[Federal Register Volume 79, Number 222 (Tuesday, November 18, 2014)]
[Proposed Rules]
[Pages 68640-68647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26839]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 79
[NPS-WASO-CR-16170; PPWOCRADI0, PCU00RP14R50000]
RIN 1024-AE17
Curation of Federally-Owned and Administered Archeological
Collections
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service proposes to amend the regulations
for the curation of federally-owned and administered archeological
collections to establish definitions, standards, and procedures to
dispose of particular material remains that are determined to be of
insufficient archaeological interest. This rule would promote more
efficient and effective curation of these archeological collections.
DATES: Comments must be received by February 17, 2015.
ADDRESSES: You may submit comments, identified by Regulation Identifier
Number (RIN) 1024-AE17, by any of the following methods:
Federal eRulemaking portal: http://www.regulations.gov.
Follow instructions for submitting comments.
Mail to: Stanley C. Bond, Departmental Consulting
Archeologist, National Park Service, Docket No. 1024-AE17, 1201 Eye
Street NW., 7th Floor (2275), Washington, DC 20005.
Hand deliver to: Stanley C. Bond, Departmental Consulting
Archeologist, 1201 Eye Street NW., Room 760, Washington, DC 20005.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: David A. Gadsby, Archeology Program,
National Park Service, 1201 Eye Street NW., Washington, DC 20005, 202-
354-2101, email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Statutory Authority and Jurisdiction
The Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470aa-
mm) authorizes the Secretary of the Interior to promulgate regulations
for the disposition of archaeological
[[Page 68641]]
resources and other resources recovered under the authority of ARPA,
the Reservoir Salvage Act (RSA; 16 U.S. C. 469-469c-2), as amended, and
the Antiquities Act (16 U.S.C. 431-433). In addition, the National
Historic Preservation Act (NHPA; 16 U.S.C. 470a(a)(7) and 470h-4(a))
authorizes the Secretary of the Interior to promulgate regulations for
the proper curation of archeological collections created under NHPA,
RSA, and ARPA. The Department of the Interior's Departmental Consulting
Archeologist (DCA), located in the National Park Service (NPS), is
responsible for developing regulations concerning the preservation of
prehistoric and historic material remains of archaeological interest
under ARPA, under the Department of the Interior's Departmental Manual
``Protection of the Cultural Environment'' (519 DM 2.3D).
Disposal of Particular Material Remains From Archeological Collections
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 provide a process for
Federal agencies to dispose of particular material remains from
archeological collections that, after rigorous evaluation, are
determined to have insufficient archaeological interest. Prehistoric or
historic material remains improperly disposed of could later be
rediscovered and misinterpreted by unwitting archeologists or others as
evidence of activity in the distant past, so it is important to
delineate appropriate methods of disposal. A proposed rule to establish
procedures to discard particular material remains from Federal
collections was published in the Federal Register in 1990 (55 FR 37670,
September 12, 1990). The NPS received less than 10 sets of comments
about the proposed rule, but these comments raised a variety of issues,
including the following:
Lack of defined terms.
Potential for future development of archeological methods
and theories that could be applied to disposed material remains.
Qualifications of persons involved in the procedure to
recommend the appropriateness of the decision to discard.
Need for more detail about procedures to discard material
remains.
Need for procedures to determine a ``representative''
sample of bulky, non-diagnostic objects to be retained for future
research from material remains to be discarded.
Need for procedures to ensure that the discard of material
remains would not create an artificial archeological site.
Due, in part, to the comments received, a final rule for the 1990
proposed rule was never published. Instead, the DCA decided to focus on
proper curation of federally-owned and administered collections before
the option to dispose of any material remains was introduced.
