Rule2022-07471
Curation of Federally Owned or Administered Archeological Collections
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 15, 2022
Effective
May 16, 2022
Issuing agencies
Interior DepartmentNational Park Service
Abstract
The National Park Service amends regulations governing the curation of federally owned or administered archeological collections to establish definitions, standards, and procedures to dispose of material remains that have insufficient archeological interest. This rule promotes more efficient and effective curation of archeological collections.
Full Text
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<title>Federal Register, Volume 87 Issue 73 (Friday, April 15, 2022)</title>
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[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Rules and Regulations]
[Pages 22447-22462]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07471]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 79
Office of the Secretary of the Interior
43 CFR Part 3
[NPS-WASO-CR-33054; PPWOCRADI0, PCU00RP14R50000]
RIN 1024-AE58
Curation of Federally Owned or Administered Archeological
Collections
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: The National Park Service amends regulations governing the
curation of federally owned or administered archeological collections
to establish definitions, standards, and procedures to dispose of
material remains that have insufficient archeological interest. This
rule promotes more efficient and effective curation of archeological
collections.
DATES: This rule is effective May 16, 2022.
[[Page 22448]]
FOR FURTHER INFORMATION CONTACT: Karen Mudar, Archeology Program,
National Park Service, 1849 C Street NW, Washington, DC 20005, 202-354-
2103, email: <a href="/cdn-cgi/l/email-protection#dab1bba8bfb485b7afbebba89ab4aaa9f4bdb5ac"><span class="__cf_email__" data-cfemail="b9d2d8cbdcd7e6d4ccddd8cbf9d7c9ca97ded6cf">[email protected]</span></a>. Individuals in the United States who
are deaf, deafblind, hard of hearing, or have a speech disability may
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
Authority To Promulgate Regulations
The Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470aa-
mm) authorizes the Secretary of the Interior (the Secretary) to
promulgate regulations for the disposition of archeological and other
resources recovered under the authority of ARPA, the Reservoir Salvage
Act (RSA; 54 U.S.C. 312501-312508), and the Antiquities Act (54 U.S.C.
320301-320303). 36 CFR part 79's disposition process for resources
recovered under ARPA, RSA, and the Antiquities Act is authorized
thereunder. In addition, the National Historic Preservation Act (NHPA;
54 U.S.C. 302107 and 306131) authorizes the Secretary to promulgate
regulations for the proper curation of archeological collections
created under ARPA, RSA, and NHPA. 36 CFR part 79's curation
requirements for resources recovered under ARPA, RSA, and NHPA are
authorized thereunder. The Department of the Interior's Departmental
Manual entitled ``Protection of the Cultural Environment'' (519 DM
2.3D) requires the Departmental Consulting Archeologist (DCA), located
within the National Park Service (NPS), to develop regulations
concerning the preservation of prehistoric and historic material
remains of archeological interest under ARPA.
Regulatory History
The regulations at 36 CFR part 79 establish definitions, standards,
procedures, and guidelines to be followed by Federal agencies to
preserve collections of prehistoric and historic material remains and
associated records that generally include those resulting from a
prehistoric or historic resource survey, excavation, or other study
conducted in connection with a Federal action, assistance, license, or
permit.
As currently written, 36 CFR part 79 does not discuss processes for
Federal agencies to dispose of particular material remains from
archeological collections. It is important for Federal agencies to
establish appropriate methods of disposal because prehistoric or
historic material remains improperly disposed of could later be
rediscovered and misinterpreted by archeologists or others as evidence
of activity in the distant past. A proposed rule to establish
procedures for discarding particular material remains from Federal
collections was published in the Federal Register in 1990 (55 FR 37670,
September 12, 1990). A final rule was never published. Instead, the DCA
focused on the proper curation of federally owned or administered
collections and left the subject of disposal of material remains for a
future rulemaking.
In recent years, renewed interest from Federal agencies to address
the issue of deaccessioning certain material remains has led to the
promulgation of this rule. Specifically, Federal agencies such as the
Department of Defense asked the DCA to help them find solutions to the
growing costs of managing archeological collections. The NPS published
a proposed rule in the Federal Register on November 18, 2014 (79 FR
68640).
Final Rule
This rule establishes procedures for the disposal of particular
material remains of insufficient archeological interest that are held
in federally owned or administered archeological collections. The
procedures are not intended to apply to entire collections. Material
remains refers to artifacts, objects, specimens, and other physical
evidence, including human remains, of a historic or prehistoric
resource. Federal agencies are responsible for ensuring that
disposition of material remains is conducted in accordance with this
rule and 36 CFR 79.7 ``Methods to fund curatorial services.'' This rule
does not affect any material remains defined as ``cultural items'' by
the Native American Graves Protection and Repatriation Act (NAGPRA; 25
U.S.C. 3001 et seq.) and subject to that statute. NAGPRA cultural items
include Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony.
In addition to providing a mechanism for appropriate and carefully
considered disposition, this rule will improve the curation of
federally owned or administered archeological collections, such as by
promoting more effective space and cost management. This rule addresses
many of the comments submitted in 1990 by incorporating independent
advice and opinions supplied by numerous experts that were consulted
between 2005 and 2013. The NPS stresses that the disposition process
laid out in this rule must be employed as part of a comprehensive
collection management program that emphasizes collection stewardship
and responsible accessioning practices. The best deaccession policy is
a good accession policy. This rule provides measures to allow for
deaccessioning only as a last resort. The NPS recommends that, in
addition to proposing deaccession, agencies implement carefully
designed field collection policies and create and implement clear and
thoughtful scope of collections statements. Consistent with the
Secretary's authority to promulgate regulations for ultimate
disposition of certain material remains, this rule uses the term
disposition throughout. The NPS acknowledges the museum practice of
deaccessioning will be an integral and parallel part of the disposition
process described in this rule.
In addition to adding a new Subpart E--Disposition of Particular
Material Remains (Sections 79.12-79.18), this rule organizes existing
sections 79.1-79.11 into Subparts A (Administrative Provisions), B
(Archeological Collections Management), C (Public Access to and Use of
Collections), and D (Inspections and Inventories of Collections). This
rule also revises sections 79.1-79.4 to update legal citations, removes
paragraph designations for defined terms in section 79.4 as recommended
by the Office of the Federal Register's Document Drafting Handbook, and
adds two defined terms that are used in Subpart E. A section-by-section
analysis of the rule can be found in the Background section of the
proposed rule.
Summary of Public Comments
The NPS published a proposed rule in the Federal Register on
November 18, 2014 (79 FR 68640). The NPS accepted comments on the
proposed rule through the mail, hand delivery, and through the Federal
eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Comments were
accepted through February 17, 2015. The NPS received comments from
individuals, federally recognized tribes, state and local government
agencies, public institutions, and professional organizations.
Summaries of the issues raised in the comments and responses from the
NPS are provided below.
Disposition Process
1. Comment: Several commenters addressed the notification and
consultation requirements in the
[[Page 22449]]
proposed rule. Commenters requested more time be given to interested
parties to comment on a proposed disposition, and that additional
direct notice be given to interested parties during the disposition
process. Commenters asked that the Federal Agency Official (FAO) take
additional steps to engage with public stakeholders during the
disposition process.
NPS Response: The NPS made several changes in the final rule to
ensure there is sufficient notice provided to interested parties during
the disposition process. The NPS added a requirement that the FAO
provide at least 60 days for notified entities to comment on a proposed
disposition. The NPS increased the time allowed for objecting to a
final determination of disposition from 30 to 60 days. The NPS added to
the list of parties who must receive notice of proposed dispositions by
including state archeologists, certain private landowners, broader
categories of Indian tribes with cultural relationships to material
remains in the collections, and organizations and institutions for
which the agency has an existing relationship for research, excavation,
curation, education, or other partnership in the state and region from
which the material remains to be disposed were recovered. The NPS
believes these notice requirements will sufficiently involve the
relevant stakeholders in the disposition process prior to any
determination of disposition published in the Federal Register.
2. Comment: Two commenters recommended that the rule limit the
amount of time given to the FAO to choose a method of disposition.
NPS Response: The NPS declines to adopt this recommendation because
it is important to preserve flexibility in this part of the disposition
process, so that the most appropriate method is chosen. Time limits are
required in other phases of the process such as during the periods for
commenting on and objecting to determinations of disposition. A time
limit at this stage would not further the purpose of the rule because
agencies could be motivated to forego considered deliberation in order
to select a method of disposition merely to meet a time limit.
3. Comment: One commenter argued that judgements other than those
of the Indian Claims Court, as well as other types of documentation,
should be allowed to determine aboriginal occupancy of land for
purposes of whether an Indian tribe may receive deaccessioned materials
excavated from lands other than Indian lands. Another commenter argued
that culturally affiliated tribes that request deaccessioned material
remains should be allowed to receive them.
NPS Response: The NPS has added two methods of disposition in
paragraph 79.13(b) to accommodate these requests. Aboriginal occupation
of lands where material remains were removed can now be documented by
any type of evidence. The final rule allows material remains to be
conveyed to federally recognized Indian tribes for the purposes of
traditional, cultural, educational, or religious practices.
4. Comment: One commenter asked whether deaccessioned materials
could be reused for educational or interpretive purposes (i.e.,
adaptive reuse).
NPS Response: Deaccessioned materials may be used for educational
or interpretive purposes. The methods of disposition in section 79.13
allow for such reuse. The rule is therefore sufficiently flexible to
allow adaptive reuse after material remains have been deaccessioned.
5. Comment: One commenter argued that all methods of disposition
are unacceptable because disposition is not a preservation activity.
NPS Response: ARPA section 5 (16 U.S.C. 470dd) specifically
authorizes the Secretary of the Interior to promulgate regulations
providing for the ultimate disposition of archeological resources. A
requirement for specific disposition methods to constitute a
preservation activity has no basis in the statutory authority.
6. Comment: Two commenters requested that the NPS list the methods
of disposition in priority order for material remains excavated from
public lands. One commenter requested that the rule provide a clear
step-by-step process.
