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(1) 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.

(8) State means any of the fifty states, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.

(h) Act means the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-11.), as amended.

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(1x) All portions of shipwrecks (including but not limited to, armaments, apparel, tackle, cargo);

(x) Any portion or piece of any of the foregoing.

(4) The following material remains shall not be considered of archaeological interest, and shall not be considered to be archaeological resources for purposes of the Act and this part, unless found in a direct physical relationship with archaeological resources as defined in this section:

(i) Paleontological remains;

(ii) Coins, bullets, and unworked minerals and rocks.

(5) The Commissioner may determine that certain material remains, in specified areas under the Commissioner's jurisdiction, and under specified circumstances, are not or are no longer of archaeological interest and are not to be considered archaeological resources under this part. Any determination made pursuant to this subparagraph shall be documented. Such Determination shall in no way affect the Commissioner'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 head of the United States Section, International Boundary and Water Commission, United States and Mexico, and his delegate.

(d) Public lands means lands to which the United States of America holds fee title, and which are under the control of the U.S. Section, International Boundary and Water Commission, United States and Mexico.

(e) Indian tribe as defined in the Act means any Indian tribe, band, nation, or other organized group or community. In order to clarify this statutory definition for purposes of this part, Indian tribe means:

(1) Any tribal entity which is included in the annual list of recognized tribes published in the FEDERAL REGISTER by the Secretary of the Interior pursuant to 25 CFR part 54;

(2) Any other tribal entity acknowledged by the Secretary of the Interior pursuant to 25 CFR part 54 since the most recent publication of the annual list;

$ 1104.3 Prohibited acts.

(a) No person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands unless such activity is pursuant to a permit issued under $ 1104.7 or exempted by $1104.4(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. $ 1104.4 Permit requirements and ex

ceptions. (a) Any person proposing to excavate and/or remove archaeological resources from public lands, and to carry out activities associated with such vation and/or removal, shall apply to the Commissioner for a permit for the proposed work, and shall not begin the proposed work until a permit has been issued. The Commissioner 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 $1104.7(a) of this part.

(b) Exceptions:

(1) No permit shall be required under this part for any person conducting activities on the public lands under other permits, leases, licenses, or entitlements for use, when those activities are exclusively for purposes other than the excavation and/or removal of archaeological resources, even though

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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 conT} strued to mean excavation and/or reT moval as used in this part. This excep

tion does not, however, affect the Commissioner's responsibility to comply with other authorities which protect

archaeological resources prior to api proving permits, leases, licenses, or en

titlements 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 de private purposes any rock, coin, bullet,

or mineral which is not an archaeologi

cal resource as defined in this part, ng provided that such collecting does not

result in disturbance of any archaemiological resource.

(3) 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

guarding and preserving any materials and data collected in a university, museum, or other scientific or educational institution approved by the Commissioner.

(e) Under other statutory, regulatory, or administrative auth rities governing the use of public lands, authorizations may be required for activities which do not require a permit under this part. Any person wishing to conduct on public lands any activities related to but believed to fall outside the scope of this part should consult with the Commissioner, for the purpose of determining whether any authorization is required, prior to beginning such activities.

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(c) Persons carrying out official agency duties under the Commissioner's direction, associated with the management of archaeological sources, need not follow the permit application procedures of $1104.5. However, the Commissioner shall insure that provisions of $$ 1104.7 and 1104.8 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 Commissioner, have been the subject of consideration under $1104.6.

(d) Upon the written request of the Governor of any State, on behalf of the State or its educational institutions, the Commissioner shall issue a permit, subject to the provisions of $$ 1104.4(b)(5), 1104.6, 1104.7(a) (3), (4), (5), (6), and (7), 1104.8, 1104.9, 1104.11, and 1104.12(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 safe

$ 1104.5 Application for permits and

information collection. (a) Any person may apply to the Commissioner for a permit to excavate and/or remove archaeological resources from public lands and to carry out activities associated with such excavation and/or removal.