Proposed Rule
Based on renewed interest from Federal agencies, the Department of
the Interior (DOI) now proposes new sections 79.12 through 79.18, and
related amendments to sections 79.2 and 79.3 of 36 CFR Part 79, to
establish regulations to dispose of particular material remains from
federally-owned and administered archeological collections. This rule
would establish certain circumstances under which specific procedures
may be used to dispose of material remains of insufficient
``archaeological interest,'' as this term is defined in 43 CFR
7.3(a)(1). The term ``material remains,'' as defined in section
79.4(1)(a) of this part, refers to artifacts, objects, specimens, and
other physical evidence, including human remains, of a historic or
prehistoric resource and of historic or prehistoric cultures and
lifeways. This proposed rule would not affect any material remains
defined as ``cultural items'' by the Native American Graves Protection
and Repatriation Act (25 U.S.C. 3001 et seq.), including human remains,
funerary objects, sacred objects, or objects of cultural patrimony, and
subject to the provisions of that statute. The Federal agency would be
responsible for ensuring that disposition is conducted in accordance
with the proposed rule and 36 CFR 79.7, ``Methods to fund curatorial
services.''
In addition to providing a mechanism for appropriate and carefully
considered disposition, this rule would improve the curation of
federally-owned and administered archeological collections, including
more effective space and cost management. This proposed rule would
address many of the comments submitted in 1990 by incorporating
independent advice and opinions supplied by numerous experts that we
consulted while drafting the proposed rule between 2005 and 2013.
This proposed rule was written with the cooperation and
consultation of the following Federal agencies and bureaus: Bureau of
Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of
Reclamation (BR), U.S. Fish and Wildlife Service (FWS), U.S. Air Force
(USAF), U.S. Army Corps of Engineers (USACE), U.S. Navy (USN), and U.S.
Forest Service (USFS). 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 proposed rule.
Section-by-Section Analysis
Section 79.2 Authority
Paragraph 79.2(a) identifies the authorities under which the
regulations in Part 79 are promulgated. The proposed rule would
streamline the language and citations to these statutory authorities.
Section 79.3 Applicability
Section 79.3 explains the applicability of the regulations in Part
79. The proposed rule would clarify the applicability of these
regulations by explaining what constitutes federally-owned and
administered collections. The proposed rule would clarify that Part 79
applies to collections (i) 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 (ii) that
are not owned by the United States but that are managed or controlled
by Federal agencies under law.
This includes collections administered directly by a Federal agency
or controlled by a Federal agency through the terms of an agreement,
contract, or permit with a non-Federal organization or entity that is
responsible for curation of a collection. This also includes
collections for which a Federal agency has administrative authority
resulting from authorized expenditures; and situations in which the
Federal government has decision-making authority over the collections
granted to it by law or regulation. For example, one Federal agency
might fund an undertaking on land administered by another Federal
agency. In this case, any material remains from such undertaking would
be administered by the agency that recovered them.
Collections from Indian lands made under ARPA are another example
of federally administered collections. Federal agencies are not the
owners of
[[Page 68642]]
such collections. ARPA and its implementing regulations give BIA the
authority to issue Permits for Archeological Investigation (PAIs) for
Indian lands and the responsibility for custody of those collections
(25 CFR Part 262). For example, Section 5 of ARPA and 43 CFR 7.13(c)
apply to resources from both public and Indian lands and discuss the
authority to exchange and dispose of resources. Material remains
collected under a PAI are subject to the consent of the tribe or Indian
before disposal or transfer to a curatorial facility through the BIA
permitting process. The fact that these resources may be owned by a
tribal or Indian owner does not remove them from Federal administration
under ARPA.