NPS Response: The NPS declines to impose a priority order on the
methods of disposition because this would unduly restrict the
discretion given to FAOs to dispose of deaccessioned material remains
in the manner most appropriate to the situation. With the goal of
making the disposition process as clear as possible, the NPS has
provided a step-by-step process for an FAO to follow.
Federal Agency Official (FAO)
7. Comment: One commenter asked the NPS to identify the level of
government where the FAO is located.
NPS Response: The FAO is defined in section 79.4 to mean ``any
officer, employee or agent officially representing the secretary of the
department or the head of any other agency or instrumentality of the
United States having primary management authority over a collection
that is subject to this part.'' In practice, the FAO is typically
situated at the departmental, national, headquarters, or equivalent
level of the agency, unless the agency has a different policy.
Collections Advisory Committee
8. Comment: Several commenters asked that individuals from outside
of the Federal government be invited to participate on the collections
advisory committee. One commenter proposed that any disposition should
be contingent on a consensus recommendation from the collections
advisory committee. Another commenter suggested that the DCA should not
be eligible to serve on a collections advisory committee. Several
commenters recommended that qualified experts be given more influence
on the committee, while one commenter argued that the collections
advisory committee should be made up of individuals who are
professionally disinterested or distanced from the material remains
being considered for disposition.
NPS Response: The NPS has revised the rule to clarify the
qualifications necessary to serve on a collections advisory committee.
The NPS added a requirement that the committee make consensus
recommendations to the FAO about proposed dispositions. The NPS also
added a provision stating that the DCA may not participate on the
committee, because the DCA may be called upon to make recommendations
in the case of a dispute. With the exception of certain Tribal
officials specified in paragraph 79.15(e)(3), the NPS declines to
delegate the responsibilities of Federal agencies for federally owned
or administered property to non-Federal employees through an expansion
of the composition of the committee. In order to increase the
transparency of the committee, the final rule requires the collections
advisory committee to prepare a written report for the FAO that
contains, at a minimum, the following:
<bullet> The information required for the Federal Register notice
of determination of disposition identified in paragraphs (i)(1)(i)
through (iii) of section 79.15;
<bullet> The membership of the committee and their role and
expertise pertinent to the deliberations;
<bullet> The committee's recommendations, including any conditions
of transfer or conveyance; and
<bullet> An explanation of why the committee determined other
methods of disposition were of lesser public benefit.
[[Page 22450]]
9. Comment: Several commenters asked the NPS to include specific
procedures in the rule that collections advisory committee members must
follow in order to make recommendations to the FAO about proposed
dispositions, rather than allowing the committee to determine their own
rules. One commenter recommended that the committee have clearly
written procedures, including timelines and opportunities for public
consultation and input. Another argued that the rule should identify
the specific tasks and procedures of the collections advisory
committee. One commenter proposed that the regulations establish a
single committee to review every proposed disposition.
NPS Response: The rule supports the need for flexibility in the
disposition process, including in the formation and operation of
collection advisory committees. The NPS believes these committees must
address the unique circumstances of each proposed disposition, as well
as reflect the unique needs, capacities, and operating environments of
the responsible Federal agencies, which a single central committee
could not do. However, the rule also establishes some basic
requirements about the composition and operation of the committees to
enable appropriate recommendations. In order to strike a balance
between fostering flexibility and imposing standard requirements, the
rule establishes qualifications for committee membership and requires
written procedures to be approved by the FAO. The NPS believes this is
sufficient to ensure all recommendations are fair, open, timely, and in
the best interest of the public. Mandating specific rules of procedure
for each committee would be unduly rigid and make the work of the
committees more difficult because they would be forced to apply strict
rules to the unique situations and capacities of each committee.
Although the regulations require that the composition of the committees
be tailored to the characteristics of each disposition, nothing in the
regulations prevents the same committee from reviewing more than one
disposition of a similar nature. Under these circumstances, the Federal
agency would not need to form a new committee for each proposed
disposition provided the members of the committee meet the requirements
in the regulations with respect to the particular collection under
review.
Insufficient Archeological Interest
10. Comment: One commenter argued that a determination of
insufficient archeological interest should be made on the basis of
independent peer review that includes experts outside of the Federal
government.
NPS Response: The NPS added a requirement in the final rule that
the FAO must consult with qualified museum professionals at non-Federal
repositories about the appropriateness of a proposed disposal. The NPS
acknowledges that the perspective of qualified museum professionals
responsible for the care and curation of the subject materials is
necessary for the FAO to make an informed determination. FAOs must use
appropriate judgment and base determinations of disposition on
appropriate supporting information. Because the rule regulates
federally owned or administered collections, however, it remains
appropriate that Federal agency staff and officials, with verifiable
knowledge of the materials, make decisions regarding the disposition of
material remains in those collections.
11. Comment: One commenter argued that a lack of original records
should not be sufficient to presume a determination of insufficient
archeological interest if provenience can be reconstructed through
other means.
NPS Response: The loss or destruction of associated records is one
factor in determining whether there is a lack of provenience
information. Under section 79.12, a qualified archeological or museum
professional must determine that a disposition will not negatively
impact the overall value of the collection in order to make a finding
of insufficient archeological interest. In doing so, the professional
must make a concerted effort to research all records, including museum
records, associated with a collection. In addition, the FAO must
determine that disposition of the material remains will not negatively
impact the overall integrity of the original collection.
12. Comment: One commenter stated that it is unclear who makes the
determination of insufficient archeological interest and what that
individual's qualifications should be.
NPS Response: At least one qualified archeological or museum
professional with verifiable knowledge of and experience in the type of
material remains being evaluated makes a determination of insufficient
archeological interest. The FAO determines whether the professional is
qualified, using the Professional Qualification Standards set by the
Secretary of the Interior as a benchmark, and considering the
professional's verifiable knowledge of the material remains. The FAO
then determines, under section 79.15, whether the material remains are
eligible for disposition under this subpart.
13. Comment: Two commenters requested that the rule define the
following terms related to insufficient archeological interest:
Material remains, physical integrity, irreparable damage, overly
abundant, and representative sample.
NPS Response: Existing regulations define material remains as
``artifacts, objects, specimens and other physical evidence that are
excavated or removed in connection with efforts to locate, evaluate,
document, study, preserve or recover a prehistoric or historic
resource.'' This definition goes on to provide illustrative examples of
different classes of material remains. The NPS declines to define the
other terms requested by the commenters. These terms are commonly used
by the archeological community and must be applied in context using the
professional judgement of qualified personnel. For example, the amount
sampled and sampling method for a representative sample must be
determined on a case-by-case basis, using the professional discretion
of subject matter experts and best available information. The rule
requires subject matter experts to have verifiable knowledge of the
material remains to be examined.
14. Comment: One commenter questioned whether material remains
could possess increasing archeological interest over time.
NPS Response: For material remains that are overly redundant and
not useful for research, the rule requires that a sampling strategy be
developed and implemented in order that the retained samples may be
subjected to new or improved analytical technologies in the future that
could demonstrate those materials remains have greater archeological
interest than previously known. The NPS has revised the rule to clarify
that samples of material remains determined to be overly redundant and
not useful for research must be representative of the population as a
whole from which the sample was taken. This will help ensure the
integrity and potential future worth of samples that are retained.
15. Comment: One commenter suggested that the criterion ``overly
redundant and not useful for research'' be split into two separate
criteria, each of which could support a determination of insufficient
archeological interest.
NPS Response: The NPS declines to split this criterion into
separate criteria because both elements of this criterion are necessary
to establish insufficient
[[Page 22451]]
archeological interest. Fulfilling only one of these two elements
(overly redundant or not useful for research) could not result in a
determination of insufficient archeological interest. A redundant set
of material remains that is still useful for research could have
sufficient archeological interest. For instance, two sets of similar
material remains derived from different archeological contexts are
likely, by virtue of their spatial disparity, to provide some
information about the past, even though those material remains may seem
similar or identical in a museum setting. Alternatively, material
remains not useful for research but not overly redundant could still
have archeological interest because: (1) Their uniqueness may render
them inherently informative about the past and (2) they may become
useful for research in the future as new technologies are developed.
Thus, to meet this test, material remains must be both overly redundant
and not useful for research.
16. Comment: One commenter suggested that the NPS establish a
hierarchy of levels of archeological interest and provide a range of
disposition options for each level.
NPS Response: The rule only addresses the ultimate disposition of
certain materials that have insufficient archeological interest.
Identifying different degrees or levels of insufficient archeological
interest and assigning different disposal options for each level would
unnecessarily complicate the process.
Costs
17. Comment: Several commenters addressed the costs for Federal
agencies and recipient entities of complying with the disposition
process under the rule. Several commenters were concerned that the rule
would place financial strain on repositories for retaining materials
during the disposition process without addressing a general shortfall
of personnel and funding. One commenter expressed concern that several
methods of disposition (e.g., conveyance to suitable repositories or
institutions) would impose unfair financial burdens on recipients of
deaccessioned material remains.
NPS Response: The rule will impose little or no direct cost upon
the public. Section 79.7 makes Federal agencies responsible for funding
the curation of material remains. This includes costs associated with
deaccessioning material remains in federally owned or administered
collections, including costs borne by repositories that retain
materials during the disposition process. Federal agencies must
accession and catalog material remains before deaccessioning, and must
follow relevant law and agency policy in ensuring that funding
decisions address all aspects of collection stewardship, not just
deaccessioning. The rule provides a series of options for disposition
and does not require any group or individual to accept material remains
that are eligible for disposal. The rule does not impose unfair
financial burdens on recipients of deaccessioned material remains
because those recipients are under no obligation to accept the material
remains. A recipient must independently choose to accept deaccessioned
material, thus it will have an opportunity in advance to consider the
financial impact of its participation in the disposition process. The
NPS believes the disposition process in the rule is financially
achievable for Federal agencies.
18. Comment: Two commenters inquired about the costs of
deaccessioning material remains of insufficient archeological interest.
They were concerned that resources, which could be used to catalog and
curate collections, might be diverted to deaccessioning instead.
