Native American Graves Protection and Repatriation Act Regulations-Disposition of Culturally Unidentifiable Human Remains, 12378-12405 [2010-5283]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 49 (Monday, March 15, 2010)]
[Rules and Regulations]
[Pages 12378-12405]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5283]



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Part III





Department of the Interior





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43 CFR Part 10



Native American Graves Protection and Repatriation Act Regulations--
Disposition of Culturally Unidentifiable Human Remains; Final Rule

Federal Register / Vol. 75 , No. 49 / Monday, March 15, 2010 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AD68


Native American Graves Protection and Repatriation Act 
Regulations--Disposition of Culturally Unidentifiable Human Remains

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule with request for comments.

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SUMMARY: This final rule implements the Native American Graves 
Protection and Repatriation Act by adding procedures for the 
disposition of culturally unidentifiable Native American human remains 
in the possession or control of museums or Federal agencies. This rule 
also amends sections related to purpose and applicability of the 
regulations, definitions, inventories of human remains and related 
funerary objects, civil penalties, and limitations and remedies.

DATES: This rule is effective May 14, 2010. Comments must be received 
by May 14, 2010.

ADDRESSES: You may submit comments on this final rule, identified by 
the number 1024-AD68, by any of the following methods:
     Federal rulemaking portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or hand delivery: Sherry Hutt, Manager, National 
NAGPRA Program, National Park Service, 1201 Eye Street, NW., 8th Floor, 
Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Sherry Hutt, Manager, National NAGPRA 
Program, National Park Service, 1201 Eye Street, NW., 8th Floor, 
Washington, DC 20005, Telephone: (202) 354-1479, Fax: (202) 371-5197.

SUPPLEMENTARY INFORMATION: 

Background

    The Native American Graves Protection and Repatriation Act of 1990 
(the Act) addresses the rights of lineal descendants, Indian tribes, 
and Native Hawaiian organizations to certain Native American human 
remains, funerary objects, sacred objects and objects of cultural 
patrimony. Among other things, the Act:

--Established the Native American Graves Protection and Repatriation 
Review Committee, composed of representatives from museum and 
scientific organizations and from Indian tribes and Native Hawaiian 
organizations (the Review Committee) to monitor and review inventory, 
identification, and repatriation activities.
--Required the Review Committee to consult with the Secretary of the 
Interior in developing regulations to implement the Act.
--Charged the Review Committee with compiling an inventory of 
culturally unidentifiable human remains in museums or Federal agencies 
and recommending actions for disposition of these remains.

    In 1995, during initial development of the regulations to implement 
the Act, the Department decided to reserve several sections for later 
development. This decision ensured that development of more complex 
provisions would not delay implementation of the basic regulations 
needed to guide compliance with impending deadlines for inventory 
submissions. We are implementing this long-term publication plan as 
follows:

--We published the first rules to implement the Act on December 4, 1995 
(43 CFR part 10, 60 FR 62158).
--We published rules for assessing civil penalties under the Act on 
April 3, 2003 (43 CFR 10.12, 68 FR 16354).
--We published rules for new collections and continuing obligations for 
compliance on March 21, 2007 (43 CFR 10.13, 72 FR 13189).
--We are publishing this rule today.
--We are developing additional rules to cover disposition of unclaimed 
Native American human remains and cultural items from Federal and 
Indian lands (future 43 CFR 10.7).

    Publication of this rule furthers the Department's goal of 
publication in phases.
    On October 16, 2007, we published in the Federal Register the 
proposed rule to specify procedures for disposition of culturally 
unidentifiable human remains in the possession or control of museums or 
Federal agencies. At that time, we invited public comment for a 90-day 
period, ending on January 14, 2008, and posted the proposed rule on the 
National NAGPRA Program Web site.
    During the comment period, we received 138 written comments from 51 
Indian tribes, 19 Indian organizations, 30 museums, 12 museum or 
scientific organizations, 3 Federal entities, 15 members of the public, 
and the Review Committee. The comments addressed all sections of the 
proposed rule. We fully considered all of these comments and this final 
rule includes extensive revisions that we have made response to the 
concerns raised by commenters.
    As required by the Act, the Review Committee sent comments to the 
Secretary in 2000, 2003, and 2008. During its January 2008 
teleconference, the Review Committee suggested that the Department 
extend the comment period for the proposed rule or reissue a revised 
proposed rule for further comment. After the close of the comment 
period, we worked with the Office of the Solicitor to prepare a draft 
final rule and preamble responding to comments. The following brief 
chronology outlines the reviews that have occurred since we developed 
the rule:

--The Assistant Secretary--Fish and Wildlife and Parks and the 
Assistant Secretary--Indian Affairs reviewed the draft final rule and 
considered the recommendations of the Review Committee.
--The Assistant Secretaries determined that the draft final rule and 
preamble were responsive to comments, and that, given the lengthy 
comment period, there was no need or basis to extend the comment period 
or to repropose the rule.
--The Department identified a procedural problem with publication of 
the final rule relating to the Paperwork Reduction Act, which resulted 
in additional delays totaling 6 months.
--With the change of administration, the Department's management 
conducted additional review by the Assistant Secretary--Fish and 
Wildlife and Parks and the Assistant Secretary--Indian Affairs.

    As the preceding summary illustrates, this final rule has undergone 
extensive review in multiple administrations. Each of these reviews was 
conducted independently, and both the current and previous 
administrations agreed that this rule is appropriate for 
implementation. In addition to the opportunities for comment that we 
have already offered, we are accepting comments on this rule until May 
14, 2010.
    The current Assistant Secretary--Fish and Wildlife and Parks and 
the current Assistant Secretary--Indian Affairs have determined that 
this final rule and preamble are fully responsive to the comments 
received on the proposed rule and that the ten-year process of 
developing the rule, as well as the substantive provisions of the rule, 
fit well with the Administration's goals of transparency in decision 
making and open consultation with Indian tribes. Comments to this rule 
covered myriad issues that have arisen in the 20 years since NAGPRA 
became law. Although

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many of the comments went beyond the scope of this rulemaking, the 
preamble to this rule provides detailed responses to each of the 
comments.
    In brief, this rule pertains to those human remains, in 
collections, determined by museums and Federal agencies to be Native 
American, but for whom no relationship of shared group identity can be 
reasonably traced, historically or prehistorically, between a present 
day Indian tribe or Native Hawaiian organization and an identifiable 
earlier group. These individuals are listed on inventories as 
culturally unidentifiable Native American human remains. The rule 
requires consultation on the culturally unidentifiable human remains by 
the museum or Federal agency with Indian tribes and Native Hawaiian 
organizations whose tribal lands or aboriginal occupancy areas are in 
the area where the remains were removed. If cultural affiliation still 
cannot be determined and repatriation achieved, then the Indian tribe 
or Native Hawaiian organization may request disposition of the remains. 
The museum or Federal agency would then publish a notice and transfer 
control to the tribe, without first being required to appear before the 
Review Committee to seek a recommendation for disposition approval from 
the Secretary of the Interior. Disposition requests, which do not meet 
the parameters of the rule, would still require approval from the 
Secretary, who may request a recommendation from the Review Committee.
    Therefore, the Department is issuing this final rule to be 
effective May 14, 2010.