Section 79.12 Determining Which Particular Material Remains are
Eligible for Disposal
Paragraph 79.12(a) would identify which material remains from
collections may be disposed of under the proposed rule. The terms
``material remains'' and ``collection,'' as used in the proposed rule,
are defined in 36 CFR 79.4. Paragraph 79.12(b) would identify which
material remains from collections may not be disposed of under the
proposed rule. Paragraph 79.12(c) would identify who may propose the
disposal of material remains from collections. Individuals who propose
material remains for disposal should have verifiable knowledge of those
particular material remains. The terms ``qualified museum
professional,'' ``repository,'' and ``curatorial services,'' as used in
the proposed rule, are defined in 36 CFR 79.4. Paragraph 79.12(d) would
clarify that the Federal Agency Official, also defined in 36 CFR 79.4,
is responsible for the disposition of material remains. Paragraph
79.12(e) would specify criteria to determine when particular material
remains may be eligible for disposal because they are of insufficient
archaeological interest. As defined in 43 CFR 7.3(a)(1), the term ``of
archaeological interest'' means capable of providing scientific or
humanistic understandings of past human behavior, cultural adaptation,
and related topics. The criteria in the proposed rule to determine
which material remains may be eligible for disposal would distinguish
particular material remains that no longer have those capabilities. The
criteria would be narrowly defined to ensure that material remains of
archaeological interest are not disposed of inadvertently or casually.
Section 79.13 Acceptable Methods for Disposition of Particular Material
Remains
Section 79.13 would outline two procedures by which Federal Agency
Officials may determine the methods of disposing of particular material
remains. The first would apply to material remains recovered from
Indian lands, while the second would apply to material remains that are
not from Indian lands.
Paragraph (a) in Sec. 79.13 would identify appropriate methods of
disposing of particular material remains determined to be of
insufficient archaeological interest that have been excavated or
removed from Indian lands after October 31, 1979. As defined in ARPA
(16 U.S. C. 470 bb(4)), the term ``Indian lands'' means lands of Indian
tribes, or Indian individuals, which are either held in trust by the
United States or are subject to a restriction against alienation
imposed by the United States, except for any subsurface interests in
land not owned or controlled by an Indian tribe or an Indian
individual. The proposed rule would require the Federal Agency Official
to offer to return the material remains to the Indian tribe or Indian
individual from whose lands the material remains were excavated or
removed under ARPA's custody regulations, 43 CFR 7.13(b), 36 CFR
296.13(b), 32 CFR 229.13(b), and 18 CFR 1312.13(b). The tribe or
individual may or may not choose to accept custody of these material
remains. Determining the appropriate Indian tribe or individual to be
approached about disposition would be made based on existing
documentation concerning the location of the relevant archeology site.
Paragraph (b) in Sec. 79.13 would identify appropriate methods of
disposing of particular material remains determined to be of
insufficient archaeological interest that were not excavated or removed
from Indian lands. These material remains may be transferred within the
Federal agency; transferred to another Federal agency; conveyed to a
suitable repository; conveyed to a federally recognized Indian tribe;
conveyed to another institution, such as a school or historical
society; or--if all of the other methods of disposition are
unacceptable--destroyed. These methods were listed in priority order in
a draft of the proposed rule sent to leaders of federally recognized
tribes in 2009. Based on outreach to tribes in 2013, the methods of
disposal in the proposed rule are no longer listed in priority order.
Section 79.14 Restrictions on Disposition of Particular Material
Remains
Paragraph (a) in Sec. 79.14 would prohibit Federal employees or
their relatives from acquiring disposed material remains or benefiting
in any way from a disposition.
Paragraph (b) in Sec. 79.14 would prohibit disposed material
remains from being traded, sold, bought, or bartered as commercial
goods.
Section 79.15 Final Determination on Disposition of Particular Material
Remains
Section 79.15 would describe the process that the Federal Agency
Official must follow in order to reach a final determination of
disposition of particular material remains. It would also clarify that
any determination made under this section must in no way affect the
Federal land manager's obligations under other applicable laws and
regulations. This section would require the Federal Agency Official to
do the following:
Verify that material remains are appropriately documented
through a professional procedure approved by the Federal agency that is
consistent with curatorial services as defined in Sec. 79.4(b).
Establish a collections advisory committee to review
proposed dispositions of material remains.
Retain a representative sample of those material remains
determined to be overly redundant and not useful for research.
Retain all associated records in the archeological
collection as defined in Sec. 79.4(a)(2).