NPS Response: To limit the possibility that Federal agencies
allocate resources to deaccessioning rather than to curating
collections, the rule provides controls, under section 79.12, on the
disposition process, intended to limit its use only to appropriate
circumstances. Deaccessioning is one part of a comprehensive curation
methodology. In order to be eligible for disposition, material remains
must be part of a Federal collection, and thus have undergone
appropriate intake and accessioning procedures, which must be
documented in accordance with agency protocols. Agency staff
responsible for determining whether particular material remains lack
archeological interest must consider the relationship of the material
remains to the collection as a whole. Any effort to determine the
archeological interest of material remains must include a review of the
overall collection, along with associated documentation, from which
those material remains are derived. For these reasons, the NPS does not
believe that the disposition process will divert funds from curation
because deaccessioning is part of a responsible curation program.
19. Comment: One commenter suggested that the disposition process
will impose new costs for excavation because allowing for disposition
will force archeologists to perform a more thorough analysis of
material remains prior to curating them in a repository.
NPS Response: The NPS does not consider this scenario as likely to
occur. However, a more thorough analysis of collections during an
initial excavation project could be a desirable outcome because it
means that the documentation concerning material remains will provide a
better understanding of the archeological interest and improve the
value of the resulting curated collections to the public. Any increase
in the initial cost of analysis would be voluntary.
Compliance
20. Comment: Several commenters discussed ways that implementation
of the rule will support and interplay with compliance regimes for laws
such as the NHPA and the National Environmental Policy Act (NEPA).
NPS Response: Under section 106 of the NHPA, Federal agencies must
consider the effect of an undertaking on any historic property that is
included in or eligible for inclusion in the National Register. Museum
collections, including archeology collections, are not generally
considered historic properties (see National Register Bulletin 15).
Further, material remains determined to be of insufficient
archeological interest are not likely to be included in or eligible for
inclusion in the National Register because, characteristically, they
would not be worthy of preservation. NEPA requires Federal agencies to
fully consider the impacts of proposals that would affect the human
environment prior to deciding to take an action. The disposal of
material remains under this rule will generally not constitute a
Federal action under NEPA that would have a significant effect on the
human environment. Nevertheless, FAOs must consider the context related
to each proposed disposal of material remains and comply with all
applicable laws, including the NHPA and NEPA, before making a final
determination. The FAO must consider the opinions, as appropriate, of
the collections advisory committee, Indian Tribes, and other available
experts in making disposition decisions to ensure compliance with
Federal law. In cases where collections are held under a compliance
agreement, such as a Memorandum of Agreement under section 106 of NHPA,
the FAO must consider the context and the terms of the agreement to
determine whether disposal is appropriate.
Administrative Record
21. Comment: Several commenters focused on the creation and
preservation of the administrative record of the disposition process.
One commenter asked that the
[[Page 22452]]
administrative record be provided to tribes and SHPOs, particularly
when they possess additional data about the site or collection. Other
commenters asked the NPS to clarify the requirement in paragraph
79.15(i)(2)(i) to prepare a detailed list of material remains to be
deaccessioned and better define when photographic documentation would
be considered appropriate.
NPS Response: Section 79.18 requires Federal agencies to include in
their administrative record specific documentation of the determination
of disposition. Consistent with these requirements, Federal agencies
should follow their own procedures for preparing, preserving, and
distributing administrative records. The FAO should follow existing
practices that comply with applicable state and Federal standards for
recording material remains in archeological collections when preparing
the detailed list of material remains required by paragraph
79.15(i)(2)(i). This paragraph specifies that the list must include a
description of each object, or lot of objects if there are multiples of
a particular type, and photograph(s) of the objects when appropriate.
The FAO should also consider standard practices to determine when
photographic documentation is appropriate.
Authority and Applicability of Regulations
22. Comment: Two commenters questioned whether the authorities
cited in section 79.2 authorize the NPS to allow the disposition of
material remains. Two commenters questioned the applicability of the
rule to material remains excavated under the Antiquities Act and the
interplay with prior regulations.
NPS Response: Section 5 of ARPA (16 U.S.C. 470dd) gives the
Secretary the explicit and sole authority to promulgate regulations
providing for ``the ultimate disposition'' of ARPA archeological
resources and other resources removed pursuant to the Antiquities Act
and the RSA. These authorities are cited in paragraph 79.2(b)(2) which,
except for updated citations, is not changed by this rule. The explicit
statutory authority to promulgate this rule supersedes any preceding
regulatory requirements regarding similar subject matter, in
particular, 43 CFR 3.17. This more recent statutory authority thus
makes it appropriate to include those resources excavated under the
Antiquities Act and eligible for disposal via the process described in
the new Subpart E as subject to this rule. For clarity, this rule adds
a note to 43 CFR 3.17 stating that resources excavated under the
Antiquities Act are eligible for disposal via Subpart E of 36 CFR 79.
23. Comment: Several commenters requested clarification about the
term ``practical management authority'' and the meaning of ``indirect''
practical management authority.
NPS Response: Part 79 applies to federally owned or administered
collections. Section 79.3(a) uses the term ``practical management
authority'' to further explain the circumstances under which
collections that are owned by the United States are subject to Part 79.
Federal agencies have ownership of collections due to specific laws,
activities on Federal lands, or other circumstances, and these
collections are managed in a variety of ways. In order for those
collections to be subject to Part 79, a Federal agency that owns a
collection also must have ``practical management authority'' over that
collection, either directly or indirectly. Otherwise, Federal agencies
would be responsible for curating collections that they do not control.
Direct practical management authority generally includes situations
where a Federal agency is directly administering collections at Federal
facilities. Indirect practical management authority includes situations
in which a Federal agency has legal responsibility and control over
collections but a non-Federal entity has responsibility for curating
the collection. This is usually documented through the terms of an
agreement, contract, permit, or authorized expenditures.
24. Comment: One commenter stated that the rule should only apply
to federally owned collections and that there should be no question
about who has legal title over material remains that are proposed for
disposal.
NPS Response: The FAO should be able to discern the ownership of
material remains when determining if those remains are eligible for
disposal under paragraph 79.12(a) and when reviewing the provenience
information to determine if those remains have insufficient
archeological interest under paragraph 79.12(e)(2)(i). Directions from
ascertainable owners or questions regarding ownership must inform the
FAO's proposed disposition determination. Clear legal ownership by the
United States is not a prerequisite for disposal of material remains
under Part 79; the rule also applies to material remains that are not
owned by the United States but that are managed or controlled by a
Federal agency pursuant to the Antiquities Act, NHPA, RSA and ARPA.
Other provisions of the rule explicitly ensure that certain owners of
federally administered collections, such as Indian individuals or
tribes under 79.13(a), have an opportunity to receive them or to object
to a proposed disposition. This aspect of the rule is intended to
ensure that the government cares for archeological collections in its
possession in accordance with applicable laws.
25. Comment: Based on established practices that allow for the re-
interment of human remains not subject to NAGPRA, several commenters
suggested that this rule should apply to human remains not subject to
NAGPRA and identify reburial as a method of disposition. One commenter
suggested that the rule establish a disposition process for human
remains that are not subject to NAGPRA.
NPS Response: During consultation for the proposed rule, Federal
agencies, Tribes, and professional organizations suggested that
excluding all human remains from the disposition process for materials
of insufficient archeological interest described in this subpart would
simplify the rule and avoid confusion with NAGPRA and its implementing
regulations. As a result, the proposed rule excluded all human remains
from disposition and, in doing so, did not distinguish between human
remains subject to NAGPRA and other human remains. The final rule
clarifies in paragraph 7.12(b)(1) that Native American cultural items
under NAGPRA, which can include human remains, are not eligible for
disposition under this rule. Native American human remains are subject
to disposition or repatriation under NAGPRA. In paragraph 7.12(b)(2),
the final rule also states that other human remains not subject to
NAGPRA are ineligible for disposition under Subpart E. The NPS does not
intend for this subpart to affect established practices that otherwise
allow for the disposition and re-interment of human remains not subject
to NAGPRA. The final rule clarifies that human remains not subject to
NAGPRA are excluded only from the process described in Subpart E. The
NPS is reserving section 79.14 to address this issue in the future if
necessary.
Disputes
26. Comment: Several commenters addressed the procedures for
objecting to determinations of disposition. One commenter asked that
the public have 90 days to dispute a determination of disposition, and
that the requirement for submission of documentation be removed.
Another commenter recommended that those objecting to a disposition
should be responsible for finding a new repository. One
[[Page 22453]]
commenter suggested that the DCA should make binding decisions for all
objections instead of non-binding recommendations to the FAO. Another
commenter requested that the rule require the DCA to thoroughly explain
their recommendation to the FAO. Two commenters asked that the rule
include a dispute resolution process in section 79.16 to help resolve
disagreements over which tribes should receive material remains that
have been determined to be eligible for disposal. One commenter
specifically recommended adopting the dispute resolution language from
NAGPRA.
NPS Response: The NPS made several changes in section 79.16 of the
final rule to provide a more effective and inclusive process for
objecting to a determination of disposition. The NPS lengthened the
timeframe to object to a determination of disposition from 30 to 60
days. The NPS believes this will provide sufficient time for interested
parties to file an objection, in part because the list of those
notified and consulted with prior to the determination of disposition
is comprehensive. It is important that the objecting party document the
reasons for the objection so that the DCA and the FAO are able to
evaluate the merits of the objection. While objecting parties may
suggest a different repository, they are not required to as a condition
to filing an objection. The NPS also shortened the timeframe for the
FAO to respond to the DCA's non-binding recommendation from 60 to 30
days and added a requirement that the DCA forward a copy of the
objection to the FAO within 5 days of receipt of the objection. The
final rule also requires the DCA to consult with the objecting party
and the FAO with the aim of resolving the objection. This will ensure
that the DCA plays a significant role in the resolution of disputes
over determinations of disposition. The final rule requires that the
DCA explain their recommendation to the FAO.
The NPS declines to make the DCA's decision binding because the
DCA's role to other government agencies is advisory in nature. The DCA
has no authority to broker binding arbitration with other Federal
agencies, nor does the DCA have the authority to make decisions on
their behalf. Similarly, the NPS declines to outline a dispute
resolution process specifically for tribes because such a process would
be duplicative of the appeal process in section 79.16. In addition, the
NPS notes that the dispute resolution process in NAGPRA is specifically
authorized in 25 U.S.C. 3006(c); no such authorization exists in ARPA
or the other applicable authorities for this rule.
