Disposition of Unclaimed Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony, 68465-68471 [2015-28041]
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Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
Dated: October 22, 2015.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2015–28095 Filed 11–4–15; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 10
[NPS–WASO–NAGPRA–19087;
PPWOCRADN0–PCU00RP14.R50000]
RIN 1024–AE00
Disposition of Unclaimed Human
Remains, Funerary Objects, Sacred
Objects, or Objects of Cultural
Patrimony
Office of the Secretary, Interior.
Final rule.
AGENCY:
ACTION:
This final rule provides
procedures for the disposition of
unclaimed human remains, funerary
objects, sacred objects, or objects of
cultural patrimony excavated or
discovered on, and removed from,
Federal lands after November 16, 1990.
It implements section 3(b) of the Native
American Graves Protection and
Repatriation Act.
DATES: The rule is effective December 7,
2015.
FOR FURTHER INFORMATION CONTACT:
Melanie O’Brien, Manager, National
NAGPRA Program, National Park
Service, 1849 C Street NW.,
Washington, DC 20240, telephone (202)
354–2204, email melanie_o’brien@
nps.gov.
SUMMARY:
SUPPLEMENTARY INFORMATION:
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Background
The Secretary of the Interior
(Secretary) is responsible for
implementation of the Native American
Graves Protection and Repatriation Act
(NAGPRA or Act) (25 U.S.C. 3001 et
seq.), including the issuance of
appropriate regulations implementing
and interpreting its provisions.
NAGPRA addresses the rights of lineal
descendants, Indian tribes, and Native
Hawaiian organizations in certain
human remains, funerary objects, sacred
objects, and objects of cultural
patrimony, for which the Act uses the
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broader term ‘‘cultural items’’ (25 U.S.C.
3001(3)). Pursuant to Section 13 of
NAGPRA (25 U.S.C. 3011), the
Department of the Interior (Department)
published the initial rules to implement
NAGPRA in 1995 (60 FR 62158,
December 4, 1995); those rules are now
codified at 43 CFR part 10.
Subsequently, the Department
published additional rules concerning:
• Civil penalties (68 FR 16354, April
3, 2003);
• Future applicability (72 FR 13189,
March 21, 2007); and
• Disposition of culturally
unidentifiable human remains (75 FR
12378, March 15, 2010).
Section 3(b) of the Act (25 U.S.C. 3002
(b)) explicitly directs the Secretary to
publish regulations for the disposition
of unclaimed cultural items excavated
or discovered on, and removed from,
Federal lands after November 16, 1990.
When we published the NAGPRA
regulations on December 4, 1995, we
reserved 43 CFR 10.7 for this purpose.
This rule is limited to Federal lands,
as NAGPRA provides that ownership or
control of any cultural item excavated or
discovered on, and removed from, tribal
land after November 16, 1990, is in
either a known lineal descendant (for
human remains and associated funerary
objects) or in the Indian tribe from
whose tribal land the cultural items
were removed, and does not require the
lineal descendant or the Indian tribe to
make a claim for the cultural items.
Consultation regarding a proposed
rule for § 10.7 began in 2005. On three
separate occasions, we consulted with
representatives of Indian tribes, Native
Hawaiian organizations, museums, and
scientific organizations. We also
consulted with the Native American
Graves Protection and Repatriation
Review Committee (Review Committee)
during its scheduled meetings in
Albuquerque, NM (November 2005);
Washington, DC (April 2007); Phoenix,
AZ (October 2007); and Washington, DC
(November 2010).
We published a proposed rule on
October 29, 2013 (78 FR 64436). Public
comment was invited for a 60-day
period, ending December 30, 2013. The
proposed rule also was posted on the
National Park Service’s National
NAGPRA Program Web site. The Review
Committee commented on the record on
the proposed rule at a public meeting on
November 6, 2013.
Summary of and Responses to
Comments on the Proposed Rule
During the comment period, we
received 27 written comments on the
proposed rule, contained in 20 separate
submissions from 5 Indian tribes, 1
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68465
Indian organization, 1 non-federally
recognized Indian group, 1 Native
Hawaiian organization, 1 museum, 1
scientific organization, 3 Federal
entities, 6 individual members of the
public, and 1 anonymous commenter.
All relevant comments on the proposed
rule were considered during the final
rulemaking.
Final Rule 43 CFR 10.2 Definition of
‘‘Unclaimed Cultural Items’’
Comment 1: Four commenters stated
that the definition of unclaimed cultural
items should include the phrase ‘‘as
used in § 10.7 of this part.’’
Our Response: The term ‘‘unclaimed
cultural items’’ is used only in § 10.7
and therefore the specific reference is
not needed.
Comment 2: Three commenters stated
that the definition of unclaimed cultural
items should be expanded and the
difference between the categories of
unclaimed cultural items be clarified.
One of these commenters added that the
definition should provide a timeframe
that structures how long cultural items
must be held by the Federal agency
prior to being classified as unclaimed.
Our Response: We agree. In the final
rule, we have revised the definition of
unclaimed cultural items and clarified
the difference between the categories.
We have included a timeframe.
Comment 3: Four commenters stated
that the definition of unclaimed cultural
items imposes an inappropriate time
limit on Indian tribes and Native
Hawaiian organizations to make claims
for cultural items. One of these
commenters added that the definition
assumes Federal agencies have been
proactive and have provided notice to
all potential claimants.
Our Response: A potential claimant
may make a claim for unclaimed
cultural items at any time prior to
transfer or reinterment under this rule.
While the rule establishes a timeframe
for cultural items to become unclaimed,
there is no timeline imposed for Federal
agencies to transfer or to reinter cultural
items. We feel the timeframes
established by the definitions in this
final rule strike an appropriate balance
between assuring Federal agencies that
the NAGPRA process will end at a
certain time and granting non-claimant
Indian tribes and Native Hawaiian
organizations an opportunity to request
the transfer of these cultural items.
Comment 4: One commenter stated
that the definition of ‘‘disposition’’ in
§ 10.2(g)(5) should be changed to
include disposition of unclaimed
cultural items.
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Our Response: We agree. In this final
rule, we have added a new paragraph at
§ 10.2 (g)(5)(iv).
Comment 5: One commenter stated
that a notice under § 10.6(c) is only
required upon ‘‘proposed disposition,’’
and not upon the determination of an
Indian tribe entitled to priority of
custody. Therefore, publication of a
notice under § 10.6(c) cannot be a
determining factor in the definition of
unclaimed cultural items.
Our Response: A notice under
§ 10.6(c) is not dependent on an actual
claim but is dependent on the existence
of a potential claimant. Under section
3(a) of the Act (25 U.S.C. 3002(a)),
ownership or control of cultural items is
transferred to the Indian tribe or Native
Hawaiian organization which ‘‘upon
notice, states a claim. . .’’ The notice
required by § 10.6(c) precedes a claim
from an Indian tribe or Native Hawaiian
organization and is dependent only
upon the identification of one or more
Indian tribes or Native Hawaiian
organizations or lineal descendants as a
potential claimant. Furthermore, that
notice is the only communication to the
public during the disposition process.
Consequently, publication of a notice
under § 10.6(c) is an appropriate factor
for determining when cultural items
become unclaimed.
Comment 6: One commenter stated
that reasonableness is not a criterion for
transfer of custody under the
disposition process established in
§ 10.6. The definition at § 10.2(h)(2)(ii)
should read: ‘‘No Indian tribe with
priority of custody has been identified.’’
Our Response: We believe, as a
general matter, that Federal agencies
should use reasonable efforts in
complying with the requirements of
NAGPRA. In addition, section 3(a)(2)(C)
of the Act (25 U.S.C. 3002 (a)(2)(C))
explicitly states that the cultural
affiliation of cultural items is
established using a reasonableness
standard.
Final Rule § 10.7(b)(1) Federal
Agencies Must Report Unclaimed
Cultural Items to the Manager, National
NAGPRA Program
Comment 7: One commenter stated
that the term ‘‘has’’ is better defined by
adding ‘‘possession or control’’ after it.
Our Response: A Federal agency does
not have ‘‘possession’’ or ‘‘control’’ of
cultural items that are excavated or
discovered on, and removed from,
Federal lands after November 16, 1990,
as the terms ‘‘possession’’ and ‘‘control’’
are defined in § 10.2. Instead, the
Federal agency acts as caretaker or
temporary custodian for these cultural
items.
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Comment 8: One commenter stated
that the phrase ‘‘a list of the items’’
should be replaced with ‘‘a list of
currently held items.’’ The commenter
also suggested that ‘‘the nature’’ of
unclaimed items be better explained.
Our Response: The sentence
introducing § 10.7(b)(1) in this final rule
(previously § 10.7(a)(1)) states the
unclaimed cultural items on the list are
items that the Federal agency ‘‘has.’’ We
believe that the use of the present tense
in the introductory sentence makes clear
that the reporting requirement refers to
unclaimed cultural items currently held
by the Federal agency. The required
description of ‘‘the nature of the
unclaimed cultural items’’ is the same
as the current requirement in a notice
under 43 CFR 10.6(c). The purpose of
both documents is the same—to provide
information adequate to allow lineal
descendants, Indian tribes, or Native
Hawaiian organizations to determine
their interest in the cultural items under
these regulations.
