Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony, 86452-86540 [2023-27040]

Download as PDF 86452 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 10 [NPS–WASO–NAGPRA–NPS0036506; PPWOCRADN0–PCU00RP14.550000] RIN 1024–AE19 Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony Office of the Secretary, Interior. Final rule. AGENCY: ACTION: This final rule revises and replaces definitions and procedures for lineal descendants, Indian Tribes, Native Hawaiian organizations, museums, and Federal agencies to implement the Native American Graves Protection and Repatriation Act of 1990. These regulations clarify and improve upon the systematic processes for the disposition or repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony. These regulations provide a step-by-step roadmap with specific timelines for museums and Federal agencies to facilitate disposition or repatriation. Throughout these systematic processes, museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations. DATES: This rule is effective January 12, 2024. Comments on the information collection requirements in this final rule must be submitted to the Office of Management and Budget by January 12, 2024. ADDRESSES: All public comments and attachments received, as well as supporting documentation used in the preparation of these regulations, are available online at https:// www.regulations.gov in Docket No. NPS–2022–0004. Written comments and suggestions on the information collection requirements should be submitted by the date specified above in DATES to https://www.reginfo.gov/ public/do/PRAMain. Find this information collection by selecting ‘‘Currently under Review—Open for Public Comments’’ or by using the search function. Please provide a copy of your comments to the NPS Information Collection Clearance Officer (ADIR–ICCO), 13461 Sunrise Valley Drive, Reston, VA 20191. Please include khammond on DSKJM1Z7X2PROD with RULES2 SUMMARY: VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 ‘‘1024–AE19’’ in the subject line of your comments. FOR FURTHER INFORMATION CONTACT: Melanie O’Brien, National NAGPRA Program, National Park Service, (202) 354–2201, melanie_o’brien@nps.gov. Questions regarding the NPS’s information collection request (ICR) may be submitted to Phadrea Ponds, NPS Information Collection Clearance Officer, phadrea_ponds@nps.gov. Please include ‘‘1024–AE19’’ in the subject line of your email request. In compliance with the Providing Accountability Through Transparency Act of 2023, the plain language summary of the proposal is available on https:// www.regulations.gov in the docket for this rulemaking. SUPPLEMENTARY INFORMATION: I. Background II. Summary of Public Comments and Responses A. General Comments B. Section 10.1 Introduction C. Section 10.2 Definitions for This Part D. Section 10.3 Determining Cultural Affiliation E. Subparts B and C F. Section 10.4 General G. Section 10.5 Discovery H. Section 10.6 Excavation I. Section 10.7 Disposition J. Subpart C K. Section 10.8 General L. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony M. Section 10.10 Repatriation of Human Remains or Associated Funerary Objects N. Section 10.11 Civil Penalties O. Section 10.12 Review Committee III. Response to Public Engagement and Request for Comments A. Public Engagement B. Requests for Comment C. Use of Received Feedback IV. Compliance With Other Laws, Executive Orders, and Department Policy I. Background On November 16, 1990, President George Bush signed into law the Native American Graves Protection and Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001, et seq.). The Act recognizes the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations (NHOs) in Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The Secretary of the Interior is responsible for promulgating regulations to carry out the provisions of the Act and delegated this authority to the Assistant Secretary. Since 1993, the Department of the Interior (Department) has published rules under the title ‘‘Native American Graves Protection and Repatriation Act Regulations’’ including: PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 • RIN 1024–AC07, 1993 Proposed Rule (58 FR 31122, May 28, 1993) and 1995 Final Rule (60 FR 62134, December 4, 1995); • RIN 1024–AC84, Civil Penalties Final Rule (68 FR 16354, April 3, 2003) and Future Applicability Final Rule (72 FR 13184, March 21, 2007); • RIN 1024–AD68, 2007 Proposed Rule Disposition of Culturally Unidentifiable Human Remains (72 FR 58582, October 16, 2007) and 2010 Final Rule Disposition of Culturally Unidentifiable Human Remains (75 FR 12378, March 15, 2010); and • RIN 1024–AE00, Disposition of Unclaimed Cultural Items Final Rule (80 FR 68465, November 5, 2015). II. Summary of Public Comments and Responses The Department (we) published a proposed rule (RIN 1024–AE19) in the Federal Register on October 18, 2022 (87 FR 63202, hereafter 2022 Proposed Rule) to clarify and improve upon the systematic processes for disposition or repatriation of Native American human remains and cultural items. We accepted public comments for 90 days via the mail, hand delivery, and the Federal eRulemaking Portal at https:// www.regulations.gov. After considering several requests for extensions of the public comment period beyond the original 90 days, we extended the comment period an additional 14 days until January 31, 2023. All comments received by the deadline are publicly available on https://www.regulations.gov, Docket No. NPS–2022–0004. During the comment period, we received a total of 206 submissions which included 181 individual submissions posted to the docket and 25 attachments as identified by the submitter. When necessary, we have cited to specific submissions as NPS–2022–0004–XXXX. We received submissions from a range of sources including individual members of the public, Indian Tribes, museums, and organizations. Table 1 shows the number of submissions by type of submitter. TABLE 1—SUBMISSIONS RECEIVED BY SUBMITTER Submitter Individuals ............................. Federally recognized Indian Tribes* ............................... Museums .............................. Museum or scientific organizations** .................. Native American organizations ................................... Duplicate submissions .......... E:\FR\FM\13DER2.SGM 13DER2 Submissions 95 48 13 9 8 4 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations TABLE 1—SUBMISSIONS RECEIVED BY SUBMITTER—Continued Submitter ** These submissions are by professional organizations representing museums or scientific professionals and they are separate and distinct from the museums above. Submissions In these final regulations, we focus our discussion on changes from the 3 2022 Proposed Rule based on comments 1 we received during the comment period and our further consideration of the 0 issues raised. For background on the statutory and legislative history and * Two submissions were on behalf of multiple Indian Tribes making the total number of case law relevant to these regulations, Indian Tribes represented 55. we refer the reader to the previously Indian groups without Federal recognition ................. Federal Advisory Review Committee ......................... Native Hawaiian organizations ................................... 86453 published rules under the title ‘‘Native American Graves Protection and Repatriation Act Regulations’’ referenced in I. Background. We reviewed and considered all comments prior to developing this final rule. We have provided 124 summaries of comments and our direct responses below; we combined similar comments where appropriate. Table 2 shows the largest number of comments by issue. TABLE 2—TOP 10 ISSUES BY NUMBER OF COMMENTS Number of comments Issue khammond on DSKJM1Z7X2PROD with RULES2 Changes to ‘‘affiliation’’ ............................................................ Role of Indian groups without Federal recognition ................. Steps for consultation .............................................................. Timelines under Subpart C ...................................................... Require consent or consultation before allowing scientific study. Duty of care, including scientific study .................................... ‘‘Possession or control’’ ........................................................... Specific steps in Subpart C ..................................................... Purpose of this rule ................................................................. ‘‘Consultation’’ .......................................................................... In addition, we received 109 comments generally supporting the regulations and the changes (see Comment 1.), and we received 96 comments on the estimated burden and information collection requirements for the revised regulations (see Comment 4.). We received 43 comments requesting action by the Department of the Interior outside of the scope of these regulations (see Comment 6.). Four comments requested changes in these regulations from business days to calendar days, which is significant in that it impacts all the timelines under this final rule (see Comment 19). In response to these comments and others discussed in detail below, we made the following major changes in the final rule: 1. Removed ‘‘geographical affiliation’’ in its entirety, simplified the process for cultural affiliation to provide that one type of information, including geographical information, is sufficient for cultural affiliation, and replaced ‘‘preponderance of the evidence’’ with ‘‘clearly or reasonably identify’’ (§ 10.3 Determining cultural affiliation). 2. Removed all reference to Indian groups without Federal recognition and prioritized the rights of federally recognized Indian Tribes in disposition and repatriation (§ 10.2 Definitions for this part ‘‘Indian Tribe’’ and §§ 10.7(d) Disposition and 10.10(k) Repatriation). VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 See comment and response 102 53 53 46 45 Comment Comment Comment Comment Comment 58. to 61. 3. and 39. See also Comment 91. and 114. 64. 92. 15. 44 44 42 42 39 Comment Comment Comment Comment Comment 12. to Comment 17. 49. 94. 9. 30. 3. Required free, prior, and informed consent before any exhibition of, access to, or research on human remains or cultural items (§ 10.1(d) Duty of Care). 4. Extended the timeline to allow five years (rather than two as proposed) for museums and Federal agencies to consult and update inventories of human remains and associated funerary objects (§ 10.10(d) Repatriation). 5. Replaced ‘‘business days’’ with ‘‘calendar days’’ and extended deadlines as a result (§ 10.1(f) Deadlines). 6. Revised ‘‘consultation’’ to provide more instruction on goals and process (§ 10.2 Definitions for this part ‘‘Consultation’’). 7. Removed the requirement for written requests to consult from Indian Tribes or NHOs, and therefore removed the requirement for a museum or Federal agency to respond within a set timeframe (§§ 10.4(b), 10.9(b), and 10.10(b) Initiate consultation). Despite receiving many comments, we have not revised the definitions or application of ‘‘possession or control’’ and ‘‘custody.’’ As in the Act, ‘‘possession or control’’ is a jurisdictional requirement for human remains or cultural items subject to these regulations and for repatriation (§ 10.2 Definitions for this part ‘‘custody’’ and ‘‘possession or control’’). A. General Comments 1. Comment: We received 109 comments generally supporting these PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 regulations and the overall goals of disposition or repatriation. Comments from individuals, including many students in high school, college, and graduate school, offered support for the general principle of returning ancestors and objects to lineal descendants, Indian Tribes, and NHOs. Museum and museum and scientific organizations supported the overall goals to clarify and improve upon the systematic processes for disposition and repatriation. A few comments from museums focused on the impact the revised regulations would have on the museum profession. One comment stated ‘‘Overall, the language in the proposed draft reflects contemporary best practices around repatriation and codification in 43 CFR part 10 makes sense in an effort to standardize repatriation activities across diverse institutions, agencies, and Tribes’’ (NPS–2022–0004–0129). Another museum commented: A fundamental shift in priorities is necessary at institutions who have fallen short in their efforts to comply with the legislation’s intent. It is time for institutions to prioritize this work, in both the allocation of resources and the ethical commitment to genuinely engage in consultation with Native Nations. The passage of these proposed revisions is a necessary step towards addressing the legacy of colonial injustices imposed upon Indigenous Peoples in the United States (NPS–2022–0004–0115). E:\FR\FM\13DER2.SGM 13DER2 86454 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations Many Indian Tribes and Native American organizations also expressed appreciation and support for the revisions and felt the changes better reflected Congressional intent. One Indian Tribe stated: khammond on DSKJM1Z7X2PROD with RULES2 We appreciate the difficult work and coordination the Department has undertaken to make vast and meaningful changes to shift the burden of NAGPRA compliance to where it belongs—to federal agencies and museums. We explain below several changes that we support. While in the interest of brevity, we focus our comments on areas of concern, the Department should understand that our Tribes welcome this proposed rule. With our comments below addressed, we believe the new regulations will better implement NAGPRA and facilitate the repatriation of our Ancestors and sacred objects as Congress intended (NPS–2022–0004–0158). DOI Response: As discussed more fully throughout this document, we agree with many of these statements; and, as a result, we are publishing this final rule. We appreciate the comments from individuals, especially from students, not only for supporting this effort but for engaging in the rulemaking process. We appreciate the supportive, yet constructive comments from museums and museum and scientific organizations. We are indebted to the many Indian Tribes who provided comments as well as those who provided input during consultation throughout the process of developing these regulations. 2. Comment: We received nine comments generally objecting to the changes to these regulations. One comment stated the process was more of a political statement than a necessity. One comment supported the idea of clarifying the repatriation process but felt the proposed rule would undermine existing efforts and result in a rushed, transactional process. One comment felt the proposed regulations would hinder meaningful consultation and impede the progress that museums, Indian Tribes, and NHOs have made so far. One comment believed the revisions compounded difficulties that both museums and Indian Tribes already face and would reduce efficiency rather than improve it. One comment stated that in addition to a lack of statutory authority for some of the revisions, the Department had not identified any inadequacies or difficulties in the existing regulations, particularly with respect to Subpart B. One comment saw the revisions as a reversal rather than a strengthening of Congressional intent and stated that, as the drafted, the revisions are ‘‘based upon ‘restorative justice’ rather than the words and intent of Congressional legislation, [and] has VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 gone too far.’’ The comment stated the revisions reflected a larger cultural shift and that Native activist groups ‘‘have urged aggressive claims for repatriation and demanded that [T]ribal permission be sought for the transfer of objects long in legal circulation’’ (NPS–2022–0004– 0188). Three comments from Indian Tribes expressed concerns that the revisions would slow down or even stop the work of repatriation. All three comments believed the revisions are too extensive and too complex and will, ultimately, create more issues than the revisions resolve. One of these comments was especially concerned that the revisions did not address two central and persistent issues that Indian Tribes have long asked for: enhanced enforcement and protection of private information. DOI Response: As discussed more fully throughout this document, we disagree with many of these statements; and, as a result, we are proceeding with publication of this final rule despite these objections. These regulations reflect and implement the legal requirements established by Congress. We understand that some of the timelines under this final rule will require faster action by museums and Federal agencies than under the existing regulations. However, certain deadlines can be extended or actions delayed, provided the appropriate lineal descendant, Indian Tribe, or NHO has agreed to extend or delay the process. We believe the changes in these regulations will enhance meaningful consultation and ensure that resulting efforts are based on consensus or agreement. We believe that the increased transparency and communication required by these regulations will resolve some of the existing challenges faced by all parties. As discussed in more detail throughout this document, these revisions are within the Secretary’s statutory authority and based on over 30 years of input, comment, and experience in implementing the Act. As reflected in the supportive comments above, these revisions reflect best practices and changes in the wider professional disciplines, while at the same time adhering to the language and limits provided by Congress. We have incorporated requests from Indian Tribes and NHOs to the maximum extent possible, but we do not believe these revisions will stop the work of repatriation or create more issues than are resolved. We do anticipate that the work of repatriation may be slowed as all parties adjust to the revisions in these regulations and especially as all PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 parties re-evaluate past practices considering these simplified, clarified, and streamlined regulations. We reiterate here, as we have throughout this document, that the goal of this final rule is to clarify and improve the systematic processes for disposition and repatriation by making the requirements clear to all parties involved. 3. Comment: We received 53 comments on the standing of Indian groups without Federal recognition under these regulations. Of that total, 40 comments supported giving standing to Indian groups without Federal recognition while 13 comments opposed it. Some comments also suggested changes to 25 CFR part 83 to recognize more groups and that the National NAGPRA Program should help educate groups on how to achieve Federal recognition. DOI Response: The recognition process and training concerning it are outside the scope of these regulations. Furthermore, as discussed below under that definition, these regulations cannot expand the definition of ‘‘Indian Tribe’’ beyond that provided in the Act. Indian groups without Federal recognition, including State recognized tribes, are not completely excluded from the disposition or repatriation processes. As is the current practice, Indian groups without Federal recognition can work with federally recognized Indian Tribes as part of a joint claim for disposition or joint request for repatriation. See also Comment 39. 4. Comment: We received 96 comments about the estimated burden and related information collection requirements of the proposed regulations. Of that total, nine comments supported some part of the burden estimate, including agreeing that there is a wide variation in the actual time required because of differences in size and complexity of the required responses. Two of these comments supported the overall burden estimate and agreed that the changes would yield long-term savings, despite the shortterm increased costs. Five of these comments agreed that the collection of information is necessary and has a practical utility. One comment specifically stated the information collected had no practical utility and should not be required. Five comments suggested one way to minimize the burden of these regulations was for the Department to provide online resources to assist with identifying Indian Tribes with potential cultural affiliation. Eighteen comments generally objected to the burden estimate. Many of these comments felt the methods and assumptions were flawed and did not E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations reflect the actual amount of effort required to comply with these regulations. Several comments stated that the proposed regulations significantly expanded the administrative, staffing, and financial burdens already imposed on museums and Federal agencies and that museums and Federal agencies are already facing capacity and resource limitations that prevent them from completing the already burdensome requirements under the existing regulations. Five comments stated that, regarding the quality, utility, and clarity of the information to be collected, there was a disconnect between oral statements by the National Park Service staff and the proposed regulations on the requirements for consultation and reporting (see NPS– 2022–0004–0081). A few comments stated additional financial resources must be provided before any additional tasks can be required and that it was unreasonable and misguided to expect museums and Federal agencies to comply without providing additional funds. Two comments stated that the estimates should not rely on responses from the last three years to estimate costs due to the pandemic. One comment requested that the General Accountability Office estimate the costs of the proposed regulations. One comment questioned the authority of the Department to collect information that could be used to monitor the repatriation process. A total of 31 comments specifically discussed the impact of these regulations on Indian Tribes and NHOs and suggested some possible solutions to lessen the burden. Of that total, 18 comments suggested the Department create a dedicated grant program for Indian Tribes and NHOs. One of these comments expressed that museums have been wasting grant funds on unnecessary tasks since 1994 and more grant funding should be provided to Indian Tribes and NHOs. Five comments felt the burden on Indian Tribes and NHOs in these regulations was underestimated, too high, or prohibitively expensive. One comment from an individual stated the burden on Indian Tribes and NHOs could not be minimized with technology due to a general lack of access to the internet in Indian Country. One comment requested the regulations provide more funding as well as flexibility for Indian Tribes to engage with repatriation at their own pace. Seven comments questioned the costs to Indian Tribes under Subpart B of the proposed regulations, which some estimated to be $40 million per year. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 Eighteen comments provided input or alternative estimates for specific tasks. Two comments believe tasks are missing from the estimate, such as documentation review, correspondence after consultation, travel arrangements, hosting arrangements, inventory/packet/ documentation preparation, room setup, consultation participation, documentation of consultation, administrative requirements, moving items to or from storage, and implementation of care guidance. One comment stated the costs of physical transfer should be included and, for a large repatriation, staff time alone can exceed $100,000 for physical transfer. Two comments stated the estimate for initiating consultation should be much higher, from 40 hours to at least 140 hours, to include the time required to identify consulting parties, prepare, and distribute letters or emails, and to make follow up phone calls. One comment suggested the estimate for conducting consultation be increased to provide for staff to retrieve collections from storage and travel by many representatives (sometimes up to ten people) from Indian Tribes or NHOs to conduct a physical review. Three comments stated the estimate for completing an inventory was too low as even an inventory update was an enormous undertaking that required significant time and resources. One of these comments noted that a previously prepared inventory did not reduce the necessary time, as previous inventories are generally ‘‘woefully inadequate.’’ One of these comments stated that, based on experience, it takes 10 hours to inventory one box plus an additional 6– 8 hours to describe each individual or object in the box and an additional 40 hours per site to produce a final report. The comment estimated that for 200 boxes, it would take 2,000 hours to inventory the boxes, and this did not include additional time to describe each object or write a site report (NPS–2022– 0004–0125). One comment stated the estimate for a summary was also underestimated and stated it takes anywhere from 6 months to two years to prepare a summary and then an additional six months for illustration and documentation of the objects. Five comments believe the estimate for preparing notices (either for inventory completion or intended to repatriation) were underestimated. One of these comments estimated it takes 120 hours to facilitate a notice of inventory completion plus additional time to verify the information with a physical review. Four of these comments suggested that for each notice type, the PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 86455 minimum amount of time required was 2 hours while the maximum amount of time was between 10 and 30 hours per notice, plus additional time to consult on the draft notice. One comment stated evaluating competing requests and resolving stays of repatriation required significantly more time, estimating between 100 and 1,000 hours, especially when considering the involvement of legal departments, executives, and board members in those tasks. Two comments stated the rate used to calculate costs should be $100 to $120 per hour. Fourteen comments provided estimates for the total costs of Subpart C of these regulations. For Indian Tribes and NHOs several estimated a cost of $17.2 million per year. For museums and Federal agencies one comment estimated $19.4 million per year. The two estimates were developed by one individual, using grant awards from 2011 to 2021 to estimate the average cost for a notice of inventory completion ($14,416 per notice). After calculating an estimated cost for museums and Federal agencies to comply with the proposed regulations, the estimate calculated the costs for Indian Tribes and NHOs by using the percentage of funding awarded in grants from 2011– 2021 to museums (58%) and Indian Tribes or NHOs (42%) to estimate a total burden for the proposed regulations at $91.4 million over 30 months or $36.6 million per year (see NPS–2022–0004– 0174). Other comments estimated a total for museums only between $25 million and $118 million per year. One museum provided a variety of estimates based on current project budgets which ranged from $200,000 to $500,000 per project per year for one museum. The comment estimated the burden for the single museum at 19,000 hours per year ($1.273 million per year per museum assuming an hourly rate of $67/hour). When applied to all 407 museums that will be required to update inventories under these regulations, that amounts to the highest estimate of $518.1 million per year for museums alone, although the comment noted that not all museums will require the same number of hours). The same comment questioned how the Department estimated that the proposed regulations do not impose an unfunded mandate on State, local, or [T]ribal governments or the private sector of more than $100 million per year (see NPS–2022–0004– 0125). One comment detailed the hours involved in one part of a two-part project over 15 months. The first phase of the project included 13 consultation meetings which required hundreds of E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86456 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations hours of time by Indian Tribes and museum staff, including hundreds of phone calls. Consultants hired to develop and complete the first phase of the project spent thousands of hours on the first phase and travel expenses totaled $3,000. In the first phase, 31 notices of inventory completion were published, although the comment stated that the number of notices could be irrelevant as each notice involved a single group of Indian Tribes and one museum and could have been a single notice. The first phase of the project covered 1,021 individuals and 11,590 associated funerary objects. The comment noted that these estimates do not include the hours involved in preparation of the original inventory of human remains and associated funerary objects completed in the early 1990s. Although a total estimated cost for this phase of the project was not provided, elsewhere the comment suggested at minimum $100 to $120 an hour should be used in dollar estimates (see NPS– 2022–0004–0135). Using the lower hourly figure and the number of hours provided, the estimate for the first phase of the project is $123,000 over 15 months or $98,400 per year. When applied to all 407 museums that will be required to update inventories under these regulations, it equals an estimated $40 million per year for museums. DOI Response: We appreciate the specific input on the estimated costs for certain requirements in these regulations. We have addressed many of these comments in the revised CostBenefit and Regulatory Flexibility Threshold Analyses for the final regulations. We reiterate that the Department believes the short-term increased costs of these regulations are justified by the associated long-term quantitative and qualitative benefits. We believe the information collected under these regulations is necessary and any information collected by the Department under these regulations is required by the Act for administrative purposes (such as publishing notices) and is not used for monitoring or evaluating the quality of that information. The Department will develop and provide templates for all information collection requirements, and we will provide additional resources to assist with identifying consulting parties to minimize the burdens of these regulations, as discussed further in Comment 95. Any changes to the amount of available funding through grants are beyond the scope of these regulations and are the purview of Congress and the appropriations process. We cannot limit the grant VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 awards to only Indian Tribes and NHOs as that would be inconsistent with the Act. Regarding the hourly rate used to calculate costs, we used the Bureau of Labor Statistics (BLS) News Release USDL–23–1305, March 2023 Employer Costs for Employee Compensation— released June 16, 2023 (https:// www.bls.gov/news.release/ecec.nr0.htm, accessed 12/1/2023). This is a standard source we have used in estimating the burden of these regulations as a part of our compliance with the Paperwork Reduction Act. Any person equates to Civil workers. Table 2 lists the hourly rate for full-time workers as $43.07, including benefits. Lineal descendants equate to Private Industry Workers: Table 6 lists the hourly rate for all workers as $40.79, including benefits. Any Affected Party, Indian Tribes/ NHOs, Federal agencies, and museums equates to State and Local Government Workers. Table 3 lists the hourly rate for Professional and related Workers as $67.01, including benefits. Regarding the impact of these regulations on Indian Tribes and NHOs, we anticipate a change in how grant funds are awarded due to the changes in these regulations. During the first five years after publication of the final regulations, grant funds will likely continue to go to consultation and documentation projects to consult and update inventories. After five years, we anticipate more grant funds will be requested by Indian Tribes or NHOs for repatriation assistance or for making requests for repatriation. As noted in Comment 102, the Notice of Funding Opportunity for NAGPRA grants is where any changes to the allowable activities for grants will be made. We do not intend to impose requirements on lineal descendants, Indian Tribes, or NHOs to respond to invitations to consult or to submit claims for disposition or requests for repatriation. Those are actions that lineal descendants, Indian Tribes, and NHOs may choose to take but are not required. We agree there are new requirements for Indian Tribes to take certain actions under Subpart B that under the existing regulations are voluntary. We disagree that all those requirements under Subpart B are new, and we strongly disagree with the estimate provided. As discussed in Comment 70 and Comment 83, we disagree that the Act, the existing regulations, or any other regulations designate that the BIA is responsible for discovery, excavation, and disposition on Tribal lands in Alaska and the continental United States. We agree that Indian Tribes have discretion under the existing regulations in responding to a PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 discovery on Tribal lands and that the final regulations will require Indian Tribes to respond to discoveries on Tribal land. This is to improve consistency with the Act and clarify the responsibilities in these regulations. We understand that in some cases these responsibilities may exceed the capacity or resources of an Indian Tribe, and in those cases, the Indian Tribe can delegate these responsibilities to the Bureau of Indian Affairs or another Federal agency with primary management authority. Lastly, we note that Tribal laws, policies, and administrative capacity vary greatly, and the comments do not seem to take that into account by applying a blanket assumption of the same cost for each Indian Tribe. The comments also do not consider the small number of actions on Tribal lands per year, which is not likely to significantly change based on the final regulations. Regarding the alternative estimates provided by some comments, we believe that any estimate based on current practice or past grant awards is inherently flawed and does not account for the specific objective of the proposed and final regulations to simplify and improve the systematic processes within specific timeframes. We understand that our estimates do not reflect the actual amount of time some museums and Federal agencies currently spend on compliance with these regulations. We strongly disagree, however, that our estimates do not reflect what is required by these regulations. In the 33 years since the passage of the Act, each museum or Federal agency has approached the requirements of these regulations in different ways, and, as a result, there is a wide variation in how much time and money is spent to comply with these regulations. As noted in the proposed regulations and elsewhere in this document, one of our goals in revising the regulations is to improve efficiency and consistency in meeting these requirements. Necessarily, this will mean a difference between our estimated costs for these regulations and current practices. While we understand the objections to our estimates and the concerns about insufficient funding to carry out these requirements, the Secretary, the Assistant Secretary, and the Department are committed to changing the implementation of the Act and to clearing a path to expeditious repatriation as Congress intended. Concerns about the financial burden of the Act and these regulations on museums were expressed even before the Act was passed. In discussing the key compromises made to the final bill E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations in 1990, Representative Campbell stated that limiting the inventory requirement to only human remains and associated funerary objects ‘‘will go a long way to reduce cost to museum and at the same time encourage both sides to sit down early together to discuss their options’’ (136 Cong. Rec. 31938). With this change and the authorization of a grant program to assist museums with the inventory requirements, the Association of American Museums and the Antique Tribal Arts Dealers Association withdrew their objections to the final legislation. As envisioned by Congress, most of the requirements for repatriation under the Act should have been completed by 1995, although extensions were authorized in some cases. In 1990, the Congressional Budget Office (CBO) reviewed the Act and estimated the legislation would cost between $20 million and $50 million over five years. The main costs of the Act were in preparing inventories of human remains, estimated between $5 million and $30 million over five years, ‘‘for museums to provide [T]ribes with the basic information required by the bill.’’ The CBO acknowledged that to some extent, ‘‘the total cost is discretionary— the more funds made available, the more accurate and comprehensive will be the information collected by museums.’’ More extensive and expensive studies might be required for some human remains, but, as the CBO noted, such studies were not required by the Act. CBO noted that ‘‘If museums were required to identify all of their holdings definitively, the costs of this bill would be significantly higher than the $30 million estimate.’’ The other $15 million to $20 million in estimated costs were for identifying funerary objects and completing summaries as well as for Indian Tribes to make claims and repatriate human remains or cultural items (H. Rpt. 101–877, at 21–22). After nearly 33 years of implementation, the total cost of repatriation is clearly discretionary, and, in addition to funds, the more time that has been available to complete an inventory of human remains, the more comprehensive, extensive, and expensive the inventories have become. After meeting the initial deadline for inventories in 1995, many museums and Federal agencies have continued to update inventories at their own discretion, going beyond what is required by the Act and the existing regulations. Under the Act and the existing regulations, an inventory of human remains only requires use of ‘‘information possessed by such museum or Federal agency’’ (25 U.S.C. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 3003(a)). Yet, despite the minimum requirements, hundreds of museums and several Federal agencies submit updated inventories each year. The number of museums updating inventory data is relatively large and accounts for multiple submissions each year from a single museum because the data is updated on a case-by-case basis at the discretion of the museum. Since 1993, the Department has provided estimated hours for tasks under these regulations as a part of its compliance with the Paperwork Reduction Act. These estimates are far below the estimates provided by some comments, but these estimates have been consistently used by the Department and reflect what the Department believes is required by the Act and these regulations. The 1993 Proposed Rule included an estimate of ‘‘100 hours for the exchange of summary/inventory information between a museum or Federal agency and an Indian [T]ribe or Native Hawaiian organization . . .’’ (58 FR 31124). From 1993 until publishing the proposed regulations in 2022, we continued to use the estimate of 100 hours per museum for a new summary or inventory. This is far less than the comment that stated a museum spends 19,000 hours per year on its inventory and summary and related tasks. The 1993 Proposed Rule included an estimate of ‘‘six hours per response for the notification to the Secretary, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collected information’’ (58 FR 31124). In 2012, we increased this estimate to 10 hours per notice. This is less than the estimate provided in the comments of 120 hours to facilitate a notice, including gathering and maintaining data and reviewing and verifying the information, or the estimated range of two hours to 30 hours, for a median of 16 hours, to just complete the notice template. The estimate based on previous grants suggests a notice costs $14,416 each which equates to between 120 hours and 225 hours per notice, depending on the hourly rate applied. We agree with the one comment that stated the number of notices is irrelevant to estimating the burden involved. Although not explicitly stated in the existing regulations, the final regulations clearly state that museums or Federal agencies may include in a single notice all human remains and associated funerary object having the same lineal descendant or cultural affiliation for efficiency and expediency. The PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 86457 comment that stated 31 notices could have been combined in to one notice demonstrates the discretion museums and Federal agencies exercise in complying with these regulations. The 2010 Final Rule added a new estimate related to the new regulatory requirements. Under the regulations, museums and Federal agencies were required to (1) provide to Indian Tribes and NHOs a list of Indian groups without Federal recognition that may have a relationship to human remains and associated funerary items and (2) request from Indian Tribes and NHOs the temporal and/or geographic criteria used to identify the groups of human remains to be included in consultation. The estimated burden on museums for this collection of information was 30 minutes total, including time for reviewing existing data sources, gathering and maintaining data, and preparing a transmission to other consulting parties. In the 2022 Proposed Rule, we renamed this requirement ‘‘Initiating consultation and requesting information,’’ and we increased the estimated time required to range from less than one hour, or 0.50 hours, up to 5 hours, or a median of 2.75 hours. This is far less than the comments that suggested this should be much higher and range from 40 hours to 140 hours, or a median of 90 hours to initiate consultation and request information. In preparing the Cost-Benefit and Regulatory Flexibility Threshold Analyses for the 2022 Proposed Rule, we accounted for all actions that are required under the existing regulations to calculate the baseline conditions. We disagree that our estimate is missing required tasks, and the tasks identified by comments as missing are generally included in the estimate for conducting consultation. The costs of conducting consultation vary greatly, depending on the size and complexity of the consultation. However, we note that consultation does not require any specific documentation beyond what was already prepared in the initial summary or inventory. The additional tasks of inventory/packet/ documentation preparation or even moving items from storage for purposes of consultation are not required by the regulations. A physical inspection of a collection is not required by these regulations, although we understand that for some museums, lineal descendants, Indian Tribes, or NHOs, in person consultation is preferred. As for the costs of physical transfer, we address this further in Comments 51 and 66 in this document. Physical transfer, and any costs that accompany that effort, are not required by these E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86458 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations regulations, and we note that grants are provided specifically for assisting with the costs of physical transfer. As these comments clearly emphasize, the burden estimates vary widely. In its 1990 evaluation of the Act, the Congressional Budget Office made a similar conclusion, noting ‘‘[t]here is considerable disagreement about the nature of the inventory required by H.R. 5237,’’ and widely varied estimates of costs. In the end, the CBO estimated only $5 million to $30 million over five years would be required which reflected the ‘‘costs of an inventory of museums’ collections, as well as a review of existing information to determine [Tribal] origin’’ (H. Rpt. 101–877, at 22). 5. Comment: We received 25 comments expressing concerns for the protection of sensitive information in the regulations. Some comments suggested use of the Privacy Act and the Archeological Resources Protection Act (ARPA) to withhold information about human remains and cultural items. Other comments suggested changes to the regulations to require that museums and Federal agencies keep sensitive information confidential. DOI Response: While we appreciate the suggestions, we cannot make the requested changes. First, neither the Privacy Act nor ARPA apply. Deceased individuals do not have any Privacy Act rights, nor do executors or next-of-kin. See, generally, OMB 1975 Guidelines, 40 FR 28, 40 FR 951 (also available at https://www.justice.gov/paoverview_ omb-75, accessed 12/1/2023) (stating ‘‘the thrust of the Act was to provide certain statutory rights to living as opposed to deceased individuals’’ and ‘‘the Act did not contemplate permitting relatives and other interested parties to exercise rights granted by the Privacy Act to individuals after the demise of those individuals’’). Similarly, the exemption from disclosure under ARPA applies specifically to ‘‘the nature and location of any archaeological resource for which the excavation or removal requires a permit or other permission under [ARPA] or under any other provision of Federal law’’ (16 U.S.C. 470hh(a)). Thus, the ARPA provision is directed to archaeological resources that would require a permit for excavation or removal, which applies to some but not all human remains and cultural items under the Act and these regulations. In the proposed regulations and in these final regulations, the Department has taken steps to remove requirements for museums or Federal agencies to disclose sensitive information in an inventory, summary, or notice. While we cannot dictate how a museum or VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 Federal agency responds to a request for disclosure of sensitive information, we encourage a museum or Federal agency, at the request of a lineal descendant, Indian Tribe, or NHO, to ensure that information of a particularly sensitive nature is not made available to the public. Since 1995, the Department has recommended museum or Federal officials ensure that sensitive information does not become part of the public record by not collecting, or writing down, such information in the first place (1995 Final Rule, 60 FR 62154). 6. Comment: We received 43 comments requesting additional action by the Department of the Interior outside of these regulations. Of that total, nine comments requested the Department impose NAGPRA-related conditions on any museum that received any Federal grant. Seven comments requested the Department move the National NAGPRA Program out of the National Park Service. A total of 11 comments requested the Department conduct more consultation on these regulations before issuing final regulations; five comments requested consultation with only Indian Tribes and NHOs while six comments requested consultation with all constituents. Five comments requested further engagement with the Department on these regulations. Five comments requested the Department conduct or request an audit of the National NAGPRA Program, Federal agency compliance, or the grant program. Four comments requested the Department provide more information about the changes to these regulations, either through training or simplified documents outlining the changes. One comment requested the Department ensure its own bureaus follow these regulations. One comment requested the proposed regulations be withdrawn and the Department start a new effort to develop these regulations in consultation with Indian Tribes and NHOs. DOI Response: We appreciate the requests for additional action by the Department. We agree that additional information about changes to these regulations will be needed, and we plan on providing as many opportunities as we can for training sessions, discussions, and guidance documents once the regulations are effective. We welcome any other suggestions for how we can support museums, lineal descendants, Indian Tribes, or NHOs with these regulations. We are working to ensure all the bureaus within the Department of the Interior have PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 adequate staffing and support to ensure compliance with these regulations. We decline to include in these regulations a requirement for imposing NAGPRA-related conditions on Federal grants. All Federal grant recipients are required to provide assurances that they will comply with all applicable requirements of Federal laws, regulations, and policies (see ‘‘Assurances for Construction/NonConstruction Programs (SF–424D and SF–424B)’’ at https://www.grants.gov/ forms/forms-repository/sf-424-family, accessed 12/1/2023). While we cannot include the requested provisions in these regulations, we agree to work with the Office of Management and Budget to explore whether and how a NAGPRAspecific condition might be included in the general assurances required for all Federal grant programs. We decline to withdraw the proposed regulations or to engage in additional consultations at this time. We are committed to implementing the final regulations as soon as possible to ensure these longoverdue changes are implemented. Regarding the location of the National NAGPRA Program, we appreciate the input we received during Tribal consultation in 2021 and in response to the proposed regulations. Currently, we have not decided about the future location of the National NAGPRA Program. Regarding the requests for an audit of the National NAGPRA Program, Federal agency compliance, or the grant program, all Federal agency programs, including the National NAGPRA Program, Federal agency NAGPRA programs, and the NAGPRA grant program, are subject to regular internal control reviews under the Office of Management and Budget Circular A– 123, Management’s Responsibility for Enterprise Risk Management and Internal Control (revised 7/15/2016). Along with other management and performance evaluation processes, the National NAGPRA Program and all Federal agency programs undergo routine and regular review. We will continue to consider the need for additional management oversight. 7. Comment: We received 22 comments concerning how the regulations should balance the interests of, on the one hand, repatriation, and on the other hand, scientific study. Of that total, 17 comments outright objected to the regulations giving museums or Federal agencies decision-making authority for disposition or repatriation. Thirteen of these comments, which came from one submission, asserted that decisions on cultural affiliation, evaluation of requests, repatriation, and competing requests should be in the E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations hands of the appropriate Indian Tribes or NHOs and not museums and Federal agencies (see NPS–2022–0004–0157). Four comments provided similar sentiments. One comment requested that an independent authority evaluate decisions made by museums and Federal agencies. One comment noted that despite positive changes, the proposed regulations still had not truly shifted the burden of having to prove the identity or cultural affiliation of human remains or cultural items off Indian Tribes or NHOs because the regulations did not give the power of decision making to Indian Tribes or NHOs. By contrast, two comments objected to the proposed regulations claiming that they eliminate the balance of interests that Congress intended when it passed the Act. Both comments referenced or quoted from statements made by Senators Inouye and McCain in 1992, to the effect that the Act represents a balance between scientific study and respectful treatment of human remains and cultural items. One of these comments stressed that the proposed regulations were inherently imbalanced because they were developed through consultation only with Indian Tribes and NHOs and not with museums, scientific organizations, and Federal agencies (see NPS–2022– 0004–0150). Citing to ‘‘. . . words such as ‘balance’ and ‘compromise’ [in] describing the law in a special issue of the Arizona State Law Journal published shortly after the bill was passed (vol. 24, 1992),’’ the other objecting comment stated, ‘‘[i]n my view, a rule published in 2010 (43 CFR 10.11) began to move NAGPRA away from the balance that Congress intended. The new regulations proposed here would make that balance go away entirely’’ (see NPS–2022–0004– 0172). Three comments directly refuted the two objecting comments as gross misrepresentations of the Act. One of these comments concluded that the imbalance is because the Act vests decision making with museums and Federal agencies and stated ‘‘where there is disagreement between institutions and Tribes regarding affiliation, it requires that the Tribes take extraordinary lengths to press claims. The challenge is, can this rule or any rule really overcome the inherent imbalance in the Act?’’ (see NPS–2022– 0004–0129). Another comment supported the proposed regulations in trying to shift the balance more toward Indian Tribes and NHOs because, since 1990, repatriation has been too slow, and the burdens placed on Indian Tribes and NHOs has been too great. The VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 comment supported the proposed regulations as representing the ‘‘continued evolution to ensure NAGPRA’s relevance to its true constituents-Indian [T]ribes and Native Hawaiian organizations’’ (see NPS– 2022–0004–0080). A third comment refuting the objecting comments stated: Though some argue that repatriation is a weighing of interests between science and human rights, that interest is absent from the Act, which is singularly aimed at providing restitution. The Act creates an administrative process for repatriation and disposition to provide restitution for harms that have been called out by Congress as genocide and human rights violations. The only exception the Act provides to repatriation is when a museum or agency can prove that they have a ‘‘right of possession.’’ Even permitting completion of a scientific study of major benefit to the United States does not prevent repatriation, and will only delay it. 25 U.S.C. 3005(b). Museums—even well-funded ones—have admitted that they will not be proactive with their CUI inventories, even with the NAGPRA funding they request, and that instead, they will continue to work to overcomplicate the process, based on the current regulations and criteria outlined there. Thus, it is imperative that the Secretary take over this duty and correct the Ancestors and their belongings that languish under a label called ‘‘unidentifiable’’ (NPS– 2022–0004–0153). DOI Response: Nowhere in the Act did Congress say that decisions about disposition or repatriation are made by balancing the interests of science against the interests of human rights. While we are aware of the statements made by Senators Inouye and McCain in 1992, we understand those statements to say that the Act itself is the product of balancing these interests. The lengthy process of developing, drafting, and agreeing to the language of the Act is how Congress ensured a balance between scientific study and respectful treatment of human remains and cultural items. To ensure all information related to the Congressional record is available, the documents that provide legislative intent are available on the National NAGPRA Program website (https:// www.nps.gov/subjects/nagpra/thelaw.htm, accessed 12/1/2023). Beyond the two reports, the Congressional Record provides statements by individual members of Congress. In the Senate, Senator Inouye’s full statement is available in the Congressional Record Senate (October 26, 1990) on page 35678–35679. Senator McCain’s opening statement is on the preceding page 35677. A discussion of the impact of the legislation on development activities on Federal lands by Senators McCain and Simpson is on page 35679– PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 86459 35680. In the House, Representatives Campbell (D–CO), Rhodes (R–AZ), Collins (D–IL), Richardson (D–NM), Bennett (D–FL), Mink (D–HI), and Udall (D–AZ) provided statements in the Congressional Record House (October 22, 1990) on pages 31937–31941. We agree with the objecting comments that the Congressional record is replete with references to the balance, compromise, and agreement in both the process to develop the Act and in the content of the Act itself. We agree with the objecting comments that the Act creates a balance, but we believe that the balance is built into the Act itself through compromises made in the Act before its final passage. The objecting comments appear to indicate that the balance Congress intended comes in only repatriating some human remains and even fewer associated funerary objects (as suggested by the objecting comments reference to the 2010 Final Rule) or that in each decision on disposition or repatriation, a museum or Federal agency must balance the interests of science with those of human rights. We disagree with this interpretation of the legislative history. The Congressional record of the House clearly identified ‘‘points of compromise’’ in the final version of the Act. Representatives Campbell and Richardson stated the Act represents a compromise on the following issues: 1. Limiting the inventory requirement to only human remains and associated funerary objects rather than all Native American collections; 2. Clarifying the definition of cultural affiliation to incorporate anthropological and archeological criteria (i.e., traced historically or prehistorically); 3. Adding a standard of repatriation for unassociated funerary objects, sacred objects, and objects of cultural patrimony by defining ‘‘right of possession;’’ 4. Tightening the definitions of unassociated funerary objects and sacred objects; 5. Clarifying the definition of museum to not apply to private individuals who receive Federal payments such as social security; and 6. Balancing representation of the Review Committee to include all groups affected by the Act. Representative Campbell’s statement included two other compromises in the final version of the Act: The bill takes into account that many of these items may be of considerable scientific value and allows for current studies to continue with repatriation occurring after the completion of such a study. It further acknowledges that repatriation is not the only alternative and I encourage all sides to try and work out agreeable compromises where all interested parties can benefit from E:\FR\FM\13DER2.SGM 13DER2 86460 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 access to some of the items (136 Cong. Rec. 31938, emphasis added). We agree with the last comment summarized above that the only exception to expeditious repatriation under the Act is proving a ‘‘right of possession’’ (25 U.S.C. 3005(c)). Any need to complete a scientific study does not prevent repatriation but only delays it (25 U.S.C. 3005(b)). In addition, we note that any need to excavate human remains or cultural items on Federal or Tribal lands is only permitted after consultation (on Federal lands) or consent (on Tribal lands), and that regardless of any scientific study, disposition of human remains or cultural items to the appropriate lineal descendant, Indian Tribe, or NHO is always required (25 U.S.C. 3002(c)). Accordingly, we conclude that the objective of the systematic processes in the Act is the disposition or repatriation of human remains or cultural items, not to achieve any kind of balance between the interests of science and the interests of human rights. We intend these regulations to better align with the processes for disposition and repatriation found in the Act. In these regulations, we cannot remove the decision-making authority vested in museums and Federal agencies because doing so would be inconsistent with the Act. We can, and have, included requirements for museums and Federal agencies to consult, collaborate, and, in the case of scientific study or research, obtain consent from lineal descendants, Indian Tribes, or NHOs (see Comment 15). In addition, these regulations require museums and Federal agencies to defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and NHOs in all decision-making steps. In developing both the proposed and final regulations, we emphasized consultation with Indian Tribes and NHOs and incorporated comments from consultation to the maximum extent possible. This does not indicate an imbalance in the process to develop these regulations or in the resulting product, but rather reflects the special relationship between the Federal government and Indian Tribes and NHOs (25 U.S.C. 3010). Furthermore, while the Act is the primary authority for these regulations, Congress authorized the Secretary to make such regulations for carrying into effect the various provisions of any act relating to Indian affairs (25 U.S.C. 9). As the Act is Indian law (Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 this provision under the broad authority to supervise and manage Indian affairs given by Congress (United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). Finally, a statement in the Congressional record by Senator Inouye is directly relevant to the objective of these revised regulations to better reflect Congressional intent: This legislation is designed to facilitate a more open and cooperative relationship between native Americans and museums. For museums that have dealt honestly and in good faith with native Americans, this legislation will have little effect. For museums and institutions which have consistently ignored the requests of native Americans, this legislation will give native Americans greater ability to negotiate. Mr. President, I believe this bill represents a major step in correcting an injustice that started over 100 years ago. It is appropriate that Congress take an active role in helping to restore these rights to native Americans and I urge the adoption of this measure by the Senate (136 Cong. Rec. 35678). 8. Comment: We received two comments requesting the Department develop guidance and a framework to establish reburial areas for repatriated collections. The comments point to the U.S. Department of Agriculture, Forest Service, as an example of how landmanaging Federal agencies can assist and support reburials on Federal lands. DOI Response: We appreciate the request, and we understand the significant issues involved with securing lands for reburial. While this request is outside the scope of these regulations, the Department will consider how guidance and policy might be used to effectuate the requested change. B. Section 10.1 Introduction 9. Comment: We received 42 comments on § 10.1(a) Purpose. Of that total, 18 comments supported the revised paragraph, specifically the inclusion of deference to lineal descendants, Indian Tribes, and NHOs in the purpose paragraph. An additional 19 comments, while generally supportive, also suggested changes to the paragraph. Suggested changes include adherence to the purpose as stated by Congress, emphasizing the limited exceptions to disposition or repatriation, a significant change to verb tense, and defining and referencing deference in the regulatory text. On the other hand, four comments specifically objected to the inclusions of deference in the purpose paragraph and expressed concerns about how deference applies when there are disagreements among Indian Tribes or when other requirements or definitions do not allow PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 for deference to lineal descendants, Indian Tribes, or NHOs. One comment generally objected to the change in the purpose as an entire rewrite of the regulations that would impede the systematic repatriation process. DOI Response: We specifically requested input on the proposed purpose paragraph, and we appreciate the response and have made changes where permissible. As many comments indicate, the proposed purpose paragraph was not as clear or effective as we had intended. Although some comments suggested we delete the sentence on the rights the Act recognizes, we have retained the sentence given the number of supporting comments we received, but we have changed the verb tense as requested. We have revised the purpose paragraph as suggested by several comments to paraphrase the language used by Congress (H. Rpt. 101–877, at 8) which outlines the two separate processes for disposition and repatriation under the Act. The purpose paragraph uses plain language to describe the overall goals of these two separate processes for disposition and repatriation (protect and restore). In response to the objections and concerns about deference, we have included both consultation and deference as a part of the purpose for these regulations to ensure meaningful consideration of Native American traditional knowledge throughout these processes. It is through consultation and deference that these regulations ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. 10. Comment: We received four comments on § 10.1(b) Applicability. Three comments suggested editorial changes to the paragraph while one comment strongly supported the paragraph, especially with its focus on museums and Federal agencies as the applicable party. DOI Response: Considering the revisions to § 10.1(a), we have made changes to this paragraph to emphasize the applicable parties that are responsible for each major section of these regulations. We tried to make this paragraph clear that many parts of the Act and these regulations are not limited to Federal or Tribal lands. In response to other comments on the requirements of these regulations, we have clarified that lineal descendants, Indian Tribes, and NHOs are not required to consult or to make a claim for disposition or a request for repatriation. 11. Comment: We received two comments related to § 10.1(c) Accountability. One comment suggested E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations requiring a duty of candor by museums and Federal agencies to disclose any human remains or cultural items that were destroyed, deaccessioned, lost, or in any other way removed from the provisions of these regulations. One comment suggested adding transparency to the accountability requirements. DOI Response: We cannot make the requested change regarding candor as it is contrary to the requirements of the Act. A museum or Federal agency must compile a summary of cultural items and an itemized list of human remains and associated funerary objects in its possession or control (25 U.S.C. 3003(a) and 3004(a)). Based on the information available, a museum or Federal agency must determine if human remains or cultural items that are destroyed, deaccessioned, lost, or in any other way removed are under its possession or control and therefore subject to these regulations. We note that in these regulations, as in the proposed regulations, a museum or Federal agency must ensure the summary and itemized list are comprehensive and cover any holding or collection relevant to § 10.9 and § 10.10. 12. Comment: We received five comments objecting to § 10.1(d) Duty of care because the requirements went beyond the statutory authority and should be recommendations not requirements. Some of these comments suggested that the costs to comply with this paragraph would be substantial, that additional curation and collections facilities may need to be constructed, and that conflicts might arise with standard curation, conservation, and preservation principles or practices. One comment questioned how conflicts among Indian Tribes should be handled. Another comment stated that research on human remains and cultural items is necessary to determine cultural affiliation and, therefore, the requirements in this paragraph conflict with the requirements in § 10.3. One comment suggested that ‘‘to the maximum extent possible’’ and ‘‘safeguard and preserve’’ should be replaced with ‘‘reasonable effort’’ and a cross-reference to requirements in 36 CFR part 79, respectively. DOI Response: We disagree that these requirements go beyond the statutory authority or that these requirements should only be recommendations. The Secretary’s authority for promulgating these regulations is discussed extensively in other responses to comments (see Comment 7), the 2010 Final Rule (75 FR 12379), and the 2022 Proposed Rule (87 FR 63207). Given the number of supporting comments for this paragraph during consultation in 2021, VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 including from the Secretary’s Federal Advisory Review Committee (Review Committee), and comments on the proposed regulations requesting we strengthen these requirements (see Comments 13–17), we chose not to revise these requirements into recommendations. We strongly disagree with the comment that research on human remains or cultural items is required by the Act or these regulations to determine cultural affiliation or for any other purpose. Rather, the Act explicitly and specifically does not require new scientific studies or other means of acquiring or preserving information (25 U.S.C. 3003(b)(2)), and we have incorporated similar language into this paragraph to clarify (see Comment 16). Earlier drafts of these regulations referenced 36 CFR part 79, as suggested by one comment, but we received substantial negative feedback on this during consultation in 2021 and from the Review Committee. Most of that feedback felt the inclusion of 36 CFR part 79 in these regulations was confusing or concerning. Federal agencies and their repositories must still care for and manage collections that are covered by the provisions of 36 CFR part 79. Regarding speculation on substantial costs, conflicts with conservation and preservation principles, and conflicts among lineal descendants, Indian Tribes, or NHOs, the final regulations now require museums and Federal agencies to make a ‘‘reasonable and good-faith effort’’ to incorporate and accommodate Native American traditional knowledge in the storage, treatment, or handling of human remains or cultural items (see Comment 14). 13. Comment: We received 16 comments supporting § 10.1(d) Duty of care as proposed while 23 comments were generally supportive but suggested changes to strengthen the requirements. Many comments requested this paragraph clearly apply to all Native American collections, even those on loan or where specific cultural items subject to the Act have not been identified. Some comments specifically requested ‘‘custody’’ be deleted from the paragraph in line with requested changes to expand ‘‘possession or control’’ or that this paragraph clearly state that a museum or Federal agency only has a duty of care and does not have rightful ownership of Native American human remains or cultural items. Several comments requested a definition of ‘‘care for, safeguard, and preserve.’’ One comment requested this paragraph include a requirement for the National NAGPRA Program to make PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 86461 sporadic inspections of all museums and Federal agencies to ensure professional museum and archival standards are met, including physically securing collections through clean, rodent-free, and locked areas with limited access. One comment requested additional clarifying language to ensure these requirements do not serve as a justification to delay or avoid repatriation. One comment requested two additional paragraphs be included to require museums and Federal agencies to provide specific and detailed information on any study or research of Native American collections conducted after 1990, including copies of published work and photographs. DOI Response: We cannot require that this paragraph, or this part, apply to all Native American collections as that would be inconsistent with the Act (25 U.S.C. 3003(a) and 3004(a)). The requirements of this paragraph are limited to human remains and cultural items as defined by the Act and these regulations. We cannot remove ‘‘custody’’ from the first sentence and still ensure that this paragraph will apply to human remains and cultural items that are on loan but still subject to the Act (see the definitions of ‘‘custody’’ and ‘‘possession or control’’ discussed elsewhere). We have intentionally included ‘‘custody’’ in the duty of care requirement to ensure all Native American human remains and cultural items are cared for, safeguarded, and preserved until the disposition and repatriation processes are complete. However, the inclusion of museums or Federal agencies with ‘‘custody’’ is not intended to limit the ability of the museum or Federal agency with possession or control of the human remains or cultural items from carrying out its responsibilities under this paragraph or these regulations. We cannot include the requested statement on rightful ownership as it would be contrary to the provisions of the Act where a museum or Federal agency can prove it has a right of possession to a cultural item. We have not changed or defined ‘‘to care for, safeguard, and preserve,’’ and these terms should be understood to have a standard, dictionary definition. We believe these terms, along with paragraphs (d)(1), (d)(2), and (d)(3), are sufficient to ensure an adequate standard of care for human remains and cultural items, including that the human remains or cultural items are properly stored and physically secured in a clean and locked area and are reasonably believed to be safe from damage or destruction by pests or natural elements. We believe the E:\FR\FM\13DER2.SGM 13DER2 86462 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 timelines included in the disposition or repatriation processes ensure that these requirements will not be used to delay or avoid repatriation, and we note that any request for an extension of the deadlines for repatriation or for a stay of repatriation for scientific studies would require consultation with and consent of the appropriate lineal descendant, Indian Tribe, or NHO. While we appreciate the suggestion to require information on any past research or study be provided to lineal descendants, Indian Tribes, or NHOs as a part of a duty of care, this provision is already provided for in §§ 10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal descendants, Indian Tribes, and NHOs have a right to request records, catalogues, relevant studies, or other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies are required to share that information (25 U.S.C. 3005(d)). As required by the Act, additional information is only provided upon request of an Indian Tribe or NHO, and we cannot make this a requirement that applies to all human remains or cultural items absent such a request. In conjunction with that reasoning, we have removed the requirement for lineal descendants, Indian Tribes, or NHOs to first make a request for the duty of care requirements that follow, and we have removed ‘‘to the maximum extent possible’’ from the introductory phrase (see Comment 14). We have revised this paragraph to include paragraphs (d)(1), (d)(2), and (d)(3) on what a museum or Federal agency must do as a part of its more general duty of care for human remains or cultural items. These three requirements align with the purpose of the Act, these regulations, and Congressional intent, which was stated as follows: The [Senate] Committee intends the provisions of this Act to establish a process which shall provide a framework for discussions between Indian [T]ribes and museums and Federal agencies. The Committee believes that the process established under this Act will prevent many of the past instances of cultural insensitivity to Native American peoples. The Committee has received testimony describing instances where museums have treated Native American human remains and funerary objects in a manner entirely different from the treatment of other human remains. Several [T]ribal leaders expressed their outrage at the manner in which Native American human remains had been treated, stored or displayed and the use of culturally sensitive materials and objects in violation of traditional Native American religious practices. In the long history of relations between Native Americans and museums, these culturally insensitive practices have occurred because of the failure of museums VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 to seek the consent of or consult with Indian [T]ribes (S. Rpt. 101–473, at 3). Section 10.1(d)(1) requires museums and Federal agencies to consult on the appropriate storage, treatment, or handling of human remains or cultural items, which was reiterated in the proposed regulations at §§ 10.4, 10.9, and 10.10. In these final regulations, we have revised those specific sections to refer to this paragraph. Section 10.1(d)(2) requires museums and Federal agencies to make a reasonable and good-faith effort to incorporate and accommodate requests made by consulting parties (see Comment 14). Section 10.1(d)(3) requires museums and Federal agencies to obtain consent from consulting parties prior to any exhibition of, access to, or research on human remains or cultural items (see Comment 15–17). 14. Comment: Of the 23 comments requesting we strengthen the duty of care requirements, many requested ‘‘deference’’ replace ‘‘to the maximum extent possible.’’ In addition, all comments objecting to the duty of care requirements raised concerns about the vagueness of this phrase and the potential for conflict between and among consulting parties on the implementation of this phrase. DOI Response: We have removed the phrase and revised § 10.1(d)(2) to require museums and Federal agencies make a reasonable and good-faith effort (in place of ‘‘to the maximum extent possible’’ in the proposed regulations) to incorporate and accommodate the Native American traditional knowledge in caring for human remains or cultural items. As the purpose of the Act and these regulations is the disposition or repatriation of human remains and cultural items, museums and Federal agencies must prioritize requests for storage, treatment, or handling by lineal descendants, Indian Tribes, or NHOs who will be the future caretakers of the human remains or cultural items. These requests may require alterations or exceptions to standard curation or preservation practices. In addition, as noted elsewhere, when consultation on the duty of care does not result in consensus, agreement, or mutually agreeable alternatives, the consultation record must describe the concurrence, disagreement, or nonresponse of the consulting parties. As an example of how this requirement might be implemented, a consulting Indian Tribe might request that an offering of organic material be placed with human remains until repatriation and physical transfer of the PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 collection is complete. During consultation, the museum and Indian Tribe might agree on how to accommodate this request while still protecting and preserving the collection. The resulting agreement might include increased pest monitoring in the area with the offering, enclosing the offering in a glass jar next to the human remains or cultural items, or identifying an alternative location for the offering. As another example of this requirement, a consulting Indian Tribe might request that a particular type of oil or substance be applied to an animal hide that is incorporated into a cultural item. Traditional knowledge indicates that the oil or substance provides both physical and spiritual protection of the cultural item until it is repatriated. During consultation, the museum and Indian Tribe could agree on the appropriate individual, possibly a trained conservator or a Tribal member, and the appropriate method to apply the substance that does not affect other parts of the cultural item or other items in the collection. Other examples of requests a lineal descendant, Indian Tribe, or NHO might make for specific human remains or cultural items in a collection include smudging in a collection storage space; using specific cloth to cover collections; restrictions on who, how, or when collections are handled; orienting collections in a certain direction; storing certain collections separately or storing certain collections together. Each of these requests must be considered in light of other policies or systems, such as safety precautions, fire suppression systems, human resource policies, or space limitations. Through consultation, these requests may be incorporated and accommodated in a mutually agreeable way. Resources from the School for Advanced Research and the American Alliance of Museums are available to assist all parties with these types of discussions and accommodations (‘‘Standards for Museums with Native American Collections,’’ May 2023, https://sarweb.org/iarc/smnac/, and ‘‘Indigenous Collections Care Guide,’’ publication pending, https://sarweb.org/ iarc/icc/, accessed 12/1/2023). 