(b) Each application for a permit shall include:

(1) The nature and extent of the work proposed, including how and why it is proposed to be conducted, proposed time of performance, locational maps, and proposed outlet for public written dissemination of the results.

(2) The name and address of the individual(s) proposed to be responsible for conducting the work, institutional affiliation, if any, and evidence of education, training, and experience in accord with the minimal qualifications listed in $1104.7(a).

(3) The name and address of the individual(s), if different from the individual(s) named in paragraph (b)(2) of this section, proposed to be responsible for carrying out the terms and conditions of the permit.

(4) Evidence of the applicant's ability to initiate, conduct, and complete the proposed work, including evidence of logistical support and laboratory facilities.

(5) Where the application is for the excavation and/or removal of archaeological resources on public lands, the names of the university, museum, or other scientific or educational institution in which the applicant proposes to store all collections, and copies of records, data, photographs, and other documents derived from the proposed work. Applicants shall submit written certification, signed by an authorized official of the institution, of willingness to assume curatorial responsibility for the collections, records, data, photographs and other documents and to safeguard and preserve these materials as property of the United States.

(c) The Commissioner 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 $1104.5 of these regulations has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 10240037. The purpose of the information collection is to meet statutory and administrative requirements in the public interest. The information will be used to assist the Commissioner in determining that applicants for permits are qualified, that the work proposed would further archaeological knowledge, that archaeological resources and associated records and data will be properly preserved, and that the permitted activity would not conflict with the management of the public lands involved. Response to the information requirement is necessary in order for an applicant to obtain a benefit.

ignated 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 Commissioner.

(2) The Commissioner may provide notice to any other Native American group that is known by the Commissioner to consider sites potentially affected as being of religious or cultural importance.

(3) Upon request during the 30-day period, the Commissioner 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 $1104.8.

(4) When the Commissioner determines that a permit applied for under this part must be issued immediately because of an imminent threat of loss or destruction of an archaeological resource, the Commissioner shall so notify the appropriate tribe.

(b)(1) In order to identify sites of religious or cultural importance, the Commissioner shall seek to identify all Indian tribes having aboriginal or historic ties to the lands under the Commissioner'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 site 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 Commissioner 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 Commissioner's jurisdiction, the Commissioner 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.

81104.6 Notification to Indian tribes of

possible harm to, or destruction of, sites on public lands having reli

gious 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 Commissioner, at least 30 days before issuing such a permit the Commissioner 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 Commissioner to any Indian tribe shall be sent to the chief executive officer or other des

(3) The Commissioner may enter into or requirements applicable to the managreement with any Indian tribe or agement of the public lands concerned; other Native American group for deter- (4) Where the proposed work consists mining locations for which such tribe of archaeological survey and/or data reor group wishes to receive notice under covery undertaken in accordance with this section.

other approved uses of the public lands,

and the proposed work has been agreed $1104.7 Issuance of permits.

to in writing by the Commissioner pur(a) The Commissioner may issue a suant to section 106 of the National permit, for a specified period of time Historic Preservation Act (16 U.S.C. appropriate to the work to be con- 470f), paragraphs (a)(2) and (a)(3) of this ducted, upon determining that:

section shall be deemed satisfied by the (1) The applicant is appropriately prior approval; qualified, as evidenced by training, (5) Evidence is submitted to the Comeducation, and/or experience, and pos- missioner that any university, musesses demonstrable competence in ar- seum, or other scientific or educational chaeological theory and methods, and institution proposed in the application in collecting, handling, analyzing, as the repository possesses adequate evaluating, and reporting archaeologi- curatorial capability for safeguarding cal data, relative to the type and scope and preserving the archaeological reof the work proposed, and also meets sources and all associated records; and the following minimum qualifications: (6) The applicant has certified that,

(1) A graduate degree in anthropology not later than 90 days after the date or archaeology, or equivalent training the final report is submitted to the and experience;

