[Federal Register Volume 78, Number 209 (Tuesday, October 29, 2013)]
[Proposed Rules]
[Pages 64436-64442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25511]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS-WASO-NAGPRA-7724; PPWOCRADN0-PCU00RP14.R50000]
RIN 1024-AE00
Disposition of Unclaimed Human Remains and Other Cultural Items
Discovered on Federal Lands After November 16, 1990
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
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SUMMARY: This rule proposes procedures for the disposition of unclaimed
human remains, funerary objects, sacred objects, or objects of cultural
patrimony discovered on Federal lands after November 16, 1990. It would
implement section 3 (b) of the Native American Graves Protection and
Repatriation Act of 1990.
DATES: Comments must be received by December 30, 2013.
ADDRESSES: You may submit comments, identified by the Regulation
Identifier Number (RIN) 1024-AE00, by any of the following methods:
Federal rulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail or hand delivery to: Dr. Sherry Hutt, Manager,
National NAGPRA Program, National Park Service, 1201 Eye Street NW.,
(2253), Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Dr. Sherry Hutt, Manager, National
NAGPRA Program, National Park Service, 1201 Eye Street NW., 8th floor,
Washington, DC 20005; telephone (202) 354-1479; facsimile (202) 371-
5197.
SUPPLEMENTARY INFORMATION:
[[Page 64437]]
Authority
The Native American Graves Protection and Repatriation Act of 1990
(NAGPRA, or the Act) requires the Secretary of the Interior to:
(1) Promulgate regulations for disposition of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
(``cultural items'' under NAGPRA) not claimed under section 3(a) of the
Act.
(2) Develop these regulations in consultation with the Review
Committee established under the Act, Native American groups,
representatives of museums and the scientific community pursuant to
Section 3(b) of the Act.
To the extent that Federal agencies have possession of and
responsibility to care for human remains, funerary objects, sacred
objects, or objects of cultural patrimony, the authority in 36 CFR Part
79 under section 101(a)(7)(A) of the National Historic Preservation Act
(16 U.S.C. 470a) applies. When we published the NAGPRA regulations on
December 4, 1995 (60 FR 62134), we reserved section 10.7, where we are
now proposing to locate this new rule.
Background
Consultation History
Consultation regarding 43 CFR 10.7 began in 2005. On three separate
occasions, we (the National Native American Graves Protection and
Repatriation Program) consulted with representatives of Indian tribes,
Native Hawaiian organizations, museums, and scientific organizations.
We also consulted with the Review Committee during its scheduled
meetings in Albuquerque, NM (November 2005); Washington, DC (April
2007); Phoenix, AZ (October 2007); and again in Washington, DC
(November 2010). Before the first three meetings with tribal
representatives, museums, and scientific organizations, we published a
Notice of Consultation in the Federal Register that provided meeting
details, as well as a list of proposed questions for consideration by
consultation participants. In addition, each notice outlined a process
and deadline for submission of written comments.
Albuquerque, NM, November 2005
We published the proposed questions for the consultation at
Albuquerque, NM on November 15-17, 2005 as part of the Notice of
Consultation on October 7, 2005 (70 FR 58741). They were as follows:
(1) How should the regulations deal with the distinction between
cultural items for which ownership or control has been ascertained
under 43 CFR 10.6(a) but the identified lineal descendant, Indian
tribe, or Native Hawaiian organization has not claimed the cultural
items and cultural items for which ownership or control cannot be
ascertained under 43 CFR 10.6(a)?
(2) How long may a cultural item removed from Federal land after
November 16, 1990 remain in Federal agency possession before it is
considered unclaimed?
(3) What are the appropriate dispositions for unclaimed cultural
items?
(4) How should the regulations deal with the management,
preservation, and use of unclaimed cultural items?
Over 100 people attended the consultation meetings. Oral and
written comments and recommendations were provided from representatives
of 18 Indian tribes and 7 museums and scientific organizations. The
oral comments were transcribed and all comments retained.
Results of the comments and recommendations according to the four
published questions were as follows:
(1) How should the regulations deal with the distinction between
cultural items for which ownership or control has been ascertained
under 43 CFR 10.6(a) but the identified lineal descendant, Indian
tribe, or Native Hawaiian organization has not claimed the cultural
items and cultural items for which ownership or control cannot be
ascertained under 43 CFR 10.6(a)? This question elicited the greatest
diversity of opinion.