15. Comment: Of the 23 comments requesting that we strengthen the duty of care requirements, many requested that museums and Federal agencies must obtain consent from lineal descendants, Indian Tribes, or NHOs before any activity occurs that involves any Native American collections, but especially prior to allowing access to or research on human remains and cultural items. Some comments requested adding a requirement to remove human E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 remains or cultural items from display or public access. Some comments requested replacing ‘‘Limit’’ with ‘‘Prohibit’’ and include ‘‘exhibition of’’ with ‘‘access to and research on’’ in § 10.1(d)(3). One of the comments objecting to the duty of care requirement stated that a limitation on research conflicted with the requirements for determining cultural affiliation, which requires research. In addition to these comments, 45 comments on provisions for ‘‘scientific study’’ found in Subpart C echoed these requests that the regulations strengthen the protection of human remains or cultural items in holdings or collections. Most of these comments requested that museums and Federal agencies obtain consent from lineal descendants, Indian Tribes, or NHOs prior to allowing any research on human remains or cultural items. The second largest group of comments suggested that museums and Federal agencies must consult with lineal descendants, Indian Tribes, or NHOs prior to allowing research on human remains or cultural items. One comment from a museum and scientific organization requested that the regulations better align with the ethical principles of professional archaeological and anthropological organizations, which call for input, consensus, and informed consent from descendant communities (NPS–2022–0004–0139). One comment from an Indian Tribe explained that research and scientific studies continue to be conducted on human remains and cultural items, despite the repeated requests of Indian Tribes, and this research and study has delayed or even prevented repatriation in some cases. The comment states: We have raised these issues many times at the Congressional level before the Senate Committee on Indian Affairs and before the NAGPRA Review Committee and nothing was done to prevent the illegal study of our relatives or the lengthy delays in their repatriation and reburial. Changes must be made now to prevent any further privileged use of the Act by agencies and museums who have been allowed to ignore the plain speech in the Act regarding the study of our deceased ancestors and their burial property. It is plain to see that agencies and museums have had more than enough time (the 33 years that NAGPRA has existed plus all the decades our relatives sat ignored and collecting dust in museum or agency repositories) to conduct their illegal studies and analyses of our poor deceased relatives and their burial property and insist that steps be taken now to prevent any further studies of our deceased relatives and their burial property (NPS–2022–0004–0123). DOI Response: In response to these comments, we revised § 10.1(d)(3), by replacing ‘‘Limit’’ with ‘‘Obtain free, VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 prior, and informed consent’’ and adding ‘‘exhibition of’’ to ‘‘access to or research on human remains or cultural items.’’ We cannot, as requested by some comments, prohibit exhibition, access, or research on human remains or cultural items as that would exceed the Secretary’s authority under the Act and would be contrary to Congressional intent. While the Act is the primary authority for these regulations, Congress authorized the Secretary to make such regulations for carrying into effect the various provisions of any act relating to Indian affairs (25 U.S.C. 9). As the Act is Indian law (Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate this provision under the broad authority to supervise and manage Indian affairs given by Congress (United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). Ambiguities in statutes passed for the benefit of Indians are to be construed to the benefit of the Indians (Bryan v. Itasca County, 426 U.S. 373 (1976)). The Act does not prohibit museums or Federal agencies from conducting scientific studies of human remains or cultural items but does clearly state that such studies are not authorized by or required to comply with the Act (25 U.S.C. 3003(b)(2)). The Act allows for a scientific study to delay, but not to prevent, repatriation (25 U.S.C. 3005(b)). The Act provides only one exception to expeditious repatriation by proving a ‘‘right of possession’’ (25 U.S.C. 3005(c)). In addition, the Act allows for excavation of human remains or cultural items from Federal or Tribal lands for purposes of a study, but only after consultation (on Federal lands) or consent (on Tribal lands) (25 U.S.C. 3002(c)). As a result, there is some ambiguity in the Act related to scientific study, which has been interpreted to mean that the Act neither authorizes nor prohibits scientific study of human remains or cultural items. In exercising the Secretary’s authority for these regulations, the Department considered both the legislative and regulatory history related to scientific study of human remains or cultural items subject to the Act, as well as related recommendations from the Review Committee who is responsible for monitoring the repatriation process (25 U.S.C. 3006(c)(2)). The legislative history shows Congress intended for the Act to give lineal descendants, Indian Tribes, and NHOs a more equitable voice in any future scientific study of human remains or cultural items. One central goal of the Act was ‘‘to allow for the PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 86463 development of agreements between Indian [T]ribes and museums which reflect an understanding of the important historic and cultural value of the remains and objects in museums collections’’ (S. Rpt. 101–473, at 4). The Senate Report provided a model of this kind of agreement where a museum agreed to return human remains to an Indian Tribe for burial, and the Indian Tribe chose to bury the human remains in a specially designed crypt that could be opened periodically to provide access for scientists to continue the study of the human remains. Earlier drafts of the legislation allowed for a request for repatriation to be denied if the requested item was part of a scientific study (H. Rpt. 101–877, at 11). In explaining the substitute amendment that ultimately became the Act, Congress explained the change to only delaying, not denying, repatriation for a scientific study was a means of urging ‘‘the scientific community to enter into mutually agreeable situations with culturally affiliated [T]ribes in such matters’’ (H. Rpt. 101–877, at 15). As discussed in Comment 7, in describing the compromises in the final legislation, Representative Campbell stated that the Act acknowledges ‘‘that many of these items may be of considerable scientific value’’ and ‘‘that repatriation is not the only alternative.’’ Representative Campbell recommended ‘‘agreeable compromises where all interested parties can benefit from access to some of the items’’ (136 Cong. Rec. 31938). Similarly, in urging the passage of the bill, Senator Inouye stated ‘‘[f]or museums and institutions which have consistently ignored the requests of native Americans, this legislation will give native Americans greater ability to negotiate’’ (136 Cong. Rec. 35678). This sentiment was echoed by Senator Akaka who stated the Act would, among other things, ‘‘eliminate the longstanding policy of scientific research on future remains found’’ (136 Cong. Rec. 35678). In its final version, the Act used the term ‘‘scientific study’’ twice. First, in describing what documentation may be requested, the Act explicitly and specifically does not require new scientific studies on human remains or associated funerary objects (25 U.S.C. 3003(b)(2), referred to here as ‘‘scientific studies are not required’’). Second, the Act requires that when a specific scientific study of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony will result in a major benefit to the United States, a museum or Federal agency may postpone repatriation but E:\FR\FM\13DER2.SGM 13DER2 86464 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations may not deny the request for repatriation (25 U.S.C. 3005(b)), referred to here as ‘‘delay for scientific study’’). The regulations as proposed in 1993 and as promulgated in 1995 addressed only the delay for scientific study under the exceptions to repatriation in § 10.10. The regulations included the statutory language on documentation of human remains at § 10.9 but did not include that scientific studies are not required. The 1995 Final Rule made a reference to both scientific study provisions in responding to one comment that repatriation could not occur until a scientific analysis was completed. The Department responded stating: khammond on DSKJM1Z7X2PROD with RULES2 Section 5 (a) specifies that the geographic and cultural affiliation of human remains and associated funerary objects be determined ‘to the extent possible based on information possessed by the museum of Federal agency.’ No new scientific research is required. Delaying repatriation until new scientific research is completed contradicts the intent of Congress unless that scientific research is considered to be of major benefit to the United States (60 FR 62156). The 2007 Proposed Rule, Disposition of Culturally Unidentifiable Human Remains, added that scientific studies are not required to the paragraph on documentation of human remains at § 10.9. The 2007 Proposed Rule added text to explain (1) any documentation provided is a public record and (2) a request for documentation cannot be construed as authorizing a new scientific study or other means of acquiring information. These additions were drawn directly from the Review Committee’s recommendations on culturally unidentifiable human remains (discussed below). In the 2010 Final Rule, Disposition of Culturally Unidentifiable Human Remains, the Department responded to three comments on scientific study specifically. Under General Comments, Comment 3 summarized comments opining that ‘‘Congress intended to allow study of ancient, unaffiliated remains.’’ The Department responded that ‘‘The Act does not draw a distinction between ‘ancient’ and more recent remains’’ and then reiterated that scientific studies are not required (75 FR 12380). Under Section 10.9 Other General Comments, Comment 57 summarized comments that ‘‘requested a clear and explicit explanation of how the proposed rule takes into account the potential interests of the public in scientific research and education.’’ The Department responded that scientific studies are not required (75 FR 12387). In the 2010 Final Rule, under Section 10.9(e)(5) Additional Documentation, Comment 46 summarized 20 comments VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 regarding the addition in the proposed regulations that scientific studies are not required. Some comments stated the language would ‘‘create a seemingly impossible conundrum, would severely hinder the scientific study of ancient remains, and are ‘an obvious attempt to end-run Congressional intent and a Federal court ruling in the long-fought Kennewick Man case.’ ’’ One comment requested language be added to clarify that scientific studies are not prohibited, and another comment requested language be added to allow scientific studies if the consulting parties agree. The largest number of comments requested language stating that human remains must be treated with respect and ‘‘should not be subject to any further scientific research or used for teaching purposes.’’ In response to these comments, the Department simply stated that the language came directly from the Act and reflected Congressional intent (2010 Final Rule at 12386). Since 2010, both provisions on scientific study have been codified in the regulations. While the existing regulations include both provisions on scientific study, the existing regulations do not provide any mechanisms for ensuring that scientific studies are not required or for administering the delay for scientific study. In the 2021 draft revisions of the regulations prepared for Tribal consultation, the Department introduced a procedure, through the Secretary, to administer the delay for scientific study but did not include any reference that scientific studies are not required. We received a significant number of comments regarding both scientific study provisions during Tribal consultation and from the Review Committee. As a result of this input, the proposed regulations included in the duty of care requirement a limitation on ‘‘access to or research on’’ human remains or cultural items which would provide for implementation as well as enforcement that scientific studies are not required. The proposed regulations also provided procedures to administer the delay for scientific study by both requesting and receiving concurrence of the Secretary as a stay of the repatriation timeline under §§ 10.9 and 10.10. In preparing these final regulations, we looked at not only the comments we received on the proposed regulations but also to the legislative and regulatory history discussed above and to input from the Review Committee on these issues. As noted above, the addition to the regulations in 2007 that scientific studies are not required was based on a Review Committee recommendation. Notably, the Review Committee’s PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 recommendation was not to include the statutory language, but to clarify that scientific studies must be agreed to by all parties through consultation. In its 2000 final recommendations on culturally unidentifiable human remains, the Review Committee recommended: Documentation must occur within the context of the consultation process. Additional study is not prohibited if the parties (Federal agencies, museums, lineal descendants, Indian [T]ribes, and Native Hawaiian organizations) in consultation agree that such study is appropriate (65 FR 36463, June 8, 2000). Between July 2021 and June 2022, the Review Committee reviewed and discussed the draft regulatory text and, in its final recommendations, developed its own duty of care requirement: Duty of care. Through meaningful consultation with [T]ribes and Native Hawaiian organizations, Federal agencies, museums, universities, and repositories shall provide standards of care based upon the free, prior, and informed consent of [T]ribes and Native Hawaiian organizations for human remains and cultural items. Museums and Federal agencies have an obligation to adhere to a standard of reasonable care while performing any act that would foreseeably harm any cultural item in their possession or control. This duty includes taking affirmative steps to verify the location and condition of all cultural items in the control of the museum or Federal agency, and consulting with any lineal descendants and any culturally or geographically affiliated Indian [T]ribes or Native Hawaiian organizations to determine the standard of care they consider reasonable (NPS–2002–0004–0003, attachment page 2). As noted in the document, one Review Committee member objected to the requirement of ‘‘consent’’ by Indian Tribes or NHOs to the standards of curatorial treatment for Native American human remains and other cultural items. The Review Committee member stated ‘‘[s]uch a unilaterallyimposed requirement might not be appropriate or reasonable, and in some circumstances might violate existing binding administrative agreements, legal obligations, and/or professional standards of the curating organization’’ (NPS–2022–0004–0003, attachment page 2, footnote 1). In preparing the proposed regulations, we adopted the Review Committee’s recommendation to include consultation, collaboration, and consent but, in response to the objecting comment, caveated the requirement with ‘‘to the maximum extent possible.’’ The proposed regulations did not include the Review Committee’s suggested language of ‘‘free, prior, and informed consent’’ and the last sentence E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations of the Review Committee’s recommendation was incorporated directly into Subpart C. In preparing these final regulations, we revisited the Review Committee’s recommendations and found we were able to incorporate the concept of ‘‘free, prior, and informed consent’’ by clarifying the provisions in § 10.1 pertaining to duty of care. Paragraph (d)(1) requires consultation, paragraph (d)(2) requires collaboration, and paragraph (d)(3) requires consent. We agree with the Review Committee member and some of the comments on the proposed regulations that curatorial standards and other requirements may limit a museum or Federal agency’s ability to incorporate or accommodate requests from lineal descendants, Indian Tribes, or NHOs, and, as discussed in Comment 14, museums and Federal agencies must make a reasonable and good-faith effort to do so. We have limited the requirement to obtain consent only to the exhibition of, access to, or research on human remains and cultural items. As the purpose of the Act and these regulations is the disposition or repatriation of human remains or cultural items, we find it appropriate that museums and Federal agencies must obtain consent from lineal descendants, Indian Tribes, or NHOs before conducting activities that might physically or spiritually harm human remains or cultural items. For purposes of the duty of care paragraph, the lineal descendants, Indian Tribes, or NHOs are those identified as consulting parties under §§ 10.4(b)(1), 10.9(b)(1), and 10.10(b)(1): Consulting parties are any lineal descendant and any Indian Tribe or NHO with potential cultural affiliation. If a museum or Federal agency cannot identify any consulting parties for specific human remains or cultural items, the duty of care requirement still applies. Until consulting parties are identified, the museum or Federal agency may not be required to consult under paragraph (d)(1) or collaborate under paragraph (d)(2) of § 10.1. Until consulting parties are identified, the museum or Federal agency must not allow any exhibition of, access to, or research on human remains or cultural items as doing so may be subject to a failure to comply with the requirements of these regulations. If a museum or Federal agency wished to conduct a specific scientific study of human remains or cultural items, it could do so by following the requirements for a stay of repatriation under §§ 10.9 or 10.10. After following the requirements of these regulations, nothing would VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 preclude a museum or Federal agency from exhibiting, allowing access to, or conducting research on collections that are not subject to the Act or, after disposition or repatriation, reaching an agreement with the requesting lineal descendant, Indian Tribe, or NHO. 16. Comment: We received four comments requesting the regulations include in § 10.10 the related statutory language from 25 U.S.C. 3003(b)(2) on ‘‘scientific study.’’ Another comment questioned if ‘‘scientific study’’ as used in §§ 10.9 and 10.10 equated to a single study that records paleopathology on an individual or a long-term archaeological project at a site that includes many subprojects that study different bioarcheological and physical anthropological topics. DOI Response: We incorporated the statutory language on ‘‘scientific study’’ into paragraph (d)(3) by adding two sentences to clarify that the term ‘‘research’’ as used here equates to the term ‘‘scientific study’’ in the Act and to emphasize that ‘‘research’’ of any kind is not required by the Act or these regulations. We have defined ‘‘research’’ to mean any study, analysis, examination, or other means of acquiring or preserving information. ‘‘Research’’ includes any activity to generate new or additional information beyond the information that is already available, for example, osteological analysis of human remains, physical inspection or review of collections, examination or segregation of comingled material (such as soil or faunal remains), or rehousing of collections. ‘‘Research’’ is not required to identify the number of individuals or cultural items or to determine cultural affiliation. For example, if a museum wished to physically examine its collection to identify the number of individuals or associated funerary objects, the museum must first obtain consent from lineal descendants, Indian Tribes, or NHOs. Until that consent is obtained, the museum must rely on the information available (previous inventories, catalog cards, accession records, etc.) to identify consulting parties, conduct consultation, update the inventory, and submit a notice of inventory completion. If a Federal agency wished to examine an unprocessed collection of archaeological material excavated from Federal land after 1990 to identify if any human remains or cultural items were present, it could do so until human remains or cultural items were identified. At that time, any further examination or inspection of the collection would require obtaining consent from a lineal descendant, PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 86465 Indian Tribe or NHO. Until that consent is obtained, the Federal agency must rely on the information available (excavation location, field notes, etc.) to identify consulting parties, conduct consultation, and complete the disposition of the human remains or cultural items. 17. Comment: We received five comments, including those by the Review Committee, objecting to the inclusion of unassociated funerary objects, sacred objects, or objects of cultural patrimony in the delay for scientific study because it is inconsistent with the Act and adverse to Tribal interests. These comments requested that the stay of repatriation in § 10.9 for ‘‘scientific study’’ be deleted in its entirety (see NPS–2022–0004– 0096; NPS–2022–0004–0143; NPS– 2022–0004–0151; NPS–2022–0004– 0177; and NPS–2022–0004–0183). DOI Response: We believe these comments conflated the two statutory provisions for ‘‘scientific study’’ we outlined in response to Comment 16 (‘‘scientific studies are not required’’ and ‘‘delay for scientific study’’). We agree that the Act limits the provision that scientific studies are not required to only human remains and associated funerary objects (25 U.S.C. 3003(b)(2)). Similar language does not appear in the Act for unassociated funerary objects, sacred objects, and cultural patrimony (25 U.S.C. 3004(b)(2)). We do not agree, however, that extending the provision that scientific studies are not required or the corresponding paragraph at (d)(3) to unassociated funerary objects, sacred objects, or objects of cultural patrimony is adverse to Tribal interests. Rather, we feel this extension accomplishes the request made by many individuals, Indian Tribes, and Native American organizations to prohibit all ‘‘research’’ on human remains as well as any cultural item (see NPS–2022–0004– 0107; NPS–2022–0004–0138; NPS– 2022–0004–0158; NPS–2022–0004– 0161; and NPS–2022–0004–0187). Therefore, paragraph (d)(3) on duty of care that requires consent for exhibition, access, or research applies to human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony. We understand that the delay for scientific study in both §§ 10.9 and 10.10 is adverse to Tribal interests and may seem to allow or authorize scientific studies. As one comment stated clearly: Finally, please note our previous statement that we are categorically opposed to any E:\FR\FM\13DER2.SGM 13DER2 86466 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 scientific study of our ancestors, their burial property or any item of our sacred or cultural patrimony and we specifically request that any language allowing any type of scientific study of any NAGPRA-related item be stricken from this rulemaking for the reasons submitted by our Nation, above (NPS–2022– 0004–0123). We cannot remove reference to ‘‘scientific study’’ or research from these regulations. The delay for scientific study applies to all ‘‘Native American cultural items,’’ which are defined in the Act as human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony (25 U.S.C. 3005(b)). As any elimination or restriction of 25 U.S.C. 3005(b) would require an act of Congress, we cannot remove the reference to ‘‘scientific study’’ entirely or make the requested change to remove § 10.9(i)(3). We have, however, strengthened the requirements under duty of care in this final rule to ensure better implementation and enforcement that scientific studies are not required. 18. Comment: We received three comments requesting clarification of § 10.1(e) Delivery of written documents. One comment requested an editorial change to the text and the other two comments requested an explanation of proof of receipt. One comment stated that tracking the sending and receipt of written documents was a considerable burden on all parties and would require a significant outlay of resources (NPS– 2022–0004–0135). DOI Response: We have made the requested editorial change to paragraph (e)(1) and added ‘‘one of the following’’ to ‘‘must be sent by.’’ Regarding ‘‘proof of receipt’’ for email, many email systems include an option to request a read receipt automatically. While these systems may not constitute legal proof, use of such systems is sufficient for the purposes of these regulations. If an email system does not provide this option, other software or services can provide proof of receipt for little to no cost. However, we do not expect or require additional software or services to meet this requirement. The minimum requirement to satisfy ‘‘proof of receipt’’ would be to request that the recipient acknowledge receipt of the email. If no acknowledgment is received, the sender may follow up with a phone call to ensure the email was received. A call log or note to the file would be sufficient ‘‘proof of receipt.’’ 19. Comment: We received four comments suggesting changes to § 10.1(f) Deadlines and timelines. One comment noted that Tribal holidays may not coincide with Federal holidays and should be included. Another VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 comment requested this paragraph clarify that the Federal Register calculates calendar days. One comment questioned how the Manager, National NAGPRA Program, will meet the notice publication deadline if there is a lapse in appropriations. One comment specifically questioned the use of business days in relation to the requirements under § 10.5 and stated that under the Act, ‘‘days’’ means calendar days. By using business days, the total maximum work stoppage under § 10.5 could increase to some 95 calendar days. In enacting the 30-day stop-work period, Congress said ‘‘days,’’ which is commonly understood as calendar days. Similarly, Rule 6(a) of the Federal Rules of Civil Procedure provides that, in computing any time period specified in the Rules, in any local rule or court order, or in any statute that does not specify a method of computing time, when a period is stated in days or a longer unit of time, every day is counted, including intermediate Saturdays, Sundays, and legal holidays. Furthermore, the comment states, except for using three ‘‘working days’’ for the ministerial certification of receipt of a notice of discovery, the Department has always used calendar days as the metric for calculating a period in the existing regulations stated in days or a longer unit. DOI Response: We agree that in the Act, days means calendar days. We appreciate the comment on Tribal holidays, but given the great variation in those dates, we cannot accommodate the request to include or observe Tribal holidays. The purpose of this paragraph is to provide clear instruction on how to calculate dates for the deadlines and timelines in these regulations. Earlier drafts of these regulations used calendar days. We received requests during consultation in 2021 to use business days and to account for a lapse in appropriations. We noted this change would lengthen most deadlines in the regulations but accepted the suggested change in the proposed regulations. We have revised paragraph (f)(1) in § 10.1 to calendar days and included an exception for when a deadline falls on a Saturday, Sunday, or Federal holiday, including a lapse in appropriations. 20. Comment: We received seven comments suggesting changes to § 10.1(g) Failure to make a claim or a request. Five comments requested we delete this paragraph because the Act does not provide the Secretary with the authority to include this waiver of rights language in the regulations. These comments state that an Indian Tribe or NHO must never lose its rights to claim PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 disposition or request repatriation of human remains or cultural items. One comment requested clarification and guidance on the application of this paragraph to the time between sending a repatriation statement and completing physical transfer of human remains or cultural items. One comment requested the regulations require clear and concise written proof of compliance with the notice and consultation requirements prior to any waiver of a right to make a claim or a request. DOI Response: The Secretary’s authority for promulgating these regulations is discussed extensively in the 2010 Final Rule (75 FR 12379) and the 2022 Proposed Rule (87 FR 63207). The purpose of a disposition or repatriation statement is to provide clear and concise written proof that the requirements of the Act have been fulfilled (25 U.S.C. 3002(a) and 3005(a)). With the disposition or repatriation statement, the museum or Federal agency divests itself of any interest in the human remains or cultural items. We cannot remove this paragraph without jeopardizing the entire disposition or repatriation processes provided by the Act and these regulations. This paragraph has been included in these regulations since the 1993 Proposed Rule (58 FR 31132) and ensures that any claim for disposition or request for repatriation must be considered by a museum or Federal agency prior to disposition, repatriation, transfer, or reinterment of human remains or cultural items. Once disposition, repatriation, transfer, or reinterment occurs, a museum or Federal agency cannot accept a claim or request from another party as the museum or Federal agency no longer has any rights to or interest in the human remains or cultural item. This paragraph provides protection for lineal descendants, Indian Tribes, and NHOs as well as for museums and Federal agencies that once a disposition or repatriation statement is sent, it is not subject to future appeal or challenge. 21. Comment: We received four comments suggesting changes to § 10.1(h) Judicial jurisdiction. Three comments requested we include the role of the U.S. Court of Federal Claims in resolving specific matters. One comment asked if this paragraph restricted the role of Tribal courts in any related legal actions. DOI Response: Nothing in the Act or these regulations is intended to abrogate any concurrent Tribal jurisdiction that may exist with respect to alleged violations of similar Tribal laws on Tribal lands. Regarding the U.S. Court of Federal Claims, we disagree with the E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations suggested change. This paragraph reflects the statutory description of judicial jurisdiction for violations of the Act (25 U.S.C. 3013). It is not intended to address judicial jurisdiction for potential constitutional violations, such as the possibility of a Fifth Amendment taking as described in the Act’s definition for ‘‘right of possession’’ (25 U.S.C. 3001(13)). It is unnecessary for these regulations to address the Court of Federal Claims’ jurisdiction over Fifth Amendment takings claims, which is well-established and not specific to this Act. Regarding collection of civil penalties, this is already included in § 10.11, specifically in paragraph (m)(2) of these regulations. 22. Comment: We received 19 comments suggesting changes to § 10.1(i) Final agency action. Four comments requested clarification as to how to interpret final agency action and confirming that disposition or repatriation determinations are final agency actions. Four comments considered the categories of final agency action to be too narrow as written and recommended adding language to clarify and including examples of determinations that would make this part inapplicable, such as determinations regarding plans of action, excavations, Federal land ownership, and possession or control. On the other hand, one comment described how those categories of final agency action impermissibly broaden the concept. Six comments urged the Department to approve all museum determinations under these regulations or compel museum action, and that such approval or failure to compel should be defined as final agency action. Four comments recommended that the Assistant Secretary’s decision not to assess a civil penalty be considered reviewable as final agency action. DOI Response: The Act does not grant the Secretary authority to approve or compel museum determinations, other than by assessing civil penalties for failures to comply. Regarding civil penalties, we have not made changes that would make decisions to assess civil penalties reviewable as final agency action because, first, the Act makes this decision permissive, not required, and second, such decisions are comparable to those in a criminal context (United States v. Halper, 490 U.S. 435 (1989)) and generally considered unreviewable under the Administrative Procedure Act in order to preserve prosecutorial discretion (Heckler v. Cheney, 470 U.S. 821 (1985)). While we appreciate the remaining recommendations, we believe VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 that the concerns underlying each are already addressed by the language as it appeared in the proposed regulations. First, the inclusion of any final determination making the Act or this part inapplicable is intentionally broad and inclusive enough to capture the examples and other regulatory actions described in the comments. Second, at the same time, because this determination must be final, because it is on its own terms limited to situations where the information available to the Federal agency has informed the determination that the Act or this part is inapplicable, and because the determination in question is specific to the application of this Act or this part, the category is sufficiently limited in scope so as to ensure consistency with the Administrative Procedure Act. The Department does not consider this language in these regulations to redefine final agency action, but only to clarify its existing application across the entirety of the Act and this part. In addition, we have added a paragraph (k) to this section on severability. While this rule is intended to create systematic processes for implementing the Act, if a court holds any provision of one part of this rule invalid, it should not impact the other parts of the rule. For example, a decision holding a portion of Subpart B invalid should not impact Subpart C, since they are two separate processes for two different situations. Similarly, a decision holding part of the inventory process invalid should not impact the summary or repatriation processes. Any decision finding any provisions in this rule to be invalid would not impact the remaining provisions, which would remain in force. The intent of this rule is to streamline the processes and increase deference to lineal descendants, Indian Tribes, and NHOs as a whole, but the rule is not an interdependent whole—other provisions of the rule would implement that intent even if a court declared certain provisions invalid. C. Section 10.2 Definitions for This Part 23. Comment: We received four comments requesting we add new definitions. Three comments requested we define ‘‘deference.’’ One comment requested we define ‘‘simple itemized list,’’ ‘‘lot,’’ and ‘‘specific area’’ for funerary objects. DOI Response: We have not defined ‘‘deference’’ in these regulations. As used in these regulations, this term is intended to ensure meaningful consideration of Native American traditional knowledge of lineal descendants, Indian Tribes, and NHOs PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 86467 throughout the systematic processes for disposition and repatriation. The term should be understood to have a standard, dictionary definition: ‘‘respect and esteem due a superior or an elder; also affected or ingratiating regard for another’s wishes’’ (Merriam-Webster definition of ‘‘deference’’ https:// www.merriam-webster.com/dictionary/ deference, accessed 12/1/2023). The requirement for deference is not intended to remove the decision-making responsibility of a museum or Federal agency under the Act or these regulations but is intended to require that a museum or Federal agency recognize that lineal descendants, Indian Tribes, and NHOs are the primary experts on their cultural heritage. We believe the application of deference in these regulations is clear, and we have reinforced its application through changes to paragraphs in § 10.1(a) Purpose and (d) Duty of care and in the definition of ‘‘consultation’’ below. We do not believe it is necessary to define ‘‘simple itemized list,’’ ‘‘lot,’’ or ‘‘specific area.’’ Each of these terms should be understood to have a standard, dictionary definition, and when a museum or Federal agency is trying to apply them, we note that consultation with lineal descendants, Indian Tribes, or NHOs should inform that decision. 24. Comment: We received six comments supporting the definitions in the proposed regulations. These comments appreciated that the definition of ‘‘cultural item’’ (and the definitions of specific kinds of cultural items) included language that recognizes lineal descendants, Indian Tribes, and NHOs are the primary experts on their own cultural heritage. One comment requested these definitions be further strengthened by requiring museums and Federal agencies defer to the determination of the lineal descendant, Indian Tribe, or NHO. Similar comments were repeated in each of the definitions of specific kinds of cultural items. DOI Response: We have retained the language in the definition of ‘‘cultural item,’’ ‘‘funerary object,’’ ‘‘sacred object,’’ and ‘‘object of cultural patrimony.’’ We have not added a requirement for deference to the determinations of lineal descendants, Indian Tribes, or NHOs as it would be inconsistent with the Act. Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. We have changed the order of the sentences to E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86468 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations reflect the importance of Native American traditional knowledge (which includes customs and traditions) in these definitions. Furthermore, we have strengthened the application of these definitions through changes to paragraphs in § 10.1(a) Purpose and (d) Duty of care and in the definition of ‘‘consultation’’ below. 25. Comment: We received 21 comments on the proposed definitions of ‘‘acknowledged aboriginal land’’ and ‘‘adjudicated aboriginal land.’’ Of that total, 13 comments suggested changes to the definitions while eight comments supported both definitions as proposed. DOI Response: Due to the changes to the definition of ‘‘cultural affiliation,’’ we are not finalizing the proposed definitions of aboriginal land in this rule. We believe the changes to cultural affiliation address the concerns expressed by the comments and ensure consultation on and consideration of information about aboriginal occupation in determining cultural affiliation. We have replaced ‘‘adjudicated aboriginal land’’ in the regulatory text with the elements of the definition. 26. Comment: We received 21 comments on the definition of ‘‘affiliation.’’ Of that total, 14 comments suggested changes to the definition while seven comments supported it. One comment questioned if the Secretary has the authority to alter a definition in the statute and opposed the generalized and simplistic meaning of ‘‘affiliation.’’ The other comments requested that the definition of ‘‘affiliation’’ be used to define ‘‘cultural affiliation.’’ DOI Response: We agree with the suggestion to add ‘‘cultural’’ before affiliation in this definition. We have clarified this definition by incorporating the Congressional intent of this definition ‘‘to ensure that the claimant has a reasonable connection with the materials’’ (H. Rpt. 101–877, at 14, and S. Rpt. 101–473, at 6). The additional language found in the definition in the Act (traced through time and identifiable earlier group) has been incorporated into the procedure for determining cultural affiliation and the related changes explained in our responses under § 10.3. We included in the definition of cultural affiliation the two ways cultural affiliation may be identified (clearly or reasonably), taken from the language in the Act (25 U.S.C. 3003(d)(2)). 27. Comment: We received two comments suggesting changes to the definition of ‘‘ahupua‘a.’’ DOI Response: We agree with the comments and have made the suggested changes. We appreciate the feedback VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 that the definition of ahupua‘a includes extra contextual information that is already incorporated in § 10.3. We also note that priority for cultural affiliation is not given to an NHO based on the NHO’s location or cultural practice at the time of their claim or request but rather priority for cultural affiliation is based on the NHO’s relationship to the earlier occupants of the ahupua-a from where the human remains or cultural items were removed or in which they are discovered. 28. Comment: We received three comments suggesting changes to the definition of ‘‘appropriate official.’’ One comment suggested that the appropriate official be trained on the time requirements of that job. The other comments wanted the Department to provide a contact list of appropriate officials. DOI Response: The responsible Indian Tribe, NHO, DHHL, or Federal agency is responsible for the training the appropriate official. The National NAGPRA Program maintains contact information on its website at https:// grantsdev.cr.nps.gov/NagpraPublic/ Home/Contact (accessed 12/1/2023). We encourage Indian Tribes, NHOs, Federal agencies, and museums to provide or update contact information on a regular basis. We also point out that the Advisory Council on Historic Preservation keeps an updated list of Federal Preservation Officers for each Federal agency at https:// www.achp.gov/protecting-historicproperties/fpo-list (accessed 12/1/2023). The National Park Service and the Bureau of Indian Affairs maintain contact information on Tribal Historic Preservation Offices at https:// grantsdev.cr.nps.gov/THPO_Review/ index.cfm (accessed 12/1/2023) and Tribal Leaders at https://www.bia.gov/ bia/ois/tribal-leaders-directory/ (accessed 12/1/2023). 29. Comment: We received 10 comments suggesting changes to the definitions of ‘‘ARPA Indian land’’ and ‘‘ARPA public land.’’ Most of the comments said that the definitions are inconsistent with the Act and would unduly narrow the application of the Act and these regulations. One comment noted that the definition of ‘‘ARPA Indian land’’ includes the term ‘‘individual Indian.’’ The comment stated that the latter term was undefined in the proposed regulations and suggested that it be replaced with the defined term ‘‘lineal descendant.’’ DOI Response: We have not changed these definitions. These definitions do not change the application of NAGPRA. NAGPRA applies to its fullest extent on ‘‘Federal land’’ or ‘‘Tribal land,’’ as PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 defined in both the statute and these regulations. Rather, the terms ‘‘ARPA Indian land’’ and ‘‘ARPA public land’’ define which excavations under NAGPRA require a permit issued under ARPA and which do not. Specifically, NAGPRA requires that human remains or cultural items may only be excavated or removed from Federal or Tribal land if, among other requirements, ‘‘such items are excavated or removed pursuant to a permit issued under [ARPA] which shall be consistent with [NAGPRA].’’ 25 U.S.C. 3002(c)(1). Since both NAGPRA and ARPA are intended to protect important cultural resources, they must be construed together. Further, ‘‘issued under ARPA’’ is an adjectival phrase modifying ‘‘permit.’’ Thus, it is not ARPA that ‘‘shall be consistent with NAGPRA,’’ but rather the ARPA permit that must be consistent with NAGPRA. This is supported by the NAGPRA legislative history. The Senate Indian Affairs Committee specifically noted that it ‘‘[intended] the notice and permit provisions of this section to be fully consistent with the provisions of [ARPA]’’ (S. Rpt. 101–473, at 7). Likewise, the House Committee on Interior and Insular Affairs, in discussing the stopping of work for an inadvertent discovery, noted that, ‘‘[a]lthough a specific time limit was not added here, the Committee does intend to protect the remains and objects found and does not intend to weaken any provisions of other laws, such as [ARPA], regarding similar situations.’’ Like the Senate Committee, the House Committee also stated that, ‘‘[s]ubsection (c) provides that items covered by this Act can be excavated from Federal or [T]ribal land if proof exists that a permit has been acquired under Section 4 of the [ARPA]’’ (H. Rpt. 101–877, at 15 and 17). Therefore, the provisions of ARPA, including the scope of public land and Indian land, are not affected by NAGPRA. So, the terms ‘‘ARPA Indian land’’ and ‘‘ARPA public land’’ are defined in these regulations using the exact same definitions of ‘‘Indian land’’ and ‘‘public land’’ in ARPA, including use of the term ‘‘individual Indian,’’ which is used in ARPA to denote land that is owned by an individual Indian, who may or may not be a ‘‘lineal descendant’’ as defined in NAGPRA. The protection of the scope of both statutes is reflected in these regulations by the requirement that ARPA permits are issued for NAGPRA excavations just as they are for ARPA excavations, keeping the full protections of each statute in place, as Congress intended. E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 30. Comment: We received 39 comments on the definition of ‘‘consultation.’’ Of that total, two comments objected to the definition because ‘‘to the maximum extent possible’’ was a vague and troubling standard. These two comments also objected to the use of consensus and requested it be removed or made a recommendation rather than a requirement because, as one comment stated, ‘‘it is not within the ability of museums to seek consensus or mediate potential disagreements among sovereign nations during the consultation process’’ (NPS–2022– 0004–0136). In addition, one comment didn’t object to the definition but requested clarification as to whether ‘‘seek consensus’’ would mean museums and Federal agencies must ensure responses are received from all parties invited to consult. On the other hand, nine comments supported the definition as proposed while 27 comments supported the definition but suggested changes to strengthen it. Most of these comments suggested changing ‘‘seek consensus’’ to ‘‘achieve’’ or ‘‘strive for’’ consensus, replacing ‘‘incorporating’’ with ‘‘deferring to,’’ replacing ‘‘to the maximum extent possible’’ with ‘‘as the Indian Tribe or Native Hawaiian organization understands them,’’ or removing ‘‘to the maximum extent possible.’’ A few comments suggested adding that consultation is between equal parties or that it must be conducted in good faith. A few comments suggested including a requirement for museum or Federal agency decision-makers to be present at consultation, for consultation to be continual, or to add ‘‘transparent’’ and ‘‘formal’’ to the definition. One comment renewed a request to use the definition of consultation in 36 CFR part 800. DOI Response: Consultation is a critical, central, and continual part of the systematic processes for disposition or repatriation provided by the Act and these regulations. However, neither the Act nor the existing regulations define consultation. Earlier drafts of these regulations drew directly on Congressional report language that ‘‘consultation’’ under NAGPRA means ‘‘the open discussion and joint deliberations with respect to potential issues, changes, or actions by all interested parties’’ (H. Rpt. 101–877, at 16). Specific to the inventory, Congress emphasized the need for ‘‘cooperative exchange of information between Indian [T]ribes or Native Hawaiian organizations and museums regarding objects in museum collections’’ (S. Rpt. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 101–473, at 8). In the proposed regulations, we added specific types of information that are exchanged during consultation (identifications, recommendations, and Native American traditional knowledge). We also drew language from other definitions for consultation found in 36 CFR part 800, Executive Order 13175, and draft guidance and language that became the November 2022 White House memorandum on Uniform Standards for Tribal Consultation. In response to comments that objected to the proposed definition, we have removed ‘‘to the maximum extent possible’’ and clarified the goal of consultation is to strive for consensus, agreement, or mutually agreeable alternatives. We did not and do not intend for ‘‘consensus’’ to imply museums or Federal agencies are required to mediate potential or even actual disagreements among lineal descendants, Indian Tribes, or NHOs. Likewise, ‘‘consensus’’ does not require a museum or Federal agency receive a response from every invited consulting party before it can proceed. The consultation record should include efforts to invite consulting parties. When consultation does not result in consensus, agreement, or mutually agreeable alternatives, the consultation record must describe the concurrence, disagreement, or nonresponse of the consulting parties. In response to comments that requested strengthening the definition for consultation, we have revised the second half of the sentence to better reflect the goals of consultation. We have added ‘‘good faith’’ to the definition to ensure honest and fair consideration of all points of view and removed it from each of the regulatory steps on consultation. We have expanded the definition to clearly identify the goals of consultation, drawing on other sources suggested by the comments. ‘‘Seek, discuss, and consider the views of all parties’’ comes from language in 36 CFR part 800.16. Although we received several comments requesting we change ‘‘seek’’ to ‘‘achieve,’’ we have used ‘‘strive for’’ which was suggested by some comments and is found in the November 2022 White House memorandum on Uniform Standards for Tribal Consultation. We feel this change better reflects the goal of consultation and is stronger than ‘‘seek consensus’’ but still reflects consensus may not be achieved. We have also added to the goal of consensus ‘‘agreement’’ and ‘‘mutually acceptable alternatives.’’ Although we received several comments requesting we add deference to this PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 86469 definition, we have instead added that consultation enables consideration of the kinds of information that can be provided by lineal descendants, Indian Tribes, and NHOs. This replaces the more limited list of information in the proposed regulations, and we expect it will provide a more robust and clearer record of information shared by lineal descendants, Indian Tribes, and NHOs during consultation. In response to all the comments and as noted elsewhere, when consultation does not result in consensus, agreement, or mutually agreeable alternatives, the consultation record must describe the concurrence, disagreement, or nonresponse of the consulting parties. Although a few comments suggested we require in the definition that decision makers attend consultations, we have not included this in these regulations. We believe this requirement may not fit every situation and might end up delaying or eliminating the efficiencies of these regulations. Rather, we note that when consultation does not result in consensus, agreement, or mutually acceptable alternatives, consulting parties may wish to involve decision makers from all parties to see if a resolution can be found. Lastly, we note that consultation as defined here is different than consultation defined in other contexts, especially consultation between a Federal agency and an Indian Tribe or NHO. For purposes of disposition or repatriation, Federal agencies are required to comply with this definition of consultation as well as any applicable policy on government-to-government/ sovereign consultation that would apply in all contexts. For purposes of repatriation, we cannot require museums to conduct the same level of consultation that would be required for a Federal agency. We feel this definition of consultation provides requirements that can be met by both museums and Federal agencies, fills in a missing piece of the Act and the existing regulations, and ensures consultation remains a critical, central, and continual part of the systematic processes for disposition or repatriation. 31. Comment: We received 20 comments on the definition of ‘‘cultural item.’’ Of that total, 16 comments suggested changes to the definition while four comments supported it. Four comments stated that changing the definition of cultural item to exclude human remains exceeded the Secretary’s authority. One comment objected to the definition without further request for changes. One comment suggested a grammatical change. One comment suggested E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86470 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations cultural item be broadened to include documents and records (including photographs) associated with human remains or cultural items to ensure repatriation of those documents and records. Six comments requested the definition of cultural items be expanded to require Tribal consultation. The comments pointed out that the definitions in the Act ‘‘depend in part on [T]ribal use and cultural significance. 25 U.S.C. 3001(3). Courts have clarified that Indian Tribes play a role in determining whether items possess the requisite cultural significance to meet NAGPRA’s definitions, especially regarding ‘cultural patrimony.’ See United States v. Tidwell, 191 F.3d 976, 981 (9th Cir. 1999); United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997).’’ (see NPS–2022–0004–0119 for one of the six comments). Three comments objected to the definition as proposed because the required deference to Indian Tribes and NHOs in the regulations and the definitions of cultural items had the potential to create conflict between types of information or among Indian Tribes or NHOs. DOI Response: As we stated in the proposed regulations, use of the phrase ‘‘human remains or cultural items’’ is responsive to requests of Indian Tribes and NHOs. The existing regulations do not define ‘‘cultural items’’ but still use the term to include human remains. This change from ‘‘cultural items’’ to ‘‘human remains or cultural items’’ is only editorial and does not have any impact on the applicability or scope of these regulations. This editorial change is within the Secretary’s authority, as the Department asserted in the 1993 Proposed Rule (58 FR 31122). We have not made the requested grammatical change (from singular to plural) as it is unnecessary in regulatory definitions. Throughout these final regulations, a singular term includes and applies to several persons, parties, or things. We cannot expand the definition to include documents and records (including photographs) as that would be inconsistent with the Act. We note that requesting documents and records (which could include photographs) is already provided for in §§ 10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal descendants, Indian Tribes, and NHOs have a right to request records, catalogues, relevant studies, or other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies are required to share that information (25 U.S.C. 3005(d)). As required by the Act, additional information is only provided upon request of an Indian Tribe or NHO, and VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 we cannot require documents and records be provided by including these in the definition of cultural items. We advise lineal descendants, Indian Tribes, and NHOs to make their requests as broad as possible to ensure all information about cultural items, including digital data, is provided. Regarding the request to strengthen the definition, we are unable to change ‘‘according to’’ to ‘‘as determined by’’ as it would be inconsistent with the Act. Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. We have changed the order of the sentence to reflect the importance of Native American traditional knowledge (which includes customs and traditions) in this definition. We disagree that the definition is over-broad, a reversal of Congressional intent, or contrary to explicit statements in the Congressional record. Deference to Native American traditional knowledge is necessary to ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The addition of ‘‘according to Native American traditional knowledge’’ in this definition is to ensure meaningful consideration of this information during consultation. We believe this addition to the various definitions of cultural items will lead to more informed decision-making and help to avoid the lengthy and costly delays in disposition or repatriation. In crafting the definitions of cultural items, Congress clearly intended that the definitions ‘‘will vary according to the [T]ribe, village, or Native Hawaiian community’’ (S. Rpt. 101–473, at 4). Consultation, which is required throughout the Act prior to any determination, is how an Indian Tribe or NHO shares the information needed to identify a cultural item. 32. Comment: We received 14 comments on the definition of ‘‘custody.’’ Of that total, nine comments suggested changes to the definition while five comments supported it. Eight comments recommended deleting this definition and replacing it with the concept of possession in the definition of ‘‘possession or control.’’ One comment recommended replacing the term ‘‘sufficient interest’’ with the term ‘‘legal authority.’’ DOI Response: We have not made changes to this definition. We cannot replace this definition with an expanded definition for ‘‘possession or control,’’ as discussed in the response to comments on that definition (see comment 49). Custody without PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 ‘‘possession or control’’ is a distinct concept from ‘‘possession or control’’ itself. This distinct concept requires definition to implement certain requirements, including a duty of care and certain reporting requirements. Further, we did not replace the term ‘‘sufficient interest,’’ which is a threshold determination that museums and Federal agencies must make. Changing this phrase would presume application of the Act before that determination has been made. As discussed in more detail in the response to comments for the definition of ‘‘possession or control,’’ whether a museum or Federal agency has a sufficient interest in an object or item to establish ‘‘possession or control’’ is a legal determination that must be made on a case-by-case basis. 33. Comment: We received two comments requesting changes to the definition of ‘‘discovery.’’ One comment raised a concern that removal of human remains or cultural items from Federal or Tribal lands is either excavation or theft, not a discovery. One comment questioned why the word ‘‘inadvertent’’ is no longer used with the word ‘‘discovery.’’ DOI Response: We understand the concern but cannot make the requested change to eliminate ‘‘removing’’ from the definition of discovery and still ensure that human remains or cultural items are protected on Federal or Indian lands under these regulations. As one comment notes, an intentional removal without a written authorization for an excavation could violate other Federal laws, depending on the circumstances. These regulations do not replace or supplant the other protections available on Federal or Tribal lands. Rather this definition and these regulations provide a process for the disposition of those human remains or cultural items that may be discovered. The definition of discovery includes both inadvertent and intentional discovery of human remains or cultural items. This ensures that any human remains or cultural items are subject to these regulations, regardless of how they were discovered. 34. Comment: We received seven comments requesting clarification of the definition of ‘‘Federal lands.’’ Four comments did not consider the definition to be sufficiently clear or instructive to Federal agencies. One comment noted that the definition should include lands leased by the Federal government. One comment noted that the definition could impact museum collections under Subpart C. One comment noted that the definition should include language to provide for E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations the protection and disposition of Native American children buried at Indian boarding schools on lands not owned or controlled by the Federal Government, but where the Indian boarding school was operated by or for the U.S. Government. DOI Response: We have not made these changes. Whether a Federal agency’s control of the lands on which it conducts it programs or activities is sufficient to apply these regulations depends on the circumstances and scope of that Federal agency’s authority, and on the nature of State and local jurisdiction. Because of the wide array of agency-specific authorities that can establish federally controlled lands, the Federal agency officials must make such determinations on a case-by-case basis. In some circumstances, the definition may include lands leased by the Federal agency, depending on the nature of that lease, the Federal agency’s statutory authority, and other case-by-case circumstances. The Department cannot instruct Federal agencies any further on their own circumstances or statutory authorities, and recommends Federal agencies consult with their legal counsel in making such determinations. The definition is not applied to museum collections in Subpart C. Regarding lands on which Native American children were buried at Indian boarding schools, we cannot amend the regulatory definition of ‘‘Federal lands’’ as requested. Congress specifically and explicitly defined Federal lands based on control or ownership, not on receipt of Federal funds (as it did in the definition of a ‘‘museum’’). Thus, ‘‘[w]e have here an instance where the Congress, presumably after due consideration, has indicated by plain language a preference to pursue its stated goals . . . . In such case, neither [a] court nor the agency is free to ignore the plain meaning of the statute and to substitute its policy judgment for that of Congress’’ (Alabama Power Co. v. United States EPA, 40 F. 3d 450, 456 (D.C. Cir. 1994); United Keetoowah Band of Cherokee Indians Of Okla. v. United States HUD, 567 F. 3d 1235, 1243 (10th Cir. Okla. 2009) (same); Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842–43 (1984) (‘‘If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress’’)). However, the Department does encourage the custodians of records from boarding schools not on Federal or Tribal lands, and the current owners of those boarding schools and cemeteries, to fully consult with lineal VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 descendants, Indian Tribes, and NHOs on identification, disinterment, and repatriation of Native American children. The Department stands ready to assist lineal descendants, Indian Tribes, and NHOs to the fullest extent of its authority. 35. Comment: We received two comments suggesting changes to the definition of Federal agency to include the Smithsonian Institution. DOI Response: We cannot make this change. The Act expressly excludes the Smithsonian Institution from the definition of Federal agency. 36. Comment: We received 22 comments on the definition of ‘‘funerary object.’’ Of that total, 8 comments supported the definition in the proposed regulations while 14 comments requested changes to it. Two comments objected to the definition as being too expansive by replacing ‘‘preponderance of the evidence’’ in the existing regulations with ‘‘according to’’ which the comments believed would create ambiguity and confusion in applying the definition. On the other hand, two comments suggested changing ‘‘according to’’ to be ‘‘as determined by’’ to further strengthen the deference to lineal descendants, Indian Tribes, and NHOs on identification of funerary objects. One comment suggested integrating the definition of funerary object in to two separate definitions for associated and unassociated funerary objects. This same comment raised concerns about the example provided in the proposed regulations. One comment expressed frustration with the use of acronyms for funerary objects which the comment stated are offensive and dismissive. Six comments provided an extensive argument and requested removing the temporal limitation on human remains related to associated funerary object (‘‘are, or were after November 16, 1990’’) (see NPS–2022–0004–0119 for one of the six comments). One comment requested clarification of and emphasis on the location of human remains for unassociated funerary objects. One comment objected to the statement that a burial site could ever be ‘‘no longer extant.’’ DOI Response: We reemphasize that the proposed revisions to the existing regulations, specifically the removal of ‘‘preponderance of the evidence’’ from the definition of funerary object, is to align the definitions in the regulations with those in the Act. The existing regulations limit the definition of a funerary object by including the statutory language intended to apply only to unassociated funerary objects. In 1995, the Department accepted the PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 86471 suggestion to combine the definitions of associated funerary objects and unassociated funerary object into a single definition of funerary object and in doing so, attached the statutory language for unassociated funerary object to all funerary objects. In 1995, the Department asserted: The statutory language makes it clear that only those objects that are associated with individual human remains are considered funerary objects. The distinction between associated and unassociated funerary objects is based on whether the individual human remains are in the possession or control of a museum or Federal agency. (60 FR 62137). The Department reiterated and clarified this statement in the 2022 Proposed Rule, ‘‘. . . determining if the funerary object is associated or unassociated does not require identifying the specific individual with which the object was placed, but rather, only requires identifying the location of the related human remains’’ (87 FR 63211). The intent of revising this definition is to clarify long-standing confusion over the distinction between associated and unassociated funerary objects and align the definitions with those in the Act. We have retained the single defintion for funerary object and the two related definitions of associated or unassociated funerary object as we believe it clarifies the definitions. It is important to note ‘‘individual human remains’’ as used in the Act means the human remains of an individual or individuals. We have removed ‘‘individual’’ from the definition of funerary object to simplify and clairfy the definition. The Act does not require a funerary object be identified to a specific individual. Rather, a group of individuals may be related to a single funerary object and the object may be a funerary object without identifying specifically with which individual the object was placed. We have retained the phrase ‘‘with or near’’ as we believe it approporiately expands the definition of what may be a funerary object. As noted in the 1995 Final Rule, ‘‘[t]he clause was included to accommodate variations in Native American death rites or ceremonies’’ (60 FR 62138). We have retained the requirement for the object to be ‘‘intentionally’’ placed. As noted in the 1995 Final Rule, ‘‘[t]he term is included to emphasize the intentional nature of death rites or ceremonies. Items that indadvertently came into proximity or contact with human remains are not considered funerary objects’’ (60 FR 62137). For funerary objects, broad categorical identifications, including everything from a burial site or specific area, may meet the definition of a E:\FR\FM\13DER2.SGM 13DER2 86472 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations funerary object depending on the information available and the results of consultation. As noted in the example in the 2022 Proposed Rule, it may be reasonable to believe an object was placed intentionally in a location because of the human remains even if the object was placed there many centuries after the human remains (87 FR 63211). As one comment suggested, this may result in the funerary object having a different cultural affiliation than the human remains. We have revised the definition of funeary object to ensure, as in the Act, that cultural affiliation is not a required element to meet the definition of a funerary object. Table 3 compares the definition of ‘‘funerary object’’ from the Act, the existing regulations, and this final rule and indicates the changes to the definition in the Act by underline (additions), strikethrough (removals), and moved text (brackets). Table 3: Comparison of "funerary object" definition . khammond on DSKJM1Z7X2PROD with RULES2 Final §10.2 Funerary object . . .as part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual hum.an remains either at the time of death or later... ... as part of the death rite or ceremony of a culture, are reasonably believed to have been placed intentionally [at the time of death or laterl with or near individual hum.an remains. . . .reasonably believed to have been placed intentionally with or near iedi:rliEluel hum.an remains. A funerary object is any object connected, either at the time of death or later, as p8ft ef the to a [death rite or ceremony of a] Native American culture according to the Native American traditional knowledge of a lineal descendants Indian Tribe. or Native Hawaiian onzanization. Regarding the request to strengthen the definition, we are unable to change ‘‘according to’’ to ‘‘as determined by’’ as it would be inconsistent with the Act. Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. We have changed the order of the sentence to reflect the importance of Native American traditional knowledge (which includes customs and traditions) in this definition. We disagree that the definition is over-broad, a reversal of Congressional intent, or contrary to explicit statements in the Congressional record. Deference to Native American traditional knowledge is necessary to ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The addition of ‘‘according to Native American traditional knowledge’’ in this definition is to ensure meaningful consideration of this information during consultation. We believe this addition to the various definitions of cultural items will lead to more informed decision-making and help to avoid the lengthy and costly delays in disposition or repatriation. In crafting the definitions of cultural items, Congress clearly intended that the definitions ‘‘will vary according to the [T]ribe, village, or Native Hawaiian VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 community’’ (S. Rpt. 101–473, at 4). Consultation, which is required throughout the Act prior to any determination, is how an Indian Tribe or NHO shares the information needed to identify a cultural item. In response to the extensive comments on the definition of ‘‘associated funerary object,’’ we appreciate and share the concern regarding the inappropriate and inaccurate misreading of NAGPRA. We clearly and affirmatively state that the Act and these regulations apply to any museum or Federal agency that has possession or control of Native American human remains or cultural items. Identification of where or when the human remains or cultural items were removed may impact which entity has possession or control, but where or when the human remains or cultural items were removed does not impact the identification of human remains or cultural items for purposes of these definitions. We have revised the definition as requested to remove the date and avoid possible misunderstanding. The Act requires that for a funerary object to be an associated funerary object, the related human remains must be ‘‘presently’’ in the possession or control of a museum or Federal agency, but the Act does not require the human remains to be in the possession or control of the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 same museum or Federal agency as the associated funerary object. The 1995 Final Rule clarified that when another museum or Federal agency has possession or control of the related human remains, the related funerary objects are still ‘‘associated funerary objects’’ (60 FR 62138). By using ‘‘presently’’ in the Act, Congress intended to distinguish associated funerary objects from unassociated funerary objects based on the location of the related human remains. Where human remains and funerary objects were removed from a burial site and when the location of those human remains is known, the funerary objects are associated funeary objects. Even if the human remains were removed with the funerary objects and the human remains are properly repatriated and reburied, the associated funerary objects do not lose their status as associated funerary objects. Associated funeary objects are still associated to the human remains as long as the location of the human remains is known. Regarding the other comments, we reiterate that when the location of human remains related to a funerary object is unknown, the funerary objects are unassociated funerary objects but are still funeray objects subject to the Act and these regulations. Additional information about unassociated funerary objects is necessary to satisfy the E:\FR\FM\13DER2.SGM 13DER2 ER13DE23.000</GPH> Act 25U.S.C. 3001(3)(A)-(B) Existing §10.2(d)(2) khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations definition and meet the criteria for disposition or repatriation of the unassociated funerary objects. For example, an object that was intentionally placed with or near human remains and is connected to a death rite or ceremony of a Native American culture meets the definition of a funerary object. If the location of the related human remains is unknown, the funerary object meets the definition of unassociated funerary object. If cultural affiliation of the unassociated funerary object is reasonably identified by the geographical location where the unassociated funerary object was removed, the unassociated funerary object may satisfy the criteria for repatriation, provided the museum or Federal agency cannot prove it has a right of possession to the unassociated funerary object. We understand the comment that in some Native American traditions a burial site never ceases to exist, we have retained the option for an unassociated funerary object to be identified when in a specific area, such as a flood plain or a shore line, the burial site is no longer extant. Lastly, we appreciate and will strive to no longer use acronyms for associated funerary objects or unassociated funerary objects that may be offensive. We encourage all parties to discuss appropriate terminology during consultation to recognize and reflect the significance of human remains and cultural items to lineal descendants, Indian Tribes, and NHOs. 37. Comment: We received two comments on the definition of ‘‘holding or collection,’’ both supporting the definition as proposed. DOI Response: These regulations retain this definition to assist all parties with identifying the application of the Act and these regulations. 38. Comment: We received 37 comments requesting changes to the definition of ‘‘human remains.’’ One comment objected to considering human remains incorporated into a cultural item as the cultural item and not human remains. One comment requested adding that soil associated with burials and likely containing human remains be accounted for in this definition. Two comments requested we remove the sentence on comingled material (such as soil or faunal remains) being treated as human remains while one comment supported it. One comment letter stated in five separate comments that animal remains should be included in the definition of human remains or cultural items and a Review Committee comment agreed. These comments requested animal burials be included separately and VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 distinctly from cultural items because these animals are imbued with the same spirit as human remains and, therefore, require the same treatment under the Act and these regulations. An additional comment suggested the Department look at incorporating protections for ceremonial animal interments. Of the total number of comments, 13 comments requested we expand the definition of human remains to include casts, 3–D scans, and all other digital data. Some of these comments also suggested expanding the definition to include any information or samples taken from an individual, including pictures, biological samples, isotope readings, soft tissue, and any other biological remnants. Some of these comments requested we add that any data collected directly relating to a Native American individual should also be considered human remains. A few of these comments requested that we require museums and Federal agencies to provide references to all casts of human remains, any replicas from 3–D scans, and all other digital data produced from human remains or cultural items and require consultation on the proper treatment of those references. The comments also requested we add that ‘‘No such casts, replicas, or digital data scanned from Native American human remains, funerary objects, sacred objects or cultural patrimony shall be offered for sale or exchange without the free, prior, and informed consent of the culturally affiliated Indian Tribe or Native Hawaiian organization. Failure to comply shall be deemed a violation of NAGPRA.’’ Separately, one comment suggested the definition of human remains be broadened to include documents and records associated with human remains or cultural items to ensure repatriation of those documents and records. In addition, 12 comments requested we delete from the definition the sentence that excludes from the definition any human remains or portions of human remains that are determined to have been freely given or naturally shed. DOI Response: We understand there is a wide variety of opinions on how human remains that are incorporated into a cultural item might be identified. The Department sought input on this issue in the 1993 Proposed Rule and retained the language in the 1995 Final Rule as it was ‘‘recommended by the Review Committee to preclude the destruction of items that might be culturally affiliated with one Indian Tribe that incorporated human remains culturally affiliated with another Indian PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 86473 Tribe.’’ The 1995 Final Rule also noted that ‘‘[d]etermination of the proper disposition of such human remains must necessarily be made on a case-bycase basis’’ (60 FR 62137). In the 2022 Proposed Rule, we included these two ways human remains may be incorporated into an object or item to ensure, as Congress intended, that human remains of any ancestry be treated with respect, and any Native American human remains must be made available for disposition or repatriation. We decline to make the requested change. Regarding an admixture of comingled materials, the Act requires identification of all human remains in a holding or collection, including human remains reasonably believed to be comingled with other material (such as soil or faunal remains). Museums and Federal agencies are required to identify these comingled materials in its itemized list and during consultation should evaluate if the entire admixture can be treated as human remains. If it is not possible to treat the admixture as human remains, the record of consultation should include the effort to identify a mutually agreeable alternative, which may include additional handling, with consent of the lineal descendant, Indian Tribe, or NHO, to separate the human remains from other materials. We are aware that comingled materials are a significant issue for many Indian Tribes, NHOs, museums, and Federal agencies. The intent of this addition to the definition is to ensure these kinds of collections are included on an itemized list and made available to lineal descendants, Indian Tribes, and NHOs during consultation and for repatriation. The term ‘‘human remains’’ appears in the definition section of the Act even though it is an undefined term. We have defined ‘‘human’’ using the commonly understood meaning of the word, i.e., a member of the species homo sapiens. For this reason, we cannot make the requested change to include animal burials as a separate and distinct category of human remains as that would be inconsistent with the Act. We note, too, that purposefully buried remains that do not include human remains are not included in the definition of human remains. Other kinds of burials and remains that are not human remains should be carefully considered, through consultation, as cultural items. For example, animal burials that are not related to the burial of human remains and, therefore, are not funerary objects, may be needed by traditional Native American religious leaders for the practice of traditional religions and may be sacred objects. E:\FR\FM\13DER2.SGM 13DER2 86474 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 We cannot expand the definition of human remains to include casts, 3–D scans, or other digital data, documents, or records as that would be inconsistent with the Act. We note that the right to request documents and records, which could include casts, 3–D scans, photographs, digital data, or other information, is already provided for in §§ 10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal descendants, Indian Tribes, and NHOs have a right to request records, catalogues, relevant studies, or other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies are required to share that information (25 U.S.C. 3005(d)). We advise lineal descendants, Indian Tribes, and NHOs to make their requests as broad as possible to ensure all information about human remains, including digital data, is provided. In addition, we cannot make the requested addition to prohibit the sale or exchange of casts, replicas, or digital data of human remains as that would be inconsistent with the Act. We have always interpreted biological samples (including DNA), soft tissue, and any other biological remnants to be within the definition of human remains and subject to the Act and these regulations. The definition of human remains is purposefully broad to ensure that ANY physical remains of the body of a Native American individual are included (with the one exception discussed below). In the 1993 Proposed Rule, the Department included an example clause in the definition of human remains as ‘‘including, but not limited to bones, teeth, hair, ashes, or mummified or otherwise preserved soft tissues of a person of Native American ancestry’’ (58 FR 31126). In the 1995 Final Rule, the Department considered comments requesting the definition of human remains exclude isolated teeth, finger bones, cut finger nails, coprolites, blood residues, and tissue samples taken by coroners. In response, the Department stated: The Act makes no distinction between fully-articulated [sic] burials and isolated bones and teeth. Additional text has been added excluding ‘‘naturally shed’’ human remains from consideration under the Act. This exclusion does not include any human remains for which there is evidence of purposeful disposal or deposition. The exemplary clause has been deleted (60 FR 62137). Identification of human remains for the purposes of the Act and these regulations requires a case-by-case assessment, in consultation with lineal descendants, Indian Tribes, and NHOs. Recent examples have demonstrated VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 that the example clause from the 1993 Proposed Rule is beneficial in identifying human remains subject to the Act and these regulations, especially when it comes to hair samples taken from living individuals, coprolites, blood residues, tissue samples, and DNA extractions. The definition of human remains is intentionally broad and contains only one exception (discussed below). The definition does not include a requirement for the human remains to be from an archeological context, of a certain age, or from a deceased person. The definition does not exclude human anatomical collections used by medical schools for training or teaching collections. Again, the definition of human remains is purposefully broad to ensure that ANY physical remains of the body of a Native American individual are included (with the one exception discussed below). We appreciate the comments requesting removal of the sentence that excludes human remains that were freely given or naturally shed. We agree with the comments of the Review Committee that state: ‘‘[a]llowing museums and Federal agencies to predetermine if such remains were freely given or naturally shed and not report them in their inventories deprives Indian [T]ribes and Native Hawaiian organizations with necessary information’’ (see NPS–2022–0004– 0096). However, we disagree that a museum or Federal agency should be required to complete an inventory for human remains that were obtained with full knowledge and consent of the individual or next of kin. In the 1995 Final Rule, one comment requested clarification if human remains included blood sold or given to a blood bank by a Native American individual (60 FR 62137). In the 2010 Final Rule, two comments recommended excluding human anatomical collections used by medical schools for training from the definition of human remains. In response, the Department stated, ‘‘[t]hough not excluded from the inventory provisions, medical schools that receive Federal funds would not be required to repatriate Native American human remains obtained with the voluntary consent of an individual or group that had authority of alienation’’ (75 FR 12393). We have revised the sentence in the definition to require a higher standard of information for human remains that are excluded from the Act and these regulations. We agree with the Review Committee that a museum or Federal agency must be able to prove the original acquisition of Native American PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 human remains was obtained with the full knowledge and consent of the individual, next of kin, or the official governing body of the appropriate Indian Tribe or NHO (see ‘‘right of possession’’ 25 U.S.C. 3001(13)). In the Act, Congress acknowledged that a right of possession is qualified with respect to human remains and associated funerary objects. Congress did not provide for a museum or Federal agency to assert a right of possession to human remains and associated funerary objects identified in an inventory. This approach is consistent with Congress’ intent to distinguish human remains and associated funerary objects from cultural items as quasi-property. Applicable common law in the United States generally accepts that human remains and associated burial items cannot be ‘‘owned’’ in the same manner as conventional property. The Act follows the common law by distinguishing between the quasiproperty attributes of Native American human remains and associated funerary objects and the property attributes of Native American unassociated funerary objects, sacred objects, or objects of cultural patrimony. In line with applicable common law in the United States, Congress stated that the original acquisition of Native American human remains which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate Indian Tribe or NHO is deemed to give right of possession to those human remains. Therefore, these regulations cannot require a museum or Federal agency to complete an inventory or repatriate Native American human remains where the museum or Federal agency can show it has a right of possession. For example, when any individual, regardless of ancestry, dies, local or State law dictates certain actions by law enforcement, medical examiners, and other local or State officials. Local or State law generally requires consent by the next of kin prior to any other action by the local or State authorities. When the deceased individual is Native American and when no next of kin is ascertainable, the local or State authorities may be required to treat the individual as human remains under the Act and these regulations, unless the local or State authorities obtain the full knowledge and consent of the official governing body of the appropriate Indian Tribe or NHO. Coroners, medical examiners, and other local or State agencies should consider their requirements under the Act and these E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations regulations for any Native American human remains. The Department interprets ‘‘full knowledge and consent’’ considering the history of Indian country and recognizes that ‘‘full knowledge and consent’’ does not include ‘‘consent’’ given under duress or because of bribery, blackmail, fraud, misrepresentation, or duplicity on the part of the recipient. As such, consent in this definition must be shown to have been fully free, prior, and informed consent. 39. Comment: We received 24 comments suggesting changes to the definition of ‘‘Indian Tribe.’’ Several of the comments relied on the decision which held, based on the definition of ‘‘group’’ in the 1992 regulations at 25 CFR part 83, an Indian group without Federal recognition was an ‘‘Indian Tribe’’ for purposes of NAGPRA (Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D.Vt., 1992), aff’d per curiam, 900 F.2d 729 (2nd Cir. 1993)). Some comments also disagreed with the addition of a reference to the List Act in this definition, arguing that the definition of Indian Tribe under NAGPRA is different than the standard for inclusion on the list published under the List Act. Many of those comments requested we reiterate the statutory definition verbatim. A few comments adamantly opposed any changes to the definition of Indian Tribe beyond federally recognized Indian Tribes. DOI Response: NAGPRA defines ‘‘Indian [T]ribe’’ as ‘‘any [T]ribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act [43 U.S.C. 1601 et seq.]), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians’’ (25 U.S.C. 3001(7) (emphasis added)). This definition was based on the definition in the Indian SelfDetermination and Education Assistance Act (ISDEAA), which defines ‘‘Indian [T]ribe’’ as ‘‘any Indian [T]ribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians’’ (25 U.S.C. 5304(e) (emphasis added)). Finally, the List Act requires that the Secretary ‘‘publish in the Federal Register a list of all Indian VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 [T]ribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians’’ (25 U.S.C. 5131(a) (emphasis added)). The Supreme Court of the United States recently ruled that the ISDEAA definition referred only to federally recognized Tribes and Alaska Native Corporations (Yellen v. Confederated Tribes of the Chehalis Reservation, 141 S. Ct. 2434 (2021)). The only difference between the ISDEAA definition and the NAGPRA definition is Congress’s intentional deletion of Alaska Native Corporations (see Statement of Representative Bill Richardson, 136 Cong. Rec. 36815). Therefore, under the Supreme Court’s reasoning on ISDEAA, the NAGPRA definition only applies to federally recognized Indian Tribes. Because Congress also used the same language ‘‘eligible for the special programs and services’’ in both NAGPRA and the List Act, the list of federally recognized Tribes is the list of Indian Tribes for the purposes of NAGPRA. The Abenaki decision is not persuasive. First, the decision not only precedes the List Act, but also solely relies on a definition that no longer appears in the 25 CFR part 83 regulations. Second, the decision focuses on that definition while ignoring the rest of the NAGPRA definition concerning recognition of eligibility for services. Finally, it is a Tribal-specific analysis that has not been followed by any other court. In contrast, the list of federally recognized Tribes under the List Act is based on the current recognition regulations in part 83, which are specifically designed ‘‘for the Department to use to determine whether a petitioner is an Indian [T]ribe eligible for the special programs and services provided by the United States to Indians because of their status as Indians.’’ 25 CFR 83.2. The plain language congruence of the ISDEAA definition, the NAGPRA definition, and the purpose and foundation of the list under the List Act, as confirmed by the Yellen decision, are more persuasive than the Abenaki case, and fully support the definition in these regulations. The definition in these regulations has not been changed. The Department believes it is important to codify this definition and clarify any continuing misinterpretation or misunderstanding. Throughout these final regulations, the term ‘‘Indian Tribe’’ is used in the singular form, but it is expected that multiple Indian Tribes may meet the criteria under this part for disposition or repatriation of the same human remains PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 86475 or cultural items. Any Indian Tribe with cultural affiliation may submit a claim for disposition or a request for repatriation. Two or more Indian Tribes may agree to joint disposition or joint repatriation of human remains or cultural items. Claims or requests for joint disposition or joint repatriation should be considered a single claim or request and not competing claims or requests. 40. Comment: We received three comments on the definition of ‘‘inventory.’’ Of that total, two comments suggested changes to the definition while one comment supported it as proposed. The supportive comment felt the revision was an excellent clarification and would streamline the inventory and overcome a barrier to repatriation. One comment adamantly opposed revision of the existing regulatory definition, specifically the removal of an ‘‘item-byitem description’’ requirement. One comment asked if the definition meant that (1) an inventory is not complete unless it is informed by consultation and (2) an initial itemized list could not be submitted to National NAGPRA if consultation had not occurred. DOI Response: We decline to make changes to the definition. Our intent is to clarify and simplify what an inventory must include both in the definition and in the § 10.10. We are aware that the existing regulatory definition and related text have been a barrier to expeditious repatriation. On the other hand, we know that a lack of transparency and accuracy in inventories is also a barrier to repatriation. The Act defines an inventory as ‘‘a simple itemized list that summarizes the information called for by this section’’ (25 U.S.C. 3003(e)). The information called for in an inventory is information to identify (1) ‘‘each Native American human remains or associated funerary objects and the circumstances surrounding its acquisition’’ (25 U.S.C. 3003(d)(2)(A)); and (2) ‘‘the geographical and cultural affiliation of such item[s]’’ (25 U.S.C. 3003(a)). An inventory only pertains to human remains and associated funerary objects (25 U.S.C. 3003(a)). The inventory is also defined by what is not an inventory; namely, a summary, which is ‘‘in lieu of an objectby-object inventory’’ (25 U.S.C. 3004(b)(1)(A)) and pertains to ‘‘unassociated funerary objects, sacred objects, or objects of cultural patrimony’’ (25 U.S.C. 3004(a)). The existing regulations provide a short definition for an inventory: ‘‘the item-by-item description of human remains and associated funerary E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86476 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations objects,’’ but also provide a more detailed list of what an inventory must include in § 10.9. As noted in the 1995 Final Rule, the difference between a summary and an inventory ‘‘reflects not only their subject matter, but also their detail (brief overview vs. item-by-item list), and place within the process. Summaries represent an initial exchange of information prior to consultation while inventories are documents completed in consultation with Indian [T]ribe officials and representing a decision by the museum official or Federal agency official about the cultural affiliation of human remains and associated funerary objects’’ (60 FR 62140). We are keenly aware of the preference of many, if not most, Indian Tribes and NHOs to have all human remains and associated funerary objects identified in order to repatriate them together. In reviewing the comments, the goal of both the supporting comment and the opposed comment is the same: allow lineal descendants, Indian Tribes, and NHOs to dictate the level of documentation or collections review required for an inventory. We agree, and changes to § 10.1(d) Duty of care are specifically meant to achieve this goal. The final regulations require a museum or Federal agency to obtain free, prior, and informed consent prior to any exhibition of, access to, or research on human remains or cultural items. In response to the questions asked, an inventory is not complete until a museum or Federal agency initiates consultation with lineal descendants, Indian Tribes, and NHOs and consults with any consulting party that wishes to do so. Only completed inventories that contain the names of consulting parties or those invited to consult should be submitted to the National NAGPRA Program. If there is no response to the invitation to consult, the museum or Federal agency must still complete or update the inventory by the required deadlines. 41. Comment: We received eight comments on the definition of ‘‘lineal descendant.’’ Of that total, four comments suggested changes to the definition while four comments supported it as proposed. One comment stated common-law system of descent is not clear and the regulations should revert to the existing language. One comment requested a grammatical change and one comment asked what ‘‘known individual’’ means. One comment requested clarification if a museum or Federal agency must confirm the identity of a lineal descendant with an Indian Tribe with cultural affiliation or if the presence of VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 a lineal descendant meant consultation with an Indian Tribe was not required. DOI Response: The existing regulations refer to the ‘‘common law system of descendance’’ and ‘‘known Native American individual’’ in the definition for lineal descendant. The regulatory text adds ‘‘This standard requires that the earlier person be identified as an individual whose descendants can be traced.’’ The common law system of descent means the customary practice of tracing ancestry to a person’s parents, grandparents, great-grandparents, and so on. It does not indicate any kind of precedent is set by previous repatriations. There is a requirement for the deceased individual to be known, but that does not mean a named individual is the only way a person could be known. Rather, it indicates that the deceased individual must be identified in some way to trace ancestry between that individual and the living individual. We have removed the limiting gendered language from the definition as requested by one comment. Both the existing regulations and this final rule require museums and Federal agencies to initiate consultation with both lineal descendants and Indian Tribes or NHOs with potential cultural affiliation and to provide the names of all identified consulting parties. The existing regulations require a museum or Federal agency convey information to both a lineal descendant, if known, and to the Indian Tribe or NHO with cultural affiliation, when the inventory results in a determination that the human remains are of an identifiable individual. In the proposed regulations and this final rule, this requirement is a part of the information shared and requested during the consultation process. We cannot require a museum or Federal agency to verify the identity of a lineal descendant with an Indian Tribe or NHO. The statute gives lineal descendants priority over Indian Tribes or NHOs. Establishing a system in which verification of lineal descendants is through Indian [T]ribes or NHOs could be detrimental to the rights of lineal descendants, particularly those that are not members of an Indian [T]ribe or NHO. Given the diversity of ways in which a lineal descendant may be traced, we cannot require certain types of documentation or evidence needed to establish lineal descent. Museums and Federal agencies must determine if a request from a lineal descendant provides sufficient information and respond to the request accordingly. Throughout these final regulations, the term ‘‘lineal descendant’’ is used in PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 the singular form, but it is expected that multiple lineal descendants may meet the criteria under this part for disposition or repatriation of the same human remains, funerary objects, or sacred objects. Any lineal descendant may submit a claim for disposition or a request for repatriation for human remains, funerary objects, or sacred objects. Two or more lineal descendants may agree to joint disposition or joint repatriation of human remains, funerary objects, or sacred objects. Claims or requests for joint disposition or joint repatriation should be considered a single claim or request and not competing claims or requests. 42. Comment: We received one comment suggesting a review of the involvement of non-profits in museum funding and a change to the definition of ‘‘museum’’ that would replace ‘‘institution of higher learning’’ with ‘‘all educational institutions.’’ DOI Response: The requested review is outside of the scope of this regulatory action. We have not made the requested change because this part of the definition comes directly from the Act, which is already sufficiently inclusive of all educational institutions that have possession or control of human remains or cultural items and receive Federal funds. 43. Comment: We received four comments suggesting changes to the definition of ‘‘Native American.’’ Two comments expressed concern over the inclusion in this definition of Indian groups without Federal recognition. One comment requested we require consultation with Indian Tribes or NHOs prior to any determination that human remains or cultural items are Native American. One comment expressed concern that, as written, this definition might exclude cross-border indigenous peoples or cultures who are indigenous to the United States but also to Canada, Mexico, or Russia. DOI Response: We do not intend to include Indian groups without Federal recognition in the definition of Tribe (as noted elsewhere in the definition of Indian Tribe). In determining whether human remains or cultural items are Native American, we cannot require consultation prior to compiling a summary of cultural items or an itemized list of human remains and associated funerary objects under Subpart C, but we can and do require consultation prior to any determination of cultural affiliation or decision on a request for repatriation. When compiling a summary of cultural items or an itemized list of human remains and associated funerary objects, a museum or Federal agency should E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations include any potential Native American human remains or cultural items to allow for further consultation. The Act limits the definition of Native American to the United States, and we cannot remove that geographical descriptor. We believe the added definitions for ‘‘people’’ and ‘‘culture’’ includes those who are indigenous to locations near present day geographical borders. Any pre-contact Tribe, people, or culture would be included in this definition. Native Hawaiians are included in this definition as a ‘‘people,’’ to clarify an ambiguity left by Congress. 44. Comment: We received 12 comments on the definition of ‘‘Native American traditional knowledge.’’ Of that total, six comments suggested changes to the definition while six comments supported it. Two comments opposed the definition, and both requested it be revised or removed because it was unclear and complex, and one comment felt it would lead to poor decision-making or other pitfalls. One of these comments was concerned that this definition, along with the required deference, would give equal or greater weight to this type of information than to scientific and historical information and, when identifying cultural items, Native American traditional knowledge might be used as the only type of information instead of scientific or historical evidence. One comment was neutral and asked how the term changed the current cultural affiliation process. Three comments supported the definition as proposed but suggested changes to strengthen it. One comment requested we add language to the variety of information listed while another comment requested we include a reference to § 10.3. One comment provided an extensive discussion and specific changes to the definition to include Indian Tribes, expert opinion, and confidentiality. DOI Response: We disagree that the definition is unclear, vague, or overly broad or that this definition is novel or unique to these regulations. The concept of ‘‘Native American traditional knowledge’’ has been used broadly among Federal agencies in the context of land management and the use of natural or cultural resources, although the specific terms used might vary. More recently, the White House Council on Environmental Quality and the Office of Science and Technology Policy released government-wide guidance and an implementation memorandum for Federal agencies on recognizing and including Indigenous knowledge in Federal research, policy, and decision VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 making (https://www.whitehouse.gov/ ceq/news-updates/2022/12/01/whitehouse-releases-first-of-a-kindindigenous-knowledge-guidance-forfederal-agencies/, accessed 12/1/2023). Most certainly, this is not a new concept to lineal descendants, Indian Tribes, or NHOs and any difficulty understanding this definition could be resolved through adequate consultation. We believe this term will lead to more informed decision-making and help to avoid the lengthy and sometimes costly delays in disposition or repatriation. Under the Act and these regulations, all information available is equally relevant to determining cultural affiliation, and our intent in defining this type of information is to ensure that Native American traditional knowledge is considered alongside scientific and historical information. In response to the question asked, this is not different than decision-making for cultural affiliation under the existing regulations or the Act itself. Although it may not have been identified as such, Congress intended for Native American traditional knowledge to be considered when determining cultural affiliation or identifying cultural items. The definitions of funerary objects, sacred objects, and objects of cultural patrimony all rely on information that may only be available to or shared by lineal descendants, Indian Tribes, or NHOs. Consultation, which is required throughout the Act prior to any determination, is how an Indian Tribe or NHO shares the information needed to identify a cultural item. In cases where there is no other information, Native American traditional knowledge alone may identify a cultural item. In response to the other comments, we have added linguistics to the variety of named information, but stress that this list is not exhaustive. We have added a final sentence to reiterate the statement in § 10.3 that Native American traditional knowledge is expert opinion. We have added Indian Tribes, the Native Hawaiian Community, and confidentiality to the definition, although in slightly different places than was suggested. 45. Comment: We received 11 comments suggesting changes to the definition of ‘‘Native Hawaiian organization.’’ Most of the comments requested revisions to paragraph (3)(i) identifying some NHOs. One comment expressed concern that changes to this definition would result in a broad range of NHOs who meet the criteria and impact the Native Hawaiian objects that are subject to the regulations. DOI Response: The definition reflects the language in the Act, which is PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 86477 binding unless stricken, modified, or contravened by other Federal law. The definition in the Act may be modified if it is no longer relevant when certain referenced terms, conditions, or entities cease to exist. The Act includes the Office of Hawaiian Affairs as a ‘‘Native Hawaiian organization,’’ and the definition in these regulations remains unchanged. Other concerns about NHOs are addressed by the definition as well as the prioritization of cultural affiliation under § 10.3. The omission of Hui Malama I Na Kupuna O Hawai1i Nei from the definition of a ‘‘Native Hawaiian organization’’ is due to the group’s dissolution rather than any judgment as to its or any successors’ status as NHOs. The incorporation of ‘‘Native Hawaiian’’ into the definition of a ‘‘Native Hawaiian organization,’’ and the use of the term ‘‘indigenous people’’ rather than ‘‘aboriginal people,’’ clarifies what constitutes an NHO and their relevance to these regulations (2022 Proposed Rule, 87 FR 63213). This definition and these regulations are consistent with the government-tosovereign relationship between the United States government and the Native Hawaiian Community. If the Native Hawaiian Community decides to change its relationship with the United States government to that of a government-to-government relationship, the Department may review and update the current policy and procedures. Throughout these final regulations, the term ‘‘Native Hawaiian organization’’ is used in the singular form, but it is expected that multiple NHOs may meet the criteria under this part for disposition or repatriation of the same human remains or cultural items. Any NHO with cultural affiliation may submit a claim for disposition or a request for repatriation. Two or more NHOs may agree to joint disposition or joint repatriation of human remains or cultural items. Claims or requests for joint disposition or joint repatriation should be considered a single claim or request and not competing claims or requests. 46. Comment: We received six comments suggesting changes to the definition of ‘‘object of cultural patrimony.’’ One comment requested we remove from the definition the provision that the object must have been considered inalienable by the group at the time the object was separated from the group as it seems unnecessary. One comment questioned the use of ‘‘Native American group’’ in the definition. One comment suggested changing ‘‘according to’’ to be ‘‘as determined by’’ to further strengthen the deference to lineal descendants, Indian Tribes, and E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86478 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations NHOs on identification of objects of cultural patrimony. One comment requested an expansion of this definition to include intellectual property like songs, recordings, and photos as well as digital files. Another comment asked if this definition included documents and photos and, if not, then how the regulations support the return of such objects. One comment objected to the definition as over-broad, a reversal of Congressional intent, and contrary to explicit statements in the Congressional record at the time of the Act’s passage. DOI Response: We do not have the discretion to revise the definition as suggested by these first two comments as both are a part of the definition in the Act. The term ‘‘group’’ or ‘‘sub-group’’ used in this definition and elsewhere in these regulations should be understood to have a standard, dictionary definition: ‘‘a number of individuals assembled together or having some unifying relationship’’ (https:// www.merriam-webster.com/dictionary/ group, accessed 12/1/2023). We cannot expand the definition to include intellectual property, digital files, other documents, or records as that would be inconsistent with the Act. We note that requesting documents and records (which could include recordings, photos, or digital files) is already provided for in §§ 10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal descendants, Indian Tribes, and NHOs have a right to request records, catalogues, relevant studies, or other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies are required to share that information (25 U.S.C. 3005(d)). As required by the Act, additional information is only provided upon request of a lineal descendant, Indian Tribe, or NHO, and we cannot require documents and records be provided by including these in the definition of objects of cultural patrimony. We advise lineal descendants, Indian Tribes, and NHOs to make their requests as broad as possible to ensure all information about objects of cultural patrimony, including digital data, is provided. Regarding the request to strengthen the definition, we are unable to change ‘‘according to’’ to ‘‘as determined by’’ as it would be inconsistent with the Act. Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. We have changed the order of the sentence to reflect the importance of Native American traditional knowledge VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (which includes customs and traditions) in this definition. We disagree that the definition as proposed is over-broad, a reversal of Congressional intent, or contrary to explicit statements in the Congressional record. We agree with the concerned comment that when NAGPRA was passed, Congress made clear that not all objects could be deemed ‘‘sacred’’ or ‘‘cultural patrimony.’’ The definition of object of cultural patrimony in these regulations is consistent with the Act and the legislative history. An object of cultural patrimony must not only be an object owned by the collective whole, but must be of ongoing historical, traditional, or cultural importance, as indicated by the Senate (S. Rpt. 101– 473, at 5). Deference to Native American traditional knowledge is necessary to ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The addition of ‘‘according to Native American traditional knowledge’’ in this definition is to ensure meaningful consideration of this information during consultation. We believe this addition to the various definitions of cultural items will lead to more informed decision-making and help to avoid the lengthy and costly delays in disposition or repatriation. In crafting the definitions of cultural items, Congress clearly intended that the definitions ‘‘will vary according to the [T]ribe, village, or Native Hawaiian community’’ (S. Rpt. 101–473, at 4). Consultation, which is required throughout the Act prior to any determination, is how an Indian Tribe or NHO shares the information needed to identify a cultural item. 47. Comment: We received two comments suggesting changes to the definition of ‘‘ ‘ohana.’’ Both comments requested a revision of the definition to reflect that an ‘ohana may be comprised of lineal descendants. DOI Response: We appreciate the suggested change and acknowledge the limitations of the proposed definition. We have revised the definition accordingly. 48. Comment: We received one comment suggesting changes to the definition of person to include ‘‘spiritual entity personhood’’ and clarification that this is different from ‘‘appropriate official.’’ DOI Response: While the word ‘‘person’’ is used in a few definitions and instances, the definition is intended to ensure the requirements under § 10.5 Discovery are completed and to give clear meaning to the phrase in the Act and these regulations: ‘‘Any person who knows or has reason to know. . . .’’ PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Certain actions are required by any individual, partnership, corporation, trust, institution, association, or any other private entity, or any representative, official, employee, agent, department, or instrumentality of the United States Government or of any Indian Tribe or NHO, or of any State or subdivision of a State when a discovery of human remains or cultural items on Federal or Tribal lands occurs. These actions are separate from the required actions of an ‘‘appropriate official’’ for that same discovery. It is possible that a person who makes a discovery on Federal or Tribal land may also be the representative authorized by a delegation of authority within an Indian Tribe, NHO, Federal agency, or Department of Hawaiian Home Lands (DHHL) to be responsible for human remains or cultural items on Federal or Tribal lands. In those instances, the same individual may be performing the required actions of the person and the appropriate official. Considering the use of this definition, we decline to include ‘‘spiritual entity personhood.’’ 49. Comment: We received 44 comments on the definition of ‘‘possession or control.’’ Of that total, 40 comments suggested changes to the definition while four comments supported it. A total of 17 comments expressed concerns with museum and Federal agency compliance. Six comments supported using a single definition for the term possession or control while five comments proposed splitting the definition into two definitions. Five comments proposed replacing the definition of custody with the concept of possession. A total of 13 comments recommended expanding the definition to include museums that only have an obligation to care for human remains or cultural items, for example, a museum that received a loan of human remains or cultural items from another museum. One comment recommended replacing the phrase ‘‘a sufficient interest in an object or item to independently direct, manage, oversee, or restrict the use of the object or item’’ with ‘‘an interest in human remains or cultural items, such that the museum or Federal agency has been providing care, direction, management, oversight, or restrictions regarding the use of the human remains or cultural item.’’ Two comments recommended replacing the phrase ‘‘sufficient interest’’ with ‘‘legal responsibility’’ or ‘‘legal authority.’’ One comment requested that we clarify the meaning of sufficient interest to address confusion over whether a museum with mere custody by a loan, lease, license, or bailment, has possession or control. E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations One comment was concerned that the definition as written would permit museums that have received loans of human remains or cultural items from other museums to make determinations regarding repatriations of the loaning museum’s collection. Six comments were concerned with museums making unilateral determinations regarding possession or control of human remains or cultural items. Nine comments expressed concerns that museums and Federal agencies use the existing definitions as a loophole to avoid compliance with the Act. One comment expressed concern that the proposed regulations no longer include a statement that ‘‘Federal agencies must ensure that these requirements are met for all collections from their lands or generated by their actions whether the collections are held by the Federal agency or by a non-Federal institution.’’ DOI Response: We have not made changes to this definition, other than to replace physical custody with physical location to avoid any confusion. We received one more comment in support of the use of a single definition than we did recommending that the definition be split in two. Congress used these two words as a single term throughout the Act, except for ‘‘right of possession.’’ And, given the overwhelming support for the single definition during consultation in 2021, we have not made any other changes to this definition from the proposed rule. Further, we did not change the terms ‘‘sufficient interest’’ or ‘‘independently direct’’ which are threshold determinations for museums and Federal agencies to make and changing these phrases as suggested would presume application of the Act before that determination has been made. Whether a museum or Federal agency has a sufficient interest in human remains or cultural items to establish possession or control is a legal determination that must be made on a case-by-case basis. However, when a museum with custody of human remains or cultural items cannot identify any person, institution, State or local government agency, or Federal agency with possession or control, the museum should presume it has possession or control of the human remains or cultural items for purposes of repatriation under the Act and these regulations. When a Federal agency cannot determine if human remains or cultural items came into its possession or control before or after November 16, 1990, or cannot identify the type of land the human remains or cultural items were removed from, the Federal agency should presume it has possession or VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 control of the human remains or cultural items for purposes of repatriation under the Act and these regulations. This determination is a jurisdictional requirement for application of the Act and these regulations to the human remains or cultural items that may be subject to repatriation by the appropriate museum or Federal agency. While we acknowledge the continued interest in expanding the scope of the definition to include entities that merely have custody, we cannot make the requested change. In some cases, expanding the scope of the definition would make multiple entities concurrently responsible for fulfilling the inventory, summary, and repatriation process. Such an interpretation is inconsistent with the framework and legislative history of the Act. Congress provided no indication that such an expansive interpretation was its intent, and various features of the Act, including civil penalties, right of possession, and museum obligations, presume that a single museum or Federal agency would be responsible for compliance with the inventory, summary, and repatriation provisions. The phrase ‘‘possession or control’’ as used in the Act connotes a singular interest in human remains or cultural items. Since 1993, these regulations have defined the two elements of the phrase only to differentiate between physical location of the human remains or cultural items (1993 Proposed Rule, 58 FR 31127). In the Act, having possession or control means a museum or Federal agency has an interest in human remains or cultural items, or, in other words, it may make determinations about human remains or cultural items without having to request permission from some other entity or person. This interest is present regardless of the physical location of the human remains or cultural items. For a similar example, a person has the same interest in property that is in the person’s home as in property that same person keeps in an offsite storage unit. The person can make determinations about the property in the storage unit without having to request permission from the storage facility. Regardless of the physical location of the property, the person’s interest in the property is the same whether it is in their home or in the custody of the storage facility. Several comments expressed concerns that collections loaned to other institutions would fall outside the scope of the Act and these regulations. We reiterate that this is not the case. Even where a collection is loaned to another institution, the loaning entity is still PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 86479 required to comply with all the requirements of the Act and these regulations. Under these regulations, if the entity that holds the loaned collection meets the definition of a museum, it would also have to comply with certain requirements for the loaned collection and any other human remains or cultural items in its custody, including a duty of care and reporting obligations. We acknowledge that the underlying intent of this request is to ensure repatriation of all human remains or cultural items subject to the Act and that it is related to the concerns expressed regarding compliance by museums and Federal agencies. We have made other revisions to address these issues by requiring museums and Federal agencies to share information and increase efforts to complete inventories, summaries, and repatriation of human remains and cultural items, even when they are in the custody of other entities. 50. Comment: We received 16 comments on the definition of ‘‘receives Federal funds.’’ Of that total, 15 comments suggested changes to the definition while one comment supported it. Four comments recommended revising the phrase ‘‘institution or agency of a State or local government’’ to ‘‘institution or State or local government agency.’’ Two comments considered the definition to be overbroad or an overreach of Federal authority. One comment expressed constitutional concerns with the impacts of this definition on private property. One comment suggested making the definition of receives Federal funds apply to museums that only received funds prior to November 16, 1990. Four comments sought clarification on whether funds received via specific Federal programs constitute Federal funds under the Act and these regulations. DOI Response: We have made the requested change to ensure consistency between the definitions of museum and receives Federal funds. We do not consider this definition to be overly broad or an overreach of Federal authority. The regulations reflect statutory intent as well as a robust area of law surrounding the receipt of Federal funds. We do not consider this definition to unconstitutionally interfere with private property rights. The Act itself restricts activities that would violate the Fifth Amendment’s protection of property rights, though such situations are rare. We do believe that applying this definition to the receipt of Federal funds prior to the passage of the Act raises constitutional concerns. Generally, the Fifth E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86480 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations Amendment requires us to disfavor retroactive interpretation of Federal statutes, unless expressly provided for by Congress. Congress did not provide such an express instruction here. Regarding the nature of funds received through specific Federal programs, a case-by-case determination as to the nature of such funds is outside the scope of this regulatory action. We recommend seeking technical assistance from the National NAGPRA Program on specific Federal programs. 51. Comment: We received 27 comments on the definitions of ‘‘disposition’’ or ‘‘repatriation.’’ Of that total, 11 comments requested we add physical transfer to the definition. Similarly, two comments requested we add ‘‘the desired outcome’’ has occurred, as confirmed by the lineal descendant, Indian Tribe, or NHO. The comments noted ‘‘[s]uch an outcome can include, but is not limited to, transfer of possession, reburial, traditional use, loan agreements, etc.’’ One comment recommended including ‘‘and completes the physical transfer’’ at the end of the definitions. Four comments requested changes to ‘‘control or ownership’’ in the definitions. Alternatives suggested are ‘‘has the right to repatriate human remains or cultural items’’ or ‘‘has right of possession’’ or ‘‘has possession or control’’ of the human remains or cultural items. Four comments requested we replace ‘‘control or ownership’’ with ‘‘now has control as a result of disposition or repatriation.’’ One comment suggested adding ‘‘relinquishes control’’ and include legal transfer in the definition. Three comments requested we define ‘‘disposition statement’’ and ‘‘repatriation statement.’’ One comment questioned why disposition is defined and used if repatriation encompasses all transfers. DOI Response: We have not made the requested change to include physical transfer in the definitions of disposition or repatriation and have responded in more detail in Comment 67. We have accepted, in part, the suggested change to ‘‘repatriation’’ and use ‘‘relinquish possession or control.’’ We have retained ‘‘ownership or control’’ in the definition of disposition, as it is used in the Act, and ensured throughout that the order of the words in that phrase are consistently applied. There is no definition in the Act for either disposition or repatriation. The existing regulations use the single term ‘‘disposition’’ to mean ‘‘transfer of control’’ which does not necessarily equate to physical transfer in any, or all, of the situations where the term applies. This definition was added in 2007 to VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 clarify the different procedures in the regulations that effectuate the same result: transfer of control over human remains or cultural items by a museum or Federal agency under the regulations (2007 Final Rule, 75 FR 58585 and 58588). The existing definition does not clarify if ‘‘transfer of control’’ means legal transfer of control or physical transfer of control or both. In practice and as we advise, legal transfer of control often occurs prior to physical transfer of control, as physical transfer often requires extensive planning for transportation, scheduling, and funding. We sought to clarify this in the draft revisions for consultation in 2021 where we provided two separate terms: ‘‘disposition’’ and ‘‘repatriation’’ and neither term included physical transfer. We received significant feedback objecting to the implication that museums and Federal agencies have a legal interest in human remains or cultural items which is conveyed or transferred by disposition or repatriation, as the Act does not recognize museums or Federal agencies have a lawful interest other than ‘‘right of possession.’’ We revised the definitions of ‘‘disposition’’ and ‘‘repatriation’’ to remove any implication of a legal interest being transferred. These regulations provide definitions for ‘‘disposition’’ and ‘‘repatriation,’’ and we do not believe it is necessary to also define the related statement because these statements are fully explained in the regulatory text. 52. Comment: We received 11 comments suggesting changes to the definition of ‘‘right of possession.’’ One comment objected to the concept of a right of possession as to any human remains, funerary objects, or objects of cultural patrimony. Two comments objected to the inclusion of funerary objects, particularly unassociated funerary objects, in the definition. One comment objected to the inclusion of objects of cultural patrimony in the definition. Six comments recommended removing the term possession or control from the definition and adding language found in the explanation of the proposed regulations. One comment recommended describing right of possession as possession or control, ownership, or holding legal title. One comment noted that determinations of right of possession must incorporate deference to Native American traditional knowledge. One comment asked for clarification on how fully free, prior, and informed consent is proven. DOI Response: We cannot make the requested changes. The definition is drawn directly from the Act itself, PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 which provides for a right of possession and applies it in some manner to human remains, funerary objects, sacred objects, and objects of cultural patrimony. Moreover, we cannot delete or alter the express meaning provided by Congress. We have not removed the term possession or control because doing so could cause confusion that might prevent cultural items to which a museum or Federal agency asserts a right of possession from appearing on summaries. Even where a museum or Federal agency asserts a right of possession, it must still comply with the requirements of the Act and these regulations for cultural items which are in its possession or control. We have not made ownership or legal title a requirement because doing so would be circular and presume the result that an analysis of right of possession seeks to determine. As this definition intentionally hews closely to the Act, we have not added any clarifying language from the proposed regulations. Instead, we reiterate here that a right of possession does not include, for example, consent given under duress or because of bribery, blackmail, fraud, misrepresentation, or duplicity on the part of the recipient. Voluntary consent may be shown by evidence that consent was fully free, prior, and informed, though those elements are not listed in the definition itself. The type and extent of such evidence will vary from case to case. While we agree that determinations of right of possession must consider Native American traditional knowledge, we have not added that requirement to the definition. In other places, we have emphasized the need for deference to Native American traditional knowledge to ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The addition of ‘‘according to Native American traditional knowledge’’ in other definitions is to ensure meaningful consideration of this information during consultation. Consultation, which is required throughout the Act prior to any determination, is how an Indian Tribe or NHO shares the information needed to identify a cultural item. 53. Comment: We received 11 comments requesting changes to the definition of ‘‘sacred object.’’ Two comments requested the addition of family spiritual practices to accommodate a broader definition of traditional Native American religions. One comment requested we replace ‘‘according to’’ with ‘‘as determined by’’ to strengthen the definition. Three comments objected to the definition as E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations it adhered too closely to the definition in the Act and the existing regulations and is too limiting by requiring the object be needed, the adherents be present-day, or the practice be for observance or renewal. One comment asked why the definition has been revised at all from the existing regulations and requested it be reverted to the definition in the Act. One comment objected to the definition as over-broad, a reversal of Congressional intent, and contrary to explicit statements in the Congressional record at the time of the Act’s passage. One extensive comment stated that the proposed regulations impermissibly broaden the definition, contravenes Congressional intent, and could create a conflict with the Archaeological Resources Protection Act (ARPA). According to the comment, the proposed definition, coupled with explanatory language in the proposed regulations, means that if a lineal descendant, Indian Tribe, or NHO wants an object, or a category of objects, then that object or object category is, by definition, a sacred object. By contrast, Congress stated that a sacred object is an object that was devoted to a traditional religious ceremony or ritual when possessed by a Native American and must be used in the present-day in a Native American religious ceremony. Furthermore, according to the comment, the impermissible broadening of the term to include items that Congress did not intend to be considered sacred objects could conflict with ARPA because most Native American items removed from Federal lands are archeological; non-NAGPRA archeological resources removed from Federal lands under ARPA must be curated consisted with Federal curation regulations; and those curation regulations do not allow transfer or reinterment of those archeological resources. DOI Response: We do not believe this definition should include a separate category of ‘‘spiritual practice’’ because the language in the Act of ‘‘traditional Native American religion’’ is broad enough to encompass the examples in the comment. We are unable to change ‘‘according to’’ to ‘‘as determined by’’ as it would be inconsistent with the Act. Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. We have changed the order of the sentence to reflect the importance of Native American traditional knowledge (which includes customs and traditions) in this definition. We are unable to VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 broaden the definition as requested by some comments as those phrases (needed and present-day) are the required elements of the definition in the Act. ‘‘Observance or renewal’’ were incorporated into the definitions in the 1993 Proposed Rule to incorporate language from the House and Senate Committee reports relating to the Act (58 FR 31122 and 58 FR 31126; 1995 Final Rule, 60 FR 62138). We have revised the definition in the existing regulations to clarify the definition by removing the examples and simplifying the sentence structure while retaining the required elements of the definition from the Act and the legislative history. We disagree that the definition as proposed is over-broad, a reversal of Congressional intent, contrary to explicit statements in the Congressional record, or in conflict with ARPA. We disagree that under the definition, any object, or category of objects, that is imbued with sacredness by a lineal descendant, Indian Tribe, or NHO, without anything more, would satisfy the definition. All the elements explicitly stated in the definition must be satisfied for an object to be identified as a sacred object. The elements of the definition require that an object be: • A specific ceremonial object, • Needed by a traditional religious leader, • For present-day adherents to practice traditional Native American religion. We also disagree that an object to be interred cannot be a sacred object. A specific object may be deemed to be a sacred object if, based on Native American traditional knowledge, in the past, the object was ceremonially interred as a traditional Native American religious practice, the object was subsequently disinterred, and today, it is needed by a traditional Native American religious leader to renew the ceremonial interment of the specific object by present-day adherents. We agree with the comment that when NAGPRA was passed, Congress made clear that not all objects could be deemed ‘‘sacred’’ or ‘‘cultural patrimony.’’ However, this comment reinforces the need for deference to Native American traditional knowledge to ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The addition of ‘‘according to Native American traditional knowledge’’ in this definition is to ensure meaningful consideration of this information during consultation. We believe this addition to the various definitions of cultural items will lead to more informed decision-making PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 86481 and help to avoid the lengthy and costly delays in disposition or repatriation. In crafting the definitions of cultural items, Congress clearly intended that the definitions ‘‘will vary according to the [T]ribe, village, or Native Hawaiian community’’ (S. Rpt. 101–473, at 4). Consultation, which is required throughout the Act prior to any determination, is how an Indian Tribe or NHO shares the information needed to identify a cultural item. As we noted in the 1995 Final Rule, ‘‘[i]dentification of specific sacred objects or objects of cultural patrimony must be done in consultation with Indian [T]ribe representatives, [NHOs,] and traditional religious leaders since few, if any, museums or Federal agencies have the necessary personnel to make such identifications’’ (60 FR 62148). 54. Comment: We received one comment suggesting changes to the definition of ‘‘summary’’ to include associated funerary objects. DOI Response: We cannot add associated funerary objects to a summary as that would be inconsistent with the Act. An inventory pertains to human remains and associated funerary objects (25 U.S.C. 3003(a)), while a summary pertains to ‘‘unassociated funerary objects, sacred objects, or objects of cultural patrimony’’ (25 U.S.C. 3004(a)). 55. Comment: We received five comments suggesting changes to the definition of ‘‘traditional religious leader.’’ All five comments requested broadening the definition so as not to limit it to individuals who are responsible or who hold a leadership role. A broader definition will allow Indian Tribes or NHOs to identify traditional religious leaders. One comment requested we update the words used in the term itself, as they are unnecessary, condescending, and outdated. DOI Response: As noted in the comments, this definition is not in the Act but the term is used in the Act in the definition of sacred object, the consultation requirements for inventories and summaries, and the composition of the Review Committee. In the proposed regulations, we intended to place the authority for identifying a traditional religious leader in the hands of an Indian Tribe or NHO. We understand the term may be offensive but given its use in the Act we cannot change the term itself. We can, and have, modified the definition to ensure a lineal descendant, as well as an Indian Tribe or NHO, can identify any individual that the lineal descendant, Indian Tribe, or NHO feels is the appropriate individual to serve in this E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86482 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations role. This addition of lineal descendant aligns with statements made by the Department in the 1995 Final Rule regarding the role of ‘‘a member of an Indian Tribe’’ in the existing definition of a traditional religious leader (see 60 FR 62138, 60 FR 62151, and 60 FR 62155). 56. Comment: We received seven comments suggesting changes to the definition of ‘‘Tribal lands.’’ Some of the comments objected to the deletion in the proposed regulations of a sentence concerning application of the Fifth Amendment to the Constitution to private land, reasoning that the Department was proposing to exclude private land within the exterior boundaries of a reservation from the application of the Act and these regulations. Another comment was concerned that the definition does not include Tribal trust lands outside reservation boundaries. Other comments suggested the addition of an amendment to the regulatory definition, incorporating our clarification in the preamble to the proposed regulations that, under Supreme Court precedent, the boundaries of Tribal trust land constituted an informal reservation. DOI Response: The Act defines ‘‘Tribal land’’ as ‘‘(1) All lands that are within the exterior boundaries of any Indian reservation; (2) All lands that are dependent Indian communities; and (3) All lands administered by the Department of Hawaiian Home Lands (DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 108) and Section 4 of the Act to Provide for the Admission of the State of Hawai1i into the Union (73 Stat. 4), including ‘available lands’ and ‘Hawaiian home lands’ ’’ (25 U.S.C. 3001(15)). We decline to add Tribal trust land to the common statutory definition in the regulations because of the possibility of unforeseen consequences for Tribal jurisdiction. We do, however, agree with the comments that the plain language of the definition includes private land within the exterior boundaries of the reservation (McGirt v. Oklahoma, 140 S. Ct. 659 (2019)). We also agree that Tribal trust land outside the exterior boundaries of a formal reservation would, under the proposed regulations and these regulations, be considered an ‘‘informal reservation,’’ still qualifying as Tribal land for purposes of NAGPRA (Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991)). 57. Comment: We received three comments requesting clarification to the definition of ‘‘United States.’’ All three comments wanted to understand how VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 the Act and the regulations apply in the U.S. territories. DOI Response: The Act and these regulations only apply to the 50 states and the District of Columbia. Unlike other statutes referenced by one of the comments, the Act does not provide a definition of the United States that includes its territories and possessions. Any change to this limitation would require Congressional action. D. Section 10.3 Cultural and Geographical Affiliation 58. Comment: We received 27 comments on § 10.3, generally. Of that total, most comments generally supported the elimination of the term ‘‘culturally unidentifiable.’’ A few comments specifically objected to the removal of ‘‘culturally unidentifiable’’ and the use of ‘‘Native American traditional knowledge’’ and ‘‘geographical affiliation’’ because of concerns that this would expand the scope of what must be repatriated. Three comments requested more direct participation by Indian Tribes and NHOs in determining cultural and geographical affiliation and one comment requested that the Secretary determine cultural and geographical affiliation. DOI Response: These regulations do not use the term ‘‘culturally unidentifiable.’’ Because Congress anticipated that not all human remains could be determined to have cultural affiliation, Congress required that the Review Committee develop specific actions for the disposition of any human remains with no cultural affiliation and thereby ensured that all Native American human remains would be subject to the Act. For more on the development of these regulations, see 2007 Proposed Rule (72 FR 58582) and 2010 Final Rule (75 FR 12378). The inclusion of Native American traditional knowledge as a type of information that can identify cultural affiliation is consistent with Congressional intent and ensures the stated purpose of these regulations for deference to lineal descendants, Indian Tribes, and NHOs in determinations of cultural affiliation. Other revisions to this section, based on specific comments, are explained below. In response to the noted objections, we disagree with their limited characterization of the scope of what must be repatriated. To forego the use of geographical information and Native American traditional knowledge to limit the number of human remains or cultural items that may be subject to repatriation is inconsistent with the Act, which only provides three exceptions to PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 the requirement for expeditious repatriation (see 25 U.S.C. 3005). 59. Comment: We received 11 comments generally on the paragraph in the proposed regulations under § 10.3 on Information for cultural affiliation (in the final regulations, this is renumbered § 10.3(a) and retitled Step 1: Collect information available.). Most comments supported the changes to the types of information, and a few comments requested additional changes to types of information. DOI Response: We cannot make the requested changes to prioritize the types of information or assign them relative values (1995 Final Rule, 60 FR 62156). We have repeated the exact types of information used for cultural affiliation as provided by Congress in alphabetical order and added Native American traditional knowledge to call out this newly defined type of expert opinion. 60. Comment: We received 23 comments on the paragraph in the proposed regulations under § 10.3 on Cultural affiliation (in the final regulations, this is incorporated into the introductory paragraph of § 10.3). The comments objected to the use of ‘‘preponderance of the evidence’’ rather than ‘‘reasonable’’ in this paragraph. Most of these comments referenced the language of the Act, specifically the difference between ‘‘reasonably’’ and ‘‘reasonable belief’’ at 25 U.S.C. 3001(2), 3002(a)(2)(C), 3003(d)(2)(C), on the one hand, and ‘‘preponderance of the evidence’’ at 25 U.S.C. 3001(3)(B), 3002(a)(2)(C)(2), 3005(a)(4). One comment asked what ‘‘reasonable’’ means. DOI Response: We have replaced ‘‘a preponderance of the evidence’’ with ‘‘reasonable.’’ As stated in the proposed regulations, the Department reiterates that ‘‘a preponderance of the evidence’’ is a similar standard to a ‘‘reasonableness’’ requirement and both standards require a ‘‘more likely than not’’ assessment (87 FR 63216). However, we agree with the comments that these terms have different connotations and that ‘‘preponderance of the evidence’’ has been misused and misapplied in determining cultural affiliation. We agree with the comments that the Act envisioned a simple and collaborative procedure to determine cultural affiliation through consultation with Indian Tribes and NHOs. Only when a museum or Federal agency was unable to determine cultural affiliation would an Indian Tribe or NHO need to demonstrate cultural affiliation through a preponderance of the evidence. As this section of the regulations describes the initial procedure for determining cultural affiliation, we have revised it to E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations only reflect the requirement to reasonably determine cultural affiliation. In response to one comment, ‘‘reasonable’’ means both the procedure to make a determination and the determination itself are ‘‘in accordance with reason,’’ ‘‘not extreme or excessive,’’ and ‘‘moderate, fair’’ (https://www.merriam-webster.com/ dictionary/reasonable, accessed 12/1/ 2023). 61. Comment: We received 41 comments on the paragraph in the proposed regulations under § 10.3 titled Geographical affiliation (in the final regulations, this is removed). Of that total, two comments objected to broadening affiliation to include geography alone. One comment appreciated the more inclusive term but was concerned about making connections only based on geography. One comment requested that archaeological and historical knowledge, especially of disruptions of indigenous territories, be included as key pieces of evidence for establishing geographical affiliation. Six comments supported the paragraph as proposed. A total of 33 comments requested the paragraph be removed in its entirety, although these comments were supportive of clarifying that cultural affiliation could be based on geography alone. Some comments were concerned that geographical affiliation would leave out Tribal knowledge and oral history. One comment was concerned that as proposed, ‘‘geographical affiliation’’ would disenfranchise Indian Tribes under certain circumstances and provides fewer options than are currently available by restricting evidence of geographical affiliation. Most of the comments expressly requested that geographical affiliation be incorporated into cultural affiliation. As proposed, the comments expressed concern that geographical affiliation would not simplify repatriation but bring new complications and loopholes to the process. The comments requested the final regulations should develop an efficient and less burdensome procedure and provide that, in the absence of other evidence, cultural affiliation need only include one type of information that reasonably points to a shared relationship between an Indian Tribe and an identifiable earlier group. DOI Response: We have removed the paragraph proposed at § 10.3 titled Geographical affiliation. We have made related changes to other paragraphs in § 10.3 and renamed the entire section. We have revised the text in the final regulations to reflect a step-by-step procedure for determining cultural affiliation. We have required in the step- VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 by-step processes for disposition under § 10.7 or repatriation under §§ 10.9 and 10.10 that when cultural affiliation is not determined, the museum or Federal agency must briefly describe the information considered under § 10.3(a) and the criteria identified under § 10.3(b) to explain how the determination was made. We have made clear in the definition of cultural affiliation, this section, and the step-bystep processes for disposition or repatriation that cultural affiliation must be identified either clearly by the information available or reasonably by the geographic origin or acquisition history of the human remains or cultural items. The intent of these revisions is to realign the geographic analysis, applied previously to culturally unidentifiable human remains in the existing regulations, as part of the cultural affiliation process. The same methods, analyses, sources, and evidence may inform cultural affiliation determinations based on geographical information as have been used in the past and as discussed in the proposed rule. We agree with the voluminous comments that described museum and Federal agency practices as overly expansive in designating human remains and associated funerary objects as culturally unidentifiable. We believe in most cases, sufficient information on geographic origin and acquisition history exists and can be used to either clearly or reasonably identify Indian Tribes or NHOs with cultural affiliation. 62. Comment: We received four comments supporting the paragraph in the proposed regulations under § 10.3 titled Multiple affiliations (in the final regulations, this is renumbered § 10.3(d) and retitled Joint disposition or repatriation). Many other comments suggested changing the title of the paragraph to Joint disposition or repatriation. DOI Response: We have accepted and adopted the suggested change in the title of this paragraph. 63. Comment: We received 19 comments suggesting changes to the paragraph in the proposed regulations under § 10.3 titled Closest affiliation (in the final regulations, this is renumbered § 10.3(e) and retitle Competing claims or requests). One comment objected to museums and Federal agencies making determinations on the closest affiliation. One comment objected to the priority order for NHOs as it was too complex and may result in a family or small organization having a priority over the Office of Native Hawaiian Affairs. Two comments asked if the enumerated list reflected a priority and if two Indian PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 86483 Tribes or NHOs might both be in a single category. One comment requested guidance on how closest affiliation would be determined if one Tribe’s claim is based on geographic information and another Tribe’s claim is based on cultural practices. One comment requested it be clear that museums and Federal agencies must determine the Indian Tribe with the closest cultural affiliation and continually notify that Indian Tribe, regardless of who might make a claim or a request. Several comments requested the regulations be revised to bring all the priority orders together into one provision and provided specific redline changes to the proposed text. DOI Response: We cannot change who is responsible for making determinations on the closest cultural affiliation when, and only when, there are competing claims or requests. This is required by the Act at 25 U.S.C. 3002(a) and 3005(e). Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. Based on consultation with the Native Hawaiian Community, it was our intention to give priority to a family or small organization over the Office of Native Hawaiian Affairs when, and only when, there are competing claims or requests. The enumerated lists are intended to identify a priority order, and it is possible that two Indian Tribes or NHOs might have the same priority. The priority order distinguishes between different kinds of cultural affiliation and places affiliation based on geographic information alone below other kinds of cultural affiliation. There is no obligation for a museum or Federal agency to determine the Indian Tribe or NHO with the closest cultural affiliation unless and until there are competing claims or requests. All Indian Tribes or NHOs with cultural affiliation have an opportunity to make claims or requests prior to a disposition or repatriation statement. To avoid repetition and to clarify when closest cultural affiliation must be determined, we have combined paragraph (c)(2) in § 10.3 in the proposed regulations titled Competing claims or requests with paragraph (d) titled Closest affiliation to create a new paragraph § 10.3(e) Competing claims or requests. In conjunction with the changes to § 10.3 described above, we have added the standard of ‘‘preponderance of the evidence’’ to this paragraph on completing claims or requests. We cannot accept the suggestion to bring the priority orders E:\FR\FM\13DER2.SGM 13DER2 86484 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 together in this paragraph because the priority order established in the Act for Federal or Tribal lands (25 U.S.C. 3002) is broader than the priority order for the ‘‘closest cultural affiliation’’ identified here. Where appropriate, we have referred to this paragraph in §§ 10.7, 10.9, and 10.10. E. Subparts B and C 64. Comment: We received 53 comments on the regulatory steps for consultation (Initiate consultation and Consult with requesting parties) in §§ 10.4, 10.9, and 10.10. Three comments supported the requirement for museums and Federal agencies to initiate consultation in these paragraphs. The largest number of comments (15) requested we remove the requirement for consulting parties to submit a written request to consult. In addition, 11 comments requested that the invitation to consult include a clear statement that sensitive information will not be requested, but if shared, the consultation record will be protected from disclosure ‘‘to any person for any reason.’’ Five comments requested changes to the two terms ‘‘consulting parties’’ and ‘‘requesting parties’’ while one comment requested adding to the list of ‘‘consulting parties.’’ Five comments requested deference to Indian Tribes or NHOs on the timelines for consultation and one comment requested deference to documentation submitted by Indian Tribes or NHOs during consultation. Four comments requested changes to ensure consultation is not cutoff with publication of a notice. Three comments questioned the use of good-faith effort in these paragraphs. Two comments questioned how consultation can proceed where consensus cannot be reached. Two comments recommended adding an upfront fee payment for initiating consultation, like the Federal Communications Commission. One comment stated that consultation is not streamlined or simplified in these regulations. DOI Response: We have removed the requirement for a consulting party to submit a written request to consult and, consequently, the cutoff for requests to consult before publication of a notice. Correspondingly, we have removed the requirement for a response to the request to consult within 10 days. As noted in the proposed rule, the written request to consult was a necessary precursor to require a museum or Federal agency to respond by a certain date. While a written request to consult is no longer a requirement, we would recommend a consulting party submit a written request to consult to ensure VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 there is a clear record in case the museum or Federal agency does not respond. As noted in Comment 5, we cannot dictate how a museum or Federal agency requests or records sensitive information it receives during consultation. We can, and have, specifically limited the information needed to comply with these regulations, and we encourage lineal descendants, Indian Tribes, and NHOs to request that museums and Federal agencies ensure that information of a particularly sensitive nature is not made available to the public, pursuant to otherwise applicable law. Since 1995, the Department has recommended that museum or Federal officials ensure that sensitive information does not become part of the public record by not collecting, or writing down, such information in the first place (1995 Final Rule, 60 FR 62154). We recommend that in a response to an invitation to consult, lineal descendants, Indian Tribes, and NHOs stipulate their requirements for protecting sensitive information shared during consultation, such as prohibiting any audio or video recording of consultation, requiring use of a specific note-taker or transcriptionist, or conducting consultation in a separate facility with limited attendance. We have made clarifying edits to the paragraphs in §§ 10.4, 10.9, and 10.10, including the requested change from ‘‘requesting parties’’ to ‘‘consulting parties’’ throughout. We note that consulting parties are those with potential cultural affiliation, but this should not impact the role of removed and aboriginal land Indian Tribes as consulting parties. Based on geographical information, removed and aboriginal land Indian Tribes are those with potential cultural affiliation. We have not added a requirement for payment of an upfront fee in the initiation of consultation. We recommend that in a response to an invitation to consult, lineal descendants, Indian Tribes, and NHOs stipulate their requirements for conducting consultation, including any required financial support. In response to other comments, we have made changes to the paragraphs in §§ 10.4, 10.9, and 10.10 to correspond to changes in the definition of consultation which directly addresses comments on deference, good-faith, and reaching consensus. We have changed recommendations to preferences on the timeline and method for consultation, but we cannot require deference in this instance because the timeline may be PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 dictated by other requirements in the regulatory processes. 