35666 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

majority of the interest therein consent

to the permit;

(2) The whereabouts of one or more

owners of the minerals or an interest

therein is unknown, and all the

remaining owners of the interests

consent to the permit;

(3) The heirs or devisee of a deceased

owner of the land or an interest therein

have not been determined, and the

Secretary finds that the permit activity

will cause no substantial injury to the

land or any owner thereof; or

(4) The owners of interests in the land

are so numerous that the Secretary finds

it would be impractical to obtain their

consent, and also finds that the permit

activity will cause no substantial injury

to the land or any owner thereof.

(c) A lessee does not need a permit to

conduct geological and geophysical

operations on Indian lands, if provided

for in the lessee’s mineral lease, where

the Indian mineral owner is also the

surface land owner. In instances where

the Indian mineral owner is not the

surface owner, the lessee must obtain

any additional necessary permits or

rights of ingress or egress from the

surface occupant.

§ 212.57 Forms.

The provisions of § 211.57 of this

subchapter are applicable to leases

under this part.

§ 212.58 Appeals.

The provisions of § 211.58 of this

subchapter are applicable to leases

under this part.

Dated: June 13, 1996.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–16036 Filed 7–5–96; 8:45 am]

BILLING CODE 4310–02–P

OFFICE OF NAVAJO AND HOPI INDIAN

RELOCATION

25 CFR Part 700

Protection of Archaeological

Resources

AGENCY: Office of Navajo and Hopi

Indian Relocation.

ACTION: Interim final rule with comment

period.

SUMMARY: This rule establishes

procedures for implementing provisions

of the Archaeological Resources

Protection Act of 1979 (16 U.S.C. 470–

aa–11) for the lands which are

administered by the O.N.H.I.R. and have

been acquired pursuant to Public Law

96–305 (25 U.S.C. 640–d(h). The rule is

necessary and its intended effect is to

allow the Federal Land Manager to

protect archaeological resources on

lands being developed for resettlement

purposes.

DATES: This rule is effective August 7,

1996.

Comments must be received on or

before August 7, 1996.

ADDRESSES: Comments may be mailed to

the Executive Director, Office of Navajo

and Hopi Indian Relocation, P.O. Box

KK, Flagstaff, Arizona 86002.

FOR FURTHER INFORMATION CONTACT:

Paul Tessler (Legal Counsel), Office of

Navajo and Hopi Indian Relocation, at

520–779–8953.

SUPPLEMENTARY INFORMATION: Pub. L.

96–305 (25 U.S.C. 640d–11) provided

for the acquisition of land for the use of

Navajo families required to relocate

under the terms of Pub. L. 93–531.

Approximately 365,000 acres of land in

Arizona have been acquired, taken into

trust, and made part of the Navajo

Reservation. Approximately 35,000

acres of land in the State of New Mexico

will be acquired, taken into trust and

made a part of the Navajo Reservation.

These lands are referred to as the New

Lands. Pursuant to Pub. L. 96–305, as

amended, by Pub. L. 100–666, the Office

of Navajo and Hopi Indian Relocation

(O.N.H.I.R.) has complete administrative

authority over these New Lands until

the relocation program is completed as

determined by the President.

The 1986 Interior Appropriations Bill

(Pub. L. 99–190) provided construction

funds to the Bureau of Indian Affairs for

the purpose of building replacement

homes on the New Lands. A number of

relocations were completed at the New

Lands under the authority of the Bureau

of Indian Affairs. In 1988, Congress

enacted Pub. L. 100–666, which

transferred to the O.N.H.I.R. on January

31, 1989, all powers and duties of the

Bureau of Indian Affairs derived from

Pub. L. 99–190, that related to the

relocation of members of the Navajo

Tribe and also transferred all funds

appropriated for such activities relating

to such relocation. Before the passage of

Pub. L. 100–666, the O.N.H.I.R. and the

Bureau of Indian Affairs had worked

together planning and developing the

New Lands for resettlement purposes

and relied upon the Bureau of Indian

Affairs, to issue Archaeological

Resources Protection Act (16 U.S.C.