Summary of Comments

    The proposed rule to specify procedures for the disposition of 
culturally unidentifiable human remains in the possession or control of 
museums or Federal agencies was published in the Federal Register on 
October 16, 2007 (72 FR 58582). Public comment was invited for a 90-day 
period, ending on January 14, 2008. The proposed rule was also posted 
on the National NAGPRA Program Web site. The Review Committee commented 
on the proposed rule at its January 8, 2008 public teleconference. In 
addition, 138 written comments were received during the comment period, 
representing 51 Indian tribes, 19 Indian organizations, 30 museums, 12 
museum or scientific organizations, 3 Federal entities, 15 members of 
the public, and the Review Committee. Comments addressed all sections 
of the proposed rule. All comments were fully considered when revising 
the proposed rule as a final rulemaking.

General Comments

Authority

    Comment 1: Fifteen commenters stated that the Department of the 
Interior does not have the authority to promulgate regulations 
governing the disposition of culturally unidentifiable human remains 
and associated funerary objects and that Congressional action is 
necessary to effect the disposition of such remains and objects. Eleven 
commenters stated that the Department of the Interior does have 
authority to promulgate such regulations.
    Our Response: In section 13 of the Act (25 U.S.C. 3011), Congress 
explicitly authorized the Secretary of the Interior to promulgate 
regulations implementing the Act. As an initial matter, consideration 
of all Native American human remains and associated funerary objects, 
including those that are culturally unidentifiable, is within the scope 
of the statute. Section 5 of the Act (25 U.S.C. 3003) requires Federal 
agencies and museums that have possession or control over holdings or 
collections of Native American human remains and associated funerary 
objects to compile an inventory of such items and, to the extent 
possible based on information possessed by each museum or Federal 
agency, identify the geographical and cultural affiliation of such 
items. Congress anticipated that not all items could be geographically 
or culturally affiliated and, in section 8 of the Act (25 U.S.C. 3006), 
assigned the role of recommending specific actions for developing a 
process for the disposition of culturally unidentifiable human remains 
to the Review Committee. Congress intended that the Review Committee be 
an advisory committee which makes recommendations to the Secretary 
(Senate Report 101-473 at 13). An earlier version of the bill that 
preceded the final version of NAGPRA directed the Review Committee to 
provide its recommendations regarding the disposition of culturally 
unidentifiable human remains to the Secretary and to the Congress (H.R. 
5237, Section (7)(d), July 10, 1990). However, the provision regarding 
Congress was ultimately stricken from the version of the bill that was 
signed into law. The sequence of changes in a statute prior to 
enactment provides strong evidence of the meaning of the enacted 
statute (INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)). It would thus 
appear that while Congress may have considered limiting the Secretary's 
authority to promulgate regulations regarding the disposition of 
culturally unidentifiable human remains, this restriction was 
ultimately rejected. This regulation, promulgated in the exercise of 
Congress' delegated authority, implements many of the Review 
Committee's recommendations and effectuates the goals of the Act. Even 
if Congress may not have expressly delegated authority or 
responsibility to implement a particular provision of the Act or fill a 
particular gap in the law, it can still be apparent from an agency's 
generally conferred authority and other statutory directives that 
Congress would expect the agency to be able to speak with the force of 
law when the agency addresses ambiguities in the statute or fills a gap 
in the enacted law (United States v. Mead, 533 U.S. 218 (2001)).
    Comment 2: Five commenters consider the rule to be contrary to the 
plain language of the Act and against the original intent of Congress.
    Our Response: Typically, the Congress expects the Federal agency 
charged with the implementation of a statute to establish the specific 
process by which the statute's objectives are to be achieved. By 
regulation, the Department directed each museum and Federal agency to 
complete ``a listing of all culturally unidentifiable human remains and 
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined'' 
(43 CFR 10.9(d)(2)), and, after considering the Review Committee's 
recommendations, the Secretary proposed these regulations to address 
the Congressional silence with respect to procedures for disposition of 
the culturally unidentifiable human remains and associated funerary 
objects. Under Chevron v. Natural Resources Defense Council (467 U.S. 
837 (1984)), if a statute is silent or ambiguous with respect to a 
particular issue, then deference is accorded to the agency's 
interpretation of the provisions of the Act so long as the agency's 
interpretation is not arbitrary, capricious, or manifestly contrary to 
the statute. As discussed above, the promulgation of regulations for 
the disposition of culturally unidentifiable human remains and 
associated funerary objects is consistent with the plain language and 
intent of the Act. Culturally unidentifiable human remains and 
associated funerary objects were previously addressed in the 
regulations promulgated by the Department in December 1995 (60 FR 
62134). 43 CFR 10.9(e)(6) requires Federal agencies and museums to 
provide a list of culturally unidentifiable human remains and

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associated funerary objects to the Department and to retain possession 
of such items pending promulgation of this rule unless legally required 
to do otherwise or the Secretary recommends otherwise. Promulgation of 
this rule provides for additional treatment and ultimate disposition of 
culturally unidentifiable human remains and associated funerary 
objects, and fills the regulatory gap contemplated by the current 
regulations.
    Comment 3: Two commenters stated that Congress intended to allow 
study of ancient, unaffiliated remains.
    Our Response: The Act does not draw a distinction between 
``ancient'' and more recent remains. The Act covers historic or 
prehistoric ``Native American'' human remains. ``Native American'' 
means of, or relating to, a tribe, people, or culture that is 
indigenous to the United States'' (25 U.S.C. 3001(9)). The statute 
states that the Act shall not be construed to be an authorization for 
the initiation of new scientific studies of Native American human 
remains and associated funerary objects or other means of acquiring or 
preserving additional scientific information from such remains and 
objects (25 U.S.C. 3003(b)(2)).
    Comment 4: One commenter indicated that the proposed rule bypasses 
the language of the Act as the Review Committee is given the role of 
making recommendations regarding culturally unidentifiable remains.
    Our Response: In section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)), 
Congress assigned the Review Committee the role of recommending 
specific actions for developing a process for disposition of culturally 
unidentifiable human remains. Congress also authorized the Review 
Committee to consult with the Secretary in the development of 
regulations to carry out the Act. The Secretary has interpreted the 
intent of Congress in this section as authorizing the Secretary to 
promulgate regulations governing the disposition of culturally 
unidentifiable human remains after considering the Review Committee's 
recommendations on these matters. This interpretation is reflected in 
the Department of the Interior's regulations at Sec.  10.9(6) which 
states, ``Section 10.11 of these regulations will set forth procedures 
for disposition of culturally unidentifiable human remains of Native 
American origin. Museums or Federal Agencies must retain possession of 
such human remains pending promulgation of Sec.  10.11 unless legally 
required to do otherwise, or recommended to do otherwise by the 
Secretary. Recommendations regarding the disposition of culturally 
unidentifiable human remains may be requested prior to final 
promulgation of Sec.  10.11.'' Prior to the completion of Sec.  10.11, 
the Secretary has referred such individual requests to the Review 
Committee, as authorized under section 8(c)(8) of the Act (25 U.S.C. 
3006(c)(8)) (``performing such other related functions as the Secretary 
may assign to the committee'') and has requested the Review Committee's 
advice before making recommendations on the disposition of human 
remains.

