10 March 2006
-----------------------------------------------------------------------[Federal Register: March 10, 2006 (Volume 71, Number 47)] [Rules and Regulations] [Page 12280-12281] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr10mr06-5] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Parts 59, 62b, 73, 158, 190, 216, 221, 224, 229, 238, 248, 252, 258, 261, 271, 336, 345, 347, 371, 378, and 388 [DOD-2006-OS-0042] Removal of Parts AGENCY: Department of Defense. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Defense is removing several CFR parts from Chapter I, Office of the Secretary of Defense. This administrative action removes obsolete information from the Code of Federal Regulations and notifies readers of the availability of the current DoD documents that contain the information being removed. DATES: This rule is effective March 10, 2006. FOR FURTHER INFORMATION CONTACT: L. Bynum 703-696-6970. SUPPLEMENTARY INFORMATION: The chart below identifies the status of the parts being removed. All documents with a current date status may be found as a DoD Directive (D), DoD Instruction (I), or Administrative Instruction (AI) on the Washington Headquarters Services Web site at http://www.dtic.mil/whs/directives/. Where ``removed'' is indicated, the applicable DoD document has been removed from the DoD Directives System. [Cryptome provides below links to parts removed without replacement shown.] ---------------------------------------------------------------------------------------------------------------- Part No. Document No. Canceled by ---------------------------------------------------------------------------------------------------------------- 59.................................... Voluntary Military Pay DoDD 7330.1. Allotments. 62b................................... Drunk and Drugged Driving by DoD DoDD 1010.7. DoD Personnel................... 73.................................... Training Simulators and Devices. DoDD 1430.13. 158................................... Guidelines for Systematic Removed 1/14/04. Declassification Review of Classified Information in Permanently Valuable DoD Records. 190................................... Natural Resources Management Removed 7/20/04. Program. 216................................... Military Recruiting and Reserve DoDD 1322.13. Officer Training Corps Program Access to Institutions of Higher Education. 221................................... Participation in the National DoDD 6025.13. Practitioner Data Bank (NPDB). 224................................... DoD Committee Management Program DoDD 5105.18. 229................................... Protection of Archaeological Removed 6/21/04. Resources: Uniform Regulations. 238................................... Armed Forces Community Relations DoDI 5410.19. 248................................... Department of Defense Removed 12/15/95. Periodicals. 252................................... Department of Defense Offshore Removed 1/13/05. Military Activities Program. 258................................... Cooperation with Allies in DoDD 2010.6. Research and Development of Defense Equipment. 261................................... Armed Services Military Club and DoDD 1015.2. Package Stores. 271................................... Obtaining Information from Duplicate of Part 275. Financial Institutions. 336................................... Publications of Proposed and AI 102. Adopted Regulations Affecting the Public. 345................................... Department of Defense Section 6 DoDD 1342.20. Schools. 347................................... Department of Defense Dependents DoDD 1342.20. Schools. 371................................... Defense Prisoner of War/Missing DoDD 5110.10. in Action Office (DPMO). 378................................... Assistant to the Secretary of DoDD 5148.11. Defense for Intelligence Oversight. 388................................... Ballistic Missile Defense DoDD 5134.09. Organization. ---------------------------------------------------------------------------------------------------------------- [[Page 12281]] List of Subjects 32 CFR Part 59 Military personnel, Wages. 32 CFR Part 62b Alcohol abuse, Drug abuse, Government employees, Highway safety, Military personnel. 32 CFR Part 73 Armed forces, Education, Government procurement. 32 CFR Part 158 Classified information. 32 CFR Part 190 Armed forces, Federal buildings and facilities, Natural resources. 32 CFR Part 216 Armed forces, Armed forces reserves, Colleges and universities, Education. 32 CFR Part 221 Health professions, Reporting and recordkeeping requirements. 32 CFR Part 224 Advisory committees. 32 CFR Part 229 Administrative practice and procedure, Historic preservation, Indians--lands, Penalties, Public lands, Reporting and recordkeeping requirements. 32 CFR Part 238 Armed forces, Intergovernmental relations. 32 CFR Part 248 Armed forces, Government publications. 32 CFR Part 252 Armed forces, Continental shelf. 32 CFR Part 258 Foreign relations, National defense, Research. 32 CFR Part 261 Alcohol and alcoholic beverages, Armed forces, Concessions, Federal buildings and facilities. 32 CFR Part 271 Banks, banking, Credit, Privacy. 32 CFR Part 336 Administrative practice and procedure. 32 CFR Parts 345 and 347 Elementary and secondary education, Organization and functions (Government agencies). 32 CFR Parts 371, 378, and 388 Organization and functions (Government agencies). PARTS 59, 62b, 73, 158, 190, 216, 221, 224, 229, 238, 248, 252, 258, 261, 271, 336, 345, 347, 371, 378, and 388--[REMOVED] 0 Accordingly, by the authority of 10 U.S.C. 301, 32 CFR parts 59, 62b, 73, 158, 190, 216, 221, 224, 229, 238, 248, 252, 258, 261, 271, 336, 345, 347, 371, 378, and 388 are removed. Dated: March 6, 2006. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 06-2310 Filed 3-9-06; 8:45 am] BILLING CODE 5001-08-P ----------------------------------------------------------------------- [Code of Federal Regulations] [Title 32, Volume 1] [Revised as of July 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR158] [Page 705-712] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE PART 158_GUIDELINES FOR SYSTEMATIC DECLASSIFICATION REVIEW OF CLASSIFIED INFORMATION IN PERMANENTLY VALUABLE DoD RECORDS--Table of Contents Sec. 158.1 Reissuance and purpose. 158.2 Applicability and scope. 158.3 Definitions. 158.4 Policy. 158.5 Procedures. 158.6 Responsibilities. 158.7 Categories of information that require review before declassification. 158.8 Categories of information that require review before declassification: Department of the Army systems. 158.9 Categories of information that require review before declassification: Department of the Navy systems. 158.10 Categories of information that require review before declassification: Department of the Air Force systems. 158.11 Declassification considerations. 158.12 Department of State areas of interest. 158.13 Central Intelligence Agency areas of interest. Authority: E.O. 12356, 10 U.S.C. Source: 48 FR 29840, June 29, 1983, unless otherwise noted. Sec. 158.1 Reissuance and purpose. This part is reissued; establishes procedures and assigns responsibilities for the systematic declassification review of information classified under E.O. 12356 and Information Security Oversight Office Directive No. 1, DoD Directive 5200.1 and DoD 5200.1-R, and prior orders, directives, and regulations governing security classification; and implements section 3.3 of E.O. 12356. Sec. 158.2 Applicability and scope. (a) This part applies to the Office of the Secretary of Defense (OSD) and to [[Page 706]] activities assigned to the OSD for administrative support, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as ``DoD Components''). (b) This part applies to the systematic review of permanently valuable classified information, developed by or for the Department of Defense and its Components, or its predecessor components and activities, that is under the exclusive or final original classification jurisdiction of the Department of Defense. (c) Its provisions do not cover Restricted Data or Formerly Restricted Data under the Atomic Energy Act of 1954 or information in nonpermanent records. (d) Systematic declassification review of records pertaining to intelligence activities (including special activities) or intelligence sources or methods shall be in accordance with special procedures issued by the Director of Central Intelligence. Sec. 158.3 Definitions. (a) Cryptologic information. Information pertaining to or resulting from the activities and operations involved in the production of signals intelligence (SIGINT) or to the maintenance of communications security (COMSEC). (b) Foreign government information. Information that is provided to the United States by a foreign government or governments, an international organization of governments, or any element thereof with the expectation, expressed or implied, that the information, the source of the information, or both are to be held in confidence; or produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments, an international organization of governments, or any element thereof requiring that the information, the arrangement, or both are to be held in confidence. (c) Intelligence method. Any process, mode of analysis, means of gathering data, or processing system or equipment used to produce intelligence. (d) Intelligence source. A person or technical means that provides intelligence. Sec. 158.4 Policy. It is the policy of the Department of Defense to assure that information that warrants protection against unauthorized disclosure is properly classified and safeguarded as well as to facilitate the flow of unclassified information about DoD operations to the public. Sec. 158.5 Procedures. (a) DoD classified information that is permanently valuable, as defined by 44 U.S.C. 2103, that has been accessioned into the National Archives of the United States, will be reviewed systematically for declassification by the Archivist of the United States, with the assistance of the DoD personnel designated for that purpose, as it becomes 30 years old; however, file series concerning intelligence activities (including special activities) created after 1945, intelligence sources or methods created after 1945, and cryptology records created after 1945 will be reviewed as they become 50 years old. (b) All other DoD classified information and foreign government information that is permanently valuable and in the possession or control of DoD Components, including that held in Federal records centers or other storage areas, may be reviewed systematically for declassification by the DoD Component exercising control of such information. (c) DoD classified information and foreign government information in the possession or control of DoD Components shall be declassified when they become 30 years old, or 50 years old in the case of DoD intelligence activities (including special activities) created after 1945, intelligence sources or methods created after 1945, or cryptology created after 1945, if they are not within one of the categories specified in Sec. Sec. 158.7 through 158.10 or in 48 FR 4403, January 31, 1983. (d) Systematic review for declassification shall be in accordance with procedures contained in DoD 5200 1-R. Information that falls within any of the categories in Sec. Sec. 158.7 through 158.10 [[Page 707]] and in 44 FR 4403 shall be declassified if the designated DoD reviewer determines, in light of the declassification considerations contained in Sec. 158.11 that classification no longer is required. In the absence of such a declassification determination, the classification of the information shall continue as long as required by national security considerations. (e) Before any declassification or downgrading action, DoD information under review should be coordinated with the Department of State on subjects cited in Sec. 158.12, and with the Central Intelligence Agency (CIA) on subjects cited in Sec. 158.13. Sec. 158.6 Responsibilities. (a) The Deputy Under Secretary of