470aa–11) permits on the New Lands.

After the passage of Pub. L. 100–666,

and the transfer of all powers and duties

of the Bureau of Indian Affairs to the

O.N.H.I.R., questions arose regarding

which governmental agency was the

Federal Land Manager and has the

authority to issue A.R.P.A. permits on

the New Lands. It was determined that

the O.N.H.I.R. is the Federal Land

Manager on the New Lands and that the

Bureau of Indian Affairs, Navajo Area

Office, did not have administrative

jurisdiction or surface management

responsibilities on the New Lands

located in Arizona. Thus the O.N.H.I.R.

has the appropriate authority to issue

A.R.P.A. permits. These regulations are

being published pursuant to that

authority to allow the Federal Land

Manager to protect archaeological

resources on the New Lands by issuing

permits for authorized excavation and/

or removal of archaeological resources,

by imposing civil penalties for

unauthorized excavation, removal,

damage, alteration, or defacement of

archaeological resources, by providing

for the preservation of archaeological

resource collections and data and by

ensuring confidentiality of information

about archaeological resources when

disclosure would threaten the resources.

These regulations will apply to all New

Lands in the states or Arizona and New

Mexico acquired for relocation

purposes.

These regulations are being published

as an Interim Final Rule because of the

time frame involved in the movement of

eligible individuals to the New Lands.

Because the O.N.H.I.R. has been

requested by Congress in the 1995

Department of Interior and Related

Agencies Appropriations Act (Pub. L.

103–332) to present a plan for the phase

out of the relocation program, and

transfer of its functions before the year

2000, there is considerable urgency to

complete the development of the New

Lands. In order to complete such

development the O.N.H.I.R. must

publish these regulations. It is,

therefore, necessary for these

regulations to become effective

immediately so that development can go

on uninterrupted.

The principal author of this final

rulemaking is Paul Tessler, Legal

counsel, Office of Navajo and Hopi

Indian Relocation.

List of Subjects in 25 CFR Part 700

Administrative practice and

procedure, Conflict of interest, Freedom

of information, Grant program—Indians,

Indian claims, Privacy, Real property

acquisition, Relocation Assistance and

New Lands Administration.

PART 700—[AMENDED]

Accordingly, the Office is amending

25 CFR Part 700, by adding Subpart R,

as follows:

1. The authority citation for Part 700

continues to read as follows:
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35667

Authority Pub. L. 99–590; Pub. L. 93–531;

88 Stat. 1712, as amended by Pub. L. 96–305,

94 Stat. 929; Pub. L. 100–666, 102 Stat. 3929

(25 U.S.C. 640d).

2. 25 CFR, Part 700, is amended by

adding Subpart R, Protection of

Archaeological Resources, as follows:

Subpart R—Protection of Archaeological

Resources

Sec.

700.801 Purpose.

700.803 Authority.

700.805 Definitions.

700.807 Prohibited acts.

700.809 Permit requirements and

exceptions.

700.811 Application for permits and

information collection.

700.813 Notification to Indian Tribes of

possible harm to, destruction of, sites on

the New Lands having religious or

cultural importance.

700.815 Issuance of permits.

700.817 Terms and conditions of permits.

700.819 Suspension and revocation of

permits.

700.821 Appeals relating to permits.

700.823 Relationship to section 106 of the

National Historic Preservation Act.

700.825 Custody of archaeological

resources.

700.827 Determination of archaeological or

commercial value and cost of restoration

and repair.

700.829 Assessment of civil penalties.

700.831 Civil penalty amounts.

700.833 Other penalties and rewards.

700.835 Confidentiality of archaeological

resource information.

700.837 Report.

700.839 Permitting procedures for Navajo

Nation Lands.

Subpart R—Protection of

Archaeological Resources

§ 700.801 Purpose.