Some commenters acknowledged the distinction as posed.
Cultural items in the first category would be subject to special
conditions, such as restrictions on research, exhibition, conservation
without the written permission of the appropriate lineal descendant or
tribal official.
Some commenters rejected the distinction, recommending
that all cultural items must be treated with respect while in Federal
control.
Some commenters proposed alternative distinctions among
cultural items for which ownership or control is ``inherent'' under 25
U.S.C. 3002(a)(1) and (a)(2)(B); cultural items that are claimable
under 25 U.S.C. 3002(a)(2)(B) or (a)(2)(C); and cultural items that are
not claimable under 25 U.S.C. 2002(a)(2)(B) or (a)(2)(C). Only cultural
items in the second category would be subject to regulations regarding
the disposition of unclaimed cultural items.
Some commenters proposed another alternative distinction
between human remains and funerary objects and sacred objects and
objects of cultural patrimony.
As a general matter, participants emphasized that human remains and
funerary objects would be subject to a common understanding of respect
for the dead and the right to a proper burial.
(2) How long may a cultural item removed from Federal land after
November 16, 1990, remain in Federal agency possession before it is
considered unclaimed?
Most commenters recommended that Federal agencies should maintain
cultural items removed from Federal land until a claim is made,
although some proposed that unclaimed human remains and funerary
objects should be reburied in a timely manner.
(3) What are the appropriate dispositions for unclaimed cultural
items?
Most commenters recommended that unclaimed cultural items should be
held indefinitely until claimed by a lineal descendant, Indian tribe,
or Native Hawaiian organization, although some proposed that unclaimed
human remains and funerary objects should be reburied in a timely
manner.
(4) How should the regulations deal with the management,
preservation, and use of unclaimed cultural items?
Commenters generally agreed that unclaimed cultural items should be
managed, preserved, and used in accordance with provisions of the
regulations at 36 CFR Part 79 governing federally owned and
administered archeological collections.
Washington, DC, April 2007
We published the proposed questions for comment at the consultation
meeting scheduled for Washington, DC, as part of the Notice of
Consultation on April 11, 2007 (69 FR 18192). They were as follows:
(1) How should the regulations address distinctions between human
remains, funerary objects, sacred objects, or objects of cultural
patrimony that remain in Federal care and for which ownership or
control is with a lineal descendant or an Indian tribe or Native
Hawaiian organization on whose lands the cultural items were
discovered; an Indian tribe or Native Hawaiian organization has stated
a claim based on cultural affiliation, aboriginal land, or cultural
relationship; a non-federally recognized Indian group has stated a
claim based on relationship of shared group identity; and no claim has
been made?
(2) Do current regulations regarding the curation of federally
owned and administered archaeological collections at 36 CFR 79
adequately address
[[Page 64438]]
management, preservation, and use of human remains, funerary objects,
sacred objects, or objects of cultural patrimony remaining in Federal
care?
Oral and written comments and recommendations were provided from
representatives of 16 Indian tribes and 5 museums and scientific
organizations. The comments were as follows:
Tribal representatives spoke to the general importance of
treating all human remains and cultural objects with respect.
Information about unclaimed remains or objects should be widely
accessible by Native peoples and not limited to distribution only to
recognized tribes.
For many tribal people, ``unclaimed'' is a concept in law
but without cultural meaning. Others may be willing to undertake
repatriation on behalf of those tribes. Reinterment is paramount. If
there are cases of unclaimed remains and items, the first critical
question that should be answered is ``why?''
The ability to respond with claims may be limited by
scarce tribal resources. This does not diminish the importance of
cultural beliefs about remains and objects. Often, the difficulty of
assessing the significance of scientific knowledge relative to
traditional knowledge derives from misunderstandings when either is not
well understood.
Tribal representatives stated there should be no time
limits for consultation on disposition. This is especially important
when healing is a critical aspect of repatriation. There should be
early consultation among tribes and Federal agencies regarding
appropriate treatments, repatriation procedures, and the potential for
formal agreements. This should include archival care for records about
Native Americans and considerations to ensure confidentiality and
security for those records.
Museum and scientific organization representatives spoke
to the general importance of treating all human remains and cultural
objects with dignity and respect. There was support for all of the
procedures and types of information needed to establish the priorities
of claimants. The paramount role of federally recognized tribes was
supported.