Notify appropriate entities of the proposed disposition
and solicit comments on the proposal. If the material remains proposed
to be disposed of are from a site on public lands that has religious or
cultural importance to an Indian tribe or tribes, the proposed rule
would require that these Indian tribes be notified of the proposed
disposition.
Publish a notice of determination of disposition in the
Federal Register with specific information that the Federal Agency
Official must include in this notice and in the determination itself.
Section 79.16 Objecting to a Determination of Disposition of Particular
Material Remains
This section would describe the process for objecting to a
determination of disposition by requesting a review from the DCA, and
the process for reaching a final determination of disposition.
[[Page 68643]]
Section 79.17 Timing of Disposition
Section 79.17 would prevent the disposition of material remains
until 30 days after the notice of determination of disposition is
published in the Federal Register. If the Federal agency receives an
objection to the determination, however, disposal would occur after the
Federal Agency Official's notice of decision on the objection and any
amendments are published in the Federal Register.
Section 79.18 Administrative Record of Disposition
Paragraph (a) would identify the types of activities that must be
documented in the administrative record supporting the Federal Agency
Official's final determination to dispose of particular material
remains. This paragraph would require that the administrative record
for a disposition of material remains be made public upon request and
would require that the Federal agency review and update the catalog and
inventory documents related to the disposal.
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. We have 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 and Administered Archeological
Collections'' that is available online at http://www.nps.gov/archeology/tools/laws/Regulatory_Analyses_36_CFR_Part_79_12.pdf.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. 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. This rule produces no costs
outside of the Federal government and does not create an additional
burden on state, local, or tribal governments, or the private sector.
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 proposed rule does not contain collections of information that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act. This rule would not impose recordkeeping or
reporting requirements on state, tribal, or local governments;
individuals; businesses; or organizations. We 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 National Environmental Policy Act of 1969 (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
[[Page 68644]]
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. We have evaluated this rule
under the Department's consultation policy and under the criteria in
Executive Order 13175 and have identified direct effects on federally
recognized Indian tribes that will result from this rule. We conducted
outreach to tribes and Native Hawaiian Organizations, initiated
consultation through two letters to tribal leaders, and conducted face-
to-face consultation on this proposed 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 Web site: http://www.nps.gov/archeology/tools/laws/Tribal_Consultation_36_CFR_Part_79_12.pdf.
Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which paragraphs or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
Drafting Information. This proposed rule was prepared by the office
of the Departmental Consulting Archeologist, National Park Service,
Washington, DC with the able assistance of an informal interagency
working group. Terry Childs (DOI) drafted the proposed rule and served
as chair of the group that included Michael Hilton (USFS), Thomas
Lincoln (BR), Eugene Marino (FWS), Kathleen McLaughlin (USN and US
Army), Emily Palus (BIA and BLM), Christopher Pulliam (USACE), and
James Wilde (USAF). Marvin Keller and Anna Pardo (BIA) and Rochelle
Bennett (BR) joined the working group in 2013. David Gadsby (NPS) also
joined the group and provided administrative oversight of the proposed
rule. Carla Mattix and Stephen Simpson of the Department of the
Interior's Office of the Solicitor provided legal guidance.
Public Participation
It is the policy of the Department of the Interior, whenever
practicable, to afford the public an opportunity to participate in the
rulemaking process. Accordingly, interested persons may submit written
comments regarding this proposed rule by following the instructions in
the ADDRESSES section of this document.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, be aware that
your entire comment--including your personally identifiable
information--may be made publicly available at any time. While you can
ask in your comment to withhold your personal identifiable information
from public view, we cannot guarantee that we will be able to do so.
List of Subjects in 36 CFR Part 79
Archives and records, Historic preservation, Indians-lands,
Museums, Public lands.