(a) The regulations in this subpart

implement provisions of the

Archaeological Resources Protection Act

of 1979 (16 U.S.C. 470aa–11) by

establishing the uniform definitions,

standards, and procedures to be

followed by the O.N.H.I.R. New Lands

Manager in providing protection for

archaeological resources, located on the

New Lands. The regulations enable

Federal land managers to protect

archaeological resources, taking into

consideration provisions of the

American Indian Religious Freedom Act

(92 Stat. 469: 43 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.

(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.

§ 700.803 Authority.

The regulations in this part are

promulgated pursuant to section 10(b)

of the Archaeological Resources

Protection Act of 1979 (16 U.S.C. 470ii).

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.

§ 700.805 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

material remains described in this

paragraph (a);

(ix) All portions of shipwrecks

(including, but not limited to

armaments, apparel, tackle, cargo);

(x) Any portion or piece of material

remains described in this paragraph (a).

(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

paragraph (a)(5) shall be documented.

Such determination shall in no way

affect the Federal Land Manager’s

obligations under other applicable laws

or regulations.

(b) Arrowhead means any projectile

point which appears to have been

designed for use with an arrow.

(c) Commissioner means the

Commissioner of the Office of Navajo

and Hopi Indian Relocation. Reference

to approval of other action by the

Commissioner will also include

approval or other action by another

Federal Officer under delegated

authority from the Commissioner.

(d) Federal Land Manager means,

with respect to the New Lands, the

Commissioner of Navajo and Hopi

Indian Relocation, having primary

management authority over such lands,
35668 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

including persons to whom such

management authority has been

officially delegated.

(e) New Lands means the land

acquired for the use of relocatees under

the authority of Public Law 96–305, 25

U.S.C., 640(d)–10. These lands include

the 250,000 acres of land acquired by

the Navajo and Hopi Indian Relocation

Commission and added to the Navajo

Reservation, 150,000 acres of private

lands previously owned by the Navajo

Nation in fee and taken in trust by the

United States pursuant to 25 U.S.C.

640d–10 and up to 35,000 acres of land

in the State of New Mexico to be

acquired and added to the Navajo

Reservation.

(f) Indian lands means lands of The

Navajo Nation, 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.

(g) Indian tribe or Tribe means The

Navajo Nation.

(h) 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.

(i) State means any of the fifty states,

the District of Columbia, Puerto Rico,

Guam, and the Virgin Islands.

(j) Tribe means the Navajo Nation.

(k) Act means the Archaeological

Resources Protection Act of 1979 (16

U.S.C. 470–aa11.)

§ 700.807 Prohibited acts.

(a) No person may excavate, remove,

damage or otherwise alter or deface any

archaeological resource located on the

New Lands or Indian lands unless such

activity is pursuant to a permit issued

under § 700.815 or exempted by

§ 700.809(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.

§ 700.809 Permit requirements and

exceptions.

(a) Any person proposing to excavate

and/or remove archaeological resources

from the New 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 § 700.815(a) of this part.

(b) Exceptions: (1) No permit shall be

required under this part for any person

conducting activities on the New Lands

under other permits, leases, licenses, or

entitlements for use, when those

activities are exclusively for purposes

other than the excavation and/or

removal of archaeological resources,

even though those activities might

incidentally result in the disturbance of

archaeological resources. General earthmoving excavation conducted under a

permit or other authorization shall not

be construed to mean excavation and/or

removed 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 of

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 § 700.811.

However, the Federal Land Manager

shall insure that provisions of

§§ 700.815 and 700.817 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 § 700.813.

(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

§§ 700.809(b)(5), 700.813, 700.815(a) (3),

(4), (5), (6), and (7), 700.817, 700.819,

700.823, 700.825(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 the New 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 the New Lands

or Indian lands any activity 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.

§ 700.811 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 the New

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, location maps, and
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35669

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 § 700.815(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 the New

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 Navajo

Nation.

(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, of 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 § 700.811 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 property preserved, and

that the permitted activity would not

conflict with the management of the

New Lands involved. Response to the

information requirement is necessary in

order for an applicant to obtain a

benefit.