The regulations should include a definition of
``unclaimed.'' This is particularly important because sound curation
methods should ensure that care is sensitive and effective until a
substantiated claim and decision about disposition can be made. The
Federal curation regulations at 36 CFR Part 79 are sufficient. They
also are sufficiently flexible to allow consideration of a variety of
sensitive treatments in consultation with tribes and Native Hawaiian
organizations.
Information about collections should be shared. One of the
most important aspects of this is that claimants have the opportunity
to have a broader understanding about curatorial procedures, the
potential for cooperative relationships, and the availability of the
widest range of disposition alternatives.
Phoenix, AZ, October 2007
We published the proposed questions for comment at the consultation
meeting scheduled for Phoenix, AZ, as part of the Notice of
Consultation on August 13, 2007 (72 FR 45213); they were the same
questions as those in the prior notice.
The consultation meetings were attended by representatives of more
than 13 Indian tribes and 5 museums and scientific organizations. Oral
and written comments and recommendations were provided from
representatives of 12 Indian tribes and 11 museum and scientific
organizations.
Participants made general comments and recommendations as follows:
For remains with lineal descendents on or off of tribal
land it was stressed by tribal representatives that the care of these
remains should be addressed in full consultation with the tribes.
Further analysis should be addressed only with tribal consent. Tribes
should have access to all burial records regardless of where they
originate. One tribe recommended that when control is determined to be
vested with a tribe, that tribe must determine proper and respectful
disposition of remains, funerary objects, sacred objects or objects of
cultural patrimony.
For remains where there has been a claim based on cultural
affiliation or aboriginal land consultation with the tribes must take
place and analysis must take place only with tribal consent. Tribes
should have access to all burial records regardless where they
originate. Tribal representatives stressed that when cultural
affiliation has been established, tribal representatives may designate
a lead tribe to address consultation. It was stressed that it can be
hard to understand ownership from a tribal perspective. While the
concept of ownership can be hard for traditional tribal people to
comprehend, museums and universities embrace the concept of ownership,
making mutual understanding more difficult. Tribal representatives
emphasized another major perspective about the difficulty of conducting
research to determine cultural affiliation without economic and human
resources.
From the perspective of the tribal representatives, the
treatment of unclaimed human remains must be done with the utmost
respect. One scientific organization stated that there should be no
statute of limitations on NAGPRA claims. Curation should continue in
accordance with applicable law until a lineal descendent or group
authorized by NAGPRA directs otherwise. All parties should be
encouraged to communicate with applicable institutions regarding their
rights and interests, especially to reduce the risk of other claimants
with lesser rights obtaining repatriation due to lack of knowledge
about the existence of higher priority claimants' rights.
Tribal leaders noted that if the culturally affiliated
tribe does not wish to repatriate the remains, funerary objects,
objects of cultural patrimony, or sacred objects, they must be
consulted on proper and respectful housing for the remains or objects.
If a non-federally recognized Indian group states a claim
based on a cultural connection, a determination about the extent of
that connection with that group should be made. The remains must be
housed in accordance to specifications determined through consultation
with the culturally connected group, regardless of the Federal status
of the tribe, until a decision regarding permanent disposition can be
reached. Tribal representatives concurred that remains or objects
should be repatriated to the lineal descendent or an Indian tribe or
Native Hawaiian organization most closely connected for appropriate
care and handling regardless of the Federal status of the tribe or
group. If the culturally connected group does not wish to accept
repatriation, they still should be consulted about proper and
respectful housing.
Tribes recognized that claims might not be made because
potential claimant tribes do not have information or do not have
resources necessary to receive remains or other collections. These
facts do not diminish the cultural or spiritual beliefs associated with
remains or objects, especially with regard to basic conditions of
respect and dignity that should be accorded to human remains. There was
discussion about the government-to-government relationship that must be
maintained between Federal agencies and Indian tribes. Tribes noted
that tribal sovereignty also was an issue that should be considered by
institutions, universities, and states. They considered that the
importance of traditional knowledge should be part of
[[Page 64439]]
effective consultation. Respect and dignity were described as including
avoidance of:
[cir] Separation of human remains from associated funerary objects.
[cir] Public displays of human remains and funerary objects.
[cir] Unnecessary disturbance, handling or transport of human
remains.
[cir] Archeological processing of human remains and funerary
objects.
[cir] Physical modifications of human remains and associated
funerary objects.