Constitutionality

    Comment 5: One commenter was concerned that compliance with the 
proposed rule could place a museum in violation of unspecified state 
statutes.
    Our Response: NAGPRA is Federal law, and, as such, under the 
Supremacy Clause of the Constitution (Art. VI, cl. 2; Lorillard Tobacco 
Co. v. Reilly, 533 US 525 (2001)) preempts any state law on the same 
subject matter. This is especially true in the field of Federal Indian 
law, where the United States has plenary and exclusive power (U.S. 
Constitution, Art. I, Sec. 8, cl. 3; Worcester v. Georgia, 31 US 515, 6 
Pet 515 (1832)). Moreover, in section 7(f) of the Act (25 U.S.C. 
3005(f)), Congress specifically provided that ``[a]ny museum which 
repatriates any item in good faith pursuant to this chapter shall not 
be liable for claims by an aggrieved party or for claims of breach of 
fiduciary duty, public trust, or violations of state law that are 
inconsistent with the provisions of this chapter.''
    Comment 6: Two commenters alleged that the proposed regulations 
would violate the Establishment Clause of the First Amendment to the 
Constitution, focusing on a sentence in the preamble to the proposed 
regulations which suggests that the voluntary repatriation by a museum 
or Federal agency of funerary objects associated with culturally 
unidentifiable human remains would be consistent with ``customary 
religious and spiritual beliefs.'' The commenters stated that this 
suggestion demonstrated unconstitutional special treatment for the 
``creationist viewpoint'' of many Indian people and that such beliefs 
are not evidence of a cultural relationship or cultural affiliation 
under the Act.
    Our Response: The commenters have misconstrued and misapplied the 
sentence in the preamble. First, the use of religious or spiritual 
beliefs is not being invoked to determine whether a specific group of 
human remains is Native American. The rule allows a museum or Federal 
agency to voluntarily repatriate associated funerary objects with human 
remains (which it has already determined to be Native American). 
Considerations of a religious or spiritual belief system are not used 
to determine the origin of the human remains and are not relevant to 
such a voluntary determination by the museum or Federal agency. 
Further, ``funerary objects'' are defined by both the NAGPRA statute 
and current regulations as ``items that, as part of the death rite or 
ceremony of a culture, are reasonably believed to have been placed 
intentionally at the time of death or later'' (43 CFR 10.2(d)(2)). This 
definition is taken from the definition of ``associated funerary 
objects'' in the Act (25 U.S.C. 3001(3)(A)). The statement referred to 
by commenters in the preamble to the proposed rule is a recognition 
that ``the death rite or ceremony of a culture'' is an inherently 
spiritual or religious act, whether the belief system involved is 
traditionally Indian or Christian (also broadly represented in Indian 
country), or another belief system. Such a recognition in the context 
of a voluntary action by a museum or Federal agency (to which the 
commenters did not object) does not constitute support of a particular 
religious point of view or excessive entanglement with religion in the 
context of the Establishment Clause (Walz v. Tax Commission of the City 
of New York, 397 U.S. 664 (1970)).
    Comment 7: Three commenters stated that the proposed rule, if 
finalized, would constitute a ``taking'' by the United States of the 
property of museums in violation of the Fifth Amendment to the United 
States Constitution.
    Our Response: To determine whether a governmental procedure has 
deprived a party of its rights without due process, the first inquiry 
must be whether that party has protected property or liberty interests 
(American Manufacturing Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 
59 (1999), and Federal Lands Legal Consortium v. United States, 195 
F.3d 1190 (10th Cir. 1999)). Under the common law, however, human 
remains are not ``property'' (See, e.g., 2 William Blackstone, 
Commentaries, 429). Thus, a museum would not have a property interest 
in culturally unidentifiable human remains that could be ``taken,'' 
unless the museum has received the right to possess the remains from a 
person or entity with authority to confer that right on the museum. The 
next of kin of the deceased (25 U.S.C. 3001(13)) (see Whaley v. 
Tuscola, 58 F.3d 1111, 1117 (6th Cir. 1995); Brotherton v. Cleveland, 
923 F.2d 477, 482 (6th Cir. 1991)) and the official governing body of 
the appropriate Indian tribe or Native Hawaiian organization (25 U.S.C.

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3001(13) and (3002(e)) are the only parties who possess such a property 
right for purposes of the Fifth Amendment. If a museum could prove, 
therefore, that the human remains were ``excavated, exhumed, or 
otherwise obtained with full knowledge and consent of the next of kin 
or the official governing body of the appropriate culturally affiliated 
Indian tribe or Native Hawaiian organization'' (25 U.S.C. 3001(13)), or 
were remains for which ``the governing body of an Indian tribe or 
Native Hawaiian organization [has] expressly relinquished control'' (25 
U.S.C. 3002(e)), it may have a property right that could be protected. 
That is the purpose of the definition of right of possession under the 
Act (25 U.S.C. 3001(13)), and, to the extent that a museum can prove a 
right of possession for culturally unidentifiable human remains, that 
right is protected by Sec.  10.11(c)(1) of the regulations as well as 
the Constitution.
    Comment 8: Two commenters asserted that the proposed rule, if 
finalized, would violate the Equal Protection clause of the Fourteenth 
Amendment to the United States Constitution. One of these commenters 
noted that the requirement in Sec.  10.11(b)(2) to consult with ``all 
Indian tribes and Native Hawaiian organizations'' with certain 
connections to land (which, in the commenter's view, would include 
Indian groups that are not federally-recognized) would violate the 
Act's insulation from equal protection challenges based on the 
government-to-government relationship between the United States and 
federally-recognized Indian tribes. The other commenter asserted that 
the proposed rule illegally favored one ``cultural lineage'' over 
others.
    Our Response: The first commenter's concern raises an issue common 
to many of the comments on the proposed rule. When agencies publish 
proposed and final rules in the Federal Register that are amending 
existing regulations, the agency is only required to publish the 
portion of the regulations that would change. Unless the agency states 
otherwise, all portions of existing regulations that are not proposed 
for change in the notice of proposed rulemaking remain the same, and 
still apply. Thus, when this proposed rule refers to ``Indian tribes,'' 
the drafters are using the existing definition of that term, which is 
not proposed for changes. That definition, at Sec.  10.2(b)(2), only 
refers to federally-recognized Indian tribes. The drafters of the 
proposed rule have been very careful to distinguish tribes that are not 
federally-recognized Indian groups when those groups are included in a 
provision of the rule in order to maintain a clear distinction. The 
only mandatory consultation or disposition in the rule, consistent with 
the Act, is to Indian tribes (i.e., federally-recognized) or Native 
Hawaiian organizations. This preference in both the regulations and the 
statute is based not on ``cultural lineage'' but on the plenary power 
of Congress to ``regulate commerce * * * with the Indian Tribes'' (U.S. 
Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-
government relationship between the United States and Indian tribes 
(Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).