65. Comment: We received 20 comments on the regulatory steps for submitting a notice for publication and for receiving and considering a claim for disposition or a request for repatriation in §§ 10.7, 10.9, and 10.10. Four comments supported the timeline for the National NAGPRA Program to approve or return a notice submission but requested that a timeline be added requiring museums, Federal agencies, or DHHL to submit a revised notice. Five comments requested clarification on the statements in §§ 10.7 and 10.10 that any claim or request received no later than 30 days after publication of a notice must be considered, noting that the preceding sentence in both sections seemed contradictory since any claim or request must be received before a disposition or repatriation statement is sent. One comment requested grammatical edits to clarify the criteria for a claim for disposition or request for repatriation. Seven comments in one submission repeatedly objected to the 30-day timeframe for lineal descendants, Indian Tribes, or NHOs to submit claims or requests following a notice publication in §§ 10.7, 10.9, and 10.10. On the other hand, one comment stated submission of claims or requests should be limited to the 30 days after publication notice and requests received after that date should not be considered. One comment disagreed with the provisions for claims or requests to be received before publication of a notice while another comment felt these provisions would ensure more flexibility for lineal descendants, Indian Tribes, and NHOs. DOI Response: We do not intend to impose deadlines on lineal descendants, Indian Tribes, or NHOs to submit claims for disposition or requests for repatriation. Under these regulations, a notice is required to identify the date (30 days from the date of publication) after which a disposition or repatriation statement may be sent to a claimant or a requestor. We intended to clarify in these provisions that any claim or request submitted during that 30-day period must be considered since a disposition or repatriation statement may be sent immediately after that date. With the disposition or repatriation statement, the museum or Federal agency divests itself of any interest in the human remains or cultural items and cannot accept or consider a request from any other party. Therefore, while there is no timeline for lineal descendants, Indian Tribes, and NHOs to act, a failure to do so before a disposition or repatriation E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations statement is sent is an irrevocable waiver of any right to make a claim or a request (see § 10.1(g) and Comment 20). For example, once a notice of any kind publishes in the Federal Register, there is a 30-day period for any party to make a claim for disposition or a request for repatriation. On day 31, if a disposition or repatriation statement is sent to a claimant or requestor, any additional claims or requests will not be considered. We have added a timeline (14 days or two weeks) for a museum or Federal agency to resubmit a notice that is returned to them under §§ 10.7, 10.9, or 10.10. We have adjusted the timeline (from 15 days to 21 days) for the National NAGPRA Program to accept or return a notice. This change is related to the change in § 10.1(f) from business days to calendar days and does not change the overall timeline (3 weeks). We have removed the sentence stating that any claim or request received no later than 30 days after publication of a notice must be considered. While accurate, we understand the confusion this sentence causes, especially considering the objections to the 30-day deadline. We have made grammatical changes to the criteria to ensure clarity. We have not made changes to the date of a claim or request received before publication of a notice (same date the notice was published). We agree that this provides flexibility for lineal descendants, Indian Tribes, and NHOs. In addition, we feel this provides the opportunity for lineal descendants, Indian Tribes, and NHOs to dictate the timeline, as much as they can, after publication of a notice of any kind. For example, in a claim for disposition or a request for repatriation, the lineal descendant, Indian Tribe, or NHO could request that the disposition or repatriation statement be sent on day 31 after publication of any kind. If any competing claims or requests are received during the 30-day period, this request could not be accommodated. If no competing claims or requests are received, nothing in these regulations would prevent the disposition or repatriation statement from being sent on day 31. In addition to competing claims or requests, other factors outside of these regulations, such as legal review of the statement or deaccession policies, may require additional time before sending the disposition or repatriation statement. If no competing claims or requests are received, 31 days is the minimum amount of time between any kind of notice publication and sending a disposition or repatriation statement. Under §§ 10.7 and 10.10, the maximum VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 amount of time between notice publication and sending a disposition or repatriation statement depends on when a claim for disposition or request for repatriation is received. No later than 90 days after responding to a claim for disposition or a request for repatriation, a disposition or repatriation statement must be sent. 66. Comment: We received 22 comments on the regulatory steps for disposition or repatriation under §§ 10.7, 10.9, or 10.10. Of that total, 13 comments requested that the regulations require documentation or notification of physical transfer after a disposition or repatriation statement is sent. Four comments made a similar request for documentation of the discretionary physical transfer or reinterment of human remains or cultural items under §§ 10.7 or 10.10 specifically so, in the future, Indian Tribes or NHOs with cultural affiliation would be able to request the return of those human remains or cultural items. Three comments requested disposition or repatriation statements be published in the Federal Register specifically to further support the reviewability of disposition or repatriation statements by Federal agencies. On the other hand, one comment requested a ‘‘paper transfer’’ procedure be developed or explained for Indian Tribes or NHOs who do not have access to a curation facility or other means to physically and honorably receive human remains or cultural items. One comment requested clarification as to what kinds of agreements might be entered into after a disposition or repatriation statement is sent. An additional 14 comments made a similar request to include physical transfer in the definitions of ‘‘disposition’’ or ‘‘repatriation’’ (see Comment 51). DOI Response: We have not made the requested changes related to physical transfers or reinterments for several reasons. We have made changes to the definition of repatriation and to what is required after a disposition or repatriation statement is sent. First, there is a need to balance the requests for additional documentation and notification with the protection of sensitive information. Any document submitted to the National NAGPRA Program is generally subject to release under the Freedom of Information Act. Requiring documentation of physical transfers or reinterments to be submitted to the National NAGPRA Program or published in the Federal Register comes with added risks of disclosure of sensitive information. As we advise museums and Federal agencies, the best way to prevent sensitive information PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 86485 from being released is to not write it down in the first place. Second, as discussed in the response to comments on the definitions in Comment 51, it is difficult for these regulations to require physical transfer either as a part of or after the regulatory processes for disposition or repatriation. The term physical transfer is used in these regulations to provide for an action that, as desired by a Tribe or NHO, may occur, but is not required to occur, after sending a disposition or repatriation statement. While we only received one comment indicating this, we know that many lineal descendants, Indian Tribes, and NHOs prefer to not complete physical transfer immediately or at all. Therefore, as in the proposed regulations, we have retained a separation between the disposition or repatriation statements and physical transfer, and we have not attached any requirements for reporting on physical transfer in these regulations. Documentation of physical transfer is required but is not sent to the National NAGPRA Program or published in the Federal Register. Third, the Act does not provide for or require the involvement of the Secretary in the physical transfer or in any other procedure after publication of a notice. The proposed regulations provided, and these regulations retain, a new requirement for the Secretary to receive copies of disposition or repatriation statements. This new requirement is based on the 2010 Government Accountability Office report on the implementation of the Act, and the Department will retain these documents with the other compliance documents in the disposition or repatriation processes. However, we do not believe the Department should collect any additional documentation on the physical transfers or publish these disposition or repatriation statements. We affirm our response to consultation in 2021 that publication in the Federal Register would be costly, inefficient, and of little relative value. The purpose of publishing a notice under the Act and these regulations is to allow additional parties to come forward. Disposition or repatriation statements are the final step in regulatory processes and recognize the rights of a lineal descendant, Indian Tribe, or NHO in the human remains or cultural items. These statements cannot be challenged or revoked. Publication of those statements might lead to confusion about which type of publication is appealable. Although not incorporated into the regulatory text, the National NAGPRA Program will record information on disposition or repatriation statements it receives from E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86486 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations both museums and Federal agencies and will provide that information in its databases or upon request. The Act provides very little instruction for this significant and important part of the processes. The section of the Act titled ‘‘Repatriation’’ (25 U.S.C. 3005) focuses on the circumstances under which human remains or cultural items must be ‘‘expeditiously returned’’ after a request from a lineal descendant, Indian Tribe, or NHO. The Act requires that the return of human remains or cultural items be ‘‘in consultation with the requesting lineal descendant or [T]ribe or organization to determine the place and manner of delivery of such items’’ (25 U.S.C. 3005(a)(3)). Congressional reports state that after a notice, a museum or Federal agency must ‘‘make arrangements to return such items if the appropriate [T]ribe made a request’’ (H. Rpt. 101–877, at 11) and must allow for ‘‘mutually acceptable alternative[s] to repatriation’’ (S. Rpt. 101–473, at 8). The existing regulations refer to ‘‘transfer custody’’ of human remains or cultural items from Federal land. For holdings or collections of human remains or cultural items with cultural affiliation, only ‘‘repatriation’’ is used, as in consultation must occur on the place and manner of the repatriation and the content and recipients of all repatriations must be permanently documented. Under the 2010 regulations, ‘‘transfer control’’ is used repeatedly to describe the process for culturally unidentifiable human remains. We sought to clarify this in the draft revisions for consultation in 2021 where we provided two separate terms: ‘‘disposition’’ and ‘‘repatriation’’ and neither term included physical transfer. Transfer and physical transfer were used elsewhere after disposition or repatriation statements. In 2021, we did not receive any related comments on physical transfer. In the proposed regulations, we did not address the separation of disposition or repatriation from physical transfer and retained the procedures for physical transfer that, as desired by a Tribe or NHO, may occur, but are not required to occur, after disposition or repatriation (2022 Proposed Rule, 87 FR 63246, 87 FR 63250, and 87 FR 63255). We appreciate and understand the significance of physical transfer or other desired outcomes for lineal descendants, Indian Tribes, and NHOs after museums and Federal agencies complete the regulatory processes by sending a disposition or repatriation statement. We do not intend these regulations to indicate that completion VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 of the regulatory processes is the end goal for lineal descendants, Indian Tribes, NHOs, museums, or Federal agencies. We know that for many lineal descendants, Indian Tribes, and NHOs, this work is not finished until their ancestors and other relatives are home or at rest. For many museums and Federal agencies, this work is not finished until the holding or collection is in the hands of its rightful caretakers. However, we also know that the desired outcome of the disposition or repatriation processes vary greatly among lineal descendants, Indian Tribes, and NHOs. If or when physical transfer occurs depends on many factors, including spiritual, cultural, or religious observances, which cannot and should not be dictated by a regulatory process. It is, therefore, difficult for these regulations to require physical transfer either as a part of or after the regulatory processes. In response to the request for clarification on agreements after disposition or repatriation, any kind of agreement could occur after a disposition or repatriation statement is sent. We provided this language from the Act to ensure it was clear that once a lineal descendant, Indian Tribe, or NHO holds all rights and interests in the human remains or cultural items, what comes next is not in any way dictated by these regulations. We have removed ‘‘the care or custody’’ to ensure there is no implied limitation on such an agreement. Examples of agreements after disposition or repatriation include curation agreements, agreements to reinter human remains or cultural items, or agreements to analyze human remains or cultural items. The terms of the agreement, however, are at the discretion of the lineal descendant, Indian Tribe, or NHO. 67. Comment: We received 20 comments on the regulatory steps for or after disposition or repatriation statements in §§ 10.7, 10.9, and 10.10. Two comments related to the requirements for consultation on the care, custody, and physical transfer of human remains or cultural items. One comment requested that we add that museums or Federal agencies cannot dictate care, custody, or physical transfer before or after a disposition or repatriation statement is sent. One comment recommended based on experience that consultation on care, custody, or physical transfer only occur after a disposition or repatriation statement is sent. One comment requested that the regulations require museums and Federal agencies to pay for care and physical transfer of human remains or cultural items. The other PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 comments suggested the following language changes: • Replace physical ‘‘transfer’’ with physical ‘‘repatriation;’’ • Replace ‘‘requestors’’ with ‘‘claimants;’’ • Replace ‘‘most appropriate claimant/requestor’’ with ‘‘closest cultural affiliation claimants’’ and cite to § 10.3 of this part; • Replace disposition or repatriation ‘‘statements’’ with ‘‘documents;’’ • Replace ‘‘care, custody’’ with ‘‘the appropriate duty of care, custody;’’ and • Replace ‘‘delivery’’ with ‘‘escort’’ to be sensitive to the nature of human remains and cultural items. DOI Response: We have made the requested changes to require a museum or Federal agency to consult with a requestor on custody and physical transfer after a disposition or repatriation statement is sent. Nothing under the Act or these regulations allow a museum or Federal agency to dictate any action after a disposition or repatriation statement is sent. Regardless of the disposition or repatriation statement, a museum or Federal agency is obligated to exercise a duty of care for human remains or cultural items in its custody or in its possession or control under § 10.1(d) and to defer to lineal descendants, Indian Tribes, and NHOs. We cannot require museums or Federal agencies pay for care or physical transfer. We have not changed ‘‘physical transfer’’ for reasons explained in Comment 66 on the intentional difference between disposition or repatriation and physical transfer. We have not changed ‘‘requestor’’ to ‘‘claimants.’’ We have intentionally used the terms ‘‘claim’’ and ‘‘claimant’’ to refer to the disposition process in Subpart B and ‘‘request’’ and ‘‘requestor’’ to refer to the repatriation process in Subpart C. We cannot make the requested change from ‘‘most appropriate claimant/requestor’’ because while the Indian Tribe or NHO with the closest cultural affiliation under § 10.3 is one possible most appropriate claimant/requestor, competing claims for disposition or repatriation might involve lineal descendants or other Indian Tribes with a priority for disposition. We have not changed statements to documents. Statements are used in limited instances in these regulations and indicate a specific kind of document. Document is used more broadly. We have removed ‘‘care’’ in any use outside of the duty of care. We have revised the documentation of physical transfer to not require any specific information. While physical transfer E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 must be documented, it is up to the lineal descendant, Indian Tribe, or NHO to dictate what the documentation should contain to ensure protection of sensitive information. F. Section 10.4 General 68. Comment: We received seven comments requesting changes to Subpart B-Protection of human remains or cultural items on Federal or Tribal lands. Six of these comments requested that the regulations acknowledge the application of the Act to human remains or cultural items removed from Federal or Tribal lands that are subject to the disposition and trafficking provisions of the Act. The comments request a procedure by which Indian Tribes can report human remains and cultural items obtained in violation of the Act and send a clear signal to third parties that it is a crime to sell human remains or cultural items under NAGPRA and other statutes, such as the Archaeological Resources Protection Act (ARPA). The comments specifically request that references to human remains and cultural items ‘‘on’’ Federal or Tribal lands be expanded to human remains or cultural items ‘‘located on or removed from’’ such lands. One comment requested stronger requirements in the regulations to protect Tribal cultural heritage and sacred sites from theft or damage on Federal lands. DOI Response: We cannot add the requested procedures to these regulations. We agree that the criminal provisions of the Act (18 U.S.C. 1170(a) and (b)) apply to human remains or cultural items as defined in the Act and these regulations. The Secretary and the Department do not have jurisdiction for implementing those provisions of the Act and cannot add them to these regulations. Any human remains or cultural items located on or removed from Federal or Tribal lands after November 16, 1990, are subject to these regulations under Subpart B. If human remains or cultural items are obtained illegally from Federal or Tribal lands, the processes described in these regulations do not apply until the human remains or cultural items are recovered by Federal law enforcement agents and any criminal procedures have concluded. The title of Subpart B highlights the procedures in §§ 10.4, 10.5, and 10.6 that provide protection to human remains or cultural items that are located on Federal or Tribal land. The disposition procedures in § 10.7 apply to any human remains or cultural items that are removed from Federal or Tribal land. We do not believe changing ‘‘on’’ to ‘‘located on or removed from’’ VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 will have any impact on the application of these regulations. We are unable to add any requirements to these regulations that exceed the requirements provided in the Act for protection of human remains or cultural items on Federal or Tribal land. 69. Comment: We received 15 comments on § 10.4, generally. Of that total, 14 comments suggested changes to the section while one comment supported it as proposed. Ten comments requested a separate and simplified procedure for boarding school cemeteries on Federal lands, such as (1) consult, (2) develop a plan of action, and (3) disinter, with no requirement for an ARPA permit. One comment objected to the revisions and found the text confusing and unclear. One comment stated that these regulations should not require actions by Indian Tribes on Tribal lands. One comment suggested removing this section entirely and relying on the provisions of the National Historic Preservation Act (NHPA) because ‘‘[t]here is no need for a plan of action independent of that already stipulated for historic preservation requirements in the NHPA’’ (see NPS–2022–0004–0116). One comment requested a procedure for Indian Tribes to make requests for a plan of action or comprehensive agreement, to report non-compliance of Federal agencies, and to file suit under the Administrative Procedures Act. DOI Response: We cannot make the requested change for boarding school cemeteries. As stated in the proposed regulations, the Act does not require a Federal agency to engage in an excavation of possible burial sites (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n. 4 (D.D.C. 2010)). However, the excavation provisions of the Act and these regulations apply to the human remains and cultural items disinterred from cemeteries on Federal or Tribal lands (2022 Proposed Rule, 87 FR 63205). The suggested simplified procedure is already provided for in these regulations. Any Indian Tribe or NHO may request the excavation of a burial site on Federal lands and, if the Federal agency agrees, a plan of action, including consultation with lineal descendants, Indian Tribes, or NHOs, is required. These regulations cannot require that a Federal agency agree to excavate a burial site nor can we unilaterally state an ARPA permit is not required for excavations at boarding school cemeteries. However, we believe these regulations provide a streamlined procedure for excavations of boarding school cemeteries through consultation and a plan of action, and the Department encourages any Federal PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 86487 agency that manages boarding schools and cemeteries on Federal lands to consult with lineal descendants, Indian Tribes, and NHOs on identification, disinterment, and repatriation of Native American children. The Department stands ready to assist Federal agencies, Indian Tribes, and NHOs to the fullest extent of its authority. We have made changes to the first paragraph in this section to clarify the responsibilities under this section and this Subpart. We cannot remove the requirement for Indian Tribes to take actions on Tribal lands as these actions are required by the Act itself. We cannot delete this section and rely on provisions in the NHPA because the scope of the Act and these regulations can be greater than the NHPA requirements. However, we encourage Federal agencies to consider coordinating requirements under these regulations with any other required consultation and planning efforts for their planned activities on Federal lands. Nothing in these regulations would prevent an Indian Tribe from requesting a plan of action or comprehensive agreement from a Federal agency, and these regulations require a plan of action for any discovery or excavation on Federal lands. Federal agencies are required to comply with these regulations for any human remains or cultural items on Federal lands. Federal law provides ways to allege that a Federal agency has failed to comply with the requirements of the Act or the regulations (or any other Federal law or regulations). The most broadly applicable way to allege that a Federal agency has failed to comply is to send an allegation to the head of the appropriate Federal agency or to the Federal agency’s Office of the Inspector General. If the alleged failure to comply is a final agency action (see § 10.1(i)), the failure to comply could also be the subject of a lawsuit under the Administrative Procedure Act (5 U.S.C. 704). 70. Comment: We received eight comments on § 10.4(a) requiring designation of an appropriate official. One comment supported the change, noting that it would increase transparency. One comment suggested designation of appropriate officials be reported to the Manager, National NAGPRA Program. Two comments requested a training requirement be added for Federal agency employees. Four comments questioned whether the Bureau of Indian Affairs (BIA) should designate the appropriate official for Tribal lands in Alaska and the continental United States rather than an Indian Tribe. Two of these comments E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86488 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations stated that because the BIA is currently responsible for discovery, excavation, and disposition on Tribal lands in Alaska and the continental United States, this change would require the BIA to notify all private landowners within the exterior boundaries of reservations that authority on those lands has changed from the BIA to the relevant Indian Tribe. The other two comments strongly objected to this change and requested that ‘‘. . . NAGPRA and its implementing regulations designate BIA as the exclusive regulatory authority over the discovery, excavation, and disposition of Native American cultural items within the exterior boundaries of any Indian reservation. Only after this necessary step is taken should transfer of that jurisdiction to the Tribes be contemplated’’ (see NPS–2022–0004– 0151). DOI Response: We decline to make the requested changes. Each Indian Tribe, Federal agency, or DHHL may designate appropriate officials in any way that best suits its organizational structure. For some Federal agencies, like the National Park Service, the appropriate officials may be the Superintendent of each park unit. The National NAGPRA Program cannot and should not track or record those designations. Each Federal agency is also responsible for ensuring the appropriate official receives the necessary training. We disagree that the Act, the existing regulations, or the other cited regulations designate that the BIA is responsible for discovery, excavation, and disposition on Tribal lands in Alaska and the continental United States. In the Act, Congress specifically required that a person discovering human remains and cultural items notify ‘‘the Secretary of the Department, or head of any other agency or instrumentality of the United States, having primary management authority with respect to Federal lands and the appropriate Indian [T]ribe or Native Hawaiian organization with respect to [T]ribal lands’’ 25 U.S.C. 3002(d)(1) (emphasis added). Nowhere does the Act mention the Bureau of Indian Affairs. We agree that Indian Tribes have discretion under the existing regulations in responding to a discovery on Tribal lands and that, also under the existing regulations, the BIA is responsible for issuing an ARPA permit on private lands that are also Tribal lands. Neither the existing regulations nor the Secretary assign the BIA responsibility for consultation, obtaining consent, or disposition of human remains or cultural items on VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 Tribal lands. As the proposed regulations stated, the clarification of the appropriate official for Tribal lands is to improve consistency with the Act by requiring certain actions by Indian Tribes, NHOs, and DHHL on Tribal lands. We note that other comments discussed below were supportive of Indian Tribes managing and making decisions regarding discoveries or excavations on their Tribal lands under §§ 10.5 and 10.6 of this part (see NPS– 2022–0004–0119, as one example). Furthermore, the BIA does not have a record or list of private landowners within the exterior boundaries of a reservation, and the Federal Government has no obligation, besides those instituted by Congress in the Administrative Procedure Act, to inform the public of changes in laws or regulations. 71. Comment: We received 27 comments on § 10.4(b) Plan of action. Of that total, 21 comments suggested changes to the paragraph while six comments supported it as proposed. Four comments requested a statement that plans of action and comprehensive agreements are not required on Tribal lands. Seven comments suggested changes to the likelihood of a discovery or excavation to include deference to Indian Tribes or NHOs. One comment requested that a plan of action be required before a discovery occurs. Several comments requested specific changes to requirements of a plan of action in paragraph (b)(3) of this section. One comment requested clarification on how a plan of action accommodates immediate reburial of human remains or cultural items. One comment objected to leaving or relocating human remains or cultural items without adequate protection or security. Two comments requested leaving or relocating human remains or cultural items be required in all cases. One comment requested archaeological recording and analysis be added back into the plan of action. One comment requested adding identification of human remains or cultural items to the plan of action. Three comments requested Indian Tribes and NHOs be required to sign the plan of action. DOI Response: We have clarified that when a Federal agency or DHHL is responsible for a discovery or excavation on Federal or Tribal lands, a plan of action is required. A plan of action is not required for a discovery or excavation on Tribal lands when the Indian Tribe or NHO has responsibility. We hope this clarifies that when an Indian Tribe delegates its responsibility for a discovery or excavation on Tribal lands to the BIA or another Federal PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 agency, the BIA or Federal agency must approve and sign a plan of action. In Hawai1i, DHHL must approve and sign a plan of action on Tribal lands unless a NHO agrees to be responsible for discoveries or excavations on the Tribal lands of an NHO. In that case, a plan of action is not required on Tribal lands of an NHO. We have added the phrase ‘‘in consultation with Indian Tribes and Native Hawaiian organizations’’ to the likelihood of a discovery or excavation for a planned activity. We cannot strengthen this requirement further because Federal agencies and DHHL may have certain obligations under land management authorities to allow planned activities even when an Indian Tribe or NHO objects. However, Federal agencies and DHHL also have consultation responsibilities for land management activities that should inform when a planned activity is likely to result in a discovery or excavation subject to these regulations. We cannot require a general plan of action be developed by all Federal agencies and DHHL in case of discovery, but we agree with the comment that a plan of action is a useful tool to ensure efficiency and effectiveness in responding to a discovery. We believe that the requirement for a plan of action after a discovery will encourage Federal agencies and DHHL to develop these plans. The comments requesting changes to the content of a plan of action demonstrate the diversity of opinions on protecting and caring for human remains or cultural items on Federal or Tribal lands. Because of this diversity of opinion, we have not made the requested changes to the minimum requirements for a plan of action to ensure flexibility. The requirements for a plan of action must be broad and allow for modification to specific circumstances and preferences of consulting parties. These are minimum requirements for a plan of action and any consulting party can request additional elements be added to a plan of action during consultation. For example, a plan of action might indicate that the consulting parties prefer protection of human remains or cultural items in situ or by relocating them in a nearby location. Alternately, a plan of action might require the immediate removal of human remains or cultural items to a secure, protected facility. In other cases, a plan of action might instruct the appropriate official to take no action upon the discovery of human remains or cultural items to allow for natural exposure or erosion. E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 We cannot require a plan of action be signed by Indian Tribes or NHOs, but an Indian Tribe or NHO can request to sign a plan of action. The appropriate official must approve and sign the plan of action by the deadlines required under §§ 10.5 and 10.6 and identify disposition by the deadlines required under § 10.7 with or without receiving a response to the invitation to consult. These regulations do not and cannot require a lineal descendant, Indian Tribe, or NHO to respond to the invitation to consult. 72. Comment: We received 14 comments on § 10.4(c) Comprehensive agreement. Two comments supported the paragraph as proposed while 12 comments suggested changes to it. Most of the comments requested more detail or additional requirements be added to this paragraph. Some comments requested a requirement for comprehensive agreements to be renewed on a regular basis. A few comments requested Tribal policy should be substituted for a comprehensive agreement if applicable. One comment asked if Indian Tribes could execute comprehensive agreements with other Indian Tribes. One comment stated comprehensive agreements should not be promoted by these regulations because a well-crafted plan of action works better than a comprehensive agreement. DOI Response: The diversity of opinion on what a comprehensive agreement should contain is precisely why we decline to make any changes to this paragraph. The comprehensive agreement, like the plan of action, is necessarily broad and includes only the minimum requirements. As the comprehensive agreement is at the discretion of the parties involved, these regulations should not dictate the content or nature of the agreement. Comprehensive agreements should contain whatever terms or requirements the parties wish it to contain beyond the minimum requirements of a plan of action. G. Section 10.5 Discovery 73. Comment: We received three comments on § 10.5 Discovery, generally. One comment supported the section as proposed and two comments requested clarification on identifying if discovered human remains or cultural items are Native American. DOI Response: We have not made any changes. Consistent with the Act, this section applies only in the case where a person knows or has reason to know that the human remains are Native American. Whether a person knows or has reason to know that the human VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 remains are Native American is case sensitive. We note that even where a person does not know or have reason to know that the human remains are Native American, other laws addressing the discovery of human remains likely will apply, particularly for forensic purposes. In such cases, the appropriate official would identify whether the human remains are Native American and, if Native American, would notify the appropriate Indian Tribes or NHOs of the discovery. As noted in the 1995 Final Rule the drafter considered any requirement for requiring the complete professional identification of inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony prior to notification of the responsible Federal or Indian Tribe officials to be ‘‘officials inconsistent with the statutory language and the legislative history. (60 FR 62143) 74. Comment: We received six comments on Table 1 to § 10.5(a): Report a discovery on Federal or Tribal lands. Three comments requested changes to the last row of the table related to certain Federal lands in Alaska and seem to reference earlier drafts of these regulations rather than the proposed regulations. One comment requested that Indian Tribes be identified as the appropriate official for Federal, State, county, or private lands near Tribal lands. DOI Response: We cannot make the requested change to make Indian Tribes the appropriate official for Federal lands, but we note that any Indian Tribe with potential cultural affiliation is the additional point of contact on Federal lands. This subpart only applies to discoveries on Federal or Tribal lands. Discoveries on State, county, or private lands are subject to the laws of the State or county. We previously revised Table 1 to § 10.5(a) based on similar input we received during consultation in 2021. We used the exact language from the Act to describe the additional point of contact for Federal lands in Alaska selected but not yet conveyed under the Alaska Native Claims Settlement Act (ANCSA). For all other Federal lands in Alaska, the Indian Tribe with potential cultural affiliation should be notified and an Alaska Native Corporation organized under ANCSA is only notified when the Federal land has been selected but not yet conveyed. Based on the comments, we have removed ‘‘or group’’ from the table as that term is functionally obsolete following the recognition of Indian Tribes in Alaska. 75. Comment: We received four comments in one submission stated that PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 86489 the proposed regulations impermissibly require private parties to notify an ambiguous ‘‘additional point of contact’’ of a discovery of Native American human remains or cultural items on Federal lands. The additional point of contact is ‘‘any Indian Tribe or Native Hawaiian organization with potential cultural affiliation to the human remains or cultural items, if known.’’ According to the comment, the Act is unambiguous that notification of a discovery on Federal lands is limited to the Federal land managing agency. DOI Response: We have not made a change. During consultation in 2021, we received comments requesting the addition of Indian Tribes and NHOs as additional points of contact for reporting a discovery on Federal lands. We disagree with the comment that this provision is impermissible and ambiguous. While the Act is the primary authority for the issuance of regulations implementing and interpreting the Act’s provisions, Congress authorized the Secretary to make such regulations for carrying into effect the various provisions of any act relating to Indian affairs (25 U.S.C. 9). As the Act is Indian law (Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate this provision under the broad authority to supervise and manage Indian affairs given by Congress (United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). The additional point of contact language is not ambiguous. Not only does this notification requirement only apply to a discoverer who knows of an Indian Tribe or NHO with potential cultural affiliation, but the reporting requirement also only applies to a discoverer who knows, or has reason to know, that Native American human remains or cultural items have been discovered. Whether a person knows or has reason to know that the human remains or cultural items are subject to these regulations is case sensitive. In cases involving a planned activity on Federal lands, a person performing the activity will have reason to know that discovered human remains or cultural items are subject to these regulations and most likely also will know of an Indian Tribe or NHO with potential cultural affiliation based on the required plan of action. 