[Federal Register Volume 62, Number 125 (Monday, June 30, 1997)]
[Rules and Regulations]
[Pages 35077-35085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16857]
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OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION
25 CFR Part 700
Protection of Archaeological Resources
AGENCY: Office of Navajo and Hopi Indian Relocation.
ACTION: Final rule.
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SUMMARY: This final 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. which have been acquired pursuant to Pub. L. 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.
EFFECTIVE DATE: June 30, 1997.
FOR FURTHER INFORMATION CONTACT:
Paul Tessler (Legal Counsel), Office of Navajo and Hopi Indian
Relocation at 520-779-8953.
SUPPLEMENTARY INFORMATION: On July 8, 1996, the O.N.H.I.R. published
its Interim Final Rule with comment period for establishing procedures
for implementing provisions of the Archaeological Resources Protection
Act of 1979, (16 U.S.C. 470-aa-11) for lands which are administered by
the O.N.H.I.R. The O.N.H.I.R. received written comments on the Interim
Final Rule from the President of the Navajo National and the Historic
Preservation Department of the Navajo Nation. In reviewing the comments
received, the O.N.H.I.R. considered both comments to be those of the
Navajo Nation. The O.N.H.I.R. has considered all comments received and
responds to these comments as stated below:
Section 700.805(a)(3)(i). Comment was received that this section
should be changed to include shrines and offering sites. This comment
was not accepted because this section is considered to already include
shrines and offering sites
Section 700.805(a)(5). Comment was received that this section
should be amended to include a provision that requires notification of
the Navajo Nation and an opportunity to object, before the Federal
Lands Manager makes a determination allowing materials to be excluded
from protection. This section was amended to require that the Federal
Land Manager consult with the Navajo Nation to obtain concurrence
before making a determination allowing material remains to be excluded
from protection. Comment was also received that this section specifies
that material remains otherwise meeting the definition of
archaeological resources can be determined not be archaeological
resources ``under special circumstances.'' The comment further
indicated that these special circumstances are not delineated in the
regulation. This comment was adopted by adding Sec. 700.841,
Determination of Loss or Absence of Archaeological Interest.
Section 805(e). Comment was received that the definition of ``New
Lands'' and ``public lands'' are inconsistent. This comment was adopted
and in all instances the ``New Lands'' have been defined consistently.
The O.N.H.I.R. also made it clear that the consent of the Navajo is
required for all permits.
Section 700.815. Comment was received, without citing a specific
section, suggesting that the Navajo Nation should be informed of all
requests for permits and be allowed to deny these permits. This comment
was already covered in Sec. 700.815(a)(5) which requires the consent of
the Navajo Nation prior to issuance of a permit.
Section 700.827(a). Comment was received, without citing a specific
section, from the Navajo Nation that the regulations should require all
archaeological resources removed from the New Lands be properly stored
and safe guarded and that such resources be returned to the Navajo
Nation upon request, once the Navajo Nation has established its own
museum or
[[Page 35078]]
repository. This comment is already covered by Sec. 700.827, and an
agreement for curation with the Museum of Northern Arizona under which
the Navajo Nation can ask for return of the archaeological resources.
Section 700.829(7). Comment was received that this section be
changed to include the Navajo Nation as a potential ``affected person''
and be afforded appropriate administrative recourse if for example, the
O.N.H.I.R. issued a permit without written tribal consent or denied a
permit to non-tribal entities supported by the Navajo Nation. This
comment was adopted. Section 700.821 to spell the appeal process.
Additionally, since permits cannot be issued without the written
consent of the Navajo Nation, it is not possible for O.N.H.I.R. to
issue permits without such consent.
Comment was also received suggesting that this section was also
inconsistent with the provisions of the Native American Graves
Protection and Repatriation Act (the NAGPRA, Pub. L. 101-601, Nov. 16,
1990). This comment was adopted to ensure the reinterment of human
remains in accordance with the Native American Graves Protection and
Repatriation Act.
Section 700.835. Comment was received from the Navajo Nation that
this section should be deleted because it allows for governors of the
states of Arizona and New Mexico to request information about
archaeological sites on the New Lands because the New Lands are part of
the Navajo Nation. The comment further states that if either state
wants to receive information about archaeological sites on tribal
lands, they should ask the Navajo Nation. This section was changed to
require the concurrence of the Navajo Nation before making information
available when the governor of any state has submitted a written
request for information concerning archaeological resources within the
requesting governor's state.