In consideration of the foregoing, the National Park Service
proposes to amend 36 CFR part 79 as set forth below:
PART 79--CURATION OF FEDERALLY-OWNED AND ADMINISTERED
ARCHAEOLOGICAL COLLECTIONS
0
1. The authority citation for part 79 continues to read as follows:
Authority: 16 U.S.C. 470aa-mm, 16 U.S.C. 470 et seq.
0
2. Sections 79.1 through 79.4 are designated as subpart A under the
following heading:
Subpart A--Administrative Provisions
0
3. In Sec. 79.2, revise paragraph (a) to read as follows:
Sec. 79.2 Authority
(a) The regulations in this part are promulgated under 16 U.S.C.
470a(7) 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 services. This requirement applies to
artifacts and associated records subject to the National Historic
Preservation Act (16 U.S.C. 470 et seq.), the Reservoir Salvage Act (16
U.S.C. 469-469c), and the Archaeological Resources Protection Act (16
U.S.C. 470aa-mm).
* * * * *
0
4. In Sec. 79.3, in paragraph (a) introductory text, add two sentences
at the end to read as follows:
Sec. 79.3 Applicability.
(a) * * * Such collections also 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 law. The collections described in this paragraph are considered
federally-owned and administered for purposes of this part.
* * * * *
0
5. Sections 79.5 through 79.9 are designated subpart B under the
following heading:
Subpart B--Archeological Collections Management
0
6. Section 79.10 is designated subpart C under the following heading:
Subpart C--Public Access to and Use of Collections
0
7. Section 79.11 is designated subpart D under the following heading:
Subpart D--Inspections and Inventories of Collections
0
8. 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.
[[Page 68645]]
79.13 Acceptable methods for disposition of particular material
remains.
79.14 Restrictions on disposition of particular material remains.
79.15 Final determination on 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? In order to
be eligible for disposal, material remains from collections must be:
(1) Archaeological resources, as defined in 16 U.S.C. 470bb(1), or
other resources excavated and removed under the Reservoir Salvage Act
(16 U.S.C. 469-469c) or the Antiquities Act (16 U.S.C. 431-433); and
(2) Considered to be of insufficient archaeological 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 may not be disposed of? The following
material remains from collections may not be disposed of:
(1) Native American ``cultural items'' as defined in the Native
American Graves Protection and Repatriation Act of 1990 (25 U.S.C.
3001(3)), since disposition is governed by that Act and its
implementing regulations (43 CFR 10);
(2) Human remains;
(3) Material remains excavated and removed from Indian lands on or
before October 31, 1979; and
(4) Material remains excavated and removed from Indian lands under
the Antiquities Act (16 U.S.C. 431-433).
(c) Who may propose the disposal of particular material remains?
The following individuals may propose the disposal of particular
material remains from a collection:
(1) Agency staff members, 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 from collections according
to the requirements of this part.
(e) When are particular material remains considered to be of
insufficient archaeological interest? Particular material remains are
considered to be of insufficient archaeological interest when, on a
case-by-case basis, at least one qualified archeological or museum
professional with experience in the type of material remains being
evaluated determines and documents 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 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 have been lost
or destroyed and cannot be recovered after a concerted effort to find
them is performed and documented.
(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 or decomposition over
time, or as a result of a human-caused incident or a natural disaster.
(iii) Overly redundant and not useful for research. A determination
that material remains are overly redundant and not useful for research
must be carefully considered. Archeological context, research
questions, and research potential may vary based on geography, time and
culture period, scientific or cultural significance, prior analysis,
and other factors. It is difficult to predict if future analytical
methods will yield useful information about the material remains
proposed for disposal. As a result, a representative sample of material
remains that are determined to be overly redundant and not useful for
research must be retained for curation, as required by Sec. 79.15(d).
Sec. 79.13 Acceptable methods for disposition of particular material
remains.
(a) Material remains excavated or removed from Indian lands after
October 31, 1979, that are archaeological resources under the
Archaeological Resources Protection Act (16 U.S.C. 470aa-mm) remain 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 that are determined to be of
insufficient archaeological interest under the criteria in Sec.