Commissioner, the following will be de(11) The demonstrated ability to plan, livered to the appropriate official of equip, staff, organize, and supervise ac- the approved university, museum, or tivity of the type and scope proposed; other scientific or educational institu(iii) The demonstrated ability to

tion, which shall be named in the percarry research to completion, as evi

mit: denced by timely completion of theses, (i) All artifacts, samples, collections, research reports, or similar documents; and copies of records, data, photo

(iv) Completion of at least 16 months graphs, and other documents resulting of professional experience and/or spe

from work conducted under the recialized training in archaeological quested permit where the permit is for field, laboratory, or library research, the excavation and/or removal of aradministration, or management, in- chaeological resources from public cluding at least 4 months experience

lands, and/or specialized training in the kind (b) When the area of the proposed of activity the individual proposes to work would cross jurisdictional boundconduct under authority of a permit; aries, so that permit applications must

be submitted to more than one Federal (v) Applicants proposing to engage in

agency, the Commissioner shall coordihistorical archaeology should have had nate the review and evaluation of apat least one year of experience in re- plications and the issuance of permits. search concerning archaeological resources of the prehistoric period.

8 1104.8 Terms and conditions of per

mits. (2) The proposed work is to be undertaken for the purpose of furthering ar- (a) In all permits issued, the Commischaeological knowledge in the public sioner shall specify: interest, which may include but need (1) The nature and extent of work alnot be limited to, scientific or schol- lowed and required under the permit, arly research, and preservation of ar- including the time, duration, scope, lochaeological data;

cation, and purpose of the work; (3) The proposed work, including (2) The name of the individual(s) retime, scope, location, and purpose, is sponsible for conducting the work and, not inconsistent with any management if different, the

of the plan or established policy, objectives, individual(s) responsible for carrying

name

and

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 Commissioner shall provide written notice to the permittee stating the nature of and basis for the suspension or revocation.

out the terms and conditions of the permit;

(3) The name of any university, museum, or other scientific or educational institutions in which any collected materials and data shall be deposited; and

(4) Reporting requirements.

(b) The Commissioner 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) 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.

(d) The permittee shall not be released from requirements of a permit until all outstanding obligations have been satisifed, whether or not the term of the permit has expired.

(e) The permittee may request that the Commissioner extend or modify a permit.

(1) The permittee's performance under any permit issued for a period greater than 1 year shall be subject to review by the Commissioner, at least annually.

$ 1104.10 Appeals relating to permits.

Any affected person may appeal permit issuance, denial of permit issuance, suspension, revocation, and terms and conditions of a permit. $1104.11 Relationship to section 106 of

the National Historic Preservation

Act. Issuance of a permit in accordance with the Act and this part does not constitute an undertaking requiring compliance with section 106 of the Act of October 15, 1966 (16 U.S.C. 4708). However, the mere issuance of such a permit does not excuse the Commissioner from compliance with section 106 where otherwise required.

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8 1104.9 Suspension and revocation of

permits. (a) Suspension of revocation for cause. (1) The Commissioner 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 $ 1104.3. The Commissioner shall provide written notice to the permittee of the suspension, the cause thereof, and the requirements which must be met before the suspension will be removed.

(2) The Commissioner may revoke a permit upon assessment of a civil penalty under $1104.14 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 of revocation for management purposes. The Commissioner may suspend or revoke a permit, without liability to the United States, its

$ 1104.12 Custody of archaeological re

sources. (a) Archaeological resources exc&vated or removed from the public lands remain the property of the United States.

(b) The Commissioner may provide for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, when such resources have been excavated or moved from public lands under the authority of a permit issued by the Commissioner. 81104.13 Determination of archae

ological 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 $ 1104.3 of this part or conditions of a permit issued pursuant to this part shall be the value of the information associated with the archaeological resource. This value shall be appraised in terms of the costs of the retrieval of the scientific information which would have been obtainable prior to the viola

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