§ 700.813 Notification to Indian tribes of

possible harm to, or destruction of, sites on

the New 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 the New

Lands, as determined by the Federal

Land Manager, at least 30 days before

issuing such 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 § 700.817.

(4) When the Federal Land Manager

determines that a permit applied for

under this part must be issued

immediately because of an imminent

threat or 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 the New 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.

§ 700.815 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,
35670 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

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 the permit;

and

(v) Applicants proposing to engage in

historical archaeology should have 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 New 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) of this

section shall be deemed satisfied by the

prior approval.

(5) Written consent has been obtained,

for work proposed on Indian lands, from

the Indian land owner 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 980 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 the New

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

managers shall coordinate the review

and evaluation of applications and the

issuance of permits.

§ 700.817 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 institution 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 the New Lands shall include such

terms and conditions as may have been

developed pursuant to § 700.813.

(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.

§ 700.819 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

of § 700.807. The Federal Land Manager

shall provide written notice to the

permittee of 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 § 700.829 upon the

permittee’s conviction under section 6

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.

§ 700.821 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.

§ 700.823 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, 1996 (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.
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35671

§ 700.825 Custody of archaeological

resources.

(a) Archaeological resources

excavated or removed from public lands

remain the property of the Navajo

Nation.

(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.

§ 700.827 Determination of archaeological

or commercial value and cost of restoration

and repair.

(a) Archaeolgical value. For purposes

of this part, the archaeological value of

any archaeological resource involved in

a violation of the prohibitions in

§ 700.807 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 obtained 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

§ 700.807 of this part or conditions of a

permit issued pursuant to this part shall

be for 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 damages as a result of a

violation or 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.

§ 700.829 Assessment of civil penalties.

(a) The Federal Land Manager may

assess a civil penalty against any person

who has violated any prohibition

contained in § 700.807 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

the 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,

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 Manger 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 § 700.831.

(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 the

following in the notice of assessment.

(1) The facts and conclusions from

which it was determined that a violation

did occur;

(2) The basis in § 700.831 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
35672 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

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 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 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.

§ 700.831 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 § 700.807

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 commercial value of

archaeological resources destroyed or

not recovered.

(2) Where the persons being assessed

a civil penalty has committed any

previous violation of any prohibition in

§ 700.807 or of any term or condition

included in a permit issued pursuant to

this part, the maximum amount of the

penalty shall be doubled the cost of

restoration and repair plus double the

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 the New 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

archaeological resources on the New

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 the New 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.

§ 700.833 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 services in the performance of

their official duties, and persons who

have provided information under

§ 700.831(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 Indiana or Indian tribes.

§ 700.835 Confidentiality of archaeological

resource information.

The Federal Land Manager shall not

make available to the public under

subchapter II of chapter 5 of title 5 of

the United States Code or any other

provision of law, information

concerning the nature and location of

any archaeological resource, with the

following exceptions:

(a) the Federal Land Manager may

make information available, provided
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35673

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.

(b) 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:

(1) The specific archaeological

resource or area about which

information is sought.

(2) The purpose for which the

information is sought; and

(3) The Governor’s written

commitment to adequately protect the

confidentiality of the information.

§ 700.837 Report.

Each Federal Land Manager, when

requested by the Secretary of the

Interior, shall submit such information

as is necessary to enable the Secretary

to comply with section 13 of the Act.

§ 700.839 Permitting procedures for

Navajo Nation lands.

(a) If the lands involved in a permit

application are Indian lands, the

consent of the appropriate Indian tribal

authority or individual Indian

landowner is required by the Act and

the regulations in this subpart.

(b) When Indian tribal lands are

involved in an application for a permit

or a request for extension or

modification of a permit, the consent of

the Indian tribal government must be

obtained. For Indian allotted lands

outside reservation boundaries, consent

from only the individual landowner is

needed. When multiple-owner allotted

lands are involved, consent by more

than 50 percent of the ownership

interest is sufficient. For Indian allotted

lands within reservation boundaries,

consent must be obtained from the

Indian tribal government and the

individual landowner(s).