Preamble
The primary author of this document is Paul Tessler, Legal Counsel,
Office of Navajo and Hopi Indian Relocation, Flagstaff, Arizona.
It has been determined that this final rule is not a major rule as
that term is defined in Executive Order 12291, because it will have as
limited economic impact on a small number of people and does not
require regulatory analysis. It has been determined that the final rule
will not have a significant impact on a substantial number of small
entities within the meaning of Regulatory Flexibility Act, 5 U.S.C. 601
et seq.
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment under the National
Environmental Policy Act of 1969.
This rule does not contain information collection requirements
which require approval of the Office of Management and Budget under 44
U.S.C. 3501 et seq.
List of Subjects in CFR Part 700
Administrative practice and procedure, Conflict of Interest,
Freedom of Information, Grant program--Indians, Indian claims, Privacy,
Protection of Archaeological Resources, Real property acquisition,
Relocation Assistance and New Lands Administration.
Accordingly, 25 CFR Part 700 is amended as follows:
PART 700--[AMENDED]
1. Authority citation for part 700 continues to read as follows:
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. By revising Subpart R, Protection of Archaeological Resources,
to read as follows:
Subpart R--Protection of Archaeological Resources
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 of Indian Tribes of possible harm to, or
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 Permit reviews and disputes.
700.825 Relationship to section 106 of the National Historic
Preservation Act.
700.827 Custody of Archaeological resources.
700.829 Determination of archaeological or commercial value and
cost of restoration and repair.
700.831 Assessment of civil penalties.
700.833 Civil penalty amounts.
700.835 Other penalties and rewards.
700.837 Confidentiality of archaeological resource information.
700.839 Report.
700.841 Determination of loss or absence of archaeological
interest.
700.843 Permitting procedures for Navajo nation Lands.
Supbart R--Protection of Archaeological Resources
Sec. 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.
Sec. 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.
Sec. 700.805 Definitions.
As used for purposes of this part:
(a) Act means the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470-aa-11).
(b) 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.
[[Page 35079]]
(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 glasseware, bone, ivory, shell, metal, wood,
hide, feathers, pigments, and flaked ground or pecked stone);
(iv) By products, waste products, or debris resulting from
manufacture or use of human-made or natural materials;
(v) Organic waste (including, but not limited to vegetal and animal
remains, coprolites);
(vi) Human remains (including, but not limited to, bone, teeth,
mummified flesh, burials, cremations);
(vii) Rock carvings, rock paintings, intaglios, and other works of
artistic or symbolic representation;
(viii) Rockshelters and caves or portions thereof containing any of
the above material remains 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 any 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. Prior to making
a determination that material remains are not or are no longer
archaeological resources, the Federal Land Manager shall consult with
the Navajo Nation to obtain their concurrences.
(c) Arrowhead means any projectile point which appears to have been
designed for use with an arrow.
(d) 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.
(e) 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, including persons to whom such
management authority has been officially delegated.
(f) Indian tribe or Tribe means the Navajo Nation.
(g) New Lands means the land acquired for the use of relocatees
under the authority of Pub. L. 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.
(h) Office means the Office of Navajo and Hopi Indian Relocation.
(i) 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.
(j) State means any of the fifty states, the District of Columbia,
Puerto Rico, Guam, and the Virgin Islands.
(k) Tribe means the Navajo Nation.
Sec. 700.807 Prohibited Acts.
(a) No person may excavate, remove, damage or otherwise alter or
deface any archaeological resource located on the New Lands unless such
activity is pursuant to a permit issued under Sec. 700.815 or exempted
by Sec. 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.
Sec. 700.809 Permit requirements and exceptions.
(a) Any person proposing to excavate and/or remove archaeological
resources from the New Lands, and to carry out activities associated
with such excavation and/or removal, shall apply to the Federal Land
Manager for a permit for the proposed work, and shall not begin the
proposed work until a permit has been issued. The Federal Land Manager
may issue a permit to any qualified person, subject to appropriate
terms and conditions, provided that the person applying for a permit
meets conditions in Sec. 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 earth-moving excavation conducted under a permit or other
authorization shall not be construed to mean excavation and/or removal
as used in this part. This exception does not, however, affect the
Federal Land Manager's responsibility to comply with other authorities
which protect archaeological resources prior to approving permits,
leases, licenses or entitlements for use; any excavation and/or removal
of archaeological resources required for compliance with those
authorities shall be conducted in accordance with the permit
requirements of this part.