Comment 9: One commenter stated
that there is nothing in the statute that
allows the National NAGPRA Program
to create and maintain an inventory of
cultural items that have been removed
from Federal lands after 1990,
unclaimed or otherwise. The commenter
suggested that Federal agencies should
convey periodic notices of the existence
of unclaimed cultural items to potential
claimants but not report those items to
the National NAGPRA Program.
Our Response: Section 3(b) of the Act
(25 U.S.C. 3002(b)) directs the Secretary
to promulgate regulations for the
disposition of unclaimed cultural items
in consultation with the Native
American Graves Protection and
Repatriation Review Committee and
other interested parties. The Review
Committee recommended that the
National NAGPRA Program maintain a
database of unclaimed cultural items.
We have included the Review
Committee’s recommendation in this
final rule. The list of unclaimed cultural
items submitted to the National
NAGPRA Program promotes
transparency in the disposition of
unclaimed cultural items by providing
information adequate to allow lineal
descendants, Indian tribes, or Native
Hawaiian organizations to determine
their interest in cultural items under
these regulations.
Comment 10: Seven commenters
stated that the list of unclaimed cultural
items should include additional
information. Suggestions included the
specific site of removal, the specific
types of cultural items, the names of
those consulted on the cultural items,
and any potential claimants. One of
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these commenters added that the list of
unclaimed cultural items should
identify which items have potential
claimants and which items have no
identified potential claimants.
Our Response: The proposed rule
required that the list include a
description of the place of discovery
and the nature of the unclaimed cultural
items, and these requirements are
retained in this final rule at § 10.7(b)(1).
We agree that information on
consultation efforts under 43 CFR 10.5
could be useful for purposes of
disposition of cultural items. In
response to these comments, this final
rule requires that the list include a
summary of consultation efforts under
§ 10.5. A summary of consultation
efforts inherently will include the
identification of potential claimants. We
have qualified that the description of
the place of discovery or excavation,
and removal, should generally protect
any sensitive information.
Comment 11: Three commenters
questioned the date of the reporting
requirement for Federal agencies to
submit a list of unclaimed cultural items
to the National NAGPRA Program. One
of these commenters added that it
would be difficult for Federal agencies
to track when reports were required, as
cultural items might have varying
reporting deadlines. Two of these
commenters added that the requirement
should be shortened and lists should be
submitted within one year or 90 days
after excavation or discovery and
removal.
Our Response: By adding to the
definition of unclaimed cultural items
the specific circumstances under which
cultural items become unclaimed in this
final rule, we adjusted the dates for
submitting a list of unclaimed cultural
items to the Manager of the National
NAGPRA Program. For those cultural
items that meet the definition of
unclaimed cultural items on the
effective date of the regulation, the list
must be submitted within one year. We
feel this provides Federal agencies with
sufficient time to prepare this list. For
items that meet the definition of
unclaimed cultural items after the
effective date of the regulation, the list
must be submitted within one year after
the cultural items meet the definition.
This allows for Federal agencies to
submit lists of unclaimed cultural items
at regular intervals. To simplify the
reporting requirements, a Federal
agency could submit a list of all
unclaimed cultural items that met the
definition for unclaimed cultural items
during the previous year and still be
compliant with the regulation.
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For example, under the definition at
§ 10.2 (h)(2)(ii), if a Federal agency:
obtains cultural items from Federal lands on
. . .
and cannot reasonably identify any Indian
tribes or Native Hawaiian organizations or lineal descendants as a potential claimant by
. . .
then a list of the unclaimed items must be
submitted by . . .
January 19, 2016 ...............................................
May 23, 2016 .....................................................
October 16, 2016 ...............................................
December 5, 2016 ..............................................
January 19, 2018 .............................................
May 23, 2018 ...................................................
October 16, 2018 .............................................
December 5, 2018 ...........................................
January 19, 2019.
May 23, 2019.
October 16, 2019.
December 5, 2019.
In this example, a list submitted on
January 18, 2019, of all unclaimed
cultural items that met the definition
during calendar year 2018 would satisfy
the requirements of this final rule.
Alternately, under the definition at
§ 10.2 (h)(2)(i), if a Federal agency:
obtains cultural items from
Federal lands on . . .
and publishes a notice under § 10.6(c) after determining the lineal descendant, Indian tribe, or
Native Hawaiian organization that appears to be
entitled to ownership or control on . . .
and no Indian tribe or Native Hawaiian organization submits a claim, or
no lineal descendant responds to the
notice by . . .
then a list of the unclaimed items must be
submitted by . . .
January 19, 2016 .............
May 23, 2016 ...................
October 16, 2016 .............
December 5, 2016 ...........
January 18, 2018 ..................................................
May 22, 2018 ........................................................
October 15, 2018 ..................................................
December 4, 2018 .................................................
January 18, 2019 ..............................
May 22, 2019 ....................................
October 15, 2019 ..............................
December 4, 2019 .............................
January 18, 2020.
May 22, 2020.
October 15, 2020.
December 4, 2020.
In this example, a list submitted on
January 17, 2020, of all unclaimed
cultural items that met the definition
during calendar year 2019 would satisfy
the requirements of this final rule.
Comment 12: Five commenters stated
that the National NAGPRA Program
should be required to post the lists
submitted by Federal agencies to its
Web site.
Our Response: The National NAGPRA
Program publishes information on
summaries, inventories, and notices on
its Web site, and will publish similar
information for these lists.
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Final Rule § 10.7(b)(2) Federal
Agencies Must Care for Unclaimed
Cultural Items Consistent With the
Federal Curation Regulations at 36 CFR
Part 79
Comment 13: Seven commenters
requested an expansion of the language
in the proposed rule, including adding
language directly from 36 CFR part 79
in the text of § 10.7. Some of these
commenters noted that some cultural
items under NAGPRA do not fit within
the definitions established by 36 CFR
part 79.
Our Response: This final rule requires
Federal agencies to care for and manage
all unclaimed cultural items under
NAGPRA in a manner consistent with
but not pursuant to 36 CFR part 79.
Even unclaimed cultural items that do
not fit the definitions of 36 CFR part 79
must be provided with the same level of
care and management as those items
that are covered by 36 CFR part 79.
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There is no need to include the text at
36 CFR part 79 in this final rule.
Comment 14: One commenter
suggested that, in addition to 36 CFR
part 79, unclaimed cultural items
should be cared for in accordance with
a Plan of Action if one was prepared
under § 10.5(e).
Our Response: As long as there is no
conflict with this final rule, a Plan of
Action prepared under § 10.5(e) related
to the care and management of
unclaimed cultural items that is
consistent with 36 CFR part 79 and
already in place may still be used.
Final Rule § 10.7(b)(3) Federal
Agencies Must Consider and Respect the
Traditions of Identified Potential
Claimants to the Maximum Extent
Feasible
Comment 15: Three commenters
stated that there should be respect for
cultural practices of potential claimants
to unclaimed cultural items.
Our Response: We agree, and in the
final rule we clarified that the potential
claimants referenced in this section are
the potential claimants listed in a notice
of intended disposition.
Comment 16: Five commenters stated
that the word ‘‘feasible’’ was vague and
should be replaced with ‘‘permitted
under law.’’
Our Response: There are no
applicable laws that require
consideration or respect of potential
claimants to unclaimed cultural items.
The suggested wording is more
restrictive and could result in less
consideration for the traditions of
potential claimants. We believe that the
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word ‘‘feasible’’ provides Federal
agencies with appropriate discretion to
respect the desires of potential
claimants listed in a notice of intended
disposition, and better aligns with the
existing requirements at § 10.5(e)(7).
Final Rule § 10.7(c) Federal Agencies
May Transfer Control of Unclaimed
Cultural Items
Comment 17: Five commenters
approved of the process for transferring
control of unclaimed cultural items to
other Indian tribes or Native Hawaiian
organizations. One of these commenters
suggested concurrence with any
disposition plan should be required
from any non-claiming Indian tribes.
One of these commenters suggested that
tribal laws or customs of the Indian tribe
with the closest cultural relationship to
the unclaimed cultural items should be
followed. One of these commenters
suggested the word ‘‘another’’ before
Indian tribe or Native Hawaiian
organization should not be used and
‘‘an’’ should be substituted.
Our Response: The transferee of
unclaimed cultural items will have the
right to control the disposition of the
cultural items, as no potential claimant
will have made a claim. Consequently,
we have specified in this final rule that
the transfer of cultural items is
conditioned on the transferee agreeing
to accept transfer and treat the cultural
items according to the transferee’s own
laws and customs. Also, in this final
rule we have specified that the
transferee in question is an Indian tribe
or Native Hawaiian organization that is
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not an Indian tribe or Native Hawaiian
organization with a potential claim to
the unclaimed cultural items.