Defense for Policy shall: (1) Exercise oversight and policy supervision over the implementation of this part. (2) Request DoD Components to review Sec. Sec. 158.7 through 158.11 of this part every 5 years. (3) Revise Sec. Sec. 158.7 through 158.11 to ensure they meet DoD needs. (4) Authorize, when appropriate, other Federal agencies to apply this part to DoD information in their possession. (b) The Head of each DoD Component shall: (1) Recommend changes to Sec. Sec. 158.7 through 158.13 of this part. (2) Propose, with respect to specific programs, projects, and systems under his or her classification jurisdiction, supplements to Sec. Sec. 158.7 through 158.11 of this part. (3) Provide advice and designate experienced personnel to provide timely assistance to the Archivist of the United States in the systematic review of records under this part. (c) The Director, National Security Agency/Chief, Central Security Service (NSA/CSS), shall develop, for approval by the Secretary of Defense, special procedures for systematic review and declassification of classified cryptologic information. (d) The Archivist of the United States is authorized to apply this part when reviewing DoD classified information that has been accessioned into the Archives of the United States. Sec. 158.7 Categories of information that require review before declassification. The following categories of information shall be reviewed systematically for declassification by designated DoD review in accordance with this part: (a) Nuclear propulsion information. (b) Information concerning the establishment, operation, and support of the U.S. Atomic Energy Detection System. (c) Information concerning the safeguarding of nuclear materials or facilities. (d) Information that could affect the conduct of current or future U.S. foreign relations. (Also see Sec. 158.12.) (e) Information that could affect the current or future military usefulness of policies, programs, weapon systems, operations, or plans when such information would reveal courses of action, concepts, tactics, or techniques that are used in current operations plans. (f) Research, development, test, and evaluation (RDT&E) of chemical and biological weapons and defensive systems; specific identification of chemical and biological agents and munitions; chemical and biological warfare plans; and U.S. vulnerability to chemical or biological warfare attack. (g) Information about capabilities, installations, exercises, research, development, testing and evaluation, plans, operations, procedures, techniques, organization, training, sensitive liaison and relationships, and equipment concerning psychological operations; escape, evasion, rescue and recovery, insertion, and infiltration and exfiltration; cover and support; deception; unconventional warfare and special operations; and the personnel assigned to or engaged in these activities. (h) Information that reveals sources or methods of intelligence or counter-intelligence, counterintelligence activities, special activities, identities of clandestine human agents, methods of special operations, analytical techniques for the interpretation of intelligence data, and foreign intelligence reporting. This includes information that reveals the overall scope, processing rates, timeliness, and accuracy of intelligence systems and networks, including the means of interconnecting [[Page 708]] such systems and networks and their vulnerabilities. (i) Information that relates to intelligence activities conducted jointly by the Department of Defense with other Federal agencies or to intelligence activities conducted by other Federal agencies in which the Department of Defense has provided support. (Also see Sec. 158.13.) (j) Airborne radar and infrared imagery. (k) Information that reveals space system: (1) Design features, capabilities, and limitations (such as antijam characteristics, physical survivability features, command and control design details, design vulnerabilities, or vital parameters). (2) Concepts of operation, orbital characteristics, orbital support methods, network configurations, deployments, ground support facility locations, and force structure. (l) Information that reveals operational communications equipment and systems: (1) Electronic counter-counter-measures (ECCM) design features or performance capabilities. (2) Vulnerability and susceptibility to any or all types of electronic warfare. (m) Information concerning electronic intelligence, telemetry intelligence, and electronic warfare (electronic warfare support measures, electronic countermeasures (ECM), and ECCM) or related activities, including: (1) Information concerning or revealing nomenclatures, functions, technical characteristics, or descriptions of foreign communications and electronic equipment, its employment or deployment, and its association with weapon systems or military operations. (2) Information concerning or revealing the processes, techniques, operations, or scope of activities involved in acquiring, analyzing, and evaluating the above information, and the degree of success obtained. (n) Information concerning Department of the Army systems listed in Sec. 158.8. (o) Information concerning Department of the Navy systems listed in Sec. 158.9. (p) Information concerning Department of the Air Force systems listed in Sec. 158.10. (q) Cryptologic information (including cryptologic sources and methods). This includes information concerning or revealing the processes, techniques, operations, and scope of SIGINT comprising communications intelligence, electronics intelligence, and telemetry intelligence; and the cryptosecurity and emission security components of COMSEC, including the communications portion of cover and deception plans. (1) Recognition of cryptologic information may not always be an easy task. There are several broad classes of cryptologic information, as follows: (i) Those that relate to COMSEC. In documentary form, they provide COMSEC guidance or information. Many COMSEC documents and materials are accountable under the Communications Security Material Control System. Examples are items bearing transmission security (TSEC) nomenclature and crypto keying material for use in enciphering communications and other COMSEC documentation such as National COMSEC Instructions, National COMSEC/Emanations Security (EMSEC) Information Memoranda, National COMSEC Committee Policies, COMSEC Resources Program documents, COMSEC Equipment Engineering Bulletins, COMSEC Equipment System Descriptions, and COMSEC Technical Bulletins. (ii) Those that relate to SIGINT. These appear as reports in various formats that bear security classifications, sometimes followed by five- letter codewords (World War II's ULTRA, for example) and often carrying warning caveats such as ``This document contains codeword material'' and ``Utmost secrecy is necessary . . .'' Formats may appear as messages having addressees, ``from'' and ``to'' sections, and as summaries with SIGINT content with or without other kinds of intelligence and comment. (iii) RDT&E reports and information that relate to either COMSEC or SIGINT. (2) Commonly used words that may help in identification of cryptologic documents and materials are ``cipher,'' [[Page 709]] ``code,'' ``codeword,'' ``communications intelligence'' or ``COMINT,'' ``communications security'' or ``COMSEC,'' ``cryptanalysis,'' ``crypto,'' ``cryptography,'' ``cryptosystem,'' ``decipher,'' ``decode,'' ``decrypt,'' ``direction finding,'' ``electronic intelligence'' or ``ELINT,'' ``electronic security,'' ``encipher,'' ``encode,'' ``encrypt,'' ``intercept,'' ``key book,'' ``signals intelligence'' or ``SIGINT,'' ``signal security,'' and ``TEMPEST.'' Sec. 158.8 Categories of information that require review before declassification: Department of the Army systems. The following categories of Army information shall be reviewed systematically for declassification by designated DoD reviewers in accordance with this part. (a) Ballistic Missile Defense (BMD) missile information, including the principle of operation of warheads (fuzing, arming, and destruct operations); quality or reliability requirements; threat data; vulnerability; ECM and ECCM); details of design, assembly, and construction; and principle of operations. (b) BMD systems data, including the concept definition (tentative roles, threat definition, and analysis and effectiveness); detailed quantitative technical system description-revealing capabilities or unique weaknesses that are exploitable; overall assessment of specific threat-revealing vulnerability or capability; discrimination technology; and details of operational concepts. (c) BMD optics information that may provide signature characteristics of U.S. and United Kingdom ballistic weapons. (d) Shaped-charge technology. (e) Fleshettes. (f) M380 Beehive round. (g) Electromagnetic propulsion technology. (h) Space weapons concepts. (i) Radar-fuzing programs. (j) Guided projectiles technology. (k) ECM and ECCM to weapons systems. (l) Armor materials concepts, designs, or research. (m) 2.75-inch Rocket System. (n) Air Defense Command and Coordination System (AN/TSQ-51). (o) Airborne Target Acquisition and Fire Control System. (p) Chaparral Missile System. (q) Dragon Guided Missile System Surface Attack, M47. (r) Forward Area Alerting Radar (FAAR) System. (s) Ground laser designators. (t) Hawk Guided Missile System. (u) Heliborne, Laser, Air Defense Suppression and Fire and Forget Guided Missile System (HELLFIRE). (v) Honest John Missile System. (w) Lance Field Artillery Missile System. (x) Land Combat Support System (LCSS). (y) M22 (SS-11 ATGM) Guided Missile System, Helicopter Armament Subsystem. (z) Guided Missile System, Air Defense (NIKE HERCULES with Improved Capabilities with HIPAR and ANTIJAM Improvement). (aa) Patriot Air Defense Missile System. (bb) Pershing IA Guided Missile System. (cc) Pershing II Guided Missile System. (dd) Guided Missile System, Intercept Aerial M41 (REDEYE) and Associated Equipment. (ee) U.S. Roland Missile System. (ff) Sergeant Missile System (less warhead) (as pertains to electronics and penetration aids only). (gg) Shillelagh Missile System. (hh) Stinger/Stinger-Post Guided Missile System (FIM-92A). (ii) Terminally Guided Warhead (TWG) for Multiple Launch Rocket System (MLRS). (jj) TOW Heavy Antitank Weapon System. (kk) Viper Light Antitank/Assault Weapon System. Sec. 158.9 Categories of information that require review before declassification: Department of the Navy systems. The following categories of Navy information shall be reviewed systematically for declassification by designated DoD reviewers in accordance with this part. [[Page 710]] (a) Naval nuclear propulsion information. (b) Conventional surface ship information: (1) Vulnerabilities of protective systems, specifically: (i) Passive protection information concerning ballistic torpedo and underbottom protective systems. (ii) Weapon protection requirement levels for conventional, nuclear, biological, or chemical weapons. (iii) General arrangements, drawings, and booklets of general plans (applicable to carriers only). (2) Ship-silencing information relative to: (i) Signatures (acoustic, seismic, infrared, magnetic (including alternating magnetic (AM)), pressure, and underwater electric potential (UEP)). (ii) Procedures and techniques for noise reduction pertaining to an individual ship's component. (iii) Vibration data relating to hull and machinery. (3) Operational characteristics related to performance as follows: (i) Endurance or total fuel capacity. (ii) Tactical information, such as times for ship turning, zero to maximum speed, and maximum to zero speed. (c) All information that is uniquely applicable to nuclear-powered surface ships or submarines. (d) Information concerning diesel submarines as follows: (1) Ship-silencing data or acoustic warfare systems relative to: (i) Overside, platform, and sonar noise signature. (ii) Radiated noise and echo response. (iii) All vibration data. (iv) Seismic, magnetic (including AM), pressure, and UEP signature