Rulemaking Process
27. Comment: Several commenters stated that the rulemaking process
was inadequate because of insufficient opportunities for public
comment. One commenter asked for an extension of the public comment
period.
NPS Response: The NPS consulted widely with Tribes and interest
groups before publishing the proposed rule. The proposed rule was open
for public comment for 90 days, from November 18, 2014, through
February 17, 2015. This is 30 days longer that the standard comment
period of 60 days that is identified in Department of the Interior
Policy (318 Departmental Manual, section 5.3). The NPS received a
substantial number of comments and has worked to address or respond to
all issues raised by those comments in this final rule.
Impacts to Federal Collections
28. Comment: Two commenters stated that many collections were made
with the understanding that they would be held in perpetuity by the
government for future study, and that perpetual curation might be
required by agreements entered into for purposes of complying with
section 106 of the NHPA.
NPS Response: Legal instruments for the curation of materials,
including those created under the section 106 consultation process,
such as memoranda of agreement or programmatic agreements, may contain
provisions requiring curation of materials beyond what otherwise would
be required by this rule. When considering the potential disposal of
materials covered by any such agreement, the FAO must review the terms
of the agreement to determine whether the agreement and section 79.12
can be reconciled to allow disposal. Legally binding requirements for
the perpetual curation of materials that appear in an agreement or
other written instrument will not be affected by the disposition
process established in this rule.
29. Comment: One commenter argued that deaccessioning would greatly
reduce the volume of material remains available for study, which would
lead to increased excavation.
NPS Response: The disposition process established in this rule
applies narrowly to material remains of insufficient archeological
interest. The rule does not compel the wholesale divestment by the
government of its collections, but instead allows for small reductions
in the size of some collections under specific circumstances. Samples
of material remains to be deaccessioned under this rule must be
retained when those materials are deemed overly redundant and not
useful for research. The cautious approach to disposition required by
this rule makes it unlikely that the rule will result in a steep
reduction in the amount of materials available for study in Federal
collections, and a consequential need for additional excavations.
NAGPRA Consultation
30. Comment: Two commenters sought stronger requirements to consult
with Tribes regarding the determination that material remains are not
subject to NAGPRA. One commenter asked the NPS to clarify the FAO's
responsibilities to consider NAGPRA compliance.
NPS Response: Federal agencies have separate procedural
requirements under NAGPRA to ensure that NAGPRA cultural items in their
collections are included in inventories and summaries. Extensive
consultation is required during the inventory and summary process under
43 CFR 10.8 and 10.9. In general, Federal agencies were required to
complete their NAGPRA summaries by November 16, 1993, and their NAGPRA
inventories by November 16, 1995, so, in most cases, Federal agencies
will have already determined which items in their collections are
NAGPRA cultural items. Section 79.12 provides an additional measure to
ensure NAGPRA cultural items are handled pursuant to NAGPRA and not
subject to disposition under this rule. Prior to making a final
determination of disposition, the FAO must determine that the material
remains are not NAGPRA cultural items. The rule further states that,
when Native American material remains are proposed for disposition, the
collections advisory committee must include one or more elected
officers (or their designees) of federally recognized Indian Tribes
that are regularly consulted by the Federal agency. The rule also
contains robust notification requirements that will help ensure that
interested Tribes are aware of proposed dispositions. Further, any
Tribe may object to determinations of disposition if it believes the
materials are NAGPRA cultural items. The NPS believes that these
requirements are sufficient to ensure that Native American cultural
items subject to NAGPRA will not be disposed of under this rule.
[[Page 22454]]
Use of Deaccessioned Material Remains
31. Comment: One commenter argued that enforcing the restrictions
on disposition of material remains in the proposed rule would
constitute a taking of property under the Fifth Amendment of the
Constitution, specifically for material remains excavated and removed
from Indian lands and returned to the Indian individual or Indian tribe
having rights of ownership over the resources. Commenters sought to
ensure that deaccessioned material remains may not be sold in the
future. Another commenter questioned the ability of the FAO to enforce
prohibitions on government employees receiving deaccessioned material
remains.
NPS Response: The NPS has clarified in paragraph 79.13(b) that, as
a condition of disposal, the FAO will reasonably ensure that material
remains from public lands that are not Indian lands may not be traded,
sold, bought, or bartered after disposal is completed. This condition
will not apply to material remains from Indian lands. The NPS has
removed the prohibition on government employees receiving deaccessioned
material remains because it is redundant with government-wide ethics
requirements that address the concerns originally underlying this
proposed restriction. Indian individuals who are also Federal employees
must work with their agency's ethics officials to determine a course of
action in the event that they wish to receive deaccessioned material
remains.
General Support and Opposition
32. Comment: Some commenters expressed general support for the
rule, praising its clear language and stringent and rigorous
disposition process. Commenters recognized the need for the rule and
its potential to improve the value of collections and reduce careless
accession of material remains. Other commenters expressed general
opposition to the rule, citing their belief that material remains
should not be deaccessioned and that the rule will not provide a
complete solution to the curation crisis.
NPS Response: Responsible deaccessioning is a necessary tool for
maintaining the scientific value of collections. Several Federal
agencies requested this rule, which supports the proper curation of
Federal collections. This rule establishes a rigorous and deliberative
disposition process that, when properly implemented, will prevent the
careless deaccessioning of material remains. Supporting agency
stewardship of archeological collections is the foundational goal of 36
CFR 79.
Changes in the Final Rule
After considering the public comments and after additional review,
the NPS made the following substantive changes in the final rule. The
NPS made other non-substantive, editorial changes for clarity and ease
of reading. In many places, the NPS replaced outdated citations to
Title 16 of the U.S. Code with correct citations to Title 54. The NPS
also removed the paragraph designations in section 79.4 and organized
the defined terms alphabetically, as recommended in the Office of the
Federal Register's Document Drafting Handbook. In order to make these
changes, the entire section 79.4 appears below in the regulatory text
even though the only changes to that section are to add definitions of
``Departmental Consulting Archeologist'' and ``provenience
information.''
------------------------------------------------------------------------
Final rule section or
paragraph Change Reason for change
------------------------------------------------------------------------
79.4........................ Added definitions of Clarifies the
the terms meaning of these
``Departmental terms for non-
Consulting specialists.
Archeologist'' and
``provenience
information''.
79.12(b)(2)................. Specified that the Clarifies that no
term ``human human remains may
remains'' refers to be disposed of
human remains that under this rule,
are not ``cultural whether or not they
items'' under are subject to
NAGPRA. NAGPRA.
79.12(c).................... Clarified that only Helps ensure that
persons who meet only qualified
the applicable experts may
Professional initiate the
Qualification disposition
Standards set by process. Ensures
the Secretary may that disposition is
propose the not undertaken
disposal of casually or as a
material remains. matter of
convenience. The
professional
standards are
available here:
<a href="https://www.nps.gov/articles/sec-standards-prof-quals.htm">https://www.nps.gov/articles/sec-standards-prof-quals.htm</a>.
79.12(c)(1)................. Added a requirement Helps ensure that
that Federal agency disposition is not
staff members must undertaken
have verifiable improperly because
knowledge of the qualified experts
particular material were not involved.
remains that are
proposed for
disposal.
79.12(e).................... Added a requirement Helps ensure that
that archeological disposition is not
or museum undertaken
professionals must improperly because
have verifiable qualified experts
knowledge of the were not involved.
particular material
remains in order to
determine whether
those material
remains have
insufficient
archeological
interest.
79.12(e)(2)(i)(C)........... Clarified that a Addresses a
lack of provenience legitimate
information may be circumstance where
established if there is no
associated records existing
never existed, have provenience
been lost, or have information.
been destroyed.
79.12(e)(2)(iii)............ Clarified that Helps ensure that a
representative statistically valid
samples of material sample is retained
remains that are in the event that
overly redundant new analytical
and not useful for techniques are
research must be developed that
representative of allow the sample to
the population as a generate useful
whole from which information about
the sample was the past.
taken.
79.13(a)(2)................. Clarified that the Helps ensure that
FAO must receive the FAO will not
written consent and dispose of material
relinquishment of remains owned by
ownership from the Indian individuals
Indian individual or tribes without
or tribe having their consent.
rights of ownership
before otherwise
disposing of
material remains
excavated from
Indian lands.
79.13(b)(5)................. Added the following Responds to public
method of disposal comment and
for material improves
remains excavated consistency between
or removed from the acceptable
public lands: methods of
Convey to a disposition for
federally materials removed
recognized Indian from Indian and
tribe for the public lands.
purpose of
traditional
cultural,
educational, or
religious practices.
[[Page 22455]]
79.15(d).................... Added a requirement Helps ensure that
that the FAO appropriate experts
consult with are involved in the
qualified museum disposition
professionals process.
located in the
repository that
provides curatorial
services for
material remains
proposed for
disposal when those
museum
professionals did
not propose the
disposal.
79.15(e).................... Added a requirement Responds to public
that the comment and helps
collections ensure that
advisory committee disposition is not
make consensus undertaken lightly
recommendations to or improperly.
the FAO about
proposed
dispositions.
79.15(e)(1)................. Added a provision Helps maintain the
stating that the impartiality of the
DCA may not DCA, who serves as
participate on a the arbiter of
collections disputes about
advisory committee. proposed
dispositions.
79.15(e)(3)................. Clarified that the Ensures the
requirement that appropriate
collections inclusion of tribal
advisory committees viewpoints in
include at least considering a
one representative disposition of
of an Indian tribe Native American
only applies if material remains.
there are Native
American material
remains proposed
for disposal.
79.15(e)(5)................. Added a requirement Responds to public
that the comments and
collections improves the
advisory committee administrative
submit a written record of a
report to the FAO disposition.
about any proposed
disposition.
79.15(g).................... Added a requirement Responds to public
that, for material comments and
remains excavated improves
from Indian land, accountability to
the FAO provide a tribal governments.
copy of the
associated records
to the appropriate
Tribal Historic
Preservation
Officer or tribal
official.
