Protection of Archaeological Resources; Uniform Regulations

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