Comment 18: Three commenters
stated that transfer should be allowed to
Indian groups that are not federally
recognized, and that § 10.7 should
include the same authority to transfer as
applied to culturally unidentifiable
human remains in 43 CFR
10.11(c)(2)(ii)(A).
Our Response: Because this was not
proposed, including non-federally
recognized Indian groups among the
potential transferees of cultural items is
beyond the scope of this final rule. This
comment will be considered during any
proposed revision of these regulations
in their entirety.
Final Rule § 10.7(d) Federal Agencies
May Reinter Unclaimed Human
Remains or Funerary Objects
Comment 19: One commenter stated
that reinterment should be noted as
satisfactory for the requirement to care
and manage cultural items consistent
with 36 CFR part 79.
Our Response: Title 36 CFR part 79
does not address reinterment. Under
this final rule, the requirement to care
for and manage unclaimed cultural
items consistent with 36 CFR part 79
does not impinge on, or otherwise
affect, the discretion of a Federal agency
to transfer or reinter cultural items for
which it acts as caretaker or temporary
custodian.
Comment 20: Three commenters
stated that the draft rule unfairly
emphasized reinterment and precluded
options for other disposition strategies,
including cooperative curation
agreements or future claims. One of
these commenters also felt allowing
reinterment violates tribal rights as
established in the Act in section 11 (25
U.S.C. 3009).
Our Response: This final rule
provides a Federal agency with the
discretion to transfer or reinter
unclaimed cultural items. It does not
require either of these actions. Also, this
final rule is consistent with sections 3(e)
and 11(1)(B) of the Act (25 U.S.C.
3002(e) and 3009(1)(B), respectively). In
order to take the actions under sections
3(e) and 11(1)(B) of the Act, an Indian
tribe or Native Hawaiian organization
must first have control of the cultural
items in question.
Comment 21: Five commenters stated
that the draft rule should put more
emphasis on reinterment and require
Federal agencies to justify not
reinterring unclaimed cultural items.
One of these commenters suggested that
Federal agencies should use field
documentation procedures and
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immediately rebury any human remains
discovered on Federal land.
Our Response: This final rule
provides a Federal agency with the
discretion to reinter unclaimed human
remains or funerary objects according to
applicable interment laws or policy.
Requiring a Federal agency to
immediately rebury human remains or
funerary objects removed from Federal
land contradicts section 3(a) of the Act
(25 U.S.C. 3002(a)).
Comment 22: Two commenters stated
that reinterment should require the
concurrence of any potential claimants
or consulting Indian tribes and Native
Hawaiian organizations and any
reinterment should be done in
accordance with the tribal laws and
customs of the potential claimants. One
of these commenters felt any application
of state law in reinterment should be
restricted.
Our Response: An Indian tribe or
Native Hawaiian organization that has
been identified as a potential claimant
in a notice of intended disposition but
has not made a claim does not control
the right of disposition of human
remains or funerary objects. The
concurrence of such potential claimants
or consulting Indian tribes and Native
Hawaiian organizations with a proposed
reburial of unclaimed human remains or
funerary objects, and the conduct of the
reburial in accordance with their laws
and customs, are not legally required.
Moreover, requiring a Federal agency to
obtain the concurrence of the potential
claimants very likely would be
infeasible where there are multiple such
Indian tribes or Native Hawaiian
organizations, each having different
laws and customs. However, this rule
does not preclude a Federal agency from
consulting with any potential claimant
on the proposed reinterment of
unclaimed human remains or funerary
objects and on having the reburial
conducted in accordance with their
laws and customs. As for restricting the
application of State law to the
reinterment of unclaimed human
remains or funerary objects, we have
eliminated altogether the provision in
the proposed rule allowing for the offer
of human remains or funerary objects
for disposition according to State or
other law or policy.
Final Rule § 10.7(e) Federal Agencies
Must Follow Certain Requirements Prior
to Transferring Control or Reinterring
Under Paragraphs (c) and (d)
Comment 23: Seven commenters
stated that any notice related to the
transfer or reinterment of unclaimed
cultural items should be published in
the Federal Register, either in addition
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to or in place of a notice in a newspaper.
Three of these commenters suggested
posting the notices to the National
NAGPRA Program Web site in addition
to other forms of notice.
Our Response: We believe that
requiring notices to be published in
newspapers is consistent with other
notice requirements currently required
under the regulations at § 10.6
implementing section 3 of the Act (25
U.S.C. 3002). This comment will be
considered during any proposed
revision of these regulations in their
entirety. In light of technological
changes since the promulgation of
§ 10.6, we have provided a second form
of notice of proposed transfer of cultural
items or reinterment of unclaimed
human remains or funerary objects
through postings on the National
NAGPRA Program’s Web site.
Comment 24: One commenter stated
that the notice should include the
previous determination of the Indian
tribe or Native Hawaiian organization
with priority of custody, if any (e.g.,
aboriginal land determination), and not
only the ‘‘affiliation, if any, of the
unclaimed cultural items.’’
Our Response: In response to this
comment, the final rule requires that the
notice include a summary of
consultation efforts under § 10.5. A
summary of consultation efforts
inherently will include the
identification of any potential
claimants.
Comment 25: One commenter stated
that a newspaper with general
circulation ‘‘in the area in which each
potential claimant now resides’’ is
impractical. Disposition could possibly
be to all Indian tribes or NHOs with
standing under the Act.
Our Response: In the case where
potential claimants have been
identified, the locations of the
newspapers where a notice of proposed
transfer or reinterment is published
under this final rule are identical to the
locations of the newspapers where a
notice of intended disposition was
published under § 10.6(c). In the case of
cultural items for which no potential
claimant could be identified, the
location where a notice of proposed
transfer or reinterment is published is
only the area in which the cultural
items were excavated or discovered, and
removed, as there are no potential
claimants for these cultural items.
Comment 26: One commenter stated
that there was no process provided if an
Indian tribe or Native Hawaiian
organization asserts priority of
ownership or control under section 3(a)
of the Act and § 10.6 . If the claim is
determined to be valid, disposition
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would occur under § 10.6(c) and not
under § 10.7, as the cultural items
would no longer be unclaimed.
Our Response: If an Indian tribe or
Native Hawaiian organization states a
valid claim for cultural items appearing
in a notice of proposed transfer or
reinterment under § 10.7, the cultural
items are no longer unclaimed. As the
Federal agency will no longer have the
discretion to proceed with a transfer or
reinterment under this final rule, the
disposition of these cultural items will
proceed under § 10.6(c). If the valid
claim is from an Indian tribe or Native
Hawaiian organization already listed in
a notice of intended disposition, and if
there are no competing claims, the
Federal agency will transfer the right of
control over the cultural items to the
claimant. If the valid claim is from an
Indian tribe or Native Hawaiian
organization not already listed in a
notice of intended disposition, the
Federal agency will follow the notice
provision under § 10.6(c) prior to any
transfer.
jstallworth on DSK7TPTVN1PROD with RULES
Final Rule § 10.7(a) The Secretary Has
the Authority To Promulgate the Rule
on Unclaimed Cultural Items
Comment 27: Two commenters
suggested moving the statement on the
purpose of this rule from the end of the
rule to the beginning of the rule.
Our Response: We agree. Proposed
rule § 10.7(e) has been renumbered
§ 10.7(a) in this final rule.
Changes From the Proposed Rule
Based on the preceding comments
and responses, the drafters have made
the following changes to the proposed
rule language:
• § 10.2(g)(5)(iv). This section
specifies that disposition of unclaimed
cultural items is established under
§ 10.7 of these regulations.
• § 10.2(h)(2)(i). This section specifies
that cultural items are unclaimed under
the following circumstances: The
Federal agency publishes a notice of
intended disposition, and the agency
has not received any claim from an
Indian tribe or Native Hawaiian
organization, or any response from a
lineal descendant to the notice within
one year of publishing the notice.
• § 10.2(h)(2)(ii). This section
specifies that cultural items are
unclaimed under the following
circumstances: The Federal agency
knows, or has reason to know, that
cultural items have been excavated or
discovered on, and removed from
Federal lands; for two years, the Federal
agency has tried to reasonably identify
any Indian tribe or Native Hawaiian
organization, or a lineal descendant, as
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a potential claimant, and at the end of
the two-year period, the Federal agency
cannot reasonably identify an Indian
tribe or Native Hawaiian organization,
or a lineal descendant, as a potential
claimant.
• § 10.7(a) of the proposed rule has
been renumbered § 10.7(b) in this final
rule.
• § 10.7(a)(1) has been renumbered
§ 10.7(b)(1) in this final rule. This
section specifies that the list of
unclaimed cultural items must include
a summary of consultation efforts under
§ 10.5, and adjusts the deadline for
submitting a list of unclaimed cultural
items. For those cultural items that meet
the definition of unclaimed cultural
items on the effective date of the
regulation, a list of items must be
submitted within one year. For items
that meet the definition of unclaimed
cultural items after the effective date of
the regulation, a list of items must be
submitted within one year of the
cultural items becoming unclaimed.