data. (2) Details of operational assignments, that is, war plans, antisubmarine warfare (ASW), and surveillance tasks. (3) General arrangements, drawings, and plans of SS563 class submarine hulls. (e) Sound Surveillance System (SOSUS) data. (f) Information concerning mine warfare, mine sweeping, and mine countermeasures. (g) ECM or ECCM features and capabilities of any electronic equipment. (h) Torpedo information as follows: (1) Torpedo countermeasures devices: T-MK6 (FANFARE) and NAE beacons. (2) Tactical performance, tactical doctrine, and vulnerability to counter-measures. (i) Design performance and functional characteristics of guided missiles, guided projectiles, sonars, radars, acoustic equipments, and fire control systems. Sec. 158.10 Categories of information that require review before declassification: Department of the Air Force systems. The Department of the Air Force has determined that the categories identified in Sec. 158.7 of this part shall apply to Air Force information. Sec. 158.11 Declassification considerations. (a) Technological developments; widespread public knowledge of the subject matter; changes in military plans, operations, systems, or equipment; changes in the foreign relations or defense commitments of the United States; and similar events may bear upon the determination of whether information should be declassified. If the responsible DoD reviewer decides that, in view of such circumstances, the public disclosure of the information being reviewed no longer would result in damage to the national security, the information shall be declassified. (b) The following are examples of considerations that may be appropriate in deciding whether information in the categories listed in Sec. Sec. 158.7 through 158.10 may be declassified when it is reviewed: (1) The information no longer provides the United States a scientific, engineering, technical, operational, intelligence, strategic, or tactical advantage over other nations. (2) The operational military capability of the United States revealed by the information no longer constitutes a limitation on the effectiveness of the Armed Forces. (3) The information is pertinent to a system that no longer is used or relied on for the defense of the United States [[Page 711]] or its allies and does not disclose the capabilities or vulnerabilities of existing operational systems. (4) The program, project, or system information no longer reveals a current weakness or vulnerability. (5) The information pertains to an intelligence objective or diplomatic initiative that has been abandoned or achieved and will no longer damage the foreign relations of the United States. (6) The information reveals the fact or identity of a U.S. intelligence source, method, or capability that no longer is employed and that relates to no current source, method, or capability that upon disclosure could cause damage to national security or place a person in immediate jeopardy. (7) The information concerns foreign relations matters whose disclosure can no longer be expected to cause or increase international tension to the detriment of the national security of the United States. (c) Declassification of information that reveals the identities of clandestine human agents shall be accomplished only in accordance with procedures established by the Director of Central Intelligence for that purpose. (d) The NSA/CSS is the sole authority for the review and declassification of classified cryptologic information. The procedures established by the NSA/CSS to facilitate the review and declassification of classified cryptologic information are: (1) COMSEC documents and materials. (i) If records or materials in this category are found in agency files that are not under COMSEC control, refer them to the senior COMSEC authority of the agency concerned or by appropriate channels to the following address: Director, National Security Agency, Attn: Director of Policy (Q4), Fort George G. Meade, Maryland 20755. (ii) If the COMSEC information has been incorporated into other documents by the receiving agency, referral to the NSA/CSS is necessary before declassification. (2) SIGINT information. (i) If the SIGINT information is contained in a document or record originated by a DoD cryptologic organization, such as the NSA/CSS, and is in the files of a noncryptologic agency, such material will not be declassified if retained in accordance with an approved records disposition schedule. If the material must be retained, it shall be referred to the NSA/CSS for systematic review for declassification. (ii) If the SIGINT information has been incorporated by the receiving agency into documents it produces, referral to the NSA/CSS is necessary before any declassification. Sec. 158.12 Department of State areas of interest. (a) Statements of U.S. intent to defend, or not to defend, identifiable areas, or along identifiable lines, in any foreign country or region. (b) Statements of U.S. intent militarily to attack in stated contingencies identifiable areas in any foreign country or region. (c) Statements of U.S. policies or initiatives within collective security organizations (for example, North Atlantic Treaty Organization (NATO) and Organization of American States (OAS)). (d) Agreements with foreign countries for the use of, or access to, military facilities. (e) Contingency plans insofar as they involve other countries, the use of foreign bases, territory or airspace, or the use of chemical, biological, or nuclear weapons. (f) Defense surveys of foreign territories for purposes of basing or use in contingencies. (g) Reports documenting conversations with foreign officials, that is, foreign government information. Sec. 158.13 Central Intelligence Agency areas of interest. (a) Cryptologic, cryptographic, or SIGINT. (Information in this category shall continue to be forwarded to the NSA/CSS in accordance with Sec. 158.11(d). The NSA/CSS shall arrange for necessary coordination.) (b) Counterintelligence. (c) Special access programs (d) Information that identifies clandestine organizations, agents, sources, or methods. (e) Information on personnel under official or nonofficial cover or revelation of a cover arrangement. [[Page 712]] (f) Covertly obtained intelligence reports and the derivative information that would divulge intelligence sources or methods. (g) Methods or procedures used to acquire, produce, or support intelligence activities. (h) CIA structure, size, installations, security, objectives, and budget. (i) Information that would divulge intelligence interests, value, or extent of knowledge on a subject. (j) Training provided to or by the CIA that would indicate its capability or identify personnel. (k) Personnel recruiting, hiring, training, assignment, and evaluation policies. (l) Information that could lead to foreign political, economic, or military action against the United States or its allies. (m) Events leading to international tension that would affect U.S. foreign policy. (n) Diplomatic or economic activities affecting national security or international security negotiations. (o) Information affecting U.S. plans to meet diplomatic contingencies affecting national security. (p) Nonattributable activities conducted abroad in support of U.S. foreign policy. (q) U.S. surreptitious collection in a foreign nation that would affect relations with the country. (r) Covert relationships with international organizations or foreign governments. (s) Information related to political or economic instabilities in a foreign country threatening American lives and installations therein. (t) Information divulging U.S. intelligence collection and assessment capabilities. (u) U.S. and allies' defense plans and capabilities that enable a foreign entity to develop countermeasures. (v) Information disclosing U.S. systems and weapons capabilities or deployment. (w) Information on research, development, and engineering that enables the United States to maintain an advantage of value to national security. (x) Information on technical systems for collection and production of intelligence, and their use. (y) U.S. nuclear programs and facilities. (z) Foreign nuclear programs, facilities, and intentions. (aa) Contractual relationships that reveal the specific interest and expertise of the CIA. (bb) Information that could result in action placing an individual in jeopardy. (cc) Information on secret writing when it relates to specific chemicals, reagents, developers, and microdots. (dd) Reports of the Foreign Broadcast Information Service (FBIS) (-- Branch, --Division) between July 31, 1946, and December 31, 1950, marked CONFIDENTIAL or above. (ee) Reports of the Foreign Documents Division between 1946 and 1950 marked RESTRICTED or above. (ff) Q information reports. (gg) FDD translations. (hh) U reports. [[Page 713]] ----------------------------------------------------------------------- [Code of Federal Regulations] [Title 32, Volume 1] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR190] [Page 750-757] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE PART 190--NATURAL RESOURCES MANAGEMENT PROGRAM--Table of Contents Sec. 190.1 Purpose. 190.2 Applicability and scope. 190.3 Definitions. 190.4 Policy. 190.5 Responsibilities. 190.6 Procedures. 190.7 Information requirements. Appendix--Integrated Natural Resources Management Authority: 16 U.S.C. 1531 et seq., 16 U.S.C. 670 et seq., 10 U.S.C. 2665, 10 U.S.C. 2667(d), 10 U.S.C. 2671 and 16 U.S.C. 460(l). [[Page 751]] Source: 54 FR 7539, Feb. 22, 1989, unless otherwise noted. Redesignated at 56 FR 64481, Dec. 10, 1991. Sec. 190.1 Purpose. This part. (a) Replaces DoD Directive 4700.1.\1\ --------------------------------------------------------------------------- \1\ Canceled by DoD Directive 4700.4. --------------------------------------------------------------------------- (b) Supersedes 32 CFR parts 232, 233, 234, and 217. (c) Implements 16 U.S.C. 1531 et seq., 16 U.S.C. 670 et seq., 10 U.S.C. 2665, 10 U.S.C. 2667(d), 10 U.S.C. 2671, and 16 U.S.C. 460(l). (d) Prescribes policies and procedures for an integrated program for multiple-use management of natural resources on property under DoD control. [54 FR 7539, Feb. 22, 1989. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] Sec. 190.2 Applicability and scope. This part: (a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Joint Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as ``DoD Components''). The term ``Military Services,'' as used herein, refers to the Army, Navy, Air Force, and Marine Corps. (b) Governs DoD management of natural resources in the United States and its territories and possessions for both appropriated and nonappropriated fund activities. (c) Does not govern natural resources management at State-owned National Guard installations. Nothing contained in this part nor in implementing documents or agreements shall modify rights granted by treaty to Indian tribes or their members. (d) Does not apply to the civil works functions of the Army. Sec. 190.3 Definitions. Agricultural Outlease. Use of DoD lands under a lease to an agency, organization, or person for growing crops or grazing animals. Carrying Capacity (Outdoor Recreation). The maximum amount of recreation activity and number of participants that a land or water area can support in manner compatible with the objectives of the natural resources management plan and without degrading existing natural resources. Carrying Capacity (Wildlife). The maximum density of wildlife that a particular area or habitat will support on a sustained basis without deterioration of the habitat. Conservation. Wise use and management of natural resources to provide the best public benefits and continued productivity for present and future generations. Cooperative Plan. The component of the natural resources management plan that describes how fish and wildlife resources at an installation shall be managed and that has been coordinated with U.S. Fish and Wildlife Service and the appropriate State agency. It provide for: (a) Fish and wildlife habitat improvements