(2) No permit shall be required under this part for any person
collecting for
[[Page 35080]]
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 the Navajo Nation or member thereof of any archaeological
resource located on the New Lands, except that in the absence of tribal
law regulating the excavation or removal of archaeological resources,
an individual tribal member shall be required to obtain a permit under
this part;
(4) No permit shall be required under this part for any person to
carry out any archaeological activity authorized by a permit issued
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the
enactment of the Archaeological Resources Protection Act of 1979. Such
permit shall remain in effect according to its terms and conditions
until expiration.
(5) No permit shall be required under section 3 of the Act of June
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit
is issued under this part.
(c) Persons carrying out official agency duties under the Federal
Land Manager's direction, associated with the management of
archaeological resources, need not follow the permit application
procedures of Sec. 700.811. However, the Federal Land Manager shall
insure that provisions of Secs. 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.
(d) Upon the written request of the Governor of any State, on
behalf of the State or its educational institutions, the Federal Land
Manager with the concurrence of the Navajo Nation, shall issue a
permit, subject to the provisions of Secs. 700.809(b)(5), 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, authorizations may be
required for activities which do not require a permit under this part.
Any person wishing to conduct on the New 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.
Sec. 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 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 proposed outlet for public written dissemination of
the results.
(2) The name and address of the individual(s) proposed to be
responsible for conducting the work, institutional affiliation, if any,
and evidence of education, training and experience in accord with the
minimal qualifications listed in Sec. 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 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 purpose of the information
collection under Sec. 700.811 is to meet statutory and administrative
requirements in the public interest. The information will be used to
assist Federal land managers in determining that applicants for permits
are qualified, that the work proposed would further archaeological
knowledge, that archaeological resources and associated records and
data will be properly preserved, and that the permitted activity would
not conflict with the management of the New Lands involved. Response to
the information requirement is necessary in order for an applicant to
obtain a benefit.
Sec. 700.813 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural
importance.
(a) If the issuance of a permit under this part may result in harm
to, or destruction of, any Indian tribal religious or cultural site on
public lands, as determined by the Federal land manager, at least 30
days before issuing such permit the Federal land manager shall notify
any Indian tribe which may consider the site as having religious or
cultural importance. Such notice shall not be deemed a disclosure to
the public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be
sent to the chief executive officer or other designated official of the
tribe. Indian tribes are encouraged to designate a tribal official to
be the focal point for any notification and discussion between the
tribe and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native
American group that is known by the Federal land manager to consider
sites potentially affected as being of religious or cultural
importance.
(3) Upon request during the 30-day period, the Federal land manager
may meet with official representatives of any Indian tribe or group to
discuss their interests, including ways to avoid or mitigate potential
harm or destruction such as excluding sites from the permit area. Any
mitigation measures which are adopted shall be incorporated into the
terms and conditions of the permit under Sec. 700.817.
[[Page 35081]]
(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 public lands under the Federal land
manager's jurisdiction, the Federal land manager may seek to
communicate with official representatives of that group to obtain
information on sites they may consider to be of religious or cultural
importance.
(3) The Federal land manager may enter into agreement with any
Indian tribe or other Native American group for determining locations
for which such tribe or group wishes to receive notice under this
section.
Sec. 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, 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
archaelogoical 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
New Lands;
(4) Where the proposed work consists of archaeological survey and/
or data recovery undertaken in accordance with other approved uses of
the New 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 the New
Lands, from the Indian land owner and the Navajo Nation which is the
Indian Tribe having jurisdiction.
(6) Evidence is submitted to the Federal Land Manager that any
university, museum, or other scientific or educational institution
proposed in the application as the repository possesses adequate
curatorial capability for safeguarding and preserving the
archaeological resources and all associated records; and
(7) The applicant has certified that, not later than 90 days after
the date the final report is submitted to the Federal Land Manger, 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.
(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.
Sec. 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 the New Lands such terms and conditions as may
be requested by the Indian landowner and the Navajo Nation.
(d) Initiation of work or other activities under the authority of a
permit signifies the permittee's acceptance of the terms and conditions
of the permit.