Statutory Amendment

    Comment 9: Three commenters recommended that Congress consider 
amending the statute. Two commenters recommended expanding who has a 
right to claim cultural items under the Act from lineal descendants, 
Indian tribes, and Native Hawaiian organizations to also include state 
recognized Indian groups, Indian groups currently seeking Federal 
acknowledgement, and indigenous groups located beyond the boundaries of 
the United States. One commenter recommended amending the statute to 
apply to collections held by the Smithsonian Institution. One commenter 
recommended that the composition of the Review Committee be changed to 
ensure a ratio of no less than two Native American members for each 
non-Native American member.
    Our Response: Statutory amendments are the exclusive purview of the 
Congress.

Compliance With Other Statutes and Policies

    Comment 10: The preamble of the proposed rule states that the rule 
does not impose an unfunded mandate on State, local, or tribal 
governments or the private sector of more than $100 million per year. 
Fifteen commenters projected that the financial burden of consultation 
and disposition on museums will be ``tremendous,'' ``onerous,'' 
``impossible,'' ``overwhelming,'' ``ruinous,'' or ``significant.'' Two 
commenters predicted that the rule will result in costly litigation. 
Seven commenters estimated that the cost of implementing the proposed 
rule will exceed $100 million per year. One commenter recalled that 
some museums raised similar financial concerns prior to passage of the 
Act in 1990, but noted that the claims have never been substantiated in 
fact. Two commenters recommended that the Department of the Interior 
provide detailed cost estimates.
    Our Response: Costs to comply with this rule will be seen in the 
costs of consultation and decision-making. Museums and Federal agencies 
are only required to consult upon receipt of a claim from an Indian 
tribe or Native Hawaiian organization. In the last five years, there 
have been approximately 14 requests per year for Review Committee 
consideration of claims for disposition of culturally unidentifiable 
Native American human remains. Although there are numerous human 
remains subject to this rule, it is reasonable to assume that tribes 
will make requests at a constant rate, given the capacity of tribes to 
do so. A single claim may involve many human remains from one site, 
requiring one notice. Absent a claim, a museum or Federal agency may 
also voluntarily offer to transfer control. The costs of decision 
making include exchange of information between museums and tribes, and 
preparation of a notice by a museum. Using current rates of 
compensation for museum clerical, curator and executive staffs, there 
is a weighted cost average for their efforts of $30.00 an hour. 
Assuming approximately 100 hours of information exchange and six hours 
to prepare a notice, the cost per claim is less than $5,000 on average 
and the annual cost of all claims in a year, subject to this rule, is 
less than $100,000. Since there are no deadlines for claims or for 
offering to transfer control, the required consultations will likely 
extend over multiple year periods, thus reducing the total cost of 
consultation in any particular year. Since 1994, Congress has provided 
grant funds for consultation and repatriation activities of 
approximately $2 million dollars per year to account for NAGPRA 
compliance, including this rule. Since NAGPRA became law in 1990, there 
have been almost 40,000 Native American human remains accounted for in 
notices and no indication that a single museum has suffered 
overwhelming or ruinous consequences from compliance with the law.
    There are also cost savings in the reduction of inventory 
maintenance costs and elimination of the pre-rule need to present 
matters at Review Committee meetings, which may involve travel costs. 
Under current regulations, museums and Federal agencies must retain 
possession of culturally unidentifiable human remains, with all of the 
attendant curatorial costs estimated in the millions of dollars per 
year (S. Terry Childs and Karolyn Kinsey, Costs for Curating 
Archeological Collections: A

[[Page 12382]]

Study of Repository Fees in 2002 and 1997/1998. National Park Service 
(2003)). Museums and Federal agencies that wish to effect the 
disposition of culturally unidentifiable human remains under current 
regulations must either request a recommendation from the Secretary of 
the Interior, which involves preparation of materials and presentations 
before the Review Committee, or request involvement in proceedings 
before a United States District Court.
    Comment 11: One commenter requested that the Department of the 
Interior consider the rule significant under Executive Order 12866 on 
the grounds that it raises novel legal or policy issues.
    Our Response: The Office of Management and Budget has determined 
that this rule is significant under EO 12866.
    Comment 12: One commenter stated that Federal agencies should be 
required to conduct review under the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321, et seq.), for each disposition of culturally 
unidentifiable human remains, with or without associated funerary 
objects, under the final rule.
    Our Response: NAGPRA does not exempt Federal agencies from the 
requirements of any other statutes that may be applicable, such as 
NEPA. The appropriate level of NEPA review required would depend on the 
NEPA procedures of the agency proposing the disposition.