79.15(h).................... Added a minimum Responds to public
duration of 60 days comments to improve
for the public timeliness and
comment period for public
a proposed accountability.
disposition. Made Reduces the
the FAO responsible administrative
for responding only burden on the FAO
to relevant, during the comment
substantive review period.
comments.
79.15(h)(1)................. Added a requirement Improves
that the FAO must coordination with
give notice of state officials and
proposed improves the
dispositions to the administrative
State Archeologist record.
if there is one.
79.15(h)(3)................. Added a requirement Responds to public
that the FAO must comments to provide
give notice of additional
proposed information to
dispositions to landowners.
private landowners
from whose lands
the objects to be
disposed were
removed.
79.15(h)(5)................. Removed the Removes ambiguity
requirement that about which
the FAO must give institutions and
notice to organizations must
organizations and receive notice of
institutions with proposed
an active dispositions.
department of or Reduces the burden
program in of compliance for
archeology or the FAO by
anthropology requiring only
pertaining to the notification of
archeology of the those entities that
state or region have a formal
from which the relationship.
material remains to Improves
be disposed of were communication about
recovered. proposed
Clarified that the disposition actions
FAO must give with interested
notice of proposed researchers.
dispositions to
organizations and
institutions for
which the agency
has an existing
relationship
pursuant to a
written instrument
(e.g., permit,
agreement) for
research,
excavation,
curation,
education, or other
partnership in the
state and region
from which the
objects to be
disposed were
recovered.
79.16....................... Lengthened the Responds to public
timeframe to object comments and
to a determination provides more
of disposition from opportunity for the
30 to 60 days after public to object to
publication of the a proposed
notice of disposition.
determination of
disposition in the
Federal Register.
79.16(a).................... Added a requirement Improves
that the DCA accountability from
forward a copy of the DCA to the FAO
objections to the and streamlines the
FAO within 5 days objection process.
of receipt.
79.16(c).................... Added a requirement Responds to public
that the DCA comments to improve
consult with the the fairness of the
objecting party and objection process
the FAO with the by providing
aim of resolving another opportunity
the objection. for discussion
between the
objecting party and
the FAO.
79.16(d).................... Added a requirement Responds to public
that the DCA must comment to provide
thoroughly explain a more effective
their non- binding and inclusive
recommendation to disputes process.
the FAO.
79.16(e).................... Shortened the Streamlines the
timeframe for the objection process
FAO to respond to and encourages
the DCA and the timely resolution
objector with a to objections.
final determination
from 60 to 30 days.
79.16(f).................... Clarified that Responds to public
notice of a comment to make
decision on an procedures clear to
objection is a the public.
final agency action
under the
Administrative
Procedure Act.
79.17....................... Added a requirement Responds to public
that disposition comment to make
after an objection procedures clear to
will occur no the public.
sooner than 30 days
after the FAO
publishes the
notice of decision
on the objection
and any amendments
in the Federal
Register.
43 CFR 3.17................. Added a note that Responds to public
resources excavated comments
under the questioning the
Antiquities Act may applicability of
be eligible for the rule to
disposal under material remains
Subpart E of 36 CFR excavated under the
79. Antiquities Act.
------------------------------------------------------------------------
[[Page 22456]]
Compliance With Other Laws, Executive Orders and Department Policy.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. Executive Order 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. The NPS has developed this
rule in a manner consistent with these requirements.
Regulatory Flexibility Act
This rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This certification is based on information
contained in the economic analyses found in the report entitled ``Cost-
Benefit and Regulatory Flexibility Analyses: Proposed Regulations on
the Curation of Federally-Owned or Administered Archeological
Collections'' that is available online at the following URL: <a href="https://www.nps.gov/orgs/1187/upload/Regulatory_Analyses_36_CFR_Part_79_12.pdf">https://www.nps.gov/orgs/1187/upload/Regulatory_Analyses_36_CFR_Part_79_12.pdf</a>.
Congressional Review Act (CRA)
This rule is not a major rule under 5 U.S.C. 804(2), the CRA. This
rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
The rule relates to internal administrative procedures and
management of government function. It does not regulate external
entities, impose any costs on them, or eliminate any procedures or
functions that would result in a loss of employment or income on the
part of the private sector.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on state, local, or
tribal governments or the private sector of more than $100 million per
year. This rule does not have a significant or unique effect on state,
local or tribal governments, or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. This rule does
not regulate, change, or otherwise affect the relationship between
Federal and state governments. A federalism summary impact statement is
not required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget under the Paperwork
Reduction Act is not required. The NPS may not conduct or sponsor and
you are not required to respond to a collection of information unless
it displays a currently valid OMB control number.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the NEPA is not required because this rule is covered by a
categorical exclusion. This rule is excluded from the requirement to
prepare a detailed statement because it qualifies as a regulation of an
administrative and procedural nature. (For further information see 43
CFR 46.210(i)). This rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA.
Federal Advisory Committee Act
Intergovernmental consultation recommended under this rule is
exempt from the Federal Advisory Committee Act (FACA). This rule
requires that consultation with Indian tribes be conducted between
Federal officials and elected tribal officers or their designated
employees acting in their official capacities, who meet solely for the
purpose of exchanging views, information, or advice related to the
management or implementation of this rule. Consultation with Tribes
under this rule thus meets the two-part test for an exemption from the
FACA set out in the Unfunded Mandates Reform Act of 1995, Public Law
104-4.
Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consult with Indian Tribes and recognition of their right
to self-governance and tribal sovereignty. The NPS has evaluated this
rule under the criteria in Executive Order 13175 and under the
Department's tribal consultation policy and has determined that tribal
consultation is not required because the rule will have no substantial
direct effect on federally recognized Indian tribes. Nevertheless, the
NPS conducted outreach to tribes and Native Hawaiian Organizations,
initiated consultation through two letters to tribal leaders, and
conducted face-to-face consultation on this rule upon request.
Additional information regarding the identified effects on Indian
Tribes and these outreach and consultation efforts is contained in a
document entitled ``Consultation with Indian Tribes (E.O. 13175)
regarding the proposed 36 CFR 79.12,'' which is available at the
following URL: <a href="https://www.nps.gov/orgs/1187/upload/Tribal_Consultation_36_CFR_Part_79_12.pdf">https://www.nps.gov/orgs/1187/upload/Tribal_Consultation_36_CFR_Part_79_12.pdf</a>.
[[Page 22457]]
Effects on the Energy Supply (E.O. 13211)
This rulemaking is not a significant energy action under the
definition in Executive Order 13211; the rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and the rule has not otherwise been designated by the
Administrator of OIRA as a significant energy action. A Statement of
Energy Effects is not required.
Drafting Information
This rule was written with the cooperation and consultation of the
following Federal agencies and bureaus: U.S. Bureau of Indian Affairs,
U.S. Bureau of Land Management, U.S. Bureau of Reclamation, U.S. Fish
and Wildlife Service, U.S. Air Force, U.S. Army Corps of Engineers,
U.S. Navy, and U.S. Forest Service. Each agency and bureau provided a
specialist in the curation of archeological collections to participate
in an informal interagency working group to provide expert advice
during the drafting of this rule.
List of Subjects
36 CFR Part 79
Archives and records, Historic preservation, Indians--lands,
Museums, Public lands.
43 CFR Part 3
Agriculture Department, Army Department, Historic preservation,
Smithsonian Institution.
In consideration of the foregoing, the National Park Service and
Department of the Interior amend 36 CFR part 79, and 43 CFR part 2, as
set forth below:
PART 79--CURATION OF FEDERALLY OWNED OR ADMINISTERED ARCHEOLOGICAL
COLLECTIONS
0
1. The authority citation for part 79 is revised to read as follows:
Authority: 16 U.S.C. 470aa-mm, 54 U.S.C. 300101 et seq.
0
2. Revise the part heading to read as shown above.
Sec. Sec. 79.1 through 79.4 [Designated as Subpart A]
0
3. Designate Sec. Sec. 79.1 through 79.4 as subpart A and add a
heading for subpart A to read as follows:
Subpart A--Administrative Provisions
Sec. 79.1 [Amended]
0
4. In Sec. 79.1 amend paragraph (a) by:
0
a. Removing ``(16 U.S.C. 431-433)'' and adding, in its place, ``(54
U.S.C. 320301-320303)'';
0
b. Removing ``(16 U.S.C. 469-469c)'' and adding, in its place, ``(54
U.S.C. 312501-312508)''; and
0
c. Removing ``(16 U.S.C. 470h-2)'' and adding, in its place, ``(54
U.S.C. 306101-306114)''.
0
5. In Sec. 79.2:
0
a. Revise paragraph (a).
0
b. In paragraph (b)(2), remove ``(16 U.S.C. 431-433)'' and add, in its
place, ``(54 U.S.C. 320301-320303)'' and remove ``(16 U.S.C. 469-
469c)'' and add, its place, ``(54 U.S.C. 312501-312508)''.
The revision reads as follows:
Sec. 79.2 Authority
(a) The regulations in this part are promulgated under 54 U.S.C.
302107 which requires that the Secretary of the Interior issue
regulations ensuring that significant prehistoric and historic
artifacts and associated records are deposited in an institution with
adequate long-term curatorial capabilities. This requirement applies to
artifacts and associated records subject to the National Historic
Preservation Act (54 U.S.C. 300101 et seq.), the Reservoir Salvage Act
(54 U.S.C. 312501-312508), and the Archaeological Resources Protection
Act (16 U.S.C. 470aa-mm).
* * * * *
0
6. In Sec. 79.3, revise paragraph (a) to read as follows:
Sec. 79.3 Applicability.
(a) Except as otherwise stated in this section, the regulations in
this part apply to collections, as defined in Sec. 79.4 of this part,
that are excavated or removed under the authority of the Antiquities
Act (54 U.S.C. 320301-320303), the Reservoir Salvage Act (54 U.S.C.
312501-312508), section 110 of the National Historic Preservation Act
(54 U.S.C. 306101-306114) or the Archaeological Resources Protection
Act (16 U.S.C. 470aa-mm). Such collections generally include those that
are the result of a prehistoric or historic resource survey, excavation
or other study conducted in connection with a Federal action,
assistance, license, or permit. Such collections include those that are
owned by the United States and for which a Federal agency has practical
management authority, either directly or indirectly, as a result of
that ownership; and those collections that are not owned by the United
States but that are managed or controlled by a Federal agency pursuant
to the laws cited in this paragraph (a).