• § 10.7(a)(3) has been renumbered
§ 10.7(b)(3) in this final rule. This
section specifies that the potential
claimants who are referenced are the
potential claimants listed in a notice of
intended disposition.
• § 10.7(b) of the proposed rule has
been renumbered § 10.7(c) in this final
rule. This section specifically identifies
the Indian tribe or Native Hawaiian
organization to which control may be
transferred under this rule as an Indian
tribe or Native Hawaiian organization
that does not have a potential claim to
the cultural items. Also, this section
specifies that such transfer is
conditioned on the transferee agreeing
to accept transfer and treat the cultural
items according to the transferee’s own
laws and customs.
• § 10.7(c) of the proposed rule has
been renumbered § 10.7(d) in this final
rule. This section specifies that, under
this rule, any reinterment of unclaimed
human remains or funerary objects by
the Federal agency must be according to
applicable interment laws. Also, the
provision in the proposed rule regarding
the offer of human remains or funerary
objects for disposition according to State
or other law has been eliminated.
• § 10.7(d) of the proposed rule has
been renumbered § 10.7(e) in this final
rule.
• § 10.7(d)(3) has been renumbered
§ 10.7(e)(3) in this final rule. This
section specifies that the Manager of the
National NAGPRA Program will post
information received from the Federal
agency under § 10.7(e)(2) of this rule, on
the National NAGPRA Program’s Web
site.
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68469
• § 10.7(e) has been renumbered
§ 10.7(a) in this final rule.
Compliance With Other Laws,
Executive Orders, and Department
Policy Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs will review all significant rules.
The Office of Information and
Regulatory Affairs has determined that
this rule is not significant.
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
The Department of the Interior
certifies that 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 only
pertains to the disposition of cultural
items in the custody of a Federal agency
for which potential claimants have
chosen not to take ownership or control,
or when no potential claimants have
been identified. Thus, this rule does not
constitute a significant economic
burden.
Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State,
local or tribal government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
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Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
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 Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
Takings (Executive Order 12630)
This rule does not effect a taking of
private property or otherwise have
takings implications under Executive
Order 12630. A takings implication
assessment is not required. No taking of
property will occur as a result of this
rule.
Federalism (Executive Order 13132)
Under the criteria in section 1 of
Executive Order 13132, this rule does
not have sufficient Federalism
implications to warrant the preparation
of a Federalism summary impact
statement. A Federalism summary
impact statement is not required.
Civil Justice Reform (Executive Order
12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
jstallworth on DSK7TPTVN1PROD with RULES
Consultation With Indian Tribes
(Executive Order 13175 and
Department Policy)
The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
Tribes through a commitment to
consultation with Indian Tribes and
recognition of their right to selfgovernance and tribal sovereignty. In
accordance with the Presidential
Memorandum entitled ‘‘Government to
Government Relations with Native
American Tribal Governments’’ (59 FR
22951, April 29, 1994); Executive Order
13175, ‘‘Consultation and Coordination
with Indian Tribal Governments’’ (65 FR
67249, Nov. 9, 2000); the President’s
Memorandum for the Heads of
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Jkt 238001
Executive Departments and Agencies on
the Implementation of Executive Order
13175 (Nov. 5, 2009); and the Secretary
of the Interior’s Order No. 3317—
Department of the Interior Policy on
Consultation With Indian Tribes (Dec. 1,
2011); we have evaluated this rule and
determined that it has a potential effect
on federally recognized Indian tribes.
The rule was developed in consultation
with the Native American Graves
Protection and Repatriation Review
Committee, which includes members
nominated by Indian tribes and
traditional religious leaders. Formal
consultation with the 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. Also, the Review
Committee had an opportunity to
comment on the proposed rule
following publication, which it did at a
public meeting on November 6, 2013, in
Mt. Pleasant, MI.
Formal consultation with Indian
tribes began on November 15, 2005, in
Albuquerque, NM, and continued on
April 18, 2007, in Washington, DC, and
on October 14, 2007, in Phoenix, AZ.
We have fully considered tribal and
Review Committee comments in the
final rule.
Paperwork Reduction Act
The Office of Management and Budget
has approved the information collection
requirements in 43 CFR part 10 and
assigned OMB Control Number 1024–
0144. This rule does not contain any
new information collections that require
OMB approval under the Paperwork
Reduction Act. An agency may not
conduct or sponsor and you are not
required to respond to a collection of
information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment. A
detailed statement under the National
Environmental Policy Act of 1969 is not
required because the rule is covered by
a categorical exclusion under 43 CFR
46.210(i): ‘‘Policies, directives,
regulations, and guidelines: That are of
an administrative, financial, legal,
technical, or procedural nature; or
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-
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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 National
Environmental Policy Act.
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.
Drafting Information
The proposed rule and this final rule
were prepared by staff of the National
NAGPRA Program, National Park
Service; Office of Regulations and
Special Park Uses, National Park
Service; and Office of the Solicitor,
Division of Parks and Wildlife and
Division of Indian Affairs, Department
of the Interior.
List of Subjects in 43 CFR Part 10
Administrative practice and
procedure, Hawaiian Natives, Historic
preservation, Indians-claims, Indianslands, Museums, Penalties, Public
lands, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the
Department amends 43 CFR part 10 as
follows:
PART 10—NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION REGULATIONS
1. The authority citation for part 10
continues to read as follows:
■
Authority: 16 U.S.C. 470dd; 25 U.S.C. 9,
3001 et seq.
2. Amend § 10.2 by adding paragraph
(g)(5)(iv) and paragraph (h) to read as
follows:
■
§ 10.2
Definitions.
*
*
*
*
*
(g) * * *
(5) * * *
(iv) Disposition of unclaimed human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
is governed by § 10.7.
(h) Unclaimed cultural items means
Native American human remains,
funerary objects, sacred objects, or
objects of cultural patrimony:
(1) That have been excavated or
discovered on, and removed from,
Federal lands after November 16, 1990,
and
(2) Whose disposition under 25 U.S.C.
3002(a) and § 10.6 of this part has not
occurred because either:
(i) Within one year after publication
of a notice under § 10.6(c) of this part,
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Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
no Indian tribe or Native Hawaiian
organization has sent a written claim for
the cultural items to the appropriate
Federal agency, or no lineal descendant
has responded to a notice for human
remains and associated funerary objects;
or
(ii) Within two years after knowing or
having reason to know that cultural
items were excavated or discovered, and
removed, the appropriate Federal
agency could not reasonably identify
any Indian tribe or Native Hawaiian
organization or lineal descendant as a
potential claimant.
■ 3. Add § 10.7 to read as follows:
jstallworth on DSK7TPTVN1PROD with RULES
§ 10.7 Disposition of unclaimed human
remains, funerary objects, sacred objects,
or objects of cultural patrimony.
(a) This section carries out section
3(b) of the Act (25 U.S.C. 3002(b))
regarding unclaimed cultural items.
(b) 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 general place of
discovery or excavation, and removal;
the nature of the unclaimed cultural
items; and a summary of consultation
efforts under § 10.5 of this part. This list
must be received by December 5, 2016,
or within 1 year after the cultural items
have become unclaimed under § 10.2(h),
whichever is later;
(2) Care for and manage unclaimed
cultural items consistent with the
regulations at 36 CFR part 79; and
(3) To the maximum extent feasible,
consider and respect the traditions of
any potential claimants listed in a
notice under § 10.6(c) concerning the
unclaimed cultural items, including, but
not limited to, traditions regarding
housing, maintenance, and preservation.
(c) Subject to paragraph (e) of this
section, a Federal agency that has
unclaimed cultural items may, upon
request, transfer them to an Indian tribe
or Native Hawaiian organization that is
not a potential claimant and agrees:
(1) To accept transfer; and
(2) To treat them according to the
laws and customs of the transferee.
(d) Subject to paragraph (e) of this
section, a Federal agency that has
unclaimed human remains or funerary
objects may reinter them according to
applicable interment laws.
(e) Before a Federal agency makes a
transfer or reinterment under
paragraphs (c) or (d) of this section, it
must:
(1) Submit the list required under
paragraph (b)(1) of this section to the
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Jkt 238001
Manager, National NAGPRA Program;
and
(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 discovered, and
removed, and, if applicable, in a
newspaper of general circulation in the
area in which each potential claimant
now resides.
(i) The notice must explain the nature
of the unclaimed cultural items,
summarize consultation efforts under
§ 10.5, and solicit claims under the
priority of ownership or control in
section 3(a) of the Act (25 U.S.C.
3002(a)) and § 10.6.
(ii) The notice must be published at
least two times at least a week apart.
(iii) 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 § 10.6 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. The National NAGPRA
Program will post information from
published notices on its Web site.
Dated: October 21, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks .
[FR Doc. 2015–28041 Filed 11–4–15; 8:45 am]
BILLING CODE 4310–EJ–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 2
[ET Docket No. 15–170; FCC 15–135]
Radio Frequency Devices, FCC Form
740 Temporary Suspension
Federal Communications
Commission.