[cir] Housing together sacred objects and objects of cultural
patrimony.
Tribes were concerned about the extent to which the
regulations for curation of federally owned and administered
archeological collections at 36 CFR Part 79 adequately address the
management, preservation, and use of human remains, funerary objects,
sacred objects, or objects of cultural patrimony. One tribe recommended
amendment of the curation regulations to reflect the fact that human
remains cannot be ``owned.'' Others noted that the care aspects listed
above should be incorporated into the curation regulations. Tribes
discussed amendments on the section on ``uses of collections'' to
include limitations on scientific or educational purposes, limitations
on loans and access by tribes for religious or cultural purposes.
Tribal representatives noted that, regardless of the
provisions in the Federal statutes, working closely with the states to
address state burial laws was important.
Summary of Consultation With the NAGPRA Review Committee
The meeting agendas were made public 30 days or more before each
meeting, and notice of the date and place of each meeting was published
in the Federal Register 30-180 days before the meetings in Albuquerque,
NM, November 2005; Washington, DC, April 2007; Phoenix, AZ, October
2007; De Pere, WI, May 2008; Sarasota, FL, October 2009; and
Washington, DC, November 2010. Review Committee suggestions were as
follows:
There should be ways to provide technical assistance
through the National NAGPRA Program for making determinations involving
aboriginal lands, for accessing reference materials, and for using
databases.
Potential claimants should be fully informed, and should
be consulted when no claims are made and alternative dispositions are
considered. Until determinations are made, collections should remain
with Federal agencies.
Sensitivity toward traditional cultural practices,
respect, and dignity regarding treatment of human remains and
associated funerary objects was important.
Reinterment was acknowledged as an important option.
New categories for unclaimed remains should be avoided,
especially given the potential for new information that may be
developed which would help in any determinations about disposition.
There is a need for a database of unclaimed remains and
objects.
Human remains and funerary objects should remain separate
from other cultural objects and should be subject to special care and
handling in consultation with priority claimants.
Study or documentation of the unclaimed human remains and
cultural items should proceed only with consent of the priority
claimants or after consultation with the culturally affiliated or
culturally related tribes. Baseline documentation, however, such as
number of individuals, age, sex, should be recorded.
No time limit should be imposed for responding to
potential claimants, and human remains and cultural items should remain
in Federal care until such time as a claimant comes forward and
disposition is determined.
To facilitate claims, Federal agencies should hold
consultations with lineal descendants, tribes or Native Hawaiian
organizations on whose tribal lands such objects or remains were
discovered, and other tribal entities that may have a cultural
affiliation or relationship with the human remains or cultural objects.
Federal agencies considering treatments should be guided
by the regulations at 36 CFR Part 79.
There is a need for a definition of ``unclaimed.'' It is
important to shield unclaimed cultural items from educational uses.
It is important to allow access for traditional cultural
practices.
Section-by-Section Analysis
Sec. 10.2 Definitions
A definition of ``unclaimed cultural items'' (that is, human
remains, funerary objects, sacred objects, or objects of cultural
patrimony) clarifies that this is a category subject to the provisions
of the NAGPRA and of regulations to determine priority of ownership and
control. Those procedures are the subject of 43 CFR 10.3 through 10.6.
Once priority of ownership has been determined, some priority claimants
may choose not to exercise their right. Alternatively, no potential
claimants may have been identified. These two conditions constitute the
category of unclaimed cultural items. The procedures defined in the new
Sec. 10.7 provide guidance on how to proceed.
Sec. 10.7 Disposition of Unclaimed Cultural Items
A general statement in paragraph 10.7(a) about the purposes of the
new section clarifies the applicable statutory authority, how the new
section is to be applied, and what procedures in the regulations must
be completed. The results of work done previously, particularly with
regard to consultation and appropriate determination of disposition,
have continued applicability, and the new section imposes no new
requirements for consultation and documentation.
The rule is limited to Federal lands, as NAGPRA's provision on new
discoveries on tribal lands puts the tribal land owner in control of
cultural items above all claimants except lineal descendants.