Relationships to Other Sections of These Regulations

    Comment 13: One commenter requested clarification as to whether the 
proposed rule applies to culturally unidentifiable human remains and 
associated funerary objects excavated or removed from Federal or tribal 
lands after November 16, 1990.
    Our Response: Neither the proposed rule nor this final rule apply 
to culturally unidentifiable human remains and associated funerary 
objects excavated or removed from Federal or tribal lands after 
November 16, 1990. This final rule applies to human remains in museum 
and Federal agency collections for which no lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization has 
been identified. For museums, these human remains may have been 
acquired either before or after 1990 when the statute was enacted. For 
Federal agencies, disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony removed from Federal 
lands after November 16, 1990 is effected pursuant to section 3 of the 
Act (25 U.S.C. 3002), and Sec. Sec.  10.3-10.7 of the existing 
regulations. Culturally unidentifiable human remains acquired by a 
Federal agency after November 16, 1990 from other than Federal or 
tribal lands would be covered by the provisions of this rule.
    Comment 14: One commenter recommended that the terms ``unclaimed'' 
and ``culturally unidentifiable'' be clearly distinguished.
    Our Response: There may be some confusion between the terms 
``culturally unidentifiable'' and ``unclaimed.'' As specified in 
section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5) and these regulations, 
``culturally unidentifiable'' refers to Native American human remains 
and associated funerary objects in museum or Federal agency collections 
for which no lineal descendant or culturally affiliated Indian tribe or 
Native Hawaiian organization has been determined. ``Unclaimed'' only 
refers to Native American human remains, funerary objects, sacred 
objects, or objects of cultural patrimony excavated or discovered on 
Federal or tribal lands after November 16, 1990 and not claimed under 
section 3(a) of the Act (25 U.S.C. 3002(a)). A proposed rule regarding 
the disposition of unclaimed cultural items is currently under 
development (43 CFR 10.7).
    Comment 15: One commenter recommended that unclaimed human remains 
which can reasonably be associated with a recognized tribe should be 
returned to that Indian tribe.
    Our Response: Unclaimed remains are governed under section 3(a) of 
the Act (25 U.S.C. 3002(a). A separate proposed rule regarding the 
disposition of unclaimed cultural items is currently under development 
(43 CFR 10.7). Please see Comment 14 for a related response.

Development Process

    Comment 16: Ten commenters recommended adopting the Review 
Committee's 2000 recommendations in lieu of the proposed rule. Three 
commenters recommended adopting the Review Committee's 2002 
recommendations in lieu of the proposed rule. Five commenters 
recommended taking the Review Committee's 2000 and 2002 recommendations 
into account in revising the proposed rule. Three commenters rejected 
the Review Committee's 2000 recommendations.
    Our Response: There appears to be some confusion regarding the 
Review Committee's involvement in the development of the proposed 
regulations. Sections 8(c)(5) and (c)(7) of the Act (25 U.S.C. 
3006(c)(5) and (c)(7)), authorize the Review Committee to recommend 
specific actions for developing a process for the disposition of 
culturally unidentifiable human remains and consulting with the 
Secretary of the Interior in the development of regulations to carry 
out the Act. After circulating three drafts for public comment and 
considering specific case-by-case requests, the Review Committee 
developed its final recommendations regarding the disposition of 
culturally unidentifiable human remains in May 2000. These 
recommendations were reported in detail in the preamble to the 2007 
proposed rule. The Review Committee also considered drafts of the 
proposed rule at its May 31-June 2, 2002 and November 8-9, 2002 
meetings. Meeting minutes are available at: https://www.nps.gov/history/nagpra/REVIEW/meetings/MINUTES.HTM.
    At its November 8-9, 2002 meeting, the Review Committee 
specifically compared the draft regulatory text with the text of its 
2000 recommendations and recommended several changes, most of which, 
though purely advisory, were reflected in the 2007 proposed rule. The 
drafters gave full consideration to the Review Committee's final 
recommendations regarding the disposition of culturally unidentifiable 
human remains (2000) as well as to the Review Committee's review of 
drafts of the proposed rule on May 31-June 2, 2002 and November 8-9, 
2002, and the actual proposed rule on January 8, 2008.
    Comment 17: Fourteen commenters made general or specific 
recommendations regarding the establishment or composition of 
``regional consortia.''
    Our Response: The concept of ``regional consortia'' was proposed in 
the Review Committee's 2000 final recommendations regarding the 
disposition of culturally unidentifiable human remains (65 FR 36462). 
According to the Review Committee, such regional consortia would 
consist of Federal agencies, museums, Indian tribes, and Native 
Hawaiian organizations within a given geographic area that would 
consult together and propose a framework and schedule for the 
disposition of culturally unidentifiable human remains. The drafters 
recognize the establishment of such regional consortia as a potentially 
useful step in arriving at generally applicable disposition agreements. 
However, the establishment or composition of such consortia are clearly 
matters to be determined by

[[Page 12383]]

those who elect to be participants in a consortium. As a result, the 
concept was not addressed in the proposed rule. Indian tribes may 
choose to participate in such regional consortia, but it is not 
required.

Administration

    Comment 18: One commenter recommended that the National Park 
Service establish a permanent office to focus specifically on the 
disposition of the culturally unidentifiable human remains and 
associated funerary objects. One commenter recommended that the 
National Park Service establish training for museums and Federal 
agencies on how to determine cultural affiliation.
    Our Response: The National NAGPRA Program will continue to provide 
technical assistance and training to museums, Federal agencies, lineal 
descendants, Indian tribes, and Native Hawaiian organizations regarding 
the disposition of culturally unidentifiable human remains and 
associated funerary objects, as well as other aspects of the Act.
    Comment 19: Seventeen commenters recommended providing additional 
funds to museums and Indian tribes to assist in the disposition of 
culturally unidentifiable human remains.
    Our Response: All activities required under the proposed rule are 
eligible for Federal grants authorized under section 10 of the Act. The 
Review Committee has asked Congress to consider the appropriation of 
additional funding.
    Comment 20: One commenter recommended that Federal funds be 
appropriated to assist Indian tribes with the protection of Indian 
cemeteries, historic sites, and artifacts during or after an emergency.
    Our Response: The scope of grants authorized under section 10 of 
the Act (25 U.S.C. 3008) is limited to assisting museums in conducting 
the required inventories and identification and to assisting Indian 
tribes and Native Hawaiian organizations in the repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony (25 U.S.C. 3008). Funds for the protection of Indian 
cemeteries, historical sites, and artifacts are available through other 
Federal programs.
    Comment 21: One commenter recommended that the rule address the 
need to expand existing tribal and family cemeteries.
    Our Response: The Act addresses the protection of current Native 
American burial sites on Federal or tribal lands that are inadvertently 
discovered or intentionally excavated and the repatriation of cultural 
items in museum or Federal agency collections or holdings. The Act does 
not address the creation of new burial sites or the expansion of 
existing sites.
    Comment 22: One commenter recommended that forensic audits of all 
Federal agency inventories be conducted by the General Accounting 
Office to ensure that this requirement of the Act has been fulfilled.
    Our Response: The Review Committee has asked Congress to have the 
Government Accountability Office review Federal compliance with the 
Act.
    Comment 23: One commenter recommends that State governments be 
given the authority to supervise and issue directives to the federally-
recognized Indian tribes in returning Native American human remains 
back to Mother Earth.
    Our Response: Authorizing State governments to direct the actions 
of federally-recognized Indian tribes is beyond the Secretary's 
jurisdiction and inconsistent with both the plenary power of Congress 
to ``regulate commerce * * * with the Indian Tribes'' (U.S. 
Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-
government relationship between the United States and Indian tribes 
(Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).