or modifications. (b) Range rehabilitation where necessary for support of wildlife. (c) Control of off-road vehicle traffic. (d) Specific habitat improvement projects and related activities and adequate protection for species of fish, wildlife, and plants considered threatened or endangered. Critical Habitat. A specific designated area declared essential for the survival of a protected species under authority of the Endangered Species Act. Endangered or Threatened Species. A species of fauna of flora that has been designated by the U.S. Fish and Wildlife Service for special protection and management pursuant to the Endangered Species Act. Forest Products. All plan materials in wooded areas that have commercial value. Game Species. Fish and Wildlife that may be harvested in accordance wtih Federal and State laws. Grounds. All land areas not occupied by buildings, structures, pavements, and railroads. Habitat. An area where a plant or animal species lives, grows, and reproduces, and the environment that satisfies any of their life requirements. Multiple-Use. The use of natural resources for the best combination of purposes to meet the needs of the military and the public. [[Page 752]] Natural Resources. Land, water, and their associated flora and fauna. Natural Resources Management Professional. Individual with an undergraduate or graduate degree in a natural resources-related science and who has responsibility for managing natural resources on a regular basis. Nongame Species. Species not harvested for recreation or subsistence purposes. Noxious Weeds. Plant species identified by Federal or State Agencies as requiring control or eradication. Off-road Vehicle. A vehicle designed for travel on natural terrain. The term excludes a registered motorboat confined to use on open water and a military, emergency, or law enforcement vehicle during use by an employee or agent of the Government or one of its contractors in the course of employment or agency representation. Outdoor Recreation. Program, activity, or opportunity dependent on the natural environment. Examples are hunting, fishing, trapping, picnicking, birdwatching, off-road vehicle use, hiking and interpretive trails, wild and scenic river use, and underdeveloped camping areas. Developed or constructed facilities such as golf courses, tennis courts, riding stables, lodging facilities, boat launching ramps, and marinas are not included. Sustained Yield. Production of renewable natural resources at a level when harvest or consumptive use does not exceed net growth. Sec. 190.4 Policy. (a) The Department of Defense shall act responsibly in the public interest in managing its lands and natural resources. There shall be a conscious and active concern for the inherent value of natural resources in all DoD plans, actions, and programs. (b) Natural resources under control of the Department of Defense shall be managed to support the military mission, while practicing the principles of multiple use and sustained yield, using scientific methods and an interdisciplinary approach. The conservation of natural resources and the military mission need not and shall not be mutually exclusive. (c) Watersheds and natural landscapes, soils, forests, fish and wildlife, and protected species shall be conserved and managed as vital elements of DoD's natural resources program. (d) DoD actions that affect natural resources in the United States shall comply with the policy and requirements of 32 CFR part 188 and the more stringent of applicable Federal or local laws. DoD actions that influence natural resources in foreign countries or global commons shall conform to requirements of 32 CFR part 187 applicable laws, treaties, and agreements. (e) Integrated natural resources management plans that incorporate applicable provisions of the Appendix to this part shall be maintained for DoD lands. (f) DoD decisionmakers and commanders shall keep informed of the conditions of natural resources, the objectives of natural resources management plans, and potential or actual conflicts between DoD actions and management plans and the policies and procedures herein. (g) DoD lands shall be available to the public and DoD employees for enjoyment and use of natural resources, except when a specific determination has been made that a military mission prevents such access for safety or security reasons or that the natural resources will not support such usage. The determination shall be addressed in the applicable natural resources management plan. To assist in the management, study, or monitoring of natural resources, Federal, State and local officials and natural resources management professionals shall be permitted access to natural resources after proper safety and security measures are taken. (h) The management and conservation of natural resources under DoD stewardship is an inherently governmental function. Therefore, 32 CFR part 169 does not apply to the management, implementation, planning, or enforcement of DoD natural resources programs. However, support to the natural resources program when it is severable from management of natural resources may be subject to 32 CFR part 169. (i) If natural resources under DoD control are damaged by a hazardous [[Page 753]] substance released by another party, that party is potentially liable. The funds recovered by the Department of Defense as a result of natural resources damage claims shall be used for restoration, replacement, or acquisition of equivalent natural resources. (j) Enforcement of laws primarily aimed at protecting natural resources and recreation activities that depend on natural resources is an integral part of a natural resources progam and shall be coordinated with or under the direction of the natural resources manager for the affected area. [54 FR 7539, Feb. 22, 1989. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] Sec. 190.5 Responsibilities. (a) The Assistant Secretary of Defense (Production and Logistics) (ASD(P&L)) shall: (1) Establish and monitor implementation of natural resources management policies for DoD properties and actions. (2) Coordinate the DoD natural resources program with other Federal Agencies. (3) Maintain the Secretary of Defense Natural Resources Conservation Awards Program established herein and described in DoD Instruction 4700.2 \2\ --------------------------------------------------------------------------- \2\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. --------------------------------------------------------------------------- (4) Designate a chairperson for the DoD Natural Resources Council (DNRC) established in paragraph (b) of this section. (5) Establish policy and direction for the DoD reserve account established by 10 U.S.C. 2665. (b) The Director, Defense Research and Engineering, through the Deputy Under Secretary of Defense (Research and Advanced Technology) (DUSD(R&AT)), shall conduct appropriate research, development, tests, and evaluations to support integrated natural resources management programs. (c) The Heads of the Military Services and Directors of Defense Agencies delegated land management responsibilities shall: (1) Maintain an organizational capability and program resources necessary to establish and maintain integrated natural resources management programs as prescribed in this part. (2) Maintain at all levels of command the interdisciplinary natural resources expertise necessary to implement this program and provide for their continued professional training. (3) Ensure that effective natural resources management is an identifiable function and is specifically accountable in performance evaluations at each command level. (4) Provide for technical reviews and onsite assessments of installations' natural resources programs at least each 3 years by natural resources management professionals, take necessary corrective actions, and include natural resources programs in management reviews. (5) Develop criteria and procedures for cooperative planning and integrated natural resources management planning processes. (6) Act as trustees for natural resources under their jurisdiction. (7) Maintain records necessary to monitor and evaluate natural resources under their management and provide requested information to the ASD(P&L), other agencies with jurisdiction, and the public. (d) The Heads of DoD Components shall coordinate proposals for new and continuing actions that affect natural resources with the managers of those resources. (e) Installation Commanders shall: (1) Conduct integrated natural resources management programs to comply with this part. (2) Enter into cooperative plans that may be developed on behalf of the Secretary of Defense pursuant to the Sikes Act. [54 FR 7539, Feb. 22, 1989. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] Sec. 190.6 Procedures. (a) Procedures shall be established by DoD Components to ensure that current and planned mission activities (e.g., master planning, construction requests, site approval requests, and training exercise plans) are effectively coordinated in a timely manner with appropriate natural resources managers. [[Page 754]] (b) The DNRC shall advise the ASD(P&L) regarding natural resources issues and shall meet at least quarterly. DoD Components shall participate to carry out this Directive and goals of the DoD natural resources program. The Heads of the Military Services each shall appoint one representative and one alternate to the DNRC. The DNRC shall: (1) Provide technical support to the ASD(P&L) in natural resources areas. (2) Recommend policy and program improvements. (3) Assist in conducting the Secretary of Defense Natural Resources Conservation Awards Program. (4) Coordinate the natural resources management program among DoD Components. (5) Conduct periodic natural resources conferences or training opportunities for DoD employees. (6) Identify and coordinate natural resources research activities and needs and present them to the DUSD(R&AT) each year. Sec. 190.7 Information requirements. Information requirements of the ASD(P&L) shall be met by the Heads of the Military Services each year by January 15 under Report Control Symbol DD-P&L(A)1485. Appendix to Part 190--Integrated Natural Resources Management A. Integrated Planning 1. Integrated natural resources management plans shall be maintained for properties under DoD control. These plans shall guide planners and implementors of mission activities as well as natural resources managers. 2. The plans shall be coordinated with appropriate Federal, State, and local officials with interest or jurisdiction in accordance with 32 CFR part 243 and with planners of DoD activities that impact on the natural resources. Conversely, new and continuing mission activities that impact on natural resources shall be coordinated with appropriate natural resources managers. 3. Natural resources management plans shall be continually monitored, reviewed annually, and revised by DoD natural resources management professionals. They shall be approved in accordance with DoD Components' procedures at least every 5 years. 4. The natural resources management planning process shall invite public participation. 5. An integrated natural resources management plan shall meet the following criteria: a. Natural resources and areas of critical or special concern are adequately addressed from both technical and policy standpoints. b. The natural resources management methodologies shall sustain the capabilities of the natural resources to support military requirements. c. The plan includes current inventories and conditions of natural resources; goals; management methods; schedules of activities and projects; priorities; responsibilties of installation planners and decisionmakers; monitoring systems; protection and enforcement systems; and land use restrictions, limitations, and capabilities. d. Each plan segment or component (i.e., land, forest, fish and wildlife, and outdoor recreation) exhibits compatible methodologies and goals. e. The plan is compatible with the installation's master plan and pest management program under DoD Directive 4150.7.