* * * * *
0
7. Revise Sec. 79.4 to read as follows:
Sec. 79.4 Definitions.
As used for purposes of this part:
Associated records means original records (or copies thereof) that
are prepared, assembled and document efforts to locate, evaluate,
record, study, preserve or recover a prehistoric or historic resource.
Some records such as field notes, artifact inventories and oral
histories may be originals that are prepared as a result of the field
work, analysis, and report preparation. Other records such as deeds,
survey plats, historical maps and diaries may be copies of original
public or archival documents that are assembled and studied as a result
of historical research. Classes of associated records (and illustrative
examples) that may be in a collection include, but are not limited to:
(1) Records relating to the identification, evaluation,
documentation, study, preservation, or recovery of a resource (such as
site forms, field notes, drawings, maps, photographs, slides,
negatives, films, video and audio cassette tapes, oral histories,
artifact inventories, laboratory reports, computer cards and tapes,
computer disks and diskettes, printouts of computerized data,
manuscripts, reports, and accession, catalog, and inventory records);
(2) Records relating to the identification of a resource using
remote sensing methods and equipment (such as satellite and aerial
photography and imagery, side scan sonar, magnetometers, subbottom
profilers, radar, and fathometers);
(3) Public records essential to understanding the resource (such as
deeds, survey plats, military and census records, birth, marriage and
death certificates, immigration and naturalization papers, tax forms
and reports);
(4) Archival records essential to understanding the resource (such
as historical maps, drawings and photographs, manuscripts,
architectural and landscape plans, correspondence, diaries, ledgers,
catalogs, and receipts); and
(5) Administrative records relating to the survey, excavation, or
other study of the resource (such as scopes of work, requests for
proposals, research proposals, contracts, antiquities permits, reports,
documents relating to compliance with section 106 of the National
Historic Preservation Act (16 U.S.C. 470f), and National Register of
Historic Places nomination and determination of eligibility forms).
Collection means material remains that are excavated or removed
during a survey, excavation, or other study of a prehistoric or
historic resource, and associated records that are prepared or
[[Page 22458]]
assembled in connection with the survey, excavation, or other study.
Curatorial services means managing and preserving a collection
according to professional museum and archival practices, including, but
not limited to:
(1) Inventorying, accessioning, labeling, and cataloging a
collection;
(2) Identifying, evaluating, and documenting a collection;
(3) Storing and maintaining a collection using appropriate methods
and containers, and under appropriate environmental conditions and
physically secure controls;
(4) Periodically inspecting a collection and taking such actions as
may be necessary to preserve it;
(5) Providing access and facilities to study a collection; and
(6) Handling, cleaning, stabilizing, and conserving a collection in
such a manner to preserve it.
Departmental Consulting Archeologist means the individual serving
as the agent of the Secretary of the Interior in overseeing and
coordinating the Department's archeological activities.
Federal Agency Official means any officer, employee or agent
officially representing the secretary of the department or the head of
any other agency or instrumentality of the United States having primary
management authority over a collection that is subject to this part.
Indian lands has the same meaning as in Sec. -.3(e) of uniform
regulations 43 CFR part 7, 36 CFR part 296, 18 CFR part 1312, and 32
CFR part 229.
Indian tribe has the same meaning as in Sec. -.3(f) of uniform
regulations 43 CFR part 7, 36 CFR part 296, 18 CFR part 1312, and 32
CFR part 229.
Material remains means artifacts, objects, specimens, and other
physical evidence that are excavated or removed in connection with
efforts to locate, evaluate, document, study, preserve or recover a
prehistoric or historic resource. Classes of material remains (and
illustrative examples) that may be in a collection include, but are not
limited to:
(1) Components of structures and features (such as houses, mills,
piers, fortifications, raceways, earthworks, and mounds);
(2) Intact or fragmentary artifacts of human manufacture (such as
tools, weapons, pottery, basketry, and textiles);
(3) Intact or fragmentary natural objects used by humans (such as
rock crystals, feathers, and pigments);
(4) By-products, waste products or debris resulting from the
manufacture or use of man-made or natural materials (such as slag,
dumps, cores and debitage);
(5) Organic material (such as vegetable and animal remains, and
coprolites);
(6) Human remains (such as bone, teeth, mummified flesh, burials,
and cremations);
(7) Components of petroglyphs, pictographs, intaglios, or other
works of artistic or symbolic representation;
(8) Components of shipwrecks (such as pieces of the ship's hull,
rigging, armaments, apparel, tackle, contents, and cargo);
(9) Environmental and chronometric specimens (such as pollen,
seeds, wood, shell, bone, charcoal, tree core samples, soil, sediment
cores, obsidian, volcanic ash, and baked clay); and
(10) Paleontological specimens that are found in direct physical
relationship with a prehistoric or historic resource.
Personal property has the same meaning as in 41 CFR 100-43.001-14.
Collections, equipment (e.g., a specimen cabinet or exhibit case),
materials and supplies are classes of personal property.
Provenience information means recorded data about the physical
location of an object as it was found during a survey, excavation, or
other study of a prehistoric or historic resource.
Public lands has the same meaning as in Sec. -.3(d) of uniform
regulations 43 CFR part 7, 36 CFR part 296, 18 CFR part 1312, and 32
CFR part 229.
Qualified museum professional means a person who possesses
knowledge, experience and demonstrable competence in museum methods and
techniques appropriate to the nature and content of the collection
under the person's management and care, and commensurate with the
person's duties and responsibilities. Standards that may be used, as
appropriate, for classifying positions and for evaluating a person's
qualifications include, but are not limited to, the following:
(1) The Office of Personnel Management's ``Position Classification
Standards for Positions under the General Schedule Classification
System'' (U.S. Government Printing Office, stock No. 906--028-00000-0
(1981)) are used by Federal agencies to determine appropriate
occupational series and grade levels for positions in the Federal
service. Occupational series most commonly associated with museum work
are the museum curator series (GS/GM-1015) and the museum technician
and specialist series (GS/GM-1016). Other scientific and professional
series that may have collateral museum duties include, but are not
limited to, the archivist series (GS/GM-1420), the archeologist series
(GS/GM-193), the anthropologist series (GS/GM-190), and the historian
series (GS/GM-170). In general, grades GS-9 and below are assistants
and trainees while grades GS-11 and above are professionals at the full
performance level. Grades GS-11 and above are determined according to
the level of independent professional responsibility, degree of
specialization and scholarship, and the nature, variety, complexity,
type, and scope of the work.
(2) The Office of Personnel Management's ``Qualification Standards
for Positions under the General Schedule (Handbook X-118)'' (U.S.
Government Printing Office, stock No. 906-030-00000-4 (1986)) establish
educational, experience and training requirements for employment with
the Federal Government under the various occupational series. A
graduate degree in museum science or applicable subject matter, or
equivalent training and experience, and three years of professional
experience are required for museum positions at grades GS-11 and above.
(3) The ``Secretary of the Interior's Standards and Guidelines for
Archeology and Historic Preservation'' (48 FR 44716, Sept. 29, 1983)
provide technical advice about archeological and historic preservation
activities and methods for use by Federal, State, and local Governments
and others. One section presents qualification standards for a number
of historic preservation professions. While no standards are presented
for collections managers, museum curators or technicians, standards are
presented for other professions (i.e., historians, archeologists,
architectural historians, architects, and historic architects) that may
have collateral museum duties.
(4) Copies of the Office of Personnel Management's standards,
including subscriptions for subsequent updates, may be purchased from
the Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402. Copies may be inspected at the Office of
Personnel Management's Library, 1900 E Street NW, Washington, DC, at
any regional or area office of the Office of Personnel Management, at
any Federal Job Information Center, and at any personnel office of any
Federal agency. Copies of the ``Secretary of the Interior's Standards
and Guidelines for Archeology and Historic Preservation'' are available
at no charge from the Interagency Resources Division, National Park
Service, P.O. Box 37127, Washington, DC 20013-7127.
Religious remains means material remains that the Federal Agency
Official
[[Page 22459]]
has determined are of traditional religious or sacred importance to an
Indian tribe or other group because of customary use in religious
rituals or spiritual activities. The Federal Agency Official makes this
determination in consultation with appropriate Indian tribes or other
groups.
Repository means a facility such as a museum, archeological center,
laboratory, or storage facility managed by a university, college,
museum, other educational or scientific institution, a Federal, State,
or local Government agency or Indian tribe that can provide
professional, systematic, and accountable curatorial services on a
long-term basis.
Repository Official means any officer, employee or agent officially
representing the repository that is providing curatorial services for a
collection that is subject to this part.
Tribal Official means the chief executive officer or any officer,
employee or agent officially representing the Indian tribe.
Sec. Sec. 79.5 through 79.9 [Designated as Subpart B]
0
8. Designate Sec. Sec. 79.5 through 79.9 as subpart B and add a
heading for subpart B to read as follows:
Subpart B--Archeological Collections Management
Sec. 79.10 [Designated as Subpart C]
0
9. Designate Sec. 79.10 as subpart C and add a heading for subpart C
to read as follows:
Subpart C--Public Access to and Use of Collections
Sec. 79.11 [Designated as Subpart D]
0
10. Designate Sec. 79.11 as subpart D and add a heading for subpart D
to read as follows:
Subpart D--Inspections and Inventories of Collections
0
11. Add subpart E to read as follows:
Subpart E--Disposition of Particular Material Remains
Sec.
79.12 Determining which particular material remains are eligible for
disposal.
79.13 Acceptable methods for disposition of particular material
remains.
79.14 [Reserved].
79.15 Final determination of disposition of particular material
remains.
79.16 Objecting to a determination of disposition of particular
material remains.
79.17 Timing of disposition.
79.18 Administrative record of disposition.
Sec. 79.12 Determining which particular material remains are eligible
for disposal.