ACTION: Final rule; temporary
suspension.
AGENCY:
This document temporarily
waives the requirements of the
Commission’s rules that govern the
submission of information associated
with FCC Form 740 concerning
imported Radio Frequency (RF) devices.
U.S. Customs and Border Protection
(CBP) is implementing a new electronic
filing system which is scheduled to
become fully operational by December
2016. In light of steps taken related to
SUMMARY:
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68471
the transition to the new CBP system,
parties importing RF devices will lose
the ability to electronically file the
required FCC information. The
Commission does not believe that it
would serve the public interest to
establish an alternative means for
importers to submit this information
with us during the pendency of the
rulemaking.
DATES: Effective December 7, 2015.
FOR FURTHER INFORMATION CONTACT:
Brian Butler, Office of Engineering and
Technology, (202) 418–2702.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order, ET
Docket No. 15–170, FCC 15–135,
adopted October 16, 2015 and released
October 19, 2015. The full text of this
document is available on the
Commission’s Internet site at
www.fcc.gov. It is also available for
inspection and copying during regular
business hours in the FCC Reference
Center (Room CY–A257), 445 12th
Street SW., Washington, DC 20554.
Synopsis of the Suspension Order
1. The Commission took action to
temporarily waive the requirements in
§§ 2.1203 and 2.1205 of the
Commission’s rules that govern the
submission of information in
connection with imported Radio
Frequency (RF) devices, effective July 1,
2016, through December 31, 2016, for
the following reasons:
2. Section 2.1203 of the Commission’s
rules states that no RF device may be
imported unless the importer or
ultimate consignee (or their designated
customs broker) declares that the device
meets the conditions of entry set forth
in our importation rules. Section 2.1205
provides two ways to make this
declaration. At ports of entry where
electronic filing with the U.S. Customs
and Border Protection (CBP) is not
available, the importer completes FCC
Form 740 and attaches a copy to its
customs import papers. Where
electronic customs filing is available,
the importer may submit the
information electronically as part of its
entry documentation submission to
CBP. Currently, nearly all submissions
are made electronically through the
CBP’s Automated Commercial System
(ACS), and very few paper filings are
submitted.
3. CBP is deploying a new electronic
filing system, the Automated
Commercial Environment (ACE), which
will not have the capability for
importers to submit the FCC-required
Form 740 information electronically.
FCC-related importation filings can
continue to be submitted electronically
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[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)]
[Rules and Regulations]
[Pages 68465-68471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28041]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 10
[NPS-WASO-NAGPRA-19087; PPWOCRADN0-PCU00RP14.R50000]
RIN 1024-AE00
Disposition of Unclaimed Human Remains, Funerary Objects, Sacred
Objects, or Objects of Cultural Patrimony
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule provides procedures for the disposition of
unclaimed human remains, funerary objects, sacred objects, or objects
of cultural patrimony excavated or discovered on, and removed from,
Federal lands after November 16, 1990. It implements section 3(b) of
the Native American Graves Protection and Repatriation Act.
DATES: The rule is effective December 7, 2015.
FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, Manager, National
NAGPRA Program, National Park Service, 1849 C Street NW., Washington,
DC 20240, telephone (202) 354-2204, email melanie_o'brien@nps.gov.
SUPPLEMENTARY INFORMATION:
Background
The Secretary of the Interior (Secretary) is responsible for
implementation of the Native American Graves Protection and
Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001 et seq.), including
the issuance of appropriate regulations implementing and interpreting
its provisions. NAGPRA addresses the rights of lineal descendants,
Indian tribes, and Native Hawaiian organizations in certain human
remains, funerary objects, sacred objects, and objects of cultural
patrimony, for which the Act uses the broader term ``cultural items''
(25 U.S.C. 3001(3)). Pursuant to Section 13 of NAGPRA (25 U.S.C. 3011),
the Department of the Interior (Department) published the initial rules
to implement NAGPRA in 1995 (60 FR 62158, December 4, 1995); those
rules are now codified at 43 CFR part 10. Subsequently, the Department
published additional rules concerning:
Civil penalties (68 FR 16354, April 3, 2003);
Future applicability (72 FR 13189, March 21, 2007); and
Disposition of culturally unidentifiable human remains (75
FR 12378, March 15, 2010).
Section 3(b) of the Act (25 U.S.C. 3002 (b)) explicitly directs the
Secretary to publish regulations for the disposition of unclaimed
cultural items excavated or discovered on, and removed from, Federal
lands after November 16, 1990. When we published the NAGPRA regulations
on December 4, 1995, we reserved 43 CFR 10.7 for this purpose.
This rule is limited to Federal lands, as NAGPRA provides that
ownership or control of any cultural item excavated or discovered on,
and removed from, tribal land after November 16, 1990, is in either a
known lineal descendant (for human remains and associated funerary
objects) or in the Indian tribe from whose tribal land the cultural
items were removed, and does not require the lineal descendant or the
Indian tribe to make a claim for the cultural items.
Consultation regarding a proposed rule for Sec. 10.7 began in
2005. On three separate occasions, we consulted with representatives of
Indian tribes, Native Hawaiian organizations, museums, and scientific
organizations. We also consulted with the Native American Graves
Protection and Repatriation Review Committee (Review Committee) during
its scheduled meetings in Albuquerque, NM (November 2005); Washington,
DC (April 2007); Phoenix, AZ (October 2007); and Washington, DC
(November 2010).
We published a proposed rule on October 29, 2013 (78 FR 64436).
Public comment was invited for a 60-day period, ending December 30,
2013. The proposed rule also was posted on the National Park Service's
National NAGPRA Program Web site. The Review Committee commented on the
record on the proposed rule at a public meeting on November 6, 2013.
Summary of and Responses to Comments on the Proposed Rule
During the comment period, we received 27 written comments on the
proposed rule, contained in 20 separate submissions from 5 Indian
tribes, 1 Indian organization, 1 non-federally recognized Indian group,
1 Native Hawaiian organization, 1 museum, 1 scientific organization, 3
Federal entities, 6 individual members of the public, and 1 anonymous
commenter. All relevant comments on the proposed rule were considered
during the final rulemaking.
Final Rule 43 CFR 10.2 Definition of ``Unclaimed Cultural Items''
Comment 1: Four commenters stated that the definition of unclaimed
cultural items should include the phrase ``as used in Sec. 10.7 of
this part.''
Our Response: The term ``unclaimed cultural items'' is used only in
Sec. 10.7 and therefore the specific reference is not needed.
Comment 2: Three commenters stated that the definition of unclaimed
cultural items should be expanded and the difference between the
categories of unclaimed cultural items be clarified. One of these
commenters added that the definition should provide a timeframe that
structures how long cultural items must be held by the Federal agency
prior to being classified as unclaimed.
Our Response: We agree. In the final rule, we have revised the
definition of unclaimed cultural items and clarified the difference
between the categories. We have included a timeframe.
Comment 3: Four commenters stated that the definition of unclaimed
cultural items imposes an inappropriate time limit on Indian tribes and
Native Hawaiian organizations to make claims for cultural items. One of
these commenters added that the definition assumes Federal agencies
have been proactive and have provided notice to all potential
claimants.
Our Response: A potential claimant may make a claim for unclaimed
cultural items at any time prior to transfer or reinterment under this
rule. While the rule establishes a timeframe for cultural items to
become unclaimed, there is no timeline imposed for Federal agencies to
transfer or to reinter cultural items. We feel the timeframes
established by the definitions in this final rule strike an appropriate
balance between assuring Federal agencies that the NAGPRA process will
end at a certain time and granting non-claimant Indian tribes and
Native Hawaiian organizations an opportunity to request the transfer of
these cultural items.
Comment 4: One commenter stated that the definition of
``disposition'' in Sec. 10.2(g)(5) should be changed to include
disposition of unclaimed cultural items.
[[Page 68466]]
Our Response: We agree. In this final rule, we have added a new
paragraph at Sec. 10.2 (g)(5)(iv).
Comment 5: One commenter stated that a notice under Sec. 10.6(c)
is only required upon ``proposed disposition,'' and not upon the
determination of an Indian tribe entitled to priority of custody.
Therefore, publication of a notice under Sec. 10.6(c) cannot be a
determining factor in the definition of unclaimed cultural items.
Our Response: A notice under Sec. 10.6(c) is not dependent on an
actual claim but is dependent on the existence of a potential claimant.
Under section 3(a) of the Act (25 U.S.C. 3002(a)), ownership or control
of cultural items is transferred to the Indian tribe or Native Hawaiian
organization which ``upon notice, states a claim. . .'' The notice
required by Sec. 10.6(c) precedes a claim from an Indian tribe or
Native Hawaiian organization and is dependent only upon the
identification of one or more Indian tribes or Native Hawaiian
organizations or lineal descendants as a potential claimant.
Furthermore, that notice is the only communication to the public during
the disposition process. Consequently, publication of a notice under
Sec. 10.6(c) is an appropriate factor for determining when cultural
items become unclaimed.