\1\ --------------------------------------------------------------------------- \1\ Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. --------------------------------------------------------------------------- 6. A determination that the public may not have access to use natural resources under DoD control shall be included and explained in the applicable integrated natural resources management plan. 7. The environmental impact analysis for any proposed activity or project shall include an analysis of the compatibility of the proposal's impacts with affected natural resources management plans and objectives. Only after necessary revisions to management plans are made shall the new activity begin. 8. The planning requirements of DoD Directive 4710.1 \2\ may be met within the integrated natural resources plan. --------------------------------------------------------------------------- \2\ See footnote 2 to paragraph A.5.e. --------------------------------------------------------------------------- 9. Integrated natural resources management plans shall be a primary consideration during the master planning process and for land use and development decisions. B. Natural Resources Management Plan The integrated natural resources plan shall implement the following policies and requirements for each applicable program area: 1. Land Management a. DoD lands shall be managed to support military activities, improve the quality of land and water resources, protect wetlands and floodplains and their functions, abate [[Page 755]] nonpoint sources of water pollution, conserve lands suitable for agriculture, control noxious weeds, and control erosion. b. Costs for maintaining grounds shall be minimized by providing the least amount of mowed areas and special plantings necessary to accomplish management objectives and by the use of low maintenance species, agricultural outleases, wildlife habitat, and tree plantings. c. Land management is an important use of appropriated funds. Also, pursuant to 10 U.S.C. 2667(d) revenues from the agriculture and grazing outlease program are available for: (1) Administrative expenses of agricultural leases. (2) Initiation, improvement, and perpetuation of agricultural outleases. (3) Preparation and revisions of natural resources management plans. (4) Implementation of integrated natural resources management plans. d. When appropriate, land management plans shall address soils, water resources, soil and water conservation, wetlands and floodplains, grounds maintenance, landscaping, agricultural uses and potential, fire management, rangeland conditions and trends, areas of special interest, and management for multiple use. e. Soil capabilities, water management, landscaping, erosion control, and conservation of natural resources shall be included in all site feasibility studies and in project planning, design, and construction. Appropriate conservation work and associated costs shall be included in project proposals and construction contracts and specifications. Such studies and work shall be coordinated with appropriate natural resources management professionals and plans. f. Irrigation shall be limited to areas where it is essential to establish and maintain required vegetation or when an agricultural outlease contract allows it. g. Appropriate natural resources conservation measures shall be included in outlease provisions. h. Landscaping shall be functional in nature, simple and informal in design, compatible with adjacent surroundings, and complimentary to the overall natural setting of the area. i. Land conditions, soil capability, and erosion status shall be monitored for all lands subject to disturbance (e.g., maneuver areas, commercial forest areas, and agricultural outleased areas). The data and analyses obtained shall be used in planning, environmental analyses, and decisionmaking at all levels of command. 2. Forest Management a. DoD forest lands shall be managed for sustained yield of quality forest products, watershed protection, wildlife habitat, and other uses that can be made compatible with mission activities. b. Commercial forestry activities shall be commensurate with potential financial returns. c. Forest products shall not be given away, abandoned, carelessly destroyed, used to offset costs of contracts, or traded for products, supplies, or services. Forest products may be used for military training. Individuals may be allowed to collect noncommercial or edible forest products if that use is addressed in the management plan for the areas involved. Forest products may be harvested to generate electricity or heat only if the Military Department's forestry account is paid fair market value. d. Planned forest products sales shall continue on land reported as excess until actual disposal or transfer occurs. When forested areas are slated to be public parks or used for outdoor recreation, clearcutting is prohibited. However, thinning, intermediate cuttings, and salvage cuttings shall be accomplished if the management plan calls for such activity within the next 5 years. That portion of the proceeds from sales of land that is attributable to the value of standing timber on the land sold shall be deposited in the Military Department's forestry account. e. Accounting and reporting for the proceeds and costs of the commercial forestry program are contained in DoD Instruction 7310.5.\3\ Costs associated with management of all forested areas (noncommercial and commercial) are valid uses of appropriated funds as well as proceeds from agricultural outleases and forest product sales. --------------------------------------------------------------------------- \3\ See footnote 2 to paragraph A.5.e. --------------------------------------------------------------------------- f. When appropriate, natural resources management plans shall include current forest inventories, conditions, trends, and potential uses; analysis of soil data for forest potential; goals; protection and enforcement methods; maintenance of forested areas and access roads; improvement methods; harvesting and reforestation methods and schedules; and management for multiple use. 3. Fish and Wildlife Management a. Lands and waters suitable for management of fish and wildlife resources shall be managed to conserve wildlife resources for the benefit of the public. Nongame as well as game species shall be considered when planning activities. b. Endangered and threatened species and their habitats shall be protected and managed according to the Endangered Species Act and implementing U.S. Fish and Wildlife Service (FWS) regulations and agreements. Management plans for installations with endangered species shall include: (1) Coordinated protection and mitigation measures. [[Page 756]] (2) Appropriate affirmative methods and procedures necessary to enhance the population of endangered species. (3) Procedures and responsibilities for consulting with the FWS prior to funding or conducting any action likely to affect a listed species or its critical habitat. c. The Sikes Act provides a mechanism whereby the Departments of Defense and the Interior and host States cooperate to plan, maintain, and manage fish and wildlife on military installations. Agreement by all 3 parties regarding the fish and wildlife management plan for an installation makes that plan a cooperative plan pursuant to 16 U.S.C. 670 et seq. A cooperative plan shall be adopted by an installation commander only after ensuring its compatibility with the rest of the integrated natural resources management plan. d. Hunting, fishing, and trapping may be permitted within the carrying capacity of wildlife habitats. Harvesting of wildlife from DoD installations or facilities shall be done according to the fish and game laws of the State or territory in which it is located and under 10 U.S.C. 2671. Special permits shall be issued, in addition to required State and Federal permits or licenses, for fishing, hunting, or trapping on DoD property. e. Hunting, fishing, and trapping fees may be collected under the authority of the Sikes Act to recover expenses of implementing a cooperation plan. The same Sikes Act fee shall be charged for a particular use to all users at a particular installation except senior citizens, children, and the physically handicapped. Exceptions to this policy may be granted by the Heads of Military Services. Additional recreation fees may be collected under policies in DoD Directive 1015.6 \4\ and DoD Instruction 1015.2.\5\ --------------------------------------------------------------------------- \4\ See footnote 2 to paragraph A.5.e. \5\ See footnote 2 to paragraph A.5.e. --------------------------------------------------------------------------- f. Criteria and procedures for hunting, fishing, and trapping permits and fees shall be included in management plans. Fees collected under the authority of 16 U.S.C. 670 et seq. shall be used only to defray the costs of the fish and wildlife management program at the installation collecting the fees. Collected fees shall be accounted for and reported according to instructions from the Comptroller, Department of Defense (C, DoD), under a special fund entitled ``Wildlife Conservation''--X5095. Unobligated balances shall be accumulated with current fee collections, and the total amount accumulated at an installation shall be available for obligation as apportioned by the Office of Management and Budget (OMB). g. Whenever hunting, fishing, or trapping is allowed on DoD installations, enforcement of wildlife laws shall be addressed in the fish and wildlife management plan and carried out by trained enforcement officials under the direction of or in coordination with the wildlife manager. h. The suitability of a military installation for fish and wildlife management shall be determined after consulting with the FWS and host State. Each installation shall be classified as one of the following: (1) Category I--Installations with land and water resources suitable for fish and wildlife conservation. Each Category I installation shall maintain a wildlife management plan according to this part. (2) Category II--Installations that lack adequate land and water resources for feasible fish and wildlife conservation. i. The number of users of fish and wildlife resources may be limited on a daily or seasonal basis. Membership in an organization, including rod and gun clubs, shall not be a prerequisite for or get priority in receiving permits. j. Habitat management is the basic means of improving wildlife resources. Introduction and reintroduction of species shall occur only in coordination with appropriate agencies and in accordance with a cooperative plan. When predator or animal damage control is a necessary part of natural resources management or mission performance, it shall be accomplished according to the cooperative plan, relevant laws and regulations, and in coordination with adjoining land managers. k. Fish and wildlife conservation shall be considered in all site feasibility studies and project planning, design, and construction. Appropriate conservation work and associated funding shall be included in project proposals and construction contracts and specifications. l. Priority shall be given to entering into contracts for services that implement wildlife management or enforce wildlife laws with Federal and State Agencies with responsibility for wildlife conservation. m. Where appropriate, natural resources management plans shall address habitat management and enhancement, current wildlife and fish inventories and population trends, endangered and other special species management, game and nongame species management, access policy and user program, administration of user fee program, law enforcement, cooperating agencies' responsibilities, and multiple use management. 