(c) The applicant should consult with

the Office concerning procedures for

obtaining consent from the appropriate

Indian tribal authorities and submit the

permit application to the Office that is

responsible for the administration of the

lands in question. The Office shall

ensure that consultation with the

appropriate Indian tribal authority or

individual Indian landowner regarding

terms and conditions of the permit

occurs prior to detailed evaluation of

the application. The Indian tribal

authority or individual Indian

landowner shall have 30 days from the

date of receipt of the consultation

request from the Office to respond to

such request. Failure of the Indian tribal

authority or individual Indian

landowner to respond timely to the

consultation request shall be deemed to

be consent to the request. Permits shall

include terms and conditions requested

by the Indian tribe or Indian landowner

pursuant to § 700.817 of this part.

(d) The issuance of a permit under

this part does not remove the

requirement for any other permit

required by Indian tribal law.

Dated: June 25, 1996.

Christopher J. Bavasi,

Executive Director, Office of Navajo and Hopi

Indian Relocation.

[FR Doc. 96–16650 Filed 7–5–96; 8:45 am]

BILLING CODE 6820–BB–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 80

[FRL–5528–6]

General Procedures to Opt Out of the

Reformulated Gasoline Requirements;

Removal of Jefferson County, Albany

and Buffalo, New York; Twenty-eight

Counties in Pennsylvania; and

Hancock and Waldo Counties in Maine

From the Reformulated Gasoline

Program

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: This final rule establishes the

criteria and general procedures for states

to opt out of the federal reformulated

gasoline program for ozone nonattainment areas where the state had

previously voluntarily opted into the

program. This action describes the

petition process a state must follow to

be removed from the program, the

criteria used by EPA to approve a

petition, and the transition period

before the opt-out becomes effective.

This final rule also removes Jefferson

County and the Albany and Buffalo

areas in New York; twenty-eight

counties in Pennsylvania; and Hancock

and Waldo counties in Maine from the

list of covered areas identified in § 80.70

of the reformulated gasoline rule.

Today’s action only applies to opt-out

requests submitted by states prior to

December 31, 1997, unless this final

rule is superseded by another rule

which pertains to new criteria and

general procedures for reformulated

gasoline program opt-outs. The Agency

intends to propose and solicit comments

on separate opt-out procedures for

subsequent requests to opt out of the

reformulated gasoline program.

EFFECTIVE DATE: This final rule is

effective August 7, 1996.

FOR FURTHER INFORMATION CONTACT:

Mark Coryell, U.S. Environmental

Protection Agency Office of Air and

Radiation, 401 M Street, SW (6406J),

Washington, DC 20460, (202) 233–9014.

Also, contact Christine Hawk at (202)

233–9672 or Pat Childers at (202) 233–

9415.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are those which produce, supply

or distribute motor gasoline. Regulated

categories and entities include:

Category Examples of regulated entities

Industry ....... Petroleum refiners, motor gasoline distributors and retailers.

State governments.State departments of environmental protection.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

business is regulated by this action, you

should carefully examine the list of

areas covered by the reformulated

gasoline program in § 80.70 of title 40 of

the Code of Federal Regulations. If you

have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

A copy of this action is available on

the OAQPS Technology Transfer

Network Bulletin Board System

(TTNBBS). The TTNBBS can be

accessed with a dial-in phone line and

a high-speed modem (PH# 919–541–

5742). The parity of your modem should

be set to none, the data bits to 8, and

the stop bits to 1. Either a 1200, 2400,

9600, 24.4K, or 48.8K baud modem

should be used. When first signing on,

the user will be required to answer some

basic informational questions for

registration purposes. After completing

the registration process, proceed

through the following series of menus:

(M) OMS.

(K) Rulemaking and Reporting.

(3) Fuels.

(9) Reformulated gasoline.