The provisions in paragraph 10.7(b) provide guidance about
disposition. They:
Clarify which regulatory procedures must be completed
before any potential implementation of Sec. 10.7;
Provide options for disposition, according to the new
definition of ``unclaimed cultural items'' in paragraph 10.2(h),
including considerations for reinterment;
Require public notification before disposition;
Establish Federal curation regulations at 36 CFR Part 79
as standards for care and management;
Encourage consideration of care with specific sensitivity
to tribal and Native Hawaiian traditions;
Provide flexibility to house human remains and associated
funerary objects separately;
Require appropriate information about remains and objects
to be made publicly accessible via a nationwide database to be
maintained by the National NAGPRA Program;
Require Federal agencies to submit their lists of
unclaimed cultural items, with descriptive information, within two
years of the excavation; and
Acknowledge that, while human remains and funerary objects
are intrinsically protected under NAGPRA, no items are intrinsically
sacred objects or objects of cultural patrimony, but instead they rely
on tribal or group context to qualify as protected items under NAGPRA.
[[Page 64440]]
Compliance With Other Laws and Executive Orders
Regulatory Planning and Review (Executive Order 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
has determined that this rule is significant because it could interfere
with an action taken or planned by another agency.
Executive Order 13563 reaffirms the principles of E.O. 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.
The executive order 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. E.O. 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 rule will affect the disposition of
only those Native American human remains and cultural items for which
potential claimants have chosen not to take ownership or control, or
when no potential claimants have been identified.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA.
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.
Unfunded Mandates Reform Act (UMRA)
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. The 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 UMRA (2 U.S.C. 1531 et seq.)
is not required.
Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12603. A takings
implication assessment is not required. This rule concerns the
discretionary disposition of only those Native American cultural items
for which identified potential claimants, upon notice, have not
exercised their right to claim or no potential claimants can reasonably
be identified.
Federalism (E.O. 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. A Federalism
summary impact statement is not required.
Civil Justice Reform (E.O. 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.
Consultation With Indian Tribes (Executive Order 13175)
In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 218), and
Department of Interior Manual 512 DM 2, ``Departmental Responsibilities
for Indian Trust Resources,'' this rule has a potential effect on
federally recognized Indian tribes. The proposed rule was developed in
consultation with the NAGPRA Review Committee, which includes members
nominated by Indian tribes. Formal consultation with the NAGPRA Review
Committee was held on November 16-17, 2005, in Albuquerque, NM; on
April 19-20, 2007, in Washington, DC; on October 15-16, 2007, in
Phoenix, AZ; on May 15-16, 2008, in De Pere, WI; on October 30-31,
2009, in Sarasota, FL; and on November 18-19, 2010, in Washington, DC.
Formal consultation with Indian tribes began on November 15, 2005,
in Albuquerque, NM, and continued on April 18, 2007, in Washington, DC,
and October 14, 2007, in Phoenix, AZ. Testimony or comments were
received from representatives of 18 Indian tribes and three Indian
organizations. We will fully consider tribal and Review Committee views
in the final rule.
Paperwork Reduction Act (PRA)
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget under the PRA
of 1995 (44 U.S.C. 3501 et seq.). OMB has approved the information
collection requirements associated with regulations implementing NAGPRA
and has assigned OMB control number 1024-0144 (expires 11/30/15). An
agency may not conduct or sponsor and a person is not required to
respond to a collection of information, unless it displays a currently
valid OMB control number.
National Environmental Policy Act of 1969 (NEPA)
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 the rule is covered by a
categorical exclusion under 516 DM 2, Appendix 1.10, Policies,
directives, regulations, and guidelines that are of an administrative,
financial, legal, technical, or procedural nature and whose
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis and will later be subject to the
NEPA process, either collectively or case-by-case. We have also
determined that the rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under the NEPA.
Effects on the Energy Supply (Executive Order 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 rule
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section
[[Page 64441]]
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 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 sections 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 staff of the National NAGPRA
Program and counsel of the Division of Parks and Wildlife and the
Division of Indian Affairs in the Office of the Solicitor.
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 identified by the RIN 1024-AE00
to http://www.regulations.gov (by following the Web site's instructions
for submitting comments), or by mail to: Dr. Sherry Hutt, Manager,
National NAGPRA Program, National Park Service, 1201 Eye Street NW
(2253), Washington, DC 20005. We specifically request comments from
Indian tribes, Native Hawaiian organizations, museums, Federal
agencies, and other interested persons regarding:
1. The applicability of Federal curation regulations at 36 CFR Part
79 or other standards, guidelines, and protocols being used by state,
local, or tribal governments that address the preservation or
management of Native American cultural items.