4. Outdoor Recreation a. Whenever practicable, DoD lands with suitable resources shall be managed to conserve and use natural resources for the outdoor recreation opportunities of present and future generations. The policies and procedures herein apply to outdoor recreation programs as defined in Sec. 190.3 and supersedes [[Page 757]] those in DoD Directive 1015.6 and DoD Instruction 1015.2. b. Conservation of outdoor recreation resources shall be considered in all plans, programs, site feasibility studies, and project planning and design. c. Installations having resources suitable for outdoor recreation other than hunting, fishing, and trapping are encouraged to develop cooperative agreements or plans with other Federal Agencies and appropriate State Agencies to facilitate the development and management of those programs. d. Public access to DoD properties for outdoor recreation shall be allowed whenever compatible with public safety and mission activities. User fees may be collected to recover expenses of managing natural resources for outdoor recreation, and access quotas may be established to reflect the carrying capacity of the areas involved. Public outdoor recreation opportunities shall be equitably distributed by impartial procedures, such as a first-come, first-served basis or by drawing lots. When public access must be withheld, that determination shall be explained in the natural resources management plan. e. Off-road vehicle use shall be managed to protect natural resources, promote safety, and avoid conflicts with other uses of DoD properties. Use of off-road vehicles shall be monitored and evaluated regularly by natural resources management professionals. All land and water areas shall be closed to such use unless an environmental impact analysis in accordance with 32 CFR part 188 has been completed and the use is specifically approved and regulated. Specific areas that shall not be used by recreational off-road vehicles are those: (1) Restricted for security or safety purposes. (2) Containing fragile geological and soil conditions, flora or fauna, or other natural characteristics. (3) With significant archeological, historical, paleontological resources. (4) Designated as wilderness or scenic areas. (5) Where noise would adversely affect other users, wildlife, or adjacent communities. f. Whenever appropriate, outdoor recreation plans shall address inventories, trends, and management of resources suitable for outdoor recreation; aesthetics; development of opportunities and potential uses; potential user groups and access policy; user fee program; user ethics programs; and multiple use management. 5. Special Areas Areas on DoD installations that contain natural resources that warrant special conservation efforts shall be identified. After appropriate study and coordination, such areas may be designated as Special Interest Areas. Upon such designation, the integrated natural resources management plan for the installation shall address the special management necessary for the area. [54 FR 7539, Feb. 22, 1989. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] ----------------------------------------------------------------------- [Code of Federal Regulations] [Title 32, Volume 2] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR229] [Page 427-440] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED) PART 229--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM REGULATIONS-- Table of Contents Sec. 229.1 Purpose. 229.2 Authority. 229.3 Definitions. 229.4 Prohibited acts and criminal penalties. 229.5 Permit requirements and exceptions. 229.6 Application for permits and information collection. 229.7 Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance. 229.8 Issuance of permits. 229.9 Terms and conditions of permits. 229.10 Suspension and revocation of permits. 229.11 Appeals relating to permits. 229.12 Relationship to section 106 of the National Historic Preservation Act. 229.13 Custody of archaeological resources. 229.14 Determination of archaeological or commercial value and cost of restoration and repair. 229.15 Assessment of civil penalties. 229.16 Civil penalty amounts. 229.17 Other penalties and rewards. 229.18 Confidentiality of archaeological resource information. 229.19 Report. 229.20 Public awareness programs. 229.21 Surveys and schedules. Note: The information collection and reporting requirements in this part were approved by the Office of Management and Budget under control number 1024-0037. Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 (16 U.S.C. 470aa-mm) (Sec. 10(a). Related Authority: Pub. L. 59-209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996). Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted. Sec. 229.1 Purpose. (a) The regulations in this part implement provisions of the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-mm) by establishing the uniform definitions, standards, and procedures to be followed by all Federal land managers in providing protection for archaeological resources, located on public lands and Indian lands of the United States. These regulations enable Federal land managers to protect archaeological resources, taking into consideration provisions of the American Indian Religious Freedom Act (92 Stat. 469; 42 U.S.C. 1996), through permits authorizing excavation and/or removal of [[Page 428]] 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 when disclosure would threaten the 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. [49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995] Sec. 229.2 Authority. (a) The regulations in this part are promulgated pursuant to section 10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ii), which requires that the Secretaries of the Interior, Agriculture and Defense and the Chairman of the Board of the Tennessee Valley Authority jointly develop uniform rules and regulations for carrying out the purposes of the Act. (b) In addition to the regulations in this part, 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. 229.3 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 followiing 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 above material remains; (ix) All portions of shipwrecks (including, but not limited to, armaments, apparel, tackle, cargo); (x) Any portion or piece of any of the foregoing. [[Page 429]] (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 subparagraph shall be documented. Such determination shall in no way affect the Federal land manager's obligations under other applicable laws or regulations. (6) For the disposition following lawful removal or excavations of Native American human remains and ``cultural items'', as defined by the Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred to NAGPRA and its implementing regulations. (b) Arrowhead means any projectile point which appears to have been designed for use with an arrow. (c) Federal land manager means: (1) With respect to any public lands, the secretary of the department, or the head of any other agency or instrumentality of the United States, having primary management authority over such lands, including persons to whom such management authority has been officially delegated; (2) In the case of Indian lands, or any public lands with respect to which no department, agency or instrumentality has primary management authority, such term means the Secretary of the Interior; (3) The Secretary of the Interior, when the head of any other agency or instrumentality has, pursuant to section 3(2) of the Act and with the consent of the Secretary of the Interior, delegated to the Secretary of the Interior the responsibilities (in whole or in part) in this part. (d) Public lands means: (1) Lands which are owned and administered by the United States as part of the national park system, the national wildlife refuge system, or the national forest system; and (2) All other lands the fee title to which is held by the United States, except lands on the Outer Continental Shelf, lands under the jurisdiction of the Smithsonian Institution, and Indian lands. (e) Indian lands means lands of Indian tribes, or Indian individuals, 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. (f) Indian tribe as defined in the Act means any Indian tribe, band, nation, or other organized group or community, including any Alaska village or regional or village corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). 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; and (3) Any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), and any Alaska Native village or tribe which is recognized by the Secretary of the Interior as eligible for services provided by the Bureau of Indian Affairs. (g) 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. [[Page 430]] (h) State means any of the fifty states, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands. (i) Act means the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-mm). [49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984; 60 FR 5260, Jan. 26, 1995] Sec. 229.4 Prohibited acts and criminal penalties. (a) Under section 6(a) of the Act, no person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under Sec. 229.8 or exempted by Sec. 229.5(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. (c) Under section (d) of the Act, any person who knowingly violates or counsels, procures, solicits, or employs any other person to violate any prohibition contained in section 6 (a), (b), or (c) of the Act will, upon conviction, be fined not more than $10,000.00 or imprisoned not more than one year, or both: provided, however, that if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500.00, such person will be fined not more than $20,000.00 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person will be fined not more than $100,000.00, or imprisoned not more than five years, or both. [49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995] Sec. 229.5 Permit requirements and exceptions. (a) Any person proposing to excavate and/or remove archaeological resources from public 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 Sec. 229.8(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 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 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 archaelogical 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 or archaeological resources on Indian lands, an [[Page 431]] 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. 229.6. However, the Federal land manager shall insure that provisions of Sec. 229.8 and Sec. 229.9 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 Sec. 229.7. (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 Secs. 229.5(b)(5), 229.7, 229.8(a)(3), (4), (5), (6), and (7), 229.9, 229.10, 229.12, and 229.13(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 public 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 public lands or Indian lands any activities 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. 229.6 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 public 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, 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 Sec. 229.8(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. [[Page 432]] (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, or 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 this section 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 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 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. Sec. 229.7 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 a 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. 