Comment 6: One commenter stated that reasonableness is not a
criterion for transfer of custody under the disposition process
established in Sec. 10.6. The definition at Sec. 10.2(h)(2)(ii)
should read: ``No Indian tribe with priority of custody has been
identified.''
Our Response: We believe, as a general matter, that Federal
agencies should use reasonable efforts in complying with the
requirements of NAGPRA. In addition, section 3(a)(2)(C) of the Act (25
U.S.C. 3002 (a)(2)(C)) explicitly states that the cultural affiliation
of cultural items is established using a reasonableness standard.
Final Rule Sec. 10.7(b)(1) Federal Agencies Must Report Unclaimed
Cultural Items to the Manager, National NAGPRA Program
Comment 7: One commenter stated that the term ``has'' is better
defined by adding ``possession or control'' after it.
Our Response: A Federal agency does not have ``possession'' or
``control'' of cultural items that are excavated or discovered on, and
removed from, Federal lands after November 16, 1990, as the terms
``possession'' and ``control'' are defined in Sec. 10.2. Instead, the
Federal agency acts as caretaker or temporary custodian for these
cultural items.
Comment 8: One commenter stated that the phrase ``a list of the
items'' should be replaced with ``a list of currently held items.'' The
commenter also suggested that ``the nature'' of unclaimed items be
better explained.
Our Response: The sentence introducing Sec. 10.7(b)(1) in this
final rule (previously Sec. 10.7(a)(1)) states the unclaimed cultural
items on the list are items that the Federal agency ``has.'' We believe
that the use of the present tense in the introductory sentence makes
clear that the reporting requirement refers to unclaimed cultural items
currently held by the Federal agency. The required description of ``the
nature of the unclaimed cultural items'' is the same as the current
requirement in a notice under 43 CFR 10.6(c). The purpose of both
documents is the same--to provide information adequate to allow lineal
descendants, Indian tribes, or Native Hawaiian organizations to
determine their interest in the cultural items under these regulations.
Comment 9: One commenter stated that there is nothing in the
statute that allows the National NAGPRA Program to create and maintain
an inventory of cultural items that have been removed from Federal
lands after 1990, unclaimed or otherwise. The commenter suggested that
Federal agencies should convey periodic notices of the existence of
unclaimed cultural items to potential claimants but not report those
items to the National NAGPRA Program.
Our Response: Section 3(b) of the Act (25 U.S.C. 3002(b)) directs
the Secretary to promulgate regulations for the disposition of
unclaimed cultural items in consultation with the Native American
Graves Protection and Repatriation Review Committee and other
interested parties. The Review Committee recommended that the National
NAGPRA Program maintain a database of unclaimed cultural items. We have
included the Review Committee's recommendation in this final rule. The
list of unclaimed cultural items submitted to the National NAGPRA
Program promotes transparency in the disposition of unclaimed cultural
items by providing information adequate to allow lineal descendants,
Indian tribes, or Native Hawaiian organizations to determine their
interest in cultural items under these regulations.
Comment 10: Seven commenters stated that the list of unclaimed
cultural items should include additional information. Suggestions
included the specific site of removal, the specific types of cultural
items, the names of those consulted on the cultural items, and any
potential claimants. One of these commenters added that the list of
unclaimed cultural items should identify which items have potential
claimants and which items have no identified potential claimants.
Our Response: The proposed rule required that the list include a
description of the place of discovery and the nature of the unclaimed
cultural items, and these requirements are retained in this final rule
at Sec. 10.7(b)(1). We agree that information on consultation efforts
under 43 CFR 10.5 could be useful for purposes of disposition of
cultural items. In response to these comments, this final rule requires
that the list include a summary of consultation efforts under Sec.
10.5. A summary of consultation efforts inherently will include the
identification of potential claimants. We have qualified that the
description of the place of discovery or excavation, and removal,
should generally protect any sensitive information.
Comment 11: Three commenters questioned the date of the reporting
requirement for Federal agencies to submit a list of unclaimed cultural
items to the National NAGPRA Program. One of these commenters added
that it would be difficult for Federal agencies to track when reports
were required, as cultural items might have varying reporting
deadlines. Two of these commenters added that the requirement should be
shortened and lists should be submitted within one year or 90 days
after excavation or discovery and removal.
Our Response: By adding to the definition of unclaimed cultural
items the specific circumstances under which cultural items become
unclaimed in this final rule, we adjusted the dates for submitting a
list of unclaimed cultural items to the Manager of the National NAGPRA
Program. For those cultural items that meet the definition of unclaimed
cultural items on the effective date of the regulation, the list must
be submitted within one year. We feel this provides Federal agencies
with sufficient time to prepare this list. For items that meet the
definition of unclaimed cultural items after the effective date of the
regulation, the list must be submitted within one year after the
cultural items meet the definition. This allows for Federal agencies to
submit lists of unclaimed cultural items at regular intervals. To
simplify the reporting requirements, a Federal agency could submit a
list of all unclaimed cultural items that met the definition for
unclaimed cultural items during the previous year and still be
compliant with the regulation.
[[Page 68467]]
For example, under the definition at Sec. 10.2 (h)(2)(ii), if a
Federal agency:
------------------------------------------------------------------------
and cannot
reasonably identify
any Indian tribes or then a list of the
obtains cultural items from Native Hawaiian unclaimed items must
Federal lands on . . . organizations or be submitted by . .
lineal descendants .
as a potential
claimant by . . .
------------------------------------------------------------------------
January 19, 2016............ January 19, 2018.... January 19, 2019.
May 23, 2016................ May 23, 2018........ May 23, 2019.
October 16, 2016............ October 16, 2018.... October 16, 2019.
December 5, 2016............ December 5, 2018.... December 5, 2019.
------------------------------------------------------------------------
In this example, a list submitted on January 18, 2019, of all
unclaimed cultural items that met the definition during calendar year
2018 would satisfy the requirements of this final rule.
Alternately, under the definition at Sec. 10.2 (h)(2)(i), if a
Federal agency:
----------------------------------------------------------------------------------------------------------------
and publishes a notice
under Sec. 10.6(c) after and no Indian tribe or
determining the lineal Native Hawaiian
obtains cultural items from Federal descendant, Indian tribe, organization submits a then a list of the
lands on . . . or Native Hawaiian claim, or no lineal unclaimed items must
organization that appears descendant responds to be submitted by . . .
to be entitled to ownership the notice by . . .
or control on . . .
----------------------------------------------------------------------------------------------------------------
January 19, 2016................... January 18, 2018........... January 18, 2019...... January 18, 2020.
May 23, 2016....................... May 22, 2018............... May 22, 2019.......... May 22, 2020.
October 16, 2016................... October 15, 2018........... October 15, 2019...... October 15, 2020.
December 5, 2016................... December 4, 2018........... December 4, 2019...... December 4, 2020.
----------------------------------------------------------------------------------------------------------------
In this example, a list submitted on January 17, 2020, of all
unclaimed cultural items that met the definition during calendar year
2019 would satisfy the requirements of this final rule.
Comment 12: Five commenters stated that the National NAGPRA Program
should be required to post the lists submitted by Federal agencies to
its Web site.
Our Response: The National NAGPRA Program publishes information on
summaries, inventories, and notices on its Web site, and will publish
similar information for these lists.
Final Rule Sec. 10.7(b)(2) Federal Agencies Must Care for Unclaimed
Cultural Items Consistent With the Federal Curation Regulations at 36
CFR Part 79
Comment 13: Seven commenters requested an expansion of the language
in the proposed rule, including adding language directly from 36 CFR
part 79 in the text of Sec. 10.7. Some of these commenters noted that
some cultural items under NAGPRA do not fit within the definitions
established by 36 CFR part 79.
Our Response: This final rule requires Federal agencies to care for
and manage all unclaimed cultural items under NAGPRA in a manner
consistent with but not pursuant to 36 CFR part 79. Even unclaimed
cultural items that do not fit the definitions of 36 CFR part 79 must
be provided with the same level of care and management as those items
that are covered by 36 CFR part 79. There is no need to include the
text at 36 CFR part 79 in this final rule.
Comment 14: One commenter suggested that, in addition to 36 CFR
part 79, unclaimed cultural items should be cared for in accordance
with a Plan of Action if one was prepared under Sec. 10.5(e).
Our Response: As long as there is no conflict with this final rule,
a Plan of Action prepared under Sec. 10.5(e) related to the care and
management of unclaimed cultural items that is consistent with 36 CFR
part 79 and already in place may still be used.
Final Rule Sec. 10.7(b)(3) Federal Agencies Must Consider and Respect
the Traditions of Identified Potential Claimants to the Maximum Extent
Feasible
Comment 15: Three commenters stated that there should be respect
for cultural practices of potential claimants to unclaimed cultural
items.
Our Response: We agree, and in the final rule we clarified that the
potential claimants referenced in this section are the potential
claimants listed in a notice of intended disposition.
Comment 16: Five commenters stated that the word ``feasible'' was
vague and should be replaced with ``permitted under law.''