79.12(e) are 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 them, the Federal Agency Official may
otherwise dispose of the material remains using the disposition methods
in Sec. 79.13(b) after receiving written consent from the Indian
individual or Indian tribe having rights of ownership.
(b) This paragraph applies to material remains that are determined
to be of insufficient archaeological interest under Sec. 79.12(e) and
that were excavated or removed from lands that are not Indian lands.
The Federal Agency Official may use any of 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(j) 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).
(4) Convey to a federally recognized Indian tribe from whose
aboriginal lands the material remains were removed. Aboriginal
occupation may be documented by 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) Transfer within the Federal agency for the purpose of education
or
[[Page 68646]]
interpretation, or convey to a suitable institution to be used for
public benefit and education including, but not limited to, local
historical societies, university or college departments, and schools.
(6) If the Federal Agency Official considers each of these prior
methods carefully and is still unable to find an acceptable method of
disposition, then destruction may be considered. The Federal Agency
Official or their designee must witness and document the destruction,
including through photography or video.
Sec. 79.14 Restrictions on disposition of particular material
remains.
(a) Can Federal employees and their relatives acquire disposed
material remains? No. Federal employees or their relatives cannot
acquire disposed material remains (or a financial interest therein) and
must not appear to benefit personally in any way from an action to
deaccession or dispose of archeological material remains.
(b) Can disposed material remains be regarded as commercial goods?
No. Disposed material remains may not be traded, sold, bought, or
bartered as commercial goods.
Sec. 79.15 Final determination on 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 part. A determination made under this part in no way affects the
Federal land manager's obligations under other applicable laws or
regulations. The Federal Agency Official must carry out all of the
following steps 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),
including a written verification that no Native American ``cultural
items'' as defined in the Native American Graves Protection and
Repatriation Act of 1990 (25 U.S.C. 3001(3)) are considered for
disposal.
(b) The Federal Agency Official must verify that the material
remains 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) of this part.
(c) The Federal Agency Official must establish a collections
advisory committee of at least five members to review proposed
dispositions of material remains and make recommendations to the
Federal Agency Official about proposed dispositions based on the
adequacy of the documentation addressing the requirements in Sec.
79.15(a) and (b) and the appropriateness of the proposed disposition.
(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 principal archeologist and curator of the Federal agency
that owns or administers the material remains if either of these two
positions exists.
(2) Committee members must include Federal employees with subject
matter or technical expertise. These employees may include
archeologists, anthropologists, curators, and conservators with
expertise in historic, prehistoric, or underwater material remains.
(3) Committee members may include or one or more members of a
federally recognized Indian tribe regularly consulted by the Federal
agency who are elected tribal officers or their designated employees
acting in their official capacities.
(4) The committee must have written procedures, including terms of
member appointments and duration of the committee, approved by the
Federal Agency Official to ensure all recommendations of disposal are
fair, open, timely, and in the best interests of the public.
(5) Federal employees or qualified members of federally recognized
Indian tribes may be temporarily added to the committee if its current
members determine that specific expertise is needed on a case-by-case
basis.
(6) Committee members or their family members may not benefit
financially or in any other way from a disposition of material remains.
(d) The Federal Agency Official must retain a representative sample
of those material remains determined to be overly redundant and not
useful for research.
(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 well documented and consistent with
professional prehistoric or historic archeological practice.
(e) The Federal Agency Official must retain all associated records
in the archeological collection as defined in Sec. 79.4(a)(2) of this
part. 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)).
(f) 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, in accordance with procedures
established by the Federal agency. All written comments must be
reviewed and responded to by the Federal Agency Official and the
collections advisory committee. Notice must be given to the following:
(1) The State Historic Preservation Officer from the state(s) where
the particular objects to be disposed were recovered.
(2) The Tribal Historic Preservation Officer (or other designated
tribal representative) from the tribal land(s) where the particular
objects to be disposed were recovered.