229.9. (4) When the Federal land manager detemines 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 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). [[Page 433]] (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. (4) The Federal land manager should also seek to determine, in consultation with official representatives of Indian tribes or other Native American groups, what circumstances should be the subject of special notification to the tribe or group after a permit has been issued. Circumstances calling for notification might include the discovery of human remains. When circumstances for special notification have been determined by the Federal land manager, the Federal land manager will include a requirement in the terms and conditions of permits, under Sec. 229.9(c), for permittees to notify the Federal land manger immediately upon the occurrence of such circumstances. Following the permittee's notification, the Federal land manager will notify and consult with the tribe or group as appropriate. In cases involving Native American human remains and other ``cultural items'', as defined by NAGPRA, the Federal land manager is referred to NAGPRA and its implementing regulations. [49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 1995] Sec. 229.8 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 a permit; and (v) Applicants proposing to engage in historical archaeology should have had 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 archaelogical survey and/or data recovery undertaken in accordance with other approved uses of the public 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 (3) shall be deemed satisfied by the prior approval. [[Page 434]] (5) Written consent has been obtained, for work proposed on Indian lands, from the Indian landowner 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 90 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, mr 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 public 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 managers, the Federal land manager shall coordinate the review and evaluation of applications and the issuance of permits. [49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984] Sec. 229.9 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 insitutions 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 public lands shall include such terms and conditions as may have been developed pursuant to Sec. 229.7. (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. 229.10 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 or Sec. 229.4. The Federal land manager [[Page 435]] 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 Federal land manager may revoke a permit upon assessment of a civil penalty under Sec. 229.15 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. [49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984] Sec. 229.11 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. 229.12 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. 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. 229.13 Custody of archaeological resources. (a) Archaeological resources excavated or removed from the public lands remain the property of the United States. (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. (c) The Secretary of the Interior may promulgate regulations providing for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, for the ultimate disposition of archaeological resources, and for standards by which archaeological resources shall be preserved and maintained, when such resources have been excavated or removed from public lands and Indian lands. (d) In the absence of regulations referenced in paragraph (c) of this section, the Federal land manager 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 removed from public lands under the authority of a permit issued by the Federal land manager. (e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, the Federal land manager will follow the procedures required by NAGPRA and its implementing regulations for determining the disposition of Native American human remains and other ``cultural items'', as defined by NAGPRA, that have been excavated, removed, or discovered on public lands. [49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 1995] Sec. 229.14 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. 229.4 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 violation. These costs may include, but need [[Page 436]] 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 Sec. 229.4 of this part or conditions of a permit issued pursuant to this part shall be 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 damaged as a result of a violation of 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. Sec. 229.15 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. 229.4 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 a 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 [[Page 437]] 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 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. 229.16. (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 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. 229.16 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 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 a 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. [[Page 438]] (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. 229.16 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. 229.4 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 archaeological or 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. 229.4 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 archaeological or 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 public 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 public 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 public 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. [49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987] [[Page 439]] Sec. 229.17 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 lald 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 service in the performance of their official duties, and persons who have provided information under Sec. 229.16(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 Indian or Indian tribe. Sec. 229.18 Confidentiality of archaeological resource information. (a) The Federal land manager shall not make available to the public, under subchapter II of chapter 5 of title 5 of the U.S. Code or any other provision of law, information concerning the nature and location of any archaeological resource, with the following exceptions: (1) 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. (2) 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: (i) The specific archaeological resource or area about which information is sought; (ii) The purpose for which the information is sought; and (iii) The Governor's written commitment to adequately protect the confidentiality of the information. [49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984] Sec. 229.19 Report. (a) Each Federal land manager, when requested by the Secretary of the Interior, will submit such information as is necessary to enable the Secretary to comply with section 13 of the Act and comprehensively report on activities carried out under provisions of the Act. (b) The Secretary of the Interior will include in the annual comprehensive report, submitted to the Committee on Interior and Insular Affairs of the United States House of Representatives and to the Committee on Energy and Natural Resources of the United States Senate under section 13 of the Act, information on public awareness programs submitted by each Federal land manager under Sec. 229.20(b). Such submittal will fulfill the Federal land manager's responsibility under section 10(c) of the Act to report on public awareness programs. (c) The comprehensive report by the Secretary of the Interior also will include information on the activities carried out under section 14 of the Act. Each Federal land manager, when requested by the Secretary, will submit any available information on surveys and schedules and suspected violations in order to enable the Secretary to summarize in the comprehensive report actions taken pursuant to section 14 of the Act. [60 FR 5260, 5261, Jan. 26, 1995] Sec. 229.20 Public awareness programs. (a) Each Federal land manager will establish a program to increase public awareness of the need to protect important archaeological resources located on public and Indian lands. Educational activities required by section 10(c) of the Act should be incorporated into other current agency public education and interpretation programs where appropriate. (b) Each Federal land manager annually will submit to the Secretary of the [[Page 440]] Interior the relevant information on public awareness activities required by section 10(c) of the Act for inclusion in the comprehensive report on activities required by section 13 of the Act. [60 FR 5260, 5261, Jan. 26, 1995] Sec. 229.21 Surveys and schedules. (a) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Authority will develop plans for surveying lands under each agency's control to determine the nature and extent of archaeological resources pursuant to section 14(a) of the Act. Such activities should be consistent with Federal agency planning policies and other historic preservation program responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared under this section will be designed to comply with the purpose of the Act regarding the protection of archaeological resources. (b) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will prepare schedules for surveying lands under each agency's control that are likely to contain the most scientifically valuable archaeological resources pursuant to section 14(b) of the Act. Such schedules will be developed based on objectives and information identified in survey plans described in paragraph (a) of this section and implemented systematically to cover areas where the most scientifically valuable archaeological resources are likely to exist. (c) Guidance for the activities undertaken as part of paragraphs (a) through (b) of this section is provided by the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation. (d) Other Federal land managing agencies are encouraged to develop plans for surveying lands under their jurisdictions and prepare schedules for surveying to improve protection and management of archaeological resources. (e) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will develop a system for documenting and reporting suspected violations of the various provisions of the Act. This system will reference a set of procedures for use by officers, employees, or agents of Federal agencies to assist them in recognizing violations, documenting relevant evidence, and reporting assembled information to the appropriate authorities. Methods employed to document and report such violations should be compatible with existing agency reporting systems for documenting violations of other appropriate Federal statutes and regulations. Summary information to be included in the Secretary's comprehensive report will be based upon the system developed by each Federal land manager for documenting suspected violations. [60 FR 5260, 5261, Jan. 26, 1995] ----------------------------------------------------------------------- [Code of Federal Regulations] [Title 32, Volume 2] [Revised as of July 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR248] [Page 595-597] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED) PART 248_DEPARTMENT OF DEFENSE PERIODICALS--Table of Contents Sec. 248.1 Purpose. 248.2 Applicability and scope. 248.3 Definitions. 248.4 Policy. 248.5 Authorities and responsibilities. 