(e) The permittee shall not be released from requirements of a
permit until all outstanding obligations have been satisfied, whether
or not the term of the permit has expired.
(f) The permittee may request that the Federal Land Manager extend
or modify a permit.
(g) The permittee's performance under any permit issued for a
period greater than 1 year shall be subject to review by the Federal
Land Manager, at least annually.
Sec. 700.819 Suspension and Revocation of Permits.
(a) Suspension or revocation for cause. (1) The Federal Land
Manager
[[Page 35082]]
may suspend a permit issued pursuant to this part upon determining that
the permittee has failed to meet any of the terms and conditions of the
permit or has violated any prohibition of the Act or Sec. 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 Sec. 700.831 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.
Sec. 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.
Sec. 700.823 Permit reviews and disputes.
(a) Any affected person disputing the decision of the Federal Land
Manager with respect to the issuance or denial of a permit, the
inclusion of specific terms and conditions in a permit, or the
modification, suspension, or revocation or a permit may request the
Federal Land Manager to review the disputed decision and may request a
conference to discuss the decision and its basis.
(b) Any disputant unsatisfied with the higher level review, and
desiring to appeal the decision, pursuant to Sec. 700.821 of this part,
should consult with the Federal Land Manager regarding the existence of
published appeal procedures. In the absence of published appeal
procedures, the review by the head of the Office will constitute the
final decision.
(c) Any affected person may request a review by the Department of
Interior Consulting Archaeologist of any professional issues involved
in a permitting decision, such as professional qualifications, research
design, or other professional archaeological matters. The Departmental
Consulting Archaeologist shall make a final professional recommendation
to the head of the Office. The head of the Office will consider the
recommendation, but may reject it, in whole or in part, for good cause.
This request should be in writing and should state the reasons for the
request.
Sec. 700.825 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.
Sec. 700.827 Custody of Archaeological resources.
(a) Archaeological resources excavated or removed from the New
Lands remain the property of the Navajo Nation.
(b) [Reserved]
Sec. 700.829 Determination of archaeological or commercial value and
cost of restoration and repair.
(a) Archaeological value. For purposes of this part, the
archaeological value of any archaeological resource involved in a
violation of the prohibitions in Sec. 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 filed work, carrying
out laboratory analysis, and preparing reports as would be necessary to
realize the information potential.
(b) Commercial value. For purposes of this part, the commercial
value of any archaeological resource involved in a violation of the
prohibitions in Sec. 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 Pub. L. 101-
601, the Native American Grave Protection and Repatriation Act.
(8) Preparation of reports relating to any of the above activities.
Sec. 700.831 Assessment of civil penalties.
(a) The Federal Land Manager may assess a civil penalty against any
person who has violated any prohibition contained in Sec. 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
[[Page 35083]]
(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 Manger'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 or informal discussions, whichever is later.
(2) The Federal Land Manager shall take into consideration all
available information, including information provided pursuant to
paragraphs (c) and (d) of this section or furnished upon further
request by the Federal Land Manager.
(3) If the facts warrant a conclusion that no violation has
occurred, the Federal Land Manager shall so notify the person served
with a notice of violation, and no penalty shall be assessed.
(4) Where the facts warrant a conclusion that a violation has
occurred, the Federal Land Manager shall determine a penalty amount in
accordance with Sec. 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 Sec. 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 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 of 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 of the penalty
assessed, unless a timely request for appeal has been filed with a U.S.
District Court, as provided in section 7(b)(1) of the Act.
(2) Upon failure to pay the penalty, the Federal Land Manager may
request the Attorney General to institute a civil action to collect the
penalty in a U.S. District Court for any district in which the person
assessed a civil penalty is found, resides, or transacts business.
Where the Federal Land Manager is not represented by the Attorney
General, a civil action may be initiated directly by the Federal Land
Manager.
(j) Other remedies not waived. Assessment of a penalty under this
section shall not be deemed a waiver of the right to pursue other
available legal or administrative remedies.
Sec. 700.833 Civil penalty amounts.
(a) Maximum amount of penalty. (1) Where the person being assessed
a civil penalty has not committed any previous violation of any
prohibition in Sec. 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 person being assessed a civil penalty has committed
any previous violation of any prohibition in Sec. 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 double 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 penalty amount and/or a proposal to mitigate
or remit the penalty may be based upon any of the following factors.