Section 10.1(b)(3) Final Determinations

    Section 10.1(b)(3) describes decision points throughout the 
regulations which constitute ``final determinations.'' The proposed 
rule added one sentence to provide clarification to Federal agencies as 
to when a determination constitutes ``final agency action'' as used in 
the Administrative Procedure Act (5 U.S.C. 704).
    Comment 24: Eight commenters generally supported this proposed 
revision with some modification. One commenter recommended revising the 
section to stipulate that failure to affirmatively respond to a request 
within a specified time period would be considered a denial of the 
request for purposes of judicial review, unless the museum or agency 
extends the time period in writing for good cause and specifies a 
specific and reasonable timetable. Five commenters recommended 
clarifying that ``an agency denial of such a request is final when the 
lineal descendant, Indian tribe or Native Hawaiian organization has 
exhausted any required administrative appeals within the agency. 
Neither the fact that the Review Committee may review the matter nor 
the fact that an agency denial is subject to reconsideration upon 
submission of new information affects its status as final agency action 
under the Administrative Procedure Act. After a final agency denial, a 
lineal descendant, Indian tribe or Native Hawaiian organization may 
make a new request for repatriation or disposition of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
under the Act on the basis of the findings or recommendations of the 
Review Committee or new information.''
    Our Response: Congress did not provide that requests would be 
deemed denied based on a failure to respond. The drafters agree that 
the language suggested by the five commenters is consistent with case 
law, but consider that the proposed revision adequately addresses when 
a determination constitutes a final agency action as used in the 
Administrative Procedure Act (5 U.S.C. 704). The drafters have also 
added the text previously proposed in Sec.  10.1(b)(3) into Sec.  
10.15(c) to reiterate that the final denial of a request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization for the 
repatriation or disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony constitutes final agency 
action under the Administrative Procedure Act.

Section 10.2(e)(1) Definition of Cultural Affiliation

    Section 10.2(e)(1) revises the definition of ``cultural 
affiliation'' to include ``anthropological'' evidence. The term, which 
is specifically included in section 7(a)(4) of the Act (25 U.S.C. 
3005(a)(7)), was inadvertently omitted from the previous regulatory 
text. Two commenters agreed with the proposed revision of the 
definition of ``cultural affiliation.''
    Comment 25: One commenter recommended including the phrase 
``cultural or geographic relationship'' within the list of evidence 
relevant to determining cultural affiliation in the second sentence of 
Sec.  10.2(e)(1).
    Our Response: Both geographical and anthropological (cultural) 
evidence are already specifically identified as relevant to determining 
cultural affiliation (25 U.S.C. 3005(a)(4)).
    Comment 26: One commenter recommended that human remains should not 
be returned without clear, indisputable physical (archeological) 
linkage to a present-day Indian tribe or Native Hawaiian organization.
    Our Response: Archeological evidence is one of several types of 
relevant information or expert opinion that must be considered in 
determining whether cultural affiliation can be established (25 U.S.C. 
3005(a)(4)).

[[Page 12384]]

Culturally affiliation must be ``reasonably traced'' (25 U.S.C. 
3001(2)). Requiring an ``indisputable linkage'' would be inconsistent 
with the Act.
    Comment 27: One commenter recommended including language in Sec.  
10.2(e)(1) stipulating that ambiguities in determining cultural 
affiliation must be resolved in the favor of Indian tribes.
    Our Response: The Act was enacted for the benefit of Indians, 
therefore the canon of construction applies that statutes ``are to be 
construed liberally in favor of the Indians, with ambiguous provisions 
interpreted to their benefit'' (Yankton Sioux Tribe v. United States 
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). These 
regulations are subject to the same canon of construction. ``The trust 
relationship and its application to all Federal agencies that may deal 
with Indians necessarily requires the application of a similar canon of 
construction to the interpretation of Federal regulations'' (HRI, Inc. 
v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000)). This principle of Indian 
law is so well-established, however, that the drafters consider 
additional regulatory text unnecessary.
    Comment 28: One commenter questioned whether the proposed change 
would impact the American Indian Religious Freedom Act.
    Our Response: The proposed change revised the regulatory definition 
of cultural affiliation to reflect the statutory text and has no 
implications related to the American Indian Religious Freedom Act.

Section 10.2(e)(2) Definition of Culturally Unidentifiable

    Section 10.2(e)(2) defines the term ``culturally unidentifiable.''
    Comment 29: One commenter objected to the term ``unidentifiable'' 
given the likelihood that in many cases, cultural affiliation can be 
determined through additional consultation with Indian tribes. The 
commenter stated that the term thus places a false sense that there is 
no existing Native American group legitimately related to prehistoric 
human beings. Another commenter felt the term limits tribal sovereign 
rights and misappropriates the Federal trust responsibility to American 
Indians. Three commenters recommended including separate definitions of 
``unidentifiable'' and ``unidentified.''
    Our Response: Section 8 of the Act (25 U.S.C. 3006) directs the 
Review Committee to compile an inventory of ``culturally 
unidentifiable'' human remains. The drafters recognize that additional 
considerations (e.g., consultation and disposition as required by this 
rule) may result in the determination of cultural affiliation for some 
of these human remains. Provisions to carry out the repatriation of 
human remains and associated funerary objects previously determined to 
be culturally unidentifiable are included at Sec. Sec.  10.11(b)(6), 
10.9(e) and 10.10(b) of the existing regulations, as amended by this 
rule.
    Comment 30: One commenter recommended specifying in the definition 
of ``culturally unidentifiable'' that such identifications are made 
through the inventory process.
    Our Response: The phrase `` * * * through the inventory process'' 
has been added to the end of this definition.
    Comment 31: Three commenters recommended deleting the phrase ``and 
associated funerary objects'' from the definition of culturally 
unidentifiable.
    Our Response: While disposition of funerary objects associated with 
culturally unidentifiable human remains is voluntary, Sec.  10.9(d)(2) 
of these regulations requires museums and Federal agencies to prepare 
an inventory of both human remains and associated funerary objects that 
cannot be identified as affiliated with a particular individual, Indian 
tribe, or Native Hawaiian organization. The phrase ``and associated 
funerary objects'' has been retained.
    Comment 32: One commenter recommended redefining ``culturally 
unidentifiable'' to refer ``to human remains for which a relationship 
of shared group identity cannot be reasonably traced historically or 
prehistorically between members of present-day Indian tribe or Native 
Hawaiian organization and an identifiable earlier group.''
    Our Response: The drafters consider the recommended text less clear 
than the proposed rule text because it omits reference to associated 
funerary objects, lineal descendants, and museum and Federal agency 
collections, all necessary elements of this definition.
    Comment 33: One commenter recommended including reference in the 
definition of ``culturally unidentifiable'' at Sec.  10.2(e)(2) that 
claims could be made for these human remains based on tribal land, 
aboriginal land, or cultural relationship.
    Our Response: The basis for disposition of culturally 
unidentifiable human remains are set forth at Sec.  10.11(c)(1) of this 
rule.
    Comment 34: One commenter was concerned that the proposed 
definition of ``culturally unidentifiable'' at Sec.  10.2(e)(2) would 
require museum staff to make judgment calls without adequate 
professional expertise.
    Our Response: Current regulations require museum and Federal agency 
officials to ``prepare a listing of all culturally unidentifiable human 
remains and associated funerary objects for which no culturally 
affiliated present-day Indian tribe or Native Hawaiian organization can 
be determined'' (43 CFR 10.9(e)(6)). Completion of this listing was 
required by November 16, 1995, or a later date specifically determined 
by the Secretary on a case-by-case basis. Museum and Federal agency 
officials may wish to retain outside professional expertise to assist 
in these determinations, but are not required to do so. Museum and 
Federal agency officials are required to consult with representatives 
of Indian tribes and Native Hawaiian officials.