248.6 Funding. Authority: 5 U.S.C. 301. Source: 43 FR 8137, Feb. 28, 1978, unless otherwise noted. Sec. 248.1 Purpose. This part established Department of Defense policies, criteria, and controls that govern the publication of DoD periodicals. Sec. 248.2 Applicability and scope. (a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies, hereafter referred to as ``DoD Components.'' (b) This Directive does not encompass Armed Forces newspapers and civilian enterprise publications as defined in 32 CFR part 202; manuals, pamphlets, directives, instructions, regulations, opinions, decisions, official notices, circulars, reports, internal information bulletins issued by a DoD Component headquarters; and primarily (75 percent or more) statistical materials. Sec. 248.3 Definitions. (a) Periodicals within the purview of this part are: Any classified or unclassified DoD magazine or newsletter-type publication published at regular intervals, at least semiannually, for the purpose of disseminating information and material necessary to the issuing activity, with a continuing policy as to format, content, and purpose. Periodicals are nondirective in nature and are usually published to inform and motivate DoD personnel, increase their knowledge, or improve their performance. (b) Classes of periodicals are: (1) Class I: Total annual cost is $20,000, or more. (2) Class II: Total annual cost is less than $20,000, but more than $5,000. (3) Class III: Total annual cost is $5,000, or less. (c) The term ``DoD personnel'' refers to military and civilian members of the DoD Components. Sec. 248.4 Policy. (a) General. (1) Each DoD Component proposing to publish a DoD periodical [[Page 596]] shall conduct an evaluation to determine whether or nor the periodical should be established. The determination should be based on the following: (i) The periodical must serve a clearly defined purpose in support of the mission of the publishing DoD Component. (ii) The purpose to be served must justify the cost. (iii) High standards of editorial quality, accuracy, and good taste must be maintained. (iv) A periodical is the necessary medium of communication between the publishing activity and its intended readership. (v) Equivalent periodicals serving the same, or substantially the same, purpose do not exist. (vi) The potential readership can be specified clearly. (vii) The periodical can be distributed efficiently and economically to the intended readerdship. (viii) The nature, amount, and assured sources of information to be disseminated justify the foremat, production, specifications, and frequency of issue. (ix) Adequate resources are available to produce the periodical. Current or estimated costs are consistent with the periodical's objectives. (x) The periodical has current applicability and is consonant with existing law and DoD policies. (2) All personnel responsible for publishing DoD periodicals shall comply with the provisions of the current edition of the Government Printing and Binding Regulations \1\ and OMB Circular No. A-3.\2\ --------------------------------------------------------------------------- \1\ Copies available from Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. \2\ Copies available from the Office of Management and Budget (Publications) New Executive Office building, 726 Jackson Place NW., Washington, DC 20503. --------------------------------------------------------------------------- (3) DoD periodicals shall not carry partisan political compaign articles, editorials, or advertisement. (4) No appropriated or nonappropriated funds may be used to defray publishing costs of a non-DoD periodical published by a private firm, corporation, individual, or organization. (5) DoD personnel may not be assigned to serve on the editorial, production, or business staffs of a non-DoD periodical that is published by a private firm, corporation, individual, or organization. (6) Editors of DoD periodicals will conform to applicable regulations, laws involving libel and copyright, and postal regulations. (7) Dissemination of DoD statistical information in any periodical shall comply with the provisions of DoD Directive 5000.20.\3\ --------------------------------------------------------------------------- \3\ Filed as part of original. Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa. 19120. Attention: Code 301. --------------------------------------------------------------------------- (b) Elimination of duplication. (1) To eliminate duplication, periodicals dealing with common subject areas shall be published along DoD-wide functional lines, rather than individual Component lines. (2) No DoD Component shall be required to contribute to a consolidated common-use periodical more of its resources than it expends in publishing a related single-Component periodical. Sec. 248.5 Authorities and responsibilities. (a) The Assistant Secretary of Defense (Public Affairs) shall: (1) Establish, and ensure compliance with, supplemental policies, standards, and controls governing the publication of DoD periodicals. (2) Evaluate the effectiveness of DoD Component policies, standards, and controls that relate to DoD periodicals, and effect such changes as may be warranted. (3) Institute programs, in conjunction with the DoD Components, for the purpose of increasing the proficiency of editorial personnel in editorial writing, periodical production, management, and cost effectiveness. (4) Establish a research resource to: (i) Provide professional guidance to DoD Components in the conduct of mass communications research. (ii) Evaluate completed research. (iii) Coordinate periodical research within the DoD Components. (5) In coordination with the DoD Components concerned, examine the [[Page 597]] apparent duplication of periodicals and direct the elimination of those found to be duplicative or of marginal value. (See Sec. 248.4(b).) (b) The Head of each DoD Component shall designate an office to monitor the Component's internal periodicals, and: (1) Conduct a coordinated review of its standards for publication, distribution, evaluation, review and approval; (2) Maintain a current inventory of its periodicals; and (3) Submit such reports as may be required by the ASD(PA). Sec. 248.6 Funding. DoD periodicals will be financed within available appropriated or nonappropriated funds and will be produced as economically as possible, consistent with the need for efficient communication (See DoD Instruction 7041.3. \4\) Funding will be in accordance with established management practices of the DoD Component concerned. ----------------------------------------------------------------------- \4\ See footnote 1 to Sec. 248.4(a)(2). ----------------------------------------------------------------------- ----------------------------------------------------------------------- [Code of Federal Regulations] [Title 32, Volume 2] [Revised as of July 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR252] [Page 610-612] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED) PART 252_DEPARTMENT OF DEFENSE OFFSHORE MILITARY ACTIVITIES PROGRAM --Table of Contents Sec. 252.1 Reissuance and purpose. 252.2 Applicability and scope. 252.3 Definitions. 252.4 Policy. 252.5 Responsibilities. Authority: 5 U.S.C. 301. Source: 52 FR 39222, Oct. 21, 1987, unless otherwise noted. Sec. 252.1 Reissuance and purpose. This part reissues 32 CFR part 252 to update policies and procedures for the use of offshore areas by the Department of Defense. It shall serve as the basis for a comprehensive Offshore Military Activities Program. Sec. 252.2 Applicability and scope. This part: (a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Organization of the Joint Chiefs of Staff (OJCS), and the Defense Agencies (hereafter referred to collectively as ``DoD Components''). (b) Concerns the use of offshore areas for military purposes. It does not limit the responsibilities of the Secretary of the Navy assigned under 33 U.S.C. 1101 et seq. Sec. 252.3 Definitions. Offshore areas. The submerged land areas defined in 43 U.S.C. 1301 et seq. and 43 U.S.C. 1331 et seq. and the adjacent waters affected by the use of those submerged lands. Offshore Military Activities Program. The program established to implement DoD policies and procedures for those activities, operations, and installations that require an offshore environment and that may impact on offshore areas. [[Page 611]] Outer Continental Shelf. All submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 2 of 43 U.S.C. 1301 et seq., and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control. State-owned Offshore Submerged Lands. Coastal portions of lands beneath navigable waters, as defined in section 2 of the Submerged Lands Act. Sec. 252.4 Policy. (a) lt is DoD policy to support the principle that lands composing the Outer Continental Shelf and state-owned offshore areas shall be used in the best interest of the United States. Therefore, it is DoD policy for the use of offshore areas to be shared with nonmilitary interests whenever they can be accommodated. (b) The Secretaries of Defense and the Interior have agreed on procedures for resolving conflicts over joint use of offshore areas for military and mineral exploration or developmental purposes. In carrying out negotiations with elements of the Department of the Interior (DoI), the Department of Defense shall be guided by this agreement when appropriate. (c) If a coastal state determines that the mineral potential of off- shore areas being used or proposed to be used for military purposes must be explored or developed, DoD shall endeavor to accommodate joint military and commercial use of those areas. If compatible joint use is not economically or militarily feasible, DoD shall seek agreement with the coastal state to exclude conflict areas from its leasing program. Sec. 252.5 Responsibilities. (a) The Assistant Secretary of Defense (Production and Logistics) (ASD(P&L)) shall maintain a comprehensive program for the military use of the offshore environment and provide related direction and policy to DoD Components. (b) The Secretary of the Army shall provide notices to the ASD(A&L), to affected military installations and activities, and to the Director of the Defense Mapping Agency Hydrographic/Topographic Center of potential obstructions and hazards to navigation as stated in the Rivers and Harbors Appropriation Act, of proposed permits for obstructions to be located on the Outer Continental Shelf under 43 U.S.C. 1331 et seq., as amended, and of proposed permits for artificial reefs under the National Fishing Enhancement Act of 1984 to ensure compatibility with the Offshore Military Activities Program. (c) The Secretary of the Navy shall: (1) Act as DoD Executive Agent for outer continental shelf matters and carry out responsibilities assigned to the Executive Agent in the Agreement. (2) Conduct continuing liaison with DoI, appropriate coastal states, and the ASD(P&L) to ensure compatibility between the DoD Offshore Military Activities Program and the related plans and programs of DoI and coastal states. (3) lnform concerned DoD Components of new developments in the DOI's, states', and industry's mineral leasing plans that may affect present or potential military interests in offshore areas. (4) Represent the Department of Defense on the Secretary of the Interior's Outer Continental Shelf Advisory Board. (d) The Secretary of the Air Force shall, for those offshore areas under his control, conduct continuing liaison with the DoI and coastal states and enter into agreements necessary to ensure compatibility between military activities and relevant plans and programs of the DoI and coastal states. (e) Heads of DoD Components shall: (1) Review proposed DoI's and states' mineral leasing plans and inform the Executive Agent of proposed activities that could be incompatible with military missions. When joint use is feasible, the Heads shall recommend conditions and stipulations that should be imposed in leases to ensure the integrity of military missions and otherwise protect the interests of the United States against claims arising out of damage to property or personal injury. (2) Establish and maintain lines of communication and coordination to ensure that the ASD(P&L) and the Executive Agent are fully aware of plans and programs involving offshore areas. [[Page 612]] (3) Review notices referred to in Sec. 252.5(b) and notify the Army Chief of Engineers if proposed actions are incompatible with offshore military activities. (4) Inform the Army Chief of Engineers and the Executive Agent of any significant change in the status of offshore ranges, restricted areas, or operating areas. (5) Comply with the provisions of the Coastal Zone Management Act. (6) Conduct other activities related to offshore areas as requested by the ASD(A&L). -----------------------------------------------------------------------