2016-11688. Protection of Archaeological Resources

AGENCY:

Tennessee Valley Authority.

ACTION:

Proposed rule.

SUMMARY:

The Tennessee Valley Authority (TVA) proposes to amend its regulations for the protection of archaeological resources by providing for the issuance of petty offense citations for violations of the Archaeological Resources Protection Act (ARPA) and the Antiquities Act of 1906 (AA). Amending the regulations such that TVA law enforcement agents are authorized to issue citations will help prevent loss and destruction of these resources resulting from unlawful excavations and pillage.

DATES:

Written comments must be received on or before June 20, 2016.

ADDRESSES:

You may submit comments by any of the following methods:

• Mail/Hand Delivery: Ralph E. Majors, Supervisor, Investigation Unit, TVA Police & Emergency Management, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 2D-K, Knoxville, Tennessee 37902-1401.
• Email: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Ralph E. Majors, 865-632-4176.

SUPPLEMENTARY INFORMATION:

I. Legal Authority

These proposed amendments are promulgated under the authority of the TVA Act, as amended, 16 U.S.C. 831-831ee, the Archaeological Resources Protection Act, 16 U.S.C. 470aa-470mm, and the Antiquities Act of 1906, 16 U.S.C.431, 432 & 433.

II. Background and Proposed Amendments

This proposed rule amends TVA's regulations implementing the Archaeological Resources Protection Act of 1979 (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) to provide for the issuance of petty offense citations by TVA's law enforcement agents for violations of ARPA or AA.

Section 10(a) of ARPA requires the Departments of Interior, Agriculture and Defense and the Tennessee Valley Authority to promulgate such uniform rules and regulations as may be necessary to carry out the purposes of ARPA. 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.” 16 U.S.C. 470aa(b). The uniform regulations for ARPA originally were published on January 6, 1984 to implement the Act of 1979. The uniform regulations were then revised on January 26, 1995 to incorporate the amendments to ARPA promulgated by Congress in 1988.

Section 10(b) of ARPA requires each Federal land manager (FLM) to promulgate such regulations, consistent with the uniform regulations under Section 10(a), as may be appropriate for the carrying out of the FLM's functions and authorities under the Act. Thus, Section 10(b) allows individual Federal agencies to tailor the uniform regulations to suit their own particular needs with a view to effectively implementing the authorities under the Act. TVA has adopted the uniform regulations as its own. See 18 CFR part 1312 (1984 and 1995). This proposed rule amends TVA's ARPA regulations by enabling TVA's law enforcement agents to issue petty offense citations for violations of ARPA ^[1] or AA ^[2] occurring on lands owned by the United States that are entrusted to TVA.^[3] The issuance of such petty offense citations would be consistent with the authority granted to TVA's law enforcement agents under the TVA Act, and advance the effective prosecution of violations of ARPA and AA.

Under the TVA Act, the TVA Board of Directors “may designate employees of the Corporation to act as law enforcement agents” to “make arrests without warrant for any offense against the United States committed in the agent's presence” that occurs “on any lands or facilities owned or leased by the Corporation.” See 16 U.S.C. 831c-3. Based on this authority, the proposed rule amends TVA's regulations for protection of archaeological resources to authorize certain TVA law enforcement agents to issue petty offense citations for the violation of any provision of 16 U.S.C. 470ee or 16 U.S.C. 433. Those TVA law enforcement agents that are designated by the Director of TVA Police and Emergency Management for the purpose of conducting archaeological investigations shall have the authority to issue petty offense citations for ARPA or AA violations committed in the agent's presence on lands owned by the United States that are entrusted to TVA. For any such petty offense committed on lands entrusted to TVA, the citation may be issued at the site of the offense, or on non-TVA land (a) when the person committing the offense is in the process of fleeing the site of the offense to avoid arrest, or (b) to protect the archaeological artifacts involved in the commission of the offense.^[4] The citation will require the person charged with the violation to appear before a United States Magistrate Judge within whose jurisdiction the affected archaeological resource is located.^[5]

III. Administrative Requirements

A. Unfunded Mandates Reform Act and Various Executive Orders Including E.O. 12866, Regulatory Planning and Review; E.O. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations; E.O. 13045, Protection of Children From Environmental Health Risks; E.O. 13132, Federalism; E.O. 13175, Consultation and Coordination With Indian Tribal Governments; and E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, and Use; E.O. 12988, Civil Justice Reform Act