(3) Federal, state, tribal, or local agencies that were involved in
the recovery of the objects to be disposed.
(4) Universities, museums, scientific institutions, and educational
institutions with an active department of or program in archaeology or
anthropology that have interest in the archaeology of the region from
which the objects to be disposed of were recovered.
(5) 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).
(6) 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.
(g) The Federal Agency Official must, after the comment period
described in Sec. 79.15(f) has expired, 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.
[[Page 68647]]
(ii) The criteria used to determine that the material remains are
of insufficient archaeological 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 and address
of the Department of the Interior's Departmental Consulting
Archeologist.
(2) The determination referenced by the notice must include 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 a photograph of the objects when
appropriate.
(ii) The criteria used to determine that the material remains are
of insufficient archaeological interest under Sec. 79.12(e).
(iii) Justification of the method to be used to dispose of the
material remains under Sec. 79.13.
(iv) Documentation that all of the procedures in Sec. Sec. 79.15
and 79.16 have been met.
(v) The name of the recipient entity or method of destruction, as
appropriate.
(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 unless an objection is filed in
accordance with Sec. 79.16.
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 30 days of
publication in the Federal Register. The request must document why the
requester disagrees with the Federal Agency Official's determination or
the terms and conditions to be applied to the disposal. The procedure
for objecting to a determination of disposition is as follows:
(a) The request must be sent to the Departmental Consulting
Archeologist, whose address must be published with the notice of
determination of disposition in the Federal Register. The Departmental
Consulting Archeologist must immediately forward a copy of the request
to the Federal Agency Official who made the determination under
objection. The Federal Agency Official must postpone the planned
disposition until the Departmental Consulting Archeologist completes
the requested review.
(b) The Departmental Consulting Archeologist must review the
request, the Federal Agency Official's determination, and its
supporting documentation.
(c) Within 60 days of receipt of the request, the Departmental
Consulting Archeologist must transmit to the Federal Agency Official a
non-binding recommendation for further consideration.
(d) The Federal Agency Official must consider the recommendation in
making a final determination. Within 60 days of receipt of the
recommendation, the Federal Agency Official must respond to the
Departmental Consulting Archeologist and the requester with a final
determination. The final determination must include any information on
administrative appeal rights required by internal agency appeal
procedures or a statement that the final determination is a final
agency action under the Administrative Procedure Act, as appropriate.
(e) The Federal Agency Official must publish notice of the decision
on the objection and any amendments made to the original determination
of disposition in the Federal Register.
Sec. 79.17 Timing of disposition.
Disposition will occur no sooner than 30 days after the notice of
determination of disposition is published in the Federal Register under
Sec. 79.15(g). If the Federal agency receives an objection under Sec.
79.16, however, disposal will occur after the Federal Agency Official's
notice of decision and any amendments are published in the Federal
Register under Sec. 79.16(e).
Sec. 79.18 Administrative record of disposition.
(a) After the Federal Agency Official has made a final
determination of disposition, he or she must document the determination
and retain the administrative record as used in the definition of
associated records in Sec. 79.4(a)(2), which must include:
(1) The professional evaluation of the material remains, conducted
under Sec. 79.12(e) and Sec. 79.15(b).
(2) The recommendations and rationale of the collections advisory
committee provided in accordance with Sec. 79.15(c).
(3) Notifications of the proposed disposition under Sec. 79.15(f);
consent of Indian individuals or tribes, if applicable, under Sec.
79.13(a); and comments received from the parties notified under Sec.
79.15(f).
(4) Requests for review received by the Departmental Consulting
Archeologist, the non-binding recommendation of the Departmental
Consulting Archeologist, and the response by the Federal Agency
Official to the Departmental Consulting Archeologist and the requester,
as appropriate, 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 reasonable and 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. Sec. 79.15 through 79.16 and 79.18(a) must be retained.
Dated: November 5, 2014.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-26839 Filed 11-17-14; 8:45 am]
BILLING CODE 4310-EJ-P