Our Response: There are no applicable laws that require
consideration or respect of potential claimants to unclaimed cultural
items. The suggested wording is more restrictive and could result in
less consideration for the traditions of potential claimants. We
believe that the word ``feasible'' provides Federal agencies with
appropriate discretion to respect the desires of potential claimants
listed in a notice of intended disposition, and better aligns with the
existing requirements at Sec. 10.5(e)(7).
Final Rule Sec. 10.7(c) Federal Agencies May Transfer Control of
Unclaimed Cultural Items
Comment 17: Five commenters approved of the process for
transferring control of unclaimed cultural items to other Indian tribes
or Native Hawaiian organizations. One of these commenters suggested
concurrence with any disposition plan should be required from any non-
claiming Indian tribes. One of these commenters suggested that tribal
laws or customs of the Indian tribe with the closest cultural
relationship to the unclaimed cultural items should be followed. One of
these commenters suggested the word ``another'' before Indian tribe or
Native Hawaiian organization should not be used and ``an'' should be
substituted.
Our Response: The transferee of unclaimed cultural items will have
the right to control the disposition of the cultural items, as no
potential claimant will have made a claim. Consequently, we have
specified in this final rule that the transfer of cultural items is
conditioned on the transferee agreeing to accept transfer and treat the
cultural items according to the transferee's own laws and customs.
Also, in this final rule we have specified that the transferee in
question is an Indian tribe or Native Hawaiian organization that is
[[Page 68468]]
not an Indian tribe or Native Hawaiian organization with a potential
claim to the unclaimed cultural items.
Comment 18: Three commenters stated that transfer should be allowed
to Indian groups that are not federally recognized, and that Sec. 10.7
should include the same authority to transfer as applied to culturally
unidentifiable human remains in 43 CFR 10.11(c)(2)(ii)(A).
Our Response: Because this was not proposed, including non-
federally recognized Indian groups among the potential transferees of
cultural items is beyond the scope of this final rule. This comment
will be considered during any proposed revision of these regulations in
their entirety.
Final Rule Sec. 10.7(d) Federal Agencies May Reinter Unclaimed Human
Remains or Funerary Objects
Comment 19: One commenter stated that reinterment should be noted
as satisfactory for the requirement to care and manage cultural items
consistent with 36 CFR part 79.
Our Response: Title 36 CFR part 79 does not address reinterment.
Under this final rule, the requirement to care for and manage unclaimed
cultural items consistent with 36 CFR part 79 does not impinge on, or
otherwise affect, the discretion of a Federal agency to transfer or
reinter cultural items for which it acts as caretaker or temporary
custodian.
Comment 20: Three commenters stated that the draft rule unfairly
emphasized reinterment and precluded options for other disposition
strategies, including cooperative curation agreements or future claims.
One of these commenters also felt allowing reinterment violates tribal
rights as established in the Act in section 11 (25 U.S.C. 3009).
Our Response: This final rule provides a Federal agency with the
discretion to transfer or reinter unclaimed cultural items. It does not
require either of these actions. Also, this final rule is consistent
with sections 3(e) and 11(1)(B) of the Act (25 U.S.C. 3002(e) and
3009(1)(B), respectively). In order to take the actions under sections
3(e) and 11(1)(B) of the Act, an Indian tribe or Native Hawaiian
organization must first have control of the cultural items in question.
Comment 21: Five commenters stated that the draft rule should put
more emphasis on reinterment and require Federal agencies to justify
not reinterring unclaimed cultural items. One of these commenters
suggested that Federal agencies should use field documentation
procedures and immediately rebury any human remains discovered on
Federal land.
Our Response: This final rule provides a Federal agency with the
discretion to reinter unclaimed human remains or funerary objects
according to applicable interment laws or policy. Requiring a Federal
agency to immediately rebury human remains or funerary objects removed
from Federal land contradicts section 3(a) of the Act (25 U.S.C.
3002(a)).
Comment 22: Two commenters stated that reinterment should require
the concurrence of any potential claimants or consulting Indian tribes
and Native Hawaiian organizations and any reinterment should be done in
accordance with the tribal laws and customs of the potential claimants.
One of these commenters felt any application of state law in
reinterment should be restricted.
Our Response: An Indian tribe or Native Hawaiian organization that
has been identified as a potential claimant in a notice of intended
disposition but has not made a claim does not control the right of
disposition of human remains or funerary objects. The concurrence of
such potential claimants or consulting Indian tribes and Native
Hawaiian organizations with a proposed reburial of unclaimed human
remains or funerary objects, and the conduct of the reburial in
accordance with their laws and customs, are not legally required.
Moreover, requiring a Federal agency to obtain the concurrence of the
potential claimants very likely would be infeasible where there are
multiple such Indian tribes or Native Hawaiian organizations, each
having different laws and customs. However, this rule does not preclude
a Federal agency from consulting with any potential claimant on the
proposed reinterment of unclaimed human remains or funerary objects and
on having the reburial conducted in accordance with their laws and
customs. As for restricting the application of State law to the
reinterment of unclaimed human remains or funerary objects, we have
eliminated altogether the provision in the proposed rule allowing for
the offer of human remains or funerary objects for disposition
according to State or other law or policy.
Final Rule Sec. 10.7(e) Federal Agencies Must Follow Certain
Requirements Prior to Transferring Control or Reinterring Under
Paragraphs (c) and (d)
Comment 23: Seven commenters stated that any notice related to the
transfer or reinterment of unclaimed cultural items should be published
in the Federal Register, either in addition to or in place of a notice
in a newspaper. Three of these commenters suggested posting the notices
to the National NAGPRA Program Web site in addition to other forms of
notice.
Our Response: We believe that requiring notices to be published in
newspapers is consistent with other notice requirements currently
required under the regulations at Sec. 10.6 implementing section 3 of
the Act (25 U.S.C. 3002). This comment will be considered during any
proposed revision of these regulations in their entirety. In light of
technological changes since the promulgation of Sec. 10.6, we have
provided a second form of notice of proposed transfer of cultural items
or reinterment of unclaimed human remains or funerary objects through
postings on the National NAGPRA Program's Web site.
Comment 24: One commenter stated that the notice should include the
previous determination of the Indian tribe or Native Hawaiian
organization with priority of custody, if any (e.g., aboriginal land
determination), and not only the ``affiliation, if any, of the
unclaimed cultural items.''
Our Response: In response to this comment, the final rule requires
that the notice include a summary of consultation efforts under Sec.
10.5. A summary of consultation efforts inherently will include the
identification of any potential claimants.
Comment 25: One commenter stated that a newspaper with general
circulation ``in the area in which each potential claimant now
resides'' is impractical. Disposition could possibly be to all Indian
tribes or NHOs with standing under the Act.
Our Response: In the case where potential claimants have been
identified, the locations of the newspapers where a notice of proposed
transfer or reinterment is published under this final rule are
identical to the locations of the newspapers where a notice of intended
disposition was published under Sec. 10.6(c). In the case of cultural
items for which no potential claimant could be identified, the location
where a notice of proposed transfer or reinterment is published is only
the area in which the cultural items were excavated or discovered, and
removed, as there are no potential claimants for these cultural items.
Comment 26: One commenter stated that there was no process provided
if an Indian tribe or Native Hawaiian organization asserts priority of
ownership or control under section 3(a) of the Act and Sec. 10.6 . If
the claim is determined to be valid, disposition
[[Page 68469]]
would occur under Sec. 10.6(c) and not under Sec. 10.7, as the
cultural items would no longer be unclaimed.
Our Response: If an Indian tribe or Native Hawaiian organization
states a valid claim for cultural items appearing in a notice of
proposed transfer or reinterment under Sec. 10.7, the cultural items
are no longer unclaimed. As the Federal agency will no longer have the
discretion to proceed with a transfer or reinterment under this final
rule, the disposition of these cultural items will proceed under Sec.
10.6(c). If the valid claim is from an Indian tribe or Native Hawaiian
organization already listed in a notice of intended disposition, and if
there are no competing claims, the Federal agency will transfer the
right of control over the cultural items to the claimant. If the valid
claim is from an Indian tribe or Native Hawaiian organization not
already listed in a notice of intended disposition, the Federal agency
will follow the notice provision under Sec. 10.6(c) prior to any
transfer.
Final Rule Sec. 10.7(a) The Secretary Has the Authority To Promulgate
the Rule on Unclaimed Cultural Items
Comment 27: Two commenters suggested moving the statement on the
purpose of this rule from the end of the rule to the beginning of the
rule.
Our Response: We agree. Proposed rule Sec. 10.7(e) has been
renumbered Sec. 10.7(a) in this final rule.
Changes From the Proposed Rule
Based on the preceding comments and responses, the drafters have
made the following changes to the proposed rule language:
Sec. 10.2(g)(5)(iv). This section specifies that
disposition of unclaimed cultural items is established under Sec. 10.7
of these regulations.
Sec. 10.2(h)(2)(i). This section specifies that cultural
items are unclaimed under the following circumstances: The Federal
agency publishes a notice of intended disposition, and the agency has
not received any claim from an Indian tribe or Native Hawaiian
organization, or any response from a lineal descendant to the notice
within one year of publishing the notice.
