Sec. ____.19(c), should be 
clarified with regard to information from active criminal cases. This 
same commentor also noted that regulations should be written by 
resource specialists, law enforcement personnel, and interpreters 
regarding the development of systems to report on violations and public 
awareness, and that any system so developed should be centralized and 
computerized.
    The statutory requirements of ARPA require a report to Congress on 
the progress and effectiveness of public awareness programs and the 
surveys and schedules. Available information includes that which is 
available for public disclosure. If this information is part of active 
criminal investigations, then this information should be withheld until 
it can be released. The submitted information will be presented as part 
of the Secretary's Report to Congress. No modifications were made to 
the final rule based on these comments.

Section ____.20  Public Awareness Programs

    One commentor noted that financial expenditures in this area will 
be wasted if NAGPRA is not taken into consideration since subsequent 
regulations could make this provision obsolete.
    ARPA requires Federal land managers to establish public awareness 
programs. These programs can be very beneficial to furthering the 
protection of Native American graves. No modifications were made to the 
final rule based on these comments.

Section ____.21  /Surveys and Schedules

    One commentor noted that this survey provision runs the risk of 
legitimizing unreliable ``probability models'' and that the discipline 
of archaeology is not in a position to identify and ``systematically 
cover areas where most scientific resources are likely to exist.'' This 
same commentor stated that the ``scientifically valuable'' criterion, 
in Sec. ____.21(b), neglects other equally important cultural values 
and that the definition of ``scientifically valuable'' is subject to 
many changes over time. Two commentors noted that timetables or 
requirements should be set forth for developing and implementing survey 
plans since any agency can develop a schedule, but the need is to 
demonstrate agency commitments in time, funding and personnel. Another 
commentor, along the same lines, suggested that Congress should either 
set aside funds to pay for surveys or some other means for funding 
planned surveys should be developed.
    This section promotes a comprehensive management program for the 
protection of archaeological resources. The intent is to direct 
agencies to learn more about the archaeological resource base using 
systematic approaches that can lead to better protection strategies. 
Scientifically valuable areas do not exclude sacred areas but focus on 
resources that will produce valuable information about regional 
cultural histories. Each agency is given the flexibility to determine 
plans for work based on funding and personnel levels that vary 
annually. The results and progress of such work are provided in the 
Secretary's Report to Congress along with appropriate recommendations.

Statement of Effects

    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866. The Department of the Interior certifies 
that this document will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et. seq.). These determinations are based on findings 
that the rulemaking is directed toward Federal resource management, 
with no economic impact on the public.

Paperwork Reduction Act

    This rule does not contain information collection requirements 
which require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq.

List of Subjects

18 CFR Part 1312

    Administrative practice and procedure, Historic preservation, 
Indians--lands, Penalties, Public lands.

32 CFR Part 229

    Administrative practice and procedure, Historic preservation, 
Indians--lands, Penalties, Public lands.

36 CFR Part 296

    Administrative practice and procedure, Historic preservation, 
Indians--lands, Penalties, Public lands.

43 CFR Part 7

    Administrative practice and procedure, Historic preservation, 
Indians--lands, Penalties, Public lands.

Amendment

    The Departments of the Interior, Agriculture, and Defense and the 
Tennessee Valley Authority are codifying identical amendments to the 
uniform regulations for protection of archaeological resources in their 
respective titles of the Code of Federal Regulations. Since the 
regulations are identical, the text of the amendments is set out only 
once at the end of this document.

Adoption of the Common Rule

    The agency specific preambles adopting the text of the common rule 
appear below.

Tennessee Valley Authority

18 CFR Part 1312

    As set forth in the common preamble, 18 CFR Part 1312 is amended as 
follows:

PART 1312--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM 
REGULATIONS

    1. The authority citation for 18 CFR Part 1312 is revised to read 
as follows:

    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).

    2. In Sec. 1312.1, the first sentence in paragraph (a) is revised 
to read as set forth at the end of this document.
    3. In Sec. 1312.3, paragraph (a)(6) is added and paragraph (i) is 
revised to read as set forth at the end of this document.
    4. In Sec. 1312.4, the section heading and paragraph (a) are 
revised and paragraph (c) is added to read as set forth at the end of 
this document.
    5. In Sec. 1312.7, paragraph (b)(4) is added to read as set forth 
at the end of this document.
    6. In Sec. 1312.13, paragraph (e) is added to read as set forth at 
the end of this document.
    7. Section 1312.19 is revised to read as set forth at the end of 
this document.
    8. New Secs. 1312.20 and 1312.21 are added to read as set forth at 
the end of this document.
Craven Crowell,
Chairman, Tennessee Valley Authority.