This proposal would amend TVA's regulations for the protection of archaeological resources by providing for issuance of petty offense citations by TVA's law enforcement agents for violations of ARPA or AA. This proposal is not subject to Office of Management and Budget Review under Executive Order 12866. The proposal contains no Federal mandates for State, local, or tribal government or for the private sector. TVA has determined that these proposed amendments will not have a significant annual effect of $100 million or more or result in expenditures of $100 million in any one year by State, local, or tribal governments or by the private sector. Nor will the proposal have concerns for environmental health or safety risks that may disproportionately affect children, have significant effect on the supply, distribution, or use of energy, or disproportionally impact low-income or minority populations. Accordingly, the proposal has no implications for any of the referenced authorities. TVA will continue to appropriately review specific requests in accordance with applicable laws, regulations, and Executive Orders.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., TVA is required to prepare a regulatory flexibility analysis unless the head of the agency certifies that the proposal will not have a significant economic impact on a substantial number of small entities. TVA's Chief Executive Officer has certified that this proposal will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. This determination is based on the finding that the proposed amendments are directed toward Federal resource management to help prevent loss or destruction of archaeological resources, with no economic impact on the public.

C. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act.

List of Subjects in 18 CFR Part 1312

• Administrative practice and procedure
• Historic Preservation
• Indians—lands
• Penalties
• Public lands
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, we propose to amend 18 CFR part 1312 as follows:

PART 1312—PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM REGULATIONS

1. The authority citation for part 1312 is revised to read as follows:

Authority: Pub. L. 96-95, 93 Stat. 721, amended, 102 Stat. 2983 (16 U.S.C. 470aa-mm)(Sec. 10(a) &(b)); Tennessee Valley Authority Act of 1933, as amended, 16 U.S.C. 831-831ee (2012). 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. Amend § 1312.1 by adding a sentence at the end of paragraph (a) to read as follows:

§ 1312.1

Purpose

(a) * * * These regulations also enable TVA's law enforcement agents to issue petty offense citations for violations of any provision of 16 U.S.C. 470ee or 16 U.S.C. 433.

* * * * *

3. Amend § 1312.2 by adding paragraph (c) to read as follows:

§ 1312.2

Authority

(c) Provisions pertaining to the issuance of petty offense citations are based on the duties and powers assigned to TVA's law enforcement agents under 16 U.S.C. 831-831ee.

4. Amend § 1312.3 by adding paragraph (j) to read as follows:

§ 1312.3

Definitions

(j) “Director” means the Director of TVA Police and Emergency Management assigned the function and responsibility of supervising TVA employees designated as law enforcement agents under 16 U.S.C. 831c-3(a).

5. Add § 1312.22, shown below, to Part 1312 to read as follows:

§ 1312.22

Issuance of Citations for Petty Offenses

Any person who violates any provision contained in 16 U.S.C. 470ee or 16 U.S.C. 433 in the presence of a TVA law enforcement agent may be tried and sentenced in accordance with the provisions of section 3401 of Title 18, United States Code. Law enforcement agents designated by the Director for that purpose shall have the authority to issue a petty offense citation for any such violation, requiring any person charged with the violation to appear before a United States Magistrate Judge within whose jurisdiction the archaeological resource impacted by the violation is located. The term “petty offense” has the same meaning given that term under section 19 of Title 8, United States Code.

Dated: May 10, 2016.

Rebecca C. Tolene,

Deputy General Counsel and Vice President, Natural Resources.

Footnotes

1.  The prohibitions under ARPA are set out in Sections 6(a), 6(b) and 6(c) of the Act. See 16 U.S.C. 470ee(a), (b) & (c). Any violation of these prohibitions is subject to the criminal sanctions prescribed in Section 6(d). See 16 U.S.C. 470ee(d). TVA's regulations implementing ARPA replicate these prohibitions and criminal sanctions. See 18 CFR 1312.4.

2.  The AA prohibits, among other things, the excavation, destruction or appropriation of an object of antiquity situated on federal lands without the permission of the head of the agency having jurisdiction over those lands. See 16 U.S.C. 433. Any violation of these provisions is subject to criminal sanctions. Id.

3.  Under Section 21(a) of the TVA Act, “[a]ll general penal statutes relating to larceny, embezzlement, conversion, or to the improper handling, retention, use or disposal of—property of the United States, shall apply to the—property of the Corporation and to—properties of the United States entrusted to the Corporation.” 16 U.S.C. 831t(a) (emphasis added).

4.  See 16 U.S.C. 831c-3(c)(2) (authorizing TVA's law enforcement agents to exercise their law enforcement duties and powers on non-TVA lands (1) when the person to be arrested is in the process of fleeing to avoid arrest or (2) in conjunction with the protection of TVA property.)

5.  Section 3401 of Title 18, United States Code, provides that “any United States magistrate judge shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors committed within that judicial district.” 18 U.S.C. 3401(a).