[Federal Register Volume 72, Number 148 (Thursday, August 2, 2007)]
[Rules and Regulations]
[Pages 42298-42306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14811]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 229


Protection of Archaeological Resources: Uniform Regulations

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule reinstates 32 CFR part 229, ``Protection of 
Archaeological Resources: Uniform Regulations,'' which was 
inadvertently removed by the Department of Defense in 2006. Except for 
certain formatting updates, the requirements in this document are 
consistent with those removed in 2006.

DATES: Effective Date: This rule is effective August 2, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Maureen Sullivan, OSD, 703 604 
5419, [email protected].

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