2. The appropriateness of using a priority structure in determining
the disposition of unclaimed human remains, funerary objects, sacred
objects, or objects of cultural patrimony.
3. The alternative of reinterment.
4. Using newspaper notice for potential claimants of unclaimed
items, and any other approaches of notifying the public that are
equally or more effective. Is there a role in other technological means
to provide effective notice to tribes? Is it necessary for notices
under this section be published in the Federal Register as are notices
in the collections provisions?
This proposed rule may also be viewed at http://www.nps.gov/nagpra.
A hardcopy of this proposed rule may be obtained by submitting a
request to the Manager, National NAGPRA Program, National Park Service,
1201 Eye Street NW (2253) Washington, DC 20005. Commenters wishing the
National Park Service to acknowledge receipt of their comments must
submit those comments with a self-addressed, stamped postcard on which
the following statement is made: ``Comments to RIN 1024-AE00.'' The
postcard will be date stamped and returned to the commenter.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment- including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Hawaiian Natives, Historic
preservation, Indians-claims, Indians-lands, Museums, Reporting and
record keeping requirements.
In consideration of the foregoing, the NPS proposes to amend 43 CFR
Part 10 as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
0
1. The authority for Part 10 continues to read as follows:
Authority: 16 U.S.C. 470dd, 25 U.S.C. 9 and 3001 et seq.
0
2. In Sec. 10.2 add paragraph (h) to read as follows:
Sec. 10.2 Definitions.
* * * * *
(h) Unclaimed cultural items means Native American human remains,
funerary objects, sacred objects, or objects of cultural patrimony:
(1) That have been excavated or removed from Federal lands after
November 16, 1990; and
(2) Whose disposition of ownership or control under 25 U.S.C.
3002(a) and Sec. 10.6 of this part has not occurred because either:
(i) No identified potential claimant, upon notice, has exercised
its right to claim ownership or control of the cultural items; or
(ii) No potential claimant can reasonably be identified.
* * * * *
0
3. Add Sec. 10.7 to read as follows:
Sec. 10.7 Disposition of unclaimed cultural items.
(a) A Federal agency that has unclaimed cultural items (human
remains, funerary objects, sacred objects, or objects of cultural
patrimony) must:
(1) Submit a list of the items to the Manager, National NAGPRA
Program that describes the place of discovery and the nature of the
unclaimed cultural items. This list must be received by [DATE 2 YEARS
AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register],
or within 2 years after excavating or removing the items, whichever is
later.
(2) Care for and manage unclaimed cultural items consistent with
the regulations at 36 CFR Part 79.
(3) To the maximum extent feasible, consider and respect the
traditions of any potential claimants concerning the unclaimed cultural
items, including, but not limited to, traditions regarding housing,
maintenance, and preservation.
(b) Subject to paragraph (d) of this section, a Federal agency that
has unclaimed cultural items may transfer them to another Indian tribe
or Native Hawaiian organization.
(c) Subject to paragraph (d) of this section, a Federal agency that
has unclaimed human remains and funerary objects may reinter them or
offer them for disposition according to applicable State or other law.
(d) Before a Federal agency makes a transfer or reinterment under
paragraphs (b) or (c) of this section, it must:
(1) Submit the list required under paragraph (a)(1) of this section
to the Manager, National NAGPRA Program.
(2) Publish a notice of the proposed transfer or reinterment in a
newspaper of general circulation in the area in which the unclaimed
cultural items were excavated or removed and in a newspaper of general
circulation in the area in which each potential claimant now resides.
The notice must explain the nature and affiliation, if any, of the
unclaimed cultural items, and solicit claims under the priority of
ownership or control in section 3(a) of the Act and
[[Page 64442]]
Sec. 10.6 of this part. The notice must be published at least two
times at least a week apart. The transfer or reinterment may not take
place until at least 30 days after publication of the second notice to
allow time for any claimants under the priority of ownership or control
in section 3(a) of the Act and Sec. 10.6 of this part to come forward.
(3) Send to the Manager, National NAGPRA Program a copy of the
notice published under paragraph (d)(2) of this section and information
on when and in what newspaper(s) the notice was published.
(e) This section implements section 3(b) of the Native American
Graves Protection and Repatriation Act at 25 U.S.C. 3002(b).
Dated: October 21, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-25511 Filed 10-28-13; 8:45 am]
BILLING CODE 4312-50-P