[[Page 35084]]
(i) Agreement by the person being assessed a civil penalty to
return to the Federal Land Manager and ultimately to the Navajo Nation
archaeological resources removed from the New 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.
(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) The Federal Land Manager shall consult with and consider the
interests of the Navajo Nation prior to proposing to mitigate or remit
the penalty.
Sec. 700.835 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 tribal government who furnish information or render services
in the performance of their official duties, and persons who have
provided information under Sec. 700.833(b)(1)(iii) shall not be
certified eligible to receive payment of rewards.
(c) All civil penalty monies and any item forfeited under the
provisions of this section shall be transferred to the Navajo Nation.
Sec. 700.837 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 provisions 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 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) With the concurrence of the Navajo Nation, 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.
Sec. 700.839 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.
Sec. 700.841 Determination of loss or absence of archaeological
interest.
(a) Under certain circumstances, a Federal land manager may
determine, pursuant to Sec. 700.805(a)(5) of this part, that certain
material remains are not or are no longer of archaeological interest,
and therefore not to be considered archaeological resources under this
part.
(b) The Federal land manager may make such a determination if he/
she finds that the material remains are not capable of providing
scientific or humanistic understandings of past human behavior,
cultural adaptation, and related topics.
(c) Prior to making a determination that material remains are not
or are no longer archaeological resources, the Federal land manager
shall ensure that the following procedures are completed.
(1) A professional archaeological evaluation of material remains
and similar materials within the area under consideration shall be
completed, consistent with the Secretary of Interior's Standards and
Guidelines for Archaeology and Historic Preservation and with the 36
CFR Parts 60, 63, and 65.
(2) The principal Office archaeologist or, in the absence of a
principal Office archaeologist, the Office Consulting Archaeologist,
shall establish whether the material remains under consideration
contribute to scientific or humanistic understandings of past human
behavior, cultural adaption and related topics. The principal Office
archaeologist or the Office Consulting Archaeologist, as appropriate,
shall make a recommendation to the Federal land manager concerning
these material remains.
(d) The Federal land manager shall make the determination based
upon the facts established by and the recommendation of the principal
Office archaeologist or the Office Consulting Archaeologist, as
appropriate, and shall fully document the basis therefor, including
consultation with Indian tribes for determinations regarding sites of
religious or cultural importance.
(e) The Federal land manger shall make public notice of the
determination and its limitations, including any permitting
requirements, for activities associated with the materials determined
not to be archaeological resources for the purposes of this part.
(f) Any interested individual may request in writing that the
Office Consulting Archaeologist review any final determination by the
Federal land manager that certain remains are not, or are no longer,
archaeological resources. Two (2) copies of the request should be sent
to the Office Consulting Archaeologist, care of Land Use Manager,
Office of Navajo and Hopi Indian Relocation, PO Box KK, Flagstaff, AZ
86002, and should document why the requestor disagrees with the
determination of the Federal land manger. The Office Consulting
Archaeologist shall review the request, and, if appropriate, shall
review the Federal land manager's determination and its supporting
documentation. Based upon this review, the Departmental Consulting
Archaeologist shall prepare a final professional recommendation, and
shall transmit the recommendation and the basis therefor to the head of
the bureau for further consideration within 60 days of the receipt of
the request.
(g) Any determination made pursuant to this section shall in no way
affect the Federal land manager's obligation under other applicable
laws or regulations.
[[Page 35085]]
Sec. 700.843 Permitting procedures for Navajo Nation Lands.
(a) Pursuant to the Act and this Subpart, the written consent of
the Navajo Nation is required. Written consent shall consist of a
Navajo Nation permit issued in accordance with the Navajo Nation Code
or a resolution of the Navajo Nation Council or delegated committee of
that Council.
(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 Navajo Nation 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. The Office
shall ensure that consultation with the Navajo Nation or individual
Indian landowner regarding terms and conditions of the permit occurs
prior to detailed evaluation of the application. Permits shall include
terms and conditions requested by the Navajo Nation or Indian landowner
pursuant to Sec. 700.817 of this part.
(d) The issuance of a permit under this part does not remove the
requirement for any other permit by Indian tribal law.
Dated: June 23, 1997.
Christopher J. Bavasi,
Executive Director, Office of Navajo and Hopi Indian Relocation.
[FR Doc. 97-16857 Filed 6-27-97; 8:45 am]
BILLING CODE 7560-01-M
