Disposition of Unclaimed Human Remains and Other Cultural Items Discovered on Federal Lands After November 16, 1990, 64436-64442 [2013-25511]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 78, Number 209 (Tuesday, October 29, 2013)]
[Proposed Rules]
[Pages 64436-64442]
From the Federal Register Online via the Government Printing 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: https://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 https://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 https://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