Section 10.2(g) Definition of Disposition

    Section 10.2(g)(5) provides a definition of disposition and 
identifies procedures to effectuate this process in various situations.
    Comment 35: One commenter recommended deleting the phrase ``with or 
without associated funerary objects'' from Sec.  10.2(g)(iii).
    Our Response: While disposition of funerary objects associated with 
culturally unidentifiable human remains is voluntary, the Secretary 
recommends that museums and Federal agencies engage in such transfers 
whenever Federal or State law would not otherwise preclude them. The 
phrase has been retained.
    Comment 36: Four commenters recommended revisions to the definition 
of ``disposition'' at Sec.  10.2(g)(5) to provide museums and Federal 
agencies with the option of retaining possession and control of 
culturally unidentifiable human remains. One commenter recommended 
inserting the phrase ``or other mutually acceptable alternative'' after 
``transfer or control.''
    Our Response: Section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)) 
directs the Review Committee to recommend specific actions for 
developing a process for disposition of culturally unidentifiable human 
remains. In its 2000 recommendations, the Review Committee specified 
three types of appropriate disposition solutions, including transfer of 
control based on the recovery of the human remains from a particular 
Indian tribe or Native Hawaiian organization's tribal land or 
aboriginal land or on a relationship of shared group identity between 
the human remains and an Indian group which is not federally-recognized 
(65 FR 36463, June 8, 2000). The governing body of an Indian tribe or 
Native

[[Page 12385]]

Hawaiian organization is free to relinquish control of human remains or 
negotiate ``other mutually acceptable alternatives'' (25 U.S.C. 
3002(e)).
    Comment 37: Five commenters recommended reviewing the term 
``control'' as it relates to the term ``repatriate,'' and to consider 
language that holds a museum or Federal agency harmless if a right of 
possession comes to light after disposition has been effected.
    Our Response: The term ``control'' means having a legal interest in 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony sufficient to lawfully permit the museum or Federal agency to 
treat the objects as part of its collection for purposes of these 
regulations whether or not the human remains, funerary objects, sacred 
objects or objects of cultural patrimony are in the physical custody of 
the museum or Federal agency (43 CFR 10.2(a)(3)(ii)). The Act and these 
regulations provide that any museum which repatriates or effects the 
disposition of Native American human remains in good faith pursuant to 
the Act and these regulations shall not be liable for claims by an 
aggrieved party or for claims of breach of fiduciary duty, public 
trust, or violations of state law that are inconsistent with these 
provisions (25 U.S.C. 3005(f)).

Section 10.2 Other Definitions

    Comment 38: One commenter recommended defining ``nonfederally-
recognized Indian group'' in Sec.  10.2.
    Our Response: The Act requires a museum or Federal agency to 
repatriate Native American cultural items upon receipt of a valid claim 
from a lineal descendant, Indian tribe, or Native Hawaiian 
organization. The latter three terms are defined at Sec.  10.2(b)(1), 
(b)(2), and (b)(3), respectively. We have chosen to clarify by using 
the term ``not federally-recognized'' for any Indian group that does 
not meet the definition in Sec.  10.2(b)(2).
    Comment 39: Three commenters indicated that the proposed rule is 
inconsistent with the Ninth Circuit's opinion in United States v. 
Bonnichsen (357 F.3d 962 (9th Cir. 2004)).
    Our Response: The Court's opinion in Bonnichsen addressed whether 
the remains of ``Kennewick Man'' constituted Native American remains 
within the Act's definition of that term. The proposed rule does not 
affect the definition of ``Native American.'' The proposed rule only 
applies after a determination is made, consistent with applicable law, 
that the human remains or associated funerary objects are Native 
American.
    Comment 40: Seven commenters recommended inserting the phrase 
``Native American'' before each occurrence of ``human remains'' 
throughout the regulations.
    Our Response: Since the drafters did not propose to modify the 
definition of ``human remains'' at Sec.  10.2(d)(1), the meaning of the 
term throughout these regulations remains ``the physical remains of a 
human body of a person of Native American ancestry.''
    Comment 41: One commenter recommended including a definition of 
``preponderance of the evidence.''
    Our Response: Determinations within the Act are based on standard 
rules of civil procedure. Museums and Federal agencies are initially 
required to determine by a reasonable belief if human remains and 
associated funerary objects are culturally affiliated with an Indian 
tribe or Native Hawaiian organization (25 U.S.C. 3003(d)(2)). 
Thereafter, human remains and associated funerary objects must be 
expeditiously repatriated where an Indian tribe or Native Hawaiian 
organization can demonstrate cultural affiliation by the preponderance 
of the evidence (25 U.S.C. 3005(a)(4)). The preponderance of the 
evidence generally means that a decision maker must be persuaded that 
the evidence is sufficient to make it more likely than not that the 
fact the claimant seeks to prove is true.