(a) Which material remains are eligible for disposal under this
subpart? In order to be eligible for disposal under this subpart,
material remains from collections must be:
(1) Archaeological resources, as defined in the Archaeological
Resources Protection Act (16 U.S.C. 470bb(1)), or other resources
excavated and removed under the Reservoir Salvage Act (54 U.S.C.
312501-312508) or the Antiquities Act (54 U.S.C. 320301-320303); and
(2) Considered to be of insufficient archeological interest under
the criteria in paragraph (e) of this section, based on the definition
of ``of archaeological interest'' in 43 CFR 7.3(a)(1).
(b) Which material remains are not eligible for disposal under this
subpart? The following material remains from collections are not
eligible for disposal under this subpart:
(1) Native American ``cultural items'' as defined in the Native
American Graves Protection and Repatriation Act of 1990 (25 U.S.C.
3001(3)), because disposition is governed by that Act and its
implementing regulations (43 CFR part 10);
(2) Other human remains not subject to the Native American Graves
Protection and Repatriation Act of 1990;
(3) Material remains excavated and removed from Indian lands on or
before the enactment of the Archaeological Resources Protection Act (16
U.S.C. 470aa-mm) on October 31, 1979; and
(4) Material remains excavated and removed from Indian lands under
the Antiquities Act (54 U.S.C. 320301-320303).
(c) Who may propose the disposal of particular material remains?
The following individuals who meet the applicable Professional
Qualification Standards set by the Secretary of the Interior may
propose the disposal of particular material remains from a collection:
(1) Federal agency staff members with verifiable knowledge of the
particular material remains, including archeologists, curators, and
conservators; and
(2) Qualified museum professionals located in a repository that
provides curatorial services for a collection held in that repository.
(d) Who is responsible for the disposal of particular material
remains? The Federal Agency Official is responsible for ensuring that
particular material remains are disposed of according to the
requirements of this subpart.
(e) When are particular material remains considered to be of
insufficient archeological interest? Particular material remains are
considered to be of insufficient archeological interest when, on a
case-by-case basis, at least one qualified archeological or museum
professional who meets the Professional Qualification Standards set by
the Secretary of the Interior and possesses verifiable knowledge of and
experience in the type of material remains being evaluated makes a
determination. The determination must follow the process established in
Sec. 79.15 and document that:
(1) Disposition of the material remains will not negatively impact
the overall integrity of the original collection recovered during the
survey, excavation, or other study of a prehistoric or historic
resource; and
(2) At least one of the following three requirements--lack of
provenience information; lack of physical integrity; or overly
redundant and not useful for research--are met:
(i) Lack of provenience information. Lack of provenience
information may be established after a concerted effort to recover the
information in the related associated records is performed and
documented and by one or more of the following circumstances:
(A) The labels on the material remains or the labels on the
containers that hold the material remains do not provide adequate
information to reliably establish meaningful archeological context for
the material remains;
(B) The labels on the material remains or the labels on the
containers that hold the material remains have been lost or destroyed
over time and cannot be reconstructed through the associated records;
or
(C) The associated records of the material remains never existed,
have been lost, or have been destroyed.
(ii) Lack of physical integrity. Material remains lack physical
integrity when, subsequent to recovery during the survey, excavation,
or other study of a prehistoric or historic resource, the material
remains were irreparably damaged through decay, decomposition, or
inadvertent loss. Examples may include human-caused incidents, exposure
to elements, or natural disaster.
(iii) Overly redundant and not useful for research. Material
remains are overly redundant and not useful for research in light of
the collection's archeological context, research questions, and
research potential. These considerations may vary based on geography,
time and culture period, scientific or cultural significance, prior
analysis, and other factors. Because it is difficult to predict if
future analytical methods will yield
[[Page 22460]]
useful information about the material remains proposed for disposal, a
sample of the material remains deemed to be overly redundant and not
useful for research must be retained for curation, as required by Sec.
79.15(f).
Sec. 79.13 Acceptable methods for disposition of particular material
remains.
(a) Indian lands. This paragraph applies to material remains that
are determined to be of insufficient archeological interest under Sec.
79.12(e) and that were excavated or removed from Indian lands after
October 31, 1979. Under the Archaeological Resources Protection Act (16
U.S.C. 470aa-mm), these material remains are the property of the Indian
individual or Indian tribe having rights of ownership over the
resources. Under the authority of 16 U.S.C. 470dd, disposition of these
material remains is subject to the consent of the Indian individual or
Indian tribe. The Federal Agency Official must use the following
methods of disposal for these material remains in the following order:
(1) Return them to the Indian individual or Indian tribe having
rights of ownership under the Archaeological Resources Protection Act's
custody regulations, 43 CFR 7.13(b), 36 CFR 296.13(b), 32 CFR
229.13(b), and 18 CFR 1312.13(b).
(2) If the Indian individual or Indian tribe having rights of
ownership does not wish to accept and take physical custody of the
material remains, the Federal Agency Official may otherwise dispose of
the material remains using the disposition methods in paragraph (b) of
this section after receiving written consent and relinquishment of
ownership from the Indian individual or Indian tribe having rights of
ownership.
(b) Public lands. This paragraph applies to material remains that
are determined to be of insufficient archeological interest under Sec.
79.12(e) and that were excavated or removed from public lands that are
not Indian lands. As a condition of disposal, the Federal Agency
Official will reasonably ensure that material remains from such lands
may not be traded, sold, bought, or bartered after disposal. The
Federal Agency Official must consider the following methods for
disposal of the material remains:
(1) Transfer to another Federal agency.
(2) Convey to a suitable public or tribal scientific or
professional repository as defined in Sec. 79.4(k) of this part.
(3) Convey to a federally recognized Indian tribe if the material
remains were excavated or removed from lands of religious or cultural
importance to that tribe and were identified and documented by a
Federal land manager under 43 CFR 7.7(b)(1), 36 CFR 296.7(b)(1), 32 CFR
229.7(b)(1), or 18 CFR 1312.7(b)(1).
(4) Convey to a federally recognized Indian tribe from whose
aboriginal lands the material remains were removed. Aboriginal
occupation may be documented by evidence including, but not limited to,
a final judgment of the Indian Claims Commission or the United States
Court of Claims, or a treaty, Act of Congress, or Executive Order.
(5) Convey to a federally recognized Indian tribe for the purpose
of traditional cultural, educational, or religious practices.
(6) Transfer within the Federal agency for the purpose of education
or interpretation, or convey to a suitable institution to be used for
public benefit and education including, but not limited to, local
historical societies, museums, university or college departments, and
schools.
(7) If the Federal Agency Official considers each of these prior
methods carefully and is still unable to find an acceptable method of
disposition, then the material remains may be destroyed. The Federal
Agency Official or their designee must witness and document the
destruction, including through photography or video as practicable.
Sec. 79.14 [Reserved]
Sec. 79.15 Final determination of disposition of particular material
remains.
The Federal Agency Official is responsible for ensuring that the
agency disposes of material remains according to the requirements of
this subpart. A determination made under this subpart in no way affects
a Federal land manager's obligations under other applicable laws or
regulations. The Federal Agency Official must take all the following
actions before making a final determination that it is appropriate to
dispose of material remains.
(a) The Federal Agency Official must determine that the material
remains are eligible for disposal under the criteria in Sec. 79.12(a).
(b) The Federal Agency Official must verify in writing that none of
the material remains proposed for disposal meet the criteria in Sec.
79.12(b).
(c) The Federal Agency Official must verify that the material
remains proposed for disposal are appropriately documented through a
professional procedure approved by the Federal agency that is
consistent with curatorial services, including accessioning and
cataloging, as defined in Sec. 79.4(b).
(d) The Federal Agency Official must consult with qualified museum
professionals located in the repository that provides curatorial
services for the material remains proposed for disposal if those museum
professionals did not propose the disposal under Sec. 79.12(c)(2).
This consultation with the qualified museum professionals must address
the appropriateness of the proposed disposal.
(e) The Federal Agency Official must establish a collections
advisory committee of at least five members to review proposed
dispositions of material remains. The committee must make a consensus
recommendation to the Federal Agency Official about each proposed
disposition based on the adequacy of the documentation addressing the
requirements in paragraphs (a) and (b) of this section and the
appropriateness of the proposed disposition based on the criteria in
Sec. 79.12(e).
(1) The collections advisory committee must consist of qualified
employees from Federal agencies who meet appropriate Professional
Qualification Standards set by the Secretary of the Interior, and must
include the curator and the principal archeologist of the Federal
agency that owns or administers the material remains if either or both
of these two positions exist. The Departmental Consulting Archeologist
may not participate on the collections advisory committee. If the
Departmental Consulting Archeologist is the principal archeologist,
then the Federal Agency Official must designate another qualified
archeologist at the agency instead.
(2) Collections advisory committee members must include Federal
employees with subject matter or technical expertise in the object
types, cultural period, and culture area of the proposed disposition.
These employees may include archeologists, anthropologists, curators,
and conservators with expertise in historic, prehistoric, or underwater
material remains.
(3) If the material remains being proposed for disposal are Native
American, then collections advisory committee members must also include
at least one or more individuals who are Tribal Officials acting in
their official capacities representing their respective federally
recognized Indian tribes that are regularly consulted by the Federal
agency regarding the collection containing the material remains being
proposed for disposal.
(4) The collections advisory committee must have written
[[Page 22461]]
procedures and governing rules, including terms of member appointments
and the duration of the committee, approved by the Federal Agency
Official, to ensure all recommendations about the appropriateness of
disposal are fair, open, timely, and in the best interests of the
public.
(5) The collections advisory committee must submit a written report
to the Federal Agency Official for each proposed disposition that, at a
minimum, documents the information required for the Federal Register
notice identified in paragraphs (i)(1)(i) through (iii) of this
section; membership of the committee and each member's role and
expertise pertinent to the proposed disposition; a summary of any
comments received on the proposed disposition under paragraph (h) of
this section; the recommendations for disposition, including any
conditions of transfer or conveyance; and the reasons why other methods
of disposal would be of lesser public benefit.
(6) Federal employees or qualified members of federally recognized
Indian tribes may be temporarily added to the committee if its existing
members determine that specific expertise, including archeological
knowledge of the cultural period and cultural area, is needed on a
case-by-case basis.