Department of Defense

32 CFR Part 229

    As set forth in the common preamble, 32 CFR Part 229 is amended as 
follows: [[Page 5260]] 

PART 229--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM 
REGULATIONS

    1. The authority citation for 32 CFR Part 229 is revised to read as 
follows:

    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).

    2. In Sec. 229.1, the first sentence in paragraph (a) is revised to 
read as set forth at the end of this document.
    3. In Sec. 229.3, paragraph (a)(6) is added and paragraph (i) is 
revised to read as set forth at the end of this document.
    4. In Sec. 229.4, the section heading and paragraph (a) are revised 
and paragraph (c) is added to read as set forth at the end of this 
document.
    5. In Sec. 229.7, paragraph (b)(4) is added to read as set forth at 
the end of this document.
    6. In Sec. 229.13, paragraph (e) is added to read as set forth at 
the end of this document.
    7. Section 229.19 is revised to read as set forth at the end of 
this document.
    8. New Secs. 229.20 and 229.21 are added to read as set forth at 
the end of this document.

    Dated: August 22, 1994.
Linda M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

Department of Agriculture

Forest Service

36 CFR Part 296

    As set forth in the common preamble, 36 CFR Part 296 is amended as 
follows:

PART 296--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM 
REGULATIONS

    1. The authority citation for 36 CFR Part 296 is revised to read as 
follows:

    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).

    2. In Sec. 296.1, the first sentence in paragraph (a) is revised to 
read as set forth at the end of this document.
    3. In Sec. 296.3 paragraph (a)(6) is added and paragraph (i) is 
revised to read as set forth at the end of this document.
    4. In Sec. 296.4, the section heading and paragraph (a) are revised 
and paragraph (c) is added to read as set forth at the end of this 
document.
    5. In Sec. 296.7, paragraph (b)(4) is added to read as set forth at 
the end of this document.
    6. In Sec. 296.13, paragraph (e) is added to read as set forth at 
the end of this document.
    7. Section 296.19 is revised to read as set forth at the end of 
this document.
    8. New Secs. 296.20 and 296.21 are added to read as set forth at 
the end of this document.
Adela Backiel,
Deputy Assistant Secretary for Natural Resources and Environment.

Department of the Interior

43 CFR Part 7

    As set forth in the common preamble, 43 CFR Part 7 is amended as 
follows:

PART 7--PROTECTION OF ARCHAEOLOGICAL RESOURCES

    1. The authority citation for 43 CFR Part 7 is revised to read as 
follows:


    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).


    2. In Sec. 7.1, the first sentence in paragraph (a) is revised to 
read as set forth at the end of this document.
    3. In Sec. 7.3, paragraph (a)(6) is added and paragraph (i) is 
revised to read as set forth at the end of this document.
    4. In Sec. 7.4, the section heading and paragraph (a) are revised 
and paragraph (c) is added to read as set forth at the end of this 
document.
    5. In Sec. 7.7, paragraph (b)(4) is added to read as set forth at 
the end of this document.
    6. In Sec. 7.13, paragraph (e) is added to read as set forth at the 
end of this document.
    7. Section 7.19 is revised to read as set forth at the end of this 
document.
    8. Reserved Secs. 7.20 through 7.30 in subpart B are removed and 
new Secs. 7.20 and 7.21 are added to subpart A to read as set forth at 
the end of this document.
George T. Frampton Jr.,
Assistant Secretary for Fish and Wildlife and Parks.

Text of the Common Rule

    The text of the common rule, as adopted by the agencies in this 
document, appears below.


Sec. ____.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. * * *
* * * * *


Sec. ____.3  Definitions.

* * * * *
    (a) * * *
    (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.
* * * * *
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).


Sec. ____.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. ____.8 or exempted by 
Sec. ____.5(b) of this part.
* * * * *
    (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 [[Page 5261]] 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 five years, or both.


Sec. ____.7  Notification to Indian tribes of possible harm to, or 
destruction of, sites on public lands having religious or cultural 
importance.

* * * * *
    (b) * * *
    (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. ____.9(c), for permittees to notify the Federal 
land manger 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 regulations.


Sec. ____.13   Custody of archaeological resources.

* * * * *
    (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. ____.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. ____.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. ____.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. ____.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.
    (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.

[FR Doc. 95-1878 Filed 1-25-95; 8:45 am]
BILLING CODE 4310-70-P, 3410-11-P, 5000-04-P, 8120-01-P