Section 10.9(e)(2) Content of Notice of Inventory Completion

    Section 10.9(e)(2) details the contents of notices of inventory 
completion. Additional text was proposed at Sec.  10.9(e)(2)(v) to 
clarify that such notices must include information regarding culturally 
unidentifiable human remains, with or without associated funerary 
objects, that may be transferred under Sec.  10.11.
    Comment 42: One commenter recommended deleting the phrase ``with or 
without associated funerary objects'' from Sec.  10.9(e)(2)(v).
    Our Response: While disposition of funerary objects associated with 
culturally unidentifiable human remains is voluntary, the Secretary 
recommends that museums and Federal agencies engage in such transfers 
whenever Federal or State law would not otherwise preclude such 
transfers. The phrase has been retained.
    Comment 43: One commenter recommended replacing the phrase ``that 
may be transferred under Sec.  10.11'' at the end of Sec.  
10.9(e)(2)(v) with ``that are subject to disposition under Sec.  
10.11.''
    Our Response: The recommended change is consistent with the 
language in section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)) and Sec.  
10.2(g)(5)(iii) of these regulations. The regulations have been changed 
as suggested.
    Comment 44: Two commenters recommended that the listing of 
culturally unidentifiable human remains and associated funerary objects 
specify whether they are: (1) Those for which cultural affiliation 
could be determined but that the appropriate Indian group is not 
federally-recognized as an Indian tribe; (2) those that represent an 
identifiable earlier group, but for which no present-day Indian tribe 
has been identified by the museum or Federal agency; and (3) those for 
which the museum or Federal agency believes that evidence is 
insufficient to identify an earlier group. Another commenter 
specifically recommended that these categories should not be used.
    Our Response: The suggested categories of culturally unidentifiable 
human remains are derived from the Review Committee's 2000 
recommendations (65 FR 36463). However, the Review Committee 
recommendations did not make any distinction regarding disposition of 
any of the three categories. The three categories were not used in the 
proposed rule and no comments were received recommending different 
dispositions on that basis.
    Comment 45: Two commenters recommended that the inventory or notice 
of inventory completion include a ``record of origin'' or ``basis of 
reasoning'' for determining that human remains are Native American and 
culturally unidentifiable.
    Our Response: The contents of the inventory (10.9(d)) and notice of 
inventory completion (43 CFR 10.9(e)) apply only to human remains 
already determined to be ``Native American'' under 43 CFR 10.2(d)(1) 
and the Act. The inventory includes a summary of the evidence used to 
determine cultural affiliation. By definition in 43 CFR 10.2(e)(2), 
remains for which no lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization has been identified through the 
inventory process are considered culturally unidentifiable and, thus, 
do not require a further basis of reasoning when included on the notice 
of inventory completion as culturally unidentifiable.

Section 10.9(e)(5) Additional Documentation

    Section 10.9(e)(5) directs museums or Federal agencies to supply 
additional available documentation upon the request of an Indian tribe 
or Native Hawaiian organization. Additional text was proposed for 
inclusion in

[[Page 12386]]

Sec.  10.9(e)(5)(ii) to clarify that such documentation when supplied 
by a Federal agency or to a Federal agency shall be considered a public 
record subject to disclosure except when exempted under applicable law, 
such as the Freedom of Information Act and the Privacy Act. Further, as 
required by section 5(b)(2) of the Act (25 U.S.C. 3003(b)(2)), neither 
a request for such documentation nor any provisions of the regulations 
shall be construed as authorizing the initiation of new scientific 
studies of such human remains and associated funerary objects or other 
means of acquiring or preserving additional scientific information from 
such remains and objects.
    Comment 46: Six commenters recommended deleting Sec.  10.9(e)(5)(A) 
and (e)(5)(B) on the grounds that they create a seemingly impossible 
conundrum, would severely hinder the scientific study of ancient 
remains, and are ``an obvious attempt to end-run Congressional intent 
and a Federal court ruling in the long-fought Kennewick Man case.'' One 
commenter recommended including language confirming that ``studies or 
other means of acquiring or preserving information are not prohibited, 
but NAGPRA cannot be used as the authorization for them'' or 
``additional study may be authorized, requested, or otherwise developed 
as part of the consultation and affiliation process.'' One commenter 
recommended adding a new paragraph to read as follows: ``In 
consultation with the tribes identified in Sec.  10.11(b)(2), the 
museum or Federal agency may undertake additional documentation of 
human remains and associated funerary objects prior to their transfer 
under Sec.  10.11(c). This documentation shall be completed within two 
years of an offer to transfer culturally unidentifiable human remains 
unless the consulting tribes agree that additional time (beyond two 
years) is needed.'' Eleven commenters recommended including language 
specifying that ``culturally unidentifiable human remains that have not 
yet been repatriated should be treated with great respect and should 
not be subject to any further scientific research or used for teaching 
purposes.'' One commenter recommended that museums and Federal agencies 
should upgrade their testing to include total DNA, not just patrilineal 
DNA.
    Our Response: The language in this section is drawn directly from 
the Act and thus clearly represents Congressional intent.
    Comment 47: Fifteen commenters generally supported this section. 
One commenter requested clarification as to whether a museum or Federal 
agency is required to provide additional documentation upon request of 
an Indian group that is not federally-recognized.
    Our Response: The Act stipulates that a museum or Federal agency 
must supply additional available documentation upon request by an 
Indian tribe or Native Hawaiian organization (25 U.S.C. 3003(b)(2)). 
This requirement does not apply to requests from an Indian group that 
is not federally-recognized.
    A museum or Federal agency may be required to supply such 
documentation under other applicable law and is encouraged to 
voluntarily do so if not otherwise required.
    Comment 48: Nine commenters recommended including language that 
this section is not meant to preclude the withholding from the public 
of information that is specifically exempted from disclosure under 
applicable law.
    Our Response: The drafters have added language to clarify that some 
information may be exempt from disclosure under applicable law, such as 
the Freedom of Information Act (5 U.S.C. 552), Privacy Act (5 U.S.C. 
552a), Archaeological Resources Protection Act (16 U.S.C. 470hh), and 
National Historic Preservation Act (16 U.S.C. 470w-3), and any other 
legal authority exempting such information from public disclosure.

Section 10.9(e)(6) Removing Retention Requirement

    Section 10.9(e)(6) is rewritten to remove the last three sentences 
that required a museum or Federal agency to retain possession of 
culturally unidentifiable human remains pending promulgation of Sec.  
10.11.
    Comment 49: Three commenters recommended deleting the phrase ``with 
or without associated funerary objects'' from Sec.  10.9(e)(6).
    Our Response: The phrase occurs twice in this paragraph. The first 
sentence refers to associated funerary objects that are in the 
possession or control of a museum or Federal agency. The last sentence 
refers to items that are subject to disposition under Sec.  10.11. The 
phrase ``with or without associated funerary objects'' is used 
throughout the regulations to indicate that disposition of such items, 
though encouraged, is not required. Usage of the term in the last 
sentence of this section is thus appropriate. The phrase ``with or 
without'' has been replaced with ``and'' in the first sentence to make 
it clear that associated funerary objects must be included in the 
inventory of culturally unidentifiable human remains provided to the 
Manager, National NAGPRA Program.
    Comment 50: One commenter recommended revising the text in Sec.  
10.9(e)(6) to require a museum or Federal agency to provide the listing 
of culturally unidentifiable human remains in its possession or control 
to both the Manager, National NAGPRA Program and the Departmental 
Consulting Archeologist.
    Our Response: A separate program to administer some of the 
Secretary of the Interior's responsibilities to implement the Act was 
established in 2000. The Departmental Consulting Archeologist is no 
longer