(7) Collections advisory committee members, whether permanent or
temporary, and their family members may not benefit financially or in
any other way from a disposition of material remains, except to the
extent that members of a federally recognized Indian Tribe, when that
Indian Tribe is being considered as a potential recipient of material
remains, may participate in the collections advisory committee as
described in Sec. 79.15(e)(3).
(f) The Federal Agency Official must retain in the curated
collection a sample of those material remains determined to be overly
redundant and not useful for research that is representative of the
population as a whole from which the sample was taken.
(1) The size of the representative sample must be large enough to
permit future analysis for research purposes.
(2) The method for establishing a representative sample, including
sample size and typology, must be determined by a qualified museum or
archeological professional with expertise in the type of prehistoric or
historic material remains being sampled.
(3) The sampling method must be documented and consistent with
professional prehistoric or historic archeological practice.
(g) The Federal Agency Official must retain all associated records
in the archeological collection as defined in Sec. 79.4(a)(2). A copy
of the original associated records must be given to the recipient of
any transferred or conveyed items subject to the restrictions
stipulated in the Archaeological Resources Protection Act (16 U.S.C.
470hh(a)). For material remains excavated and removed from Indian land,
a copy of the original associated records must be given to the Tribal
Historic Preservation Officer (or other designated tribal
representative) from the tribal land where the material remains were
recovered.
(h) The Federal Agency Official must notify the entities listed in
this paragraph of the proposed disposition and solicit comments on the
proposal. Notifications must be made in writing, and must include a
deadline for submitting comments that is at least 60 days after notice
is issued, in accordance with procedures established by the Federal
agency. All written comments must be reviewed by the Federal Agency
Official and the collections advisory committee. The Federal Agency
Official will respond to all relevant, substantive comments received.
Notice must be given to the following:
(1) The State Historic Preservation Officer and, where established,
the State Archeologist, from the state(s) where the material remains to
be disposed of were recovered.
(2) The Tribal Historic Preservation Officer (or other designated
tribal representative) from the Indian land(s) where the material
remains to be disposed of were recovered.
(3) Federal, state, tribal, or local agencies that were involved in
the recovery of the material remains to be disposed of.
(4) Private landowners from whose lands the material remains to be
disposed of were removed, but only in such cases where the Federal
agency obtained practical management authority over the material
remains as the result of activities conducted in connection with a
Federal action, assistance, license, or permit, on those private lands.
(5) Universities, museums, scientific institutions, and educational
institutions with which the agency has an existing relationship
pursuant to a written instrument (e.g., permit, agreement) for
research, excavation, curation, education, or other partnership in the
state and region from which the material remains to be disposed of were
recovered.
(6) Indian tribes that consider the land to have religious or
cultural importance, if the material remains are from a site on public
lands that has religious or cultural importance to Indian tribes under
43 CFR 7.7(b)(1).
(7) Indian tribes from whose aboriginal lands the material remains
were removed, if aboriginal occupation has been documented by a final
judgment of the Indian Claims Commission or the United States Court of
Claims, treaty, Act of Congress, or Executive Order.
(i) The Federal Agency Official must, after the comment period
described in paragraph (h) of this section has expired and the Federal
Agency Official has responded to all relevant, substantive comments
received, publish a notice of determination of disposition in the
Federal Register.
(1) The notice published in the Federal Register must include the
following:
(i) A general description of the material remains to be disposed.
(ii) The criteria used to determine that the material remains are
of insufficient archeological interest under Sec. 79.12(e).
(iii) The method of disposal.
(iv) The name of the Federal Agency Official or their designee as a
point of contact.
(v) An explanation of a person's right to object to the
determination of disposition under Sec. 79.16 and the name, email, and
physical address of the Departmental Consulting Archeologist.
(2) The Federal Agency Official must also prepare a determination
of disposition that includes the following:
(i) A detailed list of the material remains to be disposed,
including a description of each object, or lot of objects if there are
multiples of a particular type, and photograph(s) of the objects when
appropriate.
(ii) The report of the collections advisory committee as stipulated
in paragraph (e)(5) of this section.
(iii) Documentation that all of the procedures in Sec. 79.15 have
been met.
(iv) The name of the recipient entity or method of disposal, as
appropriate.
(v) Justification of the method to be used to dispose of the
material remains under Sec. 79.13.
(vi) The name of the Federal Agency Official or their designee as a
point of contact.
(vii) Other conditions of transfer or conveyance, as appropriate.
(viii) A statement that the determination is a final agency action
under the Administrative Procedure Act (5 U.S.C. 704) unless an
objection is filed in accordance with Sec. 79.16.
[[Page 22462]]
Sec. 79.16 Objecting to a determination of disposition of particular
material remains.
Anyone may object to and request in writing that the Departmental
Consulting Archeologist review a Federal Agency Official's
determination to dispose of material remains within 60 days of
publication of the notice of determination of disposition in the
Federal Register. The objection must document why the objector
disagrees with the Federal Agency Official's decision regarding the
disposal. The procedure for objecting to a determination of disposition
is as follows:
(a) The objection must be sent to the Departmental Consulting
Archeologist. The Departmental Consulting Archeologist must forward a
copy of the objection within 5 days of receipt to the Federal Agency
Official who made the determination under objection. The Federal Agency
Official must halt the planned disposition until the Departmental
Consulting Archeologist completes the requested review.
(b) The Departmental Consulting Archeologist must review the
objection, and the Federal Agency Official's determination of
disposition in Sec. 79.15(i)(2).
(c) The Departmental Consulting Archeologist must consult with the
objecting party or parties and the Federal Agency Official with the aim
of resolving the objection.
(d) Within 60 days of receipt of the objection, whether or not a
formal resolution has been agreed upon, the Departmental Consulting
Archeologist must transmit to the Federal Agency Official a non-binding
recommendation, including a thorough explanation, for further
consideration.
(e) The Federal Agency Official must consider the recommendation of
the Departmental Consulting Archeologist prior to making a decision on
the objection. Within 30 days of receipt of the recommendation, the
Federal Agency Official must respond to the Departmental Consulting
Archeologist and the objector with a decision on the objection and a
justification for that decision. The decision document must include any
information about administrative appeal rights required by internal
agency appeal procedures or a statement that the decision document is a
final agency action under the Administrative Procedure Act, as
appropriate.
(f) The Federal Agency Official must publish notice of the decision
on the objection and any amendments made to the determination of
disposition in the Federal Register. This may only be done after the
objector exhausts any internal appeal procedures identified in the
decision document sent to the objector under Sec. 79.16(e).
Publication of the notice of the decision on the objection constitutes
a final agency action under the Administrative Procedure Act (5 U.S.C.
704).
Sec. 79.17 Timing of disposition.
Disposition will occur no sooner than 60 days after the notice of
determination of disposition is published in the Federal Register under
Sec. 79.15(i). If the Federal agency receives an objection under Sec.
79.16, then disposition will occur no sooner than 30 days after the
notice of decision on the objection and any amendments are published in
the Federal Register under Sec. 79.16(f).
Sec. 79.18 Administrative record of disposition.
(a) After the Federal Agency Official has made a determination of
disposition, he or she must document the determination and retain the
administrative record as part of the associated records as defined in
Sec. 79.4(a)(2), which must include:
(1) The professional evaluation of the material remains conducted
under Sec. Sec. 79.12(e) and 79.15(b).
(2) The report of the collections advisory committee provided under
Sec. 79.15(e)(5).
(3) Notifications of the proposed disposition under Sec. 79.15(h);
consent of Indian individuals or tribes, if applicable, under Sec.
79.13(a)(2); and comments received from the parties notified under
Sec. 79.15(h).
(4) Objections received by the Departmental Consulting
Archeologist, the non-binding recommendation of the Departmental
Consulting Archeologist, and the decision on the objection and any
amendments made to the determination of disposition, if applicable,
under Sec. 79.16.
(5) The disposition action with specific information, including a
description and evaluation of objects; the method of disposition and
the reason for the method chosen; names and titles of persons
initiating and approving the disposition; date of disposition; relevant
accession and catalog numbers; evidence of the receipt for the return,
transfer, or conveyance of the material remains by the recipient tribe,
agency, repository, or institution, including the title to the received
material remains, as appropriate; photographic documentation, as
appropriate; and the name and location of the recipient institution or
entity, as appropriate.
(6) A detailed inventory of the representative sample of material
remains retained, when the larger proportion is disposed of because it
is overly redundant and not useful for research.
(7) Other activities and decisions pertaining to the disposition of
the material remains, such as conditions of use after the disposition
is completed, as appropriate.
(b) The administrative record must be made available to the public
upon request, unless the information or a portion of it must be
withheld under the terms of the Freedom of Information Act (5 U.S.C.
552) or the Archaeological Resources Protection Act (16 U.S.C. 470hh).
The latter restricts the government's ability to make sensitive
information, such as archeological site location data, available to the
public.
(c) After disposition, the accession and catalog records must be
reviewed and amended through a procedure established by the Federal
agency. The amendments must identify the material remains that were
deaccessioned and disposed of, the date of disposition, and the manner
in which they were disposed. The documentation prepared under Sec.
79.15, Sec. 79.16, and paragraph (a) of this section must be retained
in accordance with Federal agency policy.
TITLE 43: PUBLIC LANDS: INTERIOR
SUBTITLE A--OFFICE OF THE SECRETARY OF THE INTERIOR
PART 3--PRESERVATION OF AMERICAN ANTIQUITIES
0
12. The authority citation for part 3 is revised to read as follows:
Authority: 54 U.S.C. 320302-320303.
0
13. Amend Sec. 3.17 by adding a note at the end of the section to read
as follows:
Sec. 3.17 Preservation of Collection
* * * * *
Note to Sec. 3.17: Regulations concerning curation of federally
owned or administered archeological collections are found in 36 CFR
part 79. Objects excavated under the Antiquities Act may be eligible
for disposal under subpart E of 36 CFR part 79.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-07471 Filed 4-14-22; 8:45 am]
BILLING CODE 4312-52-P
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</html>Indexed from Federal Register on April 15, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.