Sec. 10.2(h)(2)(ii). This section specifies that cultural
items are unclaimed under the following circumstances: The Federal
agency knows, or has reason to know, that cultural items have been
excavated or discovered on, and removed from Federal lands; for two
years, the Federal agency has tried to reasonably identify any Indian
tribe or Native Hawaiian organization, or a lineal descendant, as a
potential claimant, and at the end of the two-year period, the Federal
agency cannot reasonably identify an Indian tribe or Native Hawaiian
organization, or a lineal descendant, as a potential claimant.
Sec. 10.7(a) of the proposed rule has been renumbered
Sec. 10.7(b) in this final rule.
Sec. 10.7(a)(1) has been renumbered Sec. 10.7(b)(1) in
this final rule. This section specifies that the list of unclaimed
cultural items must include a summary of consultation efforts under
Sec. 10.5, and adjusts the deadline for submitting a list of unclaimed
cultural items. For those cultural items that meet the definition of
unclaimed cultural items on the effective date of the regulation, a
list of items must be submitted within one year. For items that meet
the definition of unclaimed cultural items after the effective date of
the regulation, a list of items must be submitted within one year of
the cultural items becoming unclaimed.
Sec. 10.7(a)(3) has been renumbered Sec. 10.7(b)(3) in
this final rule. This section specifies that the potential claimants
who are referenced are the potential claimants listed in a notice of
intended disposition.
Sec. 10.7(b) of the proposed rule has been renumbered
Sec. 10.7(c) in this final rule. This section specifically identifies
the Indian tribe or Native Hawaiian organization to which control may
be transferred under this rule as an Indian tribe or Native Hawaiian
organization that does not have a potential claim to the cultural
items. Also, this section specifies that such transfer is conditioned
on the transferee agreeing to accept transfer and treat the cultural
items according to the transferee's own laws and customs.
Sec. 10.7(c) of the proposed rule has been renumbered
Sec. 10.7(d) in this final rule. This section specifies that, under
this rule, any reinterment of unclaimed human remains or funerary
objects by the Federal agency must be according to applicable interment
laws. Also, the provision in the proposed rule regarding the offer of
human remains or funerary objects for disposition according to State or
other law has been eliminated.
Sec. 10.7(d) of the proposed rule has been renumbered
Sec. 10.7(e) in this final rule.
Sec. 10.7(d)(3) has been renumbered Sec. 10.7(e)(3) in
this final rule. This section specifies that the Manager of the
National NAGPRA Program will post information received from the Federal
agency under Sec. 10.7(e)(2) of this rule, on the National NAGPRA
Program's Web site.
Sec. 10.7(e) has been renumbered Sec. 10.7(a) in this
final rule.
Compliance With Other Laws, Executive Orders, and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rule is not
significant.
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
The Department of the Interior certifies that 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 only pertains to the disposition of cultural items in the
custody of a Federal agency for which potential claimants have chosen
not to take ownership or control, or when no potential claimants have
been identified. Thus, this rule does not constitute a significant
economic burden.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local or tribal
government agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or
[[Page 68470]]
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 Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
This rule does not effect a taking of private property or otherwise
have takings implications under Executive Order 12630. A takings
implication assessment is not required. No taking of property will
occur as a result of this rule.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism summary impact statement. A Federalism
summary impact statement is not required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (Executive Order 13175 and Department
Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and tribal sovereignty. In accordance with the
Presidential Memorandum entitled ``Government to Government Relations
with Native American Tribal Governments'' (59 FR 22951, April 29,
1994); Executive Order 13175, ``Consultation and Coordination with
Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000); the
President's Memorandum for the Heads of Executive Departments and
Agencies on the Implementation of Executive Order 13175 (Nov. 5, 2009);
and the Secretary of the Interior's Order No. 3317--Department of the
Interior Policy on Consultation With Indian Tribes (Dec. 1, 2011); we
have evaluated this rule and determined that it has a potential effect
on federally recognized Indian tribes. The rule was developed in
consultation with the Native American Graves Protection and
Repatriation Review Committee, which includes members nominated by
Indian tribes and traditional religious leaders. Formal consultation
with the 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. Also, the Review Committee had an opportunity to
comment on the proposed rule following publication, which it did at a
public meeting on November 6, 2013, in Mt. Pleasant, MI.
Formal consultation with Indian tribes began on November 15, 2005,
in Albuquerque, NM, and continued on April 18, 2007, in Washington, DC,
and on October 14, 2007, in Phoenix, AZ. We have fully considered
tribal and Review Committee comments in the final rule.
Paperwork Reduction Act
The Office of Management and Budget has approved the information
collection requirements in 43 CFR part 10 and assigned OMB Control
Number 1024-0144. This rule does not contain any new information
collections that require OMB approval under the Paperwork Reduction
Act. An agency may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required
because the rule is covered by a categorical exclusion under 43 CFR
46.210(i): ``Policies, directives, regulations, and guidelines: That
are of an administrative, financial, legal, technical, or procedural
nature; or 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 National Environmental Policy Act.
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.
Drafting Information
The proposed rule and this final rule were prepared by staff of the
National NAGPRA Program, National Park Service; Office of Regulations
and Special Park Uses, National Park Service; and Office of the
Solicitor, Division of Parks and Wildlife and Division of Indian
Affairs, Department of the Interior.
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Hawaiian Natives, Historic
preservation, Indians-claims, Indians-lands, Museums, Penalties, Public
lands, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Department amends 43 CFR
part 10 as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
0
1. The authority citation for part 10 continues to read as follows:
Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.
0
2. Amend Sec. 10.2 by adding paragraph (g)(5)(iv) and paragraph (h) to
read as follows:
Sec. 10.2 Definitions.
* * * * *
(g) * * *
(5) * * *
(iv) Disposition of unclaimed human remains, funerary objects,
sacred objects, or objects of cultural patrimony is governed by Sec.
10.7.
(h) Unclaimed cultural items means Native American human remains,
funerary objects, sacred objects, or objects of cultural patrimony:
(1) That have been excavated or discovered on, and removed from,
Federal lands after November 16, 1990, and
(2) Whose disposition under 25 U.S.C. 3002(a) and Sec. 10.6 of
this part has not occurred because either:
(i) Within one year after publication of a notice under Sec.
10.6(c) of this part,
[[Page 68471]]
no Indian tribe or Native Hawaiian organization has sent a written
claim for the cultural items to the appropriate Federal agency, or no
lineal descendant has responded to a notice for human remains and
associated funerary objects; or
(ii) Within two years after knowing or having reason to know that
cultural items were excavated or discovered, and removed, the
appropriate Federal agency could not reasonably identify any Indian
tribe or Native Hawaiian organization or lineal descendant as a
potential claimant.
0
3. Add Sec. 10.7 to read as follows:
Sec. 10.7 Disposition of unclaimed human remains, funerary objects,
sacred objects, or objects of cultural patrimony.
(a) This section carries out section 3(b) of the Act (25 U.S.C.
3002(b)) regarding unclaimed cultural items.
(b) 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 general place of discovery or excavation,
and removal; the nature of the unclaimed cultural items; and a summary
of consultation efforts under Sec. 10.5 of this part. This list must
be received by December 5, 2016, or within 1 year after the cultural
items have become unclaimed under Sec. 10.2(h), whichever is later;
(2) Care for and manage unclaimed cultural items consistent with
the regulations at 36 CFR part 79; and
(3) To the maximum extent feasible, consider and respect the
traditions of any potential claimants listed in a notice under Sec.
10.6(c) concerning the unclaimed cultural items, including, but not
limited to, traditions regarding housing, maintenance, and
preservation.
(c) Subject to paragraph (e) of this section, a Federal agency that
has unclaimed cultural items may, upon request, transfer them to an
Indian tribe or Native Hawaiian organization that is not a potential
claimant and agrees:
(1) To accept transfer; and
(2) To treat them according to the laws and customs of the
transferee.
(d) Subject to paragraph (e) of this section, a Federal agency that
has unclaimed human remains or funerary objects may reinter them
according to applicable interment laws.
(e) Before a Federal agency makes a transfer or reinterment under
paragraphs (c) or (d) of this section, it must:
(1) Submit the list required under paragraph (b)(1) of this section
to the Manager, National NAGPRA Program; and
(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 discovered, and removed, and, if
applicable, in a newspaper of general circulation in the area in which
each potential claimant now resides.
(i) The notice must explain the nature of the unclaimed cultural
items, summarize consultation efforts under Sec. 10.5, and solicit
claims under the priority of ownership or control in section 3(a) of
the Act (25 U.S.C. 3002(a)) and Sec. 10.6.
(ii) The notice must be published at least two times at least a
week apart.
(iii) 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 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. The National
NAGPRA Program will post information from published notices on its Web
site.
Dated: October 21, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks .
[FR Doc. 2015-28041 Filed 11-4-15; 8:45 am]
BILLING CODE 4310-EJ-P