76. Comment: We received five comments on § 10.5(a) Report any discovery. Of that total, three comments suggested changes to the paragraph while two comments supported it. Two comments requested requiring telephone notification while one E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86490 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations comment asked if an email qualifies as written documentation of the discovery. DOI Response: We have added a requirement for in-person or telephone notification to the first sentence requiring immediate reporting of the discovery. Written documentation of the discovery is required to attach the rest of the timelines in this section. As explained elsewhere and in § 10.1(e) of this part, written documents may be sent by email, with proof of receipt, or by other methods of delivery. 77. Comment: We received nine comments suggesting changes to § 10.5(b) Cease any nearby activity. Most of these comments requested changes to align this paragraph with the preceding paragraph and not impose any unintentional limits on the kind of activity that must be ceased upon a discovery. DOI Response: We have revised this paragraph to follow and refer to the preceding paragraph. We have removed the introductory sentence, which is already included in § 10.4 of this part, so as not to unintentionally limit the kinds of activities that must be ceased upon a discovery. As suggested by one comment, we have added that the written documentation of the discovery also include any potential threats to the discovery. 78. Comment: We received nine comments on § 10.5(c) Respond to a discovery. Of that total, six comments requested changes to text in earlier drafts of these regulations rather than to the proposed regulations. Two comments requested strengthening the requirement to report the discovery to additional points of contact to initiate consultation. One comment requested an explanation of what is required under this paragraph on Tribal lands. DOI Response: We already addressed the concerns expressed by six comments in the proposed regulations. The proposed regulations require the appropriate official to respond to a discovery no later than three days after receiving written documentation. The appropriate official is required to report the discovery to any additional point of contact, which would be any Indian Tribe or NHO with potential cultural affiliation. The proposed regulations require the Federal agency or DHHL prepare and approve a plan of action, which includes consultation, for any discovery. We agree with the two comments that requested a stronger requirement in the paragraph to initiate consultation. We have made changes to paragraph (c)(1)(iii). To clarify what this paragraph requires on Tribal land, we provide the following example: A film production VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 company has permission from an Indian Tribe to film on lands within the exterior boundaries of the Indian Tribe’s reservation. The written permission from the Indian Tribe requires the production company to immediately report any discovery of human remains or cultural items to the Director of Tribal Cultural Affairs and the Director of the regional BIA office by telephone and in writing by email. During filming, a member of the production company finds objects eroding from a hillside that may be human remains or cultural items. The production company reports the discovery by telephone and email to the Indian Tribe and the BIA, stops all activity around the discovery, secures and protects the objects by covering them, and confirms that no activity will resume in the area until a written certification is issued by the Indian Tribe. No later than three days after receiving the email from the production company, the Director of Tribal Cultural Affairs must make a reasonable effort to secure and protect the objects, verify that any activity in the area has stopped, and notify the Director of the regional BIA office. The Director of Tribal Cultural Affairs must send a written certification to the film production company no later than 30 days after receiving the email from the production company and provide the date (no later than 30 days after the date of the written certification) on which the film production may resume in the area around the discovery. If an excavation is required, the Director of Tribal Cultural Affairs must follow the requirements under § 10.6(a). If the objects are human remains or cultural items and they are removed from the hillside, the Director of Tribal Cultural Affairs must follow the requirements for disposition under § 10.7. If both the BIA and the Indian Tribe consent in writing, the BIA could take responsibility for any of the actions described above related to the discovery, excavation, or disposition. 79. Comment: We received five comments requesting clarification of the provisions found in §§ 10.5, 10.6, and 10.7 for a NHO to accept responsibility for discoveries, excavations, and dispositions on Tribal lands of an NHO. DOI Response: To clarify, ‘‘Tribal lands of an NHO’’ does not include lands under a Hawaiian homestead lease, but rather lands that the Hawaiian Homes Commission has determined an NHO is qualified to steward under a lease or license pursuant to the Hawaiian Homes Commission Act. Although Congress affords such opportunity in the Act, an NHO need not accept responsibility for discoveries, excavations, or dispositions if it believes PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 it is not qualified. As noted in the proposed rule, ‘‘[a]ccepting or declining responsibility is an exercise of sovereignty,’’ and ‘‘the Department seeks to be respectful of the sovereignty of the Native Hawaiian Community and their right to self-determination’’ (NPS– 2022–0004–0004, pages 17 and 30). The regulations do not prescribe how the Hawaiian Homes Commission implements this provision, recognizing its authorities and responsibilities. The term ‘‘Tribal lands of an NHO’’ reflects the language of ‘‘Tribal lands’’ used in the Act. The Department acknowledges that the United States’ government-tosovereign relationship with the Native Hawaiian Community is different from its government-to-government relationship with Indian Tribes and these provisions reflect those relationships. 80. Comment: We received three comments on § 10.5(d) Approve and sign a plan of action. One comment supported the timeline while two comments requested that the appropriate official should seek consensus or agreement, not just merely engage in consultation with, Indian Tribes and NHOs. DOI Response: We appreciate the support for this timeline considering other comments addressed below. Regarding consultation, we note that under these regulations, consultation is defined and includes striving for consensus, agreement, or mutually agreeable alternatives. This is required for consultation under this paragraph and any other place it is used in these regulations. 81. Comment: We received 14 comments on § 10.5(e) Certify that an activity may resume requesting that we extend the timeline for resumption of activities or provide more flexibility for the appropriate official to extend the timeline. Some of these comments believe the Act does not require the appropriate official to provide any date on which activity may resume, and, instead, only sets a 30-day floor to stop an activity after a discovery occurs. These comments also requested clarifying edits be made to this paragraph. Several comments on paragraph (c) discussed above requested a copy of the written certification be sent to consulting parties. One comment stated that evaluating the need for and authorization of an excavation of human remains or cultural items must be done in consultation with Indian Tribes or NHOs. DOI Response: We specifically requested input on this paragraph in the proposed rule, and we appreciate the responsive comments. However, we E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations cannot make the requested change to extend the timeline or build in additional flexibility, as discussed in full in the next comment and response. We can and have made the clarifying edits to this paragraph and added a requirement to send a copy of the certification to the additional points of contact. We note that consultation is required on a plan of action under paragraph (d) of this section, which includes the preference of consulting parties for leaving or relocating human remains or cultural items rather than excavating. A plan of action also requires a timeline and method for evaluating the potential need for an excavation, and we have removed the redundant language in paragraph (e)(3) of this section. 82. Comment: We received eight extensive comments from one submission on § 10.5(e) Certify when an activity may resume objecting to the additional time provided in the proposed regulations. According to the comment, the Act unambiguously states that the required certification from the appropriate official to the person responsible for the activity is solely to acknowledge that the responsible official has received written notification of the discovery, and that after 30 days, the activity may resume. The comment cites to Senate Report 101–473 (September 26, 1990) for the proposition that Congress intended the stop-work period to last only 30 days (‘‘After notice has been received the party must cease the activity and make all reasonable efforts to protect the remains or objects before resuming the activity. The activity may resume 30 days after notice has been received. . . Under this section, Indian [T]ribes or native [sic] Hawaiian organizations would be afforded 30 days in which to make a determination as to the appropriate disposition for these human remains or objects.’’). The comment also states that expanding the stop-work period by allowing additional time for the appropriate official to certify receipt of the notification would significantly interrupt and impair activities on Federal lands, and thereby contravene Congressional intent, as expressed in Senate Report 101–473 (‘‘The Committee does not intend this section to act as a bar to the development of Federal or [T]ribal lands on which human remains or objects are found. Nor does the Committee intend this section to significantly interrupt or impair development activities on Federal or [T]ribal lands.’’). Additionally, the comment states that it would be arbitrary and unreasonable for VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 the responsible official to take up to 35 days to certify that written notice of the discovery from the responsible person had been received. Certification is a ministerial task that takes little time to complete, and the existing regulations provide for a maximum of three working days for doing so. Consequently, the comment requests that the Department continue to require the appropriate official certify receipt within three working days of receiving notification of a discovery. DOI Response: The Department believes the provision to build in additional days, if needed, after a discovery is permissible. In the final regulations, we have revised this time to a standard 30 days for clarity. The Act does not provide a timeframe for the appropriate official to certify that written notification of a discovery has been received, nor does the Act address the action to be taken by the appropriate official in responding to the discovery itself. Based on other comments about this timeframe, we find there is some ambiguity in the Act. While the Act is the primary authority for the issuance of regulations implementing and interpreting the Act’s provisions, Congress authorized the Secretary to make such regulations for carrying into effect the various provisions of any act relating to Indian affairs (25 U.S.C. 9). As NAGPRA is Indian law (Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate this provision under the broad authority to supervise and manage Indian affairs given by Congress (United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). Ambiguities in statutes passed for the benefit of Indians are to be construed to the benefit of the Indians (Bryan v. Itasca County, 426 U.S. 373 (1976)). Therefore, we have provided in these regulations a maximum of 60 days after written documentation of a discovery before an activity could resume. This timeframe provides 30 days for the appropriate official for a Federal agency or DHHL to evaluate the circumstances of the discovery and, in consultation with Indian Tribes and NHOs, prepare, approve, and sign a plan of action. We have provided that no later than 30 days after receiving documentation of the discovery, the appropriate official for an Indian Tribe, NHO, Federal agency, or DHHL must certify that written notification of the discovery has been received and that a lawful activity may resume on a certain date, but no later than 30 days after the date of the written certification. This timeframe allows the PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 86491 appropriate official for a Federal agency or DHHL a reasonable amount of time to consult with Indian Tribes and NHOs, evaluate the potential need for an excavation, and carry out the steps in a plan of action. If the appropriate official determines, based on the circumstances, that a shorter timeframe is acceptable, the lawful activity could resume in fewer than 60 days. Moreover, we hope that Federal agencies and DHHL will be encouraged to engage in consultation earlier and develop a plan of action prior to a discovery to allow for a shorter timeframe. H. Section 10.6 Excavation 83. Comment: We received 26 comments suggesting changes to § 10.6 Excavation. The comments generally disagreed with our analysis of the relationship between NAGPRA and ARPA, noting that it is inconsistent with the plain language of the Act and would unduly narrow the application of the Act and these regulations. Some comments suggested that, if we did not change the interpretation, we should add a requirement that excavations not on ‘‘ARPA Indian land’’ or ‘‘ARPA Public land’’ must have an equivalent permit from another jurisdiction. DOI Response: Our interpretation does not change the application of the Act. NAGPRA applies to its fullest extent on Tribal land and Federal land, as defined in both the statute and regulations. Rather, we have defined which excavations under the Act require a permit issued under ARPA and which do not. Specifically, the Act requires that human remains or cultural items may only be intentionally excavated or removed from Federal or Tribal land if, among other requirements, ‘‘such items are excavated or removed pursuant to a permit issued under [ARPA] which shall be consistent with [NAGPRA].’’ 25 U.S.C. 3002(c)(1). Since both NAGPRA and ARPA are intended to protect important cultural resources, they must be construed together. Further, ‘‘issued under ARPA’’ is an adjectival phrase modifying ‘‘permit.’’ Thus, it is not ARPA that ‘‘shall be consistent with NAGPRA,’’ but rather the ARPA permit that must be consistent with the Act. This is supported by the legislative history. The Senate Indian Affairs Committee specifically noted that it ‘‘[intended] the notice and permit provisions of this section to be fully consistent with the provisions of [ARPA]’’ (S. Rpt. 101–473, at 7). Likewise, the House Committee on Interior and Insular Affairs, in discussing the stopping of work for an inadvertent discovery, noted, ‘‘[a]lthough a specific time limit was not E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86492 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations added here, the Committee does intend to protect the remains and objects found and does not intend to weaken any provisions of other laws, such as [ARPA], regarding similar situations.’’ Like the Senate Committee, the House Committee also stated, ‘‘[s]ubsection (c) provides that items covered by this Act can be excavated from Federal or [T]ribal land if proof exists that a permit has been acquired under Section 4 of the [ARPA]’’ (H. Rpt. 101–877, at 15 and 17). Therefore, the provisions of ARPA, including the scope of public and Indian land, are not affected by the Act. So, the terms ‘‘ARPA Indian land’’ and ‘‘ARPA public land’’ are defined in these regulations just as ‘‘Indian land’’ and ‘‘public land’’ are defined in ARPA, including use of the term ‘‘individual Indian,’’ which is used in ARPA to denote land that is owned by an individual Indian, who may or may not be a ‘‘lineal descendant’’ as used in the Act and defined in these regulations. The protections provided for in both statutes is reflected in these regulations by the requirement that ARPA permits are issued for NAGPRA excavations just as they are for ARPA excavations, keeping the full protections of each statute in place, as Congress intended. We have added the requested requirement that excavations on Federal or Tribal lands that are not ARPA Indian lands or ARPA Public lands must have an equivalent permit from the relevant Indian Tribe, NHO, or State, if applicable. 84. Comment: We received eight comments on § 10.6(a) On Tribal lands. Of that total, one comment suggested a change to the paragraph while seven comments supported it as proposed. DOI Response: We cannot make the requested change to paragraph (a)(2) to replace ‘‘consent’’ with ‘‘respond.’’ Consent in writing from both the Indian Tribe and the Federal agency is required before the responsibility for an excavation is transferred from the Indian Tribe to the Federal agency. This ensures all parties are aware of the transfer and the responsibilities. 85. Comment: We received 11 comments on § 10.6(b) On Federal or Tribal lands. Of that total, nine comments suggested changes to the paragraph while two comments supported it. The comments requesting changes all expressed concern about the role of consultation in the preliminary steps by an appropriate official to evaluate the potential need for an excavation. DOI Response: We have removed the sentence in § 10.6 referring to evaluation of the potential need for an excavation. The timeline and method for evaluating VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 the potential need for an excavation is a required part of a plan of action under § 10.4(b)(3)(vi) of this part. The plan of action is required before an excavation is authorized and requires consultation with lineal descendants, Indian Tribes, and NHOs. We note that consultation on a plan of action also includes the preference of consulting parties for leaving or relocating human remains or cultural items rather than excavating them. We have made other clarifying edits to this paragraph considering comments we received on § 10.4(b) under this part. We have retained the requirement for the written authorization to describe the steps taken to evaluate the potential need for an excavation. We believe this is necessary to document how the plan of action was implemented. Because an Indian Tribe may delegate its responsibilities for excavations on Tribal lands to a Federal agency, we have added a requirement for the plan of action to include written consent of the appropriate Indian Tribe or NHO. This requirement could be fulfilled by the written consent delegating the responsibilities under paragraph (a)(2) of § 10.6. On Tribal lands of an NHO, DHHL is required to obtain written consent from the appropriate NHO prior to authorizing an excavation. I. Section 10.7 Disposition 86. Comment: We received nine comments on § 10.7 Disposition, generally. Of that total, three comments suggested requirements for consultation be added to the introductory paragraph for this section while one comment supported the consultation requirements as proposed in § 10.7. One comment requested adding the definition of disposition to the introduction to this section. Two comments objected to the burden this section puts on disposition from boarding school cemeteries on Federal lands. One comment found this entire section confusing and the timelines too long. One comment objected to the appropriate official in this section being anyone other than an Indian Tribe or NHO. DOI Response: We decline to make the requested change to add consultation requirements in the introductory paragraph to § 10.7. This paragraph applies to human remains or cultural items removed from Federal or Tribal lands and as such must include the requirements for the appropriate official for an Indian Tribe on Tribal lands as well as for the Federal agency or DHHL. As discussed elsewhere, we received comments requesting we provide as much flexibility as possible PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 for Indian Tribes who are responsible for complying with this section on their Tribal lands. As several of the comments noted, the requirements of § 10.7 follow the requirements in §§ 10.5 and 10.6 which require consultation by Federal agencies or DHHL through a plan of action. In addition, as the supporting comment noted, consultation is required throughout § 10.7 by Federal agencies or DHHL. Disposition is defined in § 10.2 and the definition is used to describe what a disposition statement must include in this section. We have not repeated the definition here. Regarding disposition from boarding school cemeteries on Federal lands, we do not believe this will overly complicate the process. It will require, as the existing regulations do, that when human remains or cultural items are removed from Federal lands, including boarding school cemeteries, a notice must be published to identify the Indian Tribe with priority for disposition. We believe these regulations provide a streamlined procedure for excavations of boarding school cemeteries through consultation, a plan of action, and a notice of intended disposition. The Department encourages any Federal agency that manages boarding schools and cemeteries on Federal lands to consult with lineal descendants, Indian Tribes, and NHOs on identification, disinterment, and repatriation of Native American children as expeditiously as possible. The Department stands ready to assist Federal agencies, Indian Tribes, and NHOs to the fullest extent of its authority. We appreciate the concern expressed by some comments that as written and when read alone, the proposed regulations state that the appropriate official must determine disposition without consultation. We feel that a simple change from ‘‘determine’’ to ‘‘identify’’ will alleviate this concern. The priority for disposition is established by the Act and all that is required under this section is for the lineal descendant, Indian Tribe, or NHO with priority for disposition be identified and, in some cases, notified. We have also removed the reference to unclaimed human remains or cultural items, as discussed in Comment 91. We cannot make the requested change to the appropriate official in this section. 87. Comment: We received 19 comments on § 10.7(a) Priority for disposition. Of that total, seven comments supported this paragraph especially as it relates to boarding school repatriations. One comment requested human remains or cultural items should only be removed from E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations Federal lands with the permission and partnership of the affected Indian Tribe. Five comments suggested changes to the priority order, specifically for Tribal lands where the Indian Tribe with cultural affiliation is not the Tribal land Indian Tribe. Four comments requested a significant, but grammatical, change from ‘‘originated’’ to ‘‘were removed.’’ One comment requested disposition should only occur if other Indian Tribes or NHOs consent. Other comments requesting changes to § 10.3 Determining cultural affiliation required changes to this paragraph. DOI Response: We reiterate that this paragraph is drawn directly from the Act itself and does not represent a change in any way. We cannot add a requirement to this section to require permission or partnership; see the discussion above on the requirement for a plan of action prior to an excavation or after a discovery. We cannot change the priority order for Indian Tribes with cultural affiliation and Tribal land Indian Tribes. Under the Act, the Indian Tribe from whose Tribal lands the human remains or cultural items were removed has priority over any other Indian Tribe. Likewise, we cannot change the use of aboriginal land in the priority order after cultural affiliation. Any changes to the priority order would require Congressional action. We do want to note here that a final judgment of the Indian Claims Commission or the United States Court of Claims also includes a judgment concerning a settlement as long as that judgment or settlement either explicitly recognizes certain land as the aboriginal land of an Indian Tribe or adopts findings that do so. We have made the requested grammatical change to ‘‘originated.’’ 88. Comment: We received 11 comments suggesting changes to paragraph (b) in the proposed regulations under § 10.7 Disposition— To a lineal descendant (removed in the final regulations). All these comments requested we require notices of intended disposition for lineal descendants. DOI Response: We appreciate and agree with the need for transparency in these regulations. However, we reiterate that neither the Act nor the existing regulations require publication of a notice of intended disposition for a lineal descendant. On Federal land, a notice and a claim are only required when no lineal descendant has been ascertained. Considering comments related to disposition on Tribal land below, we do not believe we can extend the requirement for publication of a notice of intended disposition on Tribal land to the appropriate official for an VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 Indian Tribe. Therefore, we have removed this paragraph entirely and integrated the procedure for disposition to lineal descendants into the two following paragraphs. 89. Comment: We received 18 comments on paragraph (c) in the proposed regulations under § 10.7 Disposition—On Tribal lands (in the final regulations, this is renumbered § 10.7(b)). Of that total, 10 comments requested we require notices of intended disposition on Tribal lands. The other eight comments requested we remove the unnecessary burdens placed on Indian Tribes for disposition on Tribal lands. Five submissions contained both requests, which seem inconsistent with each other. DOI Response: We believe that requiring the appropriate official for an Indian Tribe or NHO to submit a notice of intended disposition for publication in the Federal Register is an unnecessary burden, and we decline to make this change. We cannot alleviate the entire burden on an Indian Tribe or NHO for the disposition process under this paragraph. As noted above, we have removed the requirement for disposition statement to be sent to a lineal descendant, yet these regulations must provide some procedure for an Indian Tribe or NHO to identify if there is a lineal descendant with priority for disposition, which is a requirement of the Act. The requirements in these regulations remain like those in the proposed regulations. On Tribal lands, an Indian Tribe or NHO must identify the lineal descendant, Indian Tribe, or NHO with priority for disposition and prepare and retain a written disposition statement. The written disposition statement is required because of the priority afforded to lineal descendants under the Act. When a lineal descendant has not been ascertained, an Indian Tribe or NHO must ensure a record is made of the disposition in case a lineal descendant wishes to assert a priority right later. We believe this is the minimum burden these regulations can place on Indian Tribes or NHOs for human remains or cultural items removed from Tribal lands. We note that an Indian Tribe may delegate its responsibilities for disposition under this paragraph. In complex cases involving multiple potential lineal descendants or Indian Tribes with potential cultural affiliation, an Indian Tribe may prefer to delegate its responsibility to the Bureau of Indian Affairs or another Federal agency. This will alleviate the Indian Tribe of any additional burden and, as a result, require the appropriate official for the Federal agency to inform and consult PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 86493 with lineal descendants, Indian Tribe, or NHOs; publish a notice of intended disposition in the Federal Register; respond to any claims for disposition; resolve any competing claims; and send a disposition statement. We note in response to the comments on paragraph (a) of this section, while we were unable to change the priority order for disposition, this paragraph and the option of delegating responsibility to a Federal agency provide opportunity for an Indian Tribe to include Indian Tribes with cultural affiliation in the disposition from Tribal lands. 90. Comment: We received 12 comments on paragraph (d) in the proposed regulations under § 10.7 Disposition—On Federal lands in the United States or on Tribal lands in Hawai‘i (in the final regulations, this is renumbered § 10.7(c) and retitled On Federal or Tribal lands). Five comments in the same submission questioned who is responsible for determinations in this paragraph and suggested the appropriate official should be a representative of an Indian Tribe or NHO in all circumstances. One of these comments stated six months is too long after a discovery or excavation to inform consulting parties in Step 1. Four comments requested adding criminal actions under NAGPRA to the deadline extension in Step 2. Two comments were in favor of requiring notices be published in the Federal Register while one comment opposed this change. DOI Response: We have clarified that this paragraph, as in other paragraphs in this subpart, applies when a Federal agency or DHHL has responsibility for disposition of human remains or cultural items removed from Federal or Tribal lands. We have tried to clarify who ‘‘the appropriate official’’ represents at the beginning of each paragraph and with the paragraph headings that identify if the paragraph applies ‘‘On Tribal lands’’ or ‘‘On Federal or Tribal lands.’’ Because this paragraph covers a wide variety of circumstances under which human remains or cultural items are removed from Federal or Tribal lands, a longer timeline is necessary for identifying and informing consulting parties. In most cases, however, this can occur much faster based on the plan of action. We have added a criminal action under NAGPRA to Step 2. We have retained the requirement for publication of notices of intended disposition in the Federal Register. We believe the revised regulatory text will prevent the current delays in notice publication. 91. Comment: We received 13 comments on paragraph (e) in the proposed regulations under § 10.7 E:\FR\FM\13DER2.SGM 13DER2 86494 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 Disposition—Unclaimed human remains or cultural items removed from Federal lands in the United States or from Tribal lands in Hawai‘i (in the final regulations, this is renumbered § 10.7(d) and retitled Unclaimed human remains or cultural items removed from Federal or Tribal lands). Five comments emphatically and some repeatedly objected to the concept of unclaimed human remains or cultural items and stated that any human remains or cultural items removed from Federal or Tribal lands can be identified and claimed through effective and meaningful consultation. Two comments objected to the provision for reinterment without Indian Tribes or NHOs making the decision to do so. Two comments objected to the inclusion of Indian groups without Federal recognition in this paragraph. One comment stated the Federal agency or DHHL has an obligation to reach out to Indian Tribes or NHOs before human remains or cultural items become unclaimed. Two comments requested a list of unclaimed cultural items be published on the National NAGPRA Program website. One comment requested a requirement for reinterment to be as close as possible to the original site. DOI Response: We understand the objections raised by many comments to this provision, but we are unable to eliminate this paragraph because it is required by the Act (see 25 U.S.C. 3002(b)). Regulations concerning this part of the Act were proposed in 2013 and finalized in 2015 and contained very similar provisions. There may be circumstances where human remains or cultural items are removed from Federal or Tribal land and one year after publication of a notice of intended disposition, no Indian Tribe or NHO has made a claim for disposition. In other cases, particularly for Federal lands in the Eastern United States, when cultural affiliation cannot be determined and the Federal land is not the aboriginal land of an Indian Tribe as defined in § 10.7(a), the Federal agency may not be able to identify any Indian Tribe or NHO with priority for disposition and the human remains or cultural items may be unclaimed. We believe the clarification and simplification of the disposition process for human remains or cultural items on Federal or Tribal lands that precedes this paragraph will address many of the concerns raised by these comments and that only a small number of human remains or cultural items will be unclaimed. To date, a total of 44 individuals and 164 funerary objects have been reported as unclaimed. Since 2015, the National NAGPRA Program has published a list of unclaimed human remains or cultural items from Federal or Tribal lands on its website (https://www.nps.gov/subjects/nagpra/ unclaimed-cultural-items.htm, accessed 12/1/2023). We have removed the option to transfer unclaimed human remains or cultural items to Indian groups without Federal recognition but we have retained the option to transfer to an Indian Tribe or NHO or to reinter. At the discretion of the Federal agency or DHHL and after following the requirements of this paragraph, unclaimed human remains or cultural items removed from Federal or Tribal land may be transferred or reinterred. As this is a discretionary action, these regulations cannot dictate where reinterment occurs. J. Subpart C 92. Comment: We received 46 comments on the overall timelines in Subpart C. Of that total, 16 comments supported the timelines as proposed. Several of these comments felt the timelines were adequate and clearly explained, especially with tables. Four comments supported the requirements and timeline for updated inventories specifically. Two comments felt the timelines achieved a balance between a sense of urgency to repatriate and the practical limitations of the tasks involved. Two of these comments felt the timelines were too long and found the timelines to be extremely unbalanced and specifically aimed at benefitting museums and Federal agencies rather than lineal descendants, Indian Tribes, and NHOs. One comment felt the timelines provided sufficient opportunity for Indian Tribes and NHOs to submit requests for repatriation. On the other hand, 30 comments felt the timelines were too short, unrealistic, unworkable, and unachievable. Many of these comments from individuals and museums believe the timelines do not provide adequate time for consultation or relationship building and will result in overwhelming Indian Tribes and NHOs with requests to consult. Many of the comments from Indian Tribes requested the timelines be based on Tribal priorities. Most of the comments from individuals and museums felt the timelines underestimate the work required for repatriation. One comment stated the changes to the regulations were too complicated to be done quickly. One comment stated the timelines were not based in the real world and provided an example of one Federal agency that needed six months just to acquire a signature on a letter. One comment stated the focus of these timelines on notice publication is misplaced and ignores the other parts of the process. Some of these comments requested more flexible timelines with no set deadlines. Two comments predicted the tasks involved are more likely to take 20 or 50 years to complete. Suggestions in these comments included removing timelines entirely, doubling all the timelines provided, or retaining the timelines in the existing regulations. Three comments suggested a five-year timeline for updating inventories. One comment suggested changing the timelines to only require initiation of consultation and remove the subsequent timelines. DOI Response: We have extended the deadline for museums and Federal agencies to update inventories of human remains and associated funerary objects from three years to five years after the effective date of these final regulations. We have made other changes to the deadlines in these regulations to account for the change from business days to calendar days discussed elsewhere. We have changed the deadline for a museum or Federal agency to respond to a request for repatriation from 60 days to 90 days for both human remains and associated funerary objects and for cultural items. Tables 4 and 5 provide an overview of the general timeframes under Subpart C from the longest timeline to the shortest timeline. Table 4 relates to required reporting on holdings or collections and Table 5 relates to responding to requests for repatriation. TABLE 4—TIMEFRAMES FOR REPORTING ON HOLDINGS OR COLLECTIONS If a museum or Federal agency . . . . . . it must . . . . . . no later than . . . See Has human remains and associated funerary objects not published in a notice. Receives Federal funds for the first time and has possession or control of human remains and associated funerary objects. Update an inventory (including consultation) ........ 5 years ............................ § 10.10(d)(3). Complete an inventory (including consultation) .... 5 years ............................ Table 1 to § 10.10(d)(2). VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 86495 TABLE 4—TIMEFRAMES FOR REPORTING ON HOLDINGS OR COLLECTIONS—Continued If a museum or Federal agency . . . . . . it must . . . . . . no later than . . . See Receives Federal funds for the first time and has cultural items. Acquires or locates human remains and associated funerary objects. Has custody of a Federal agency holding or collection (museums only). Has custody of a holding or collection and cannot identify an entity with possession or control (museums only). Acquires or locates cultural items ........................... Completes or updates an inventory ........................ Receives a statement from a museum with custody of a Federal agency holding or collection (Federal agencies only). Acquires previously reported human remains or cultural items. Compiles a summary ............................................... Identifies new consulting parties ............................. Compile and submit a summary ........................... 3 years ............................ Table 1 to § 10.9(a)(2). Initiate consultation and complete an inventory .... 2 years ............................ Table 1 to § 10.10(d)(2). Submit a statement to the Federal agency and National NAGPRA. Submit a statement to National NAGPRA ............ 1 year ............................. § 10.8(c). 1 year ............................. § 10.8(d). Compile and submit a summary ........................... Submit a notice of inventory completion ............... Respond to the museum and National NAGPRA 6 months ......................... 6 months ......................... 180 days ......................... Table 1 to § 10.9(a)(2). § 10.10(e). § 10.8(c)(1). Inform National NAGPRA (and initiate consultation on human remains). Initiate consultation ................................................ Initiate consultation ................................................ 30 days ........................... § 10.9(a)(3)(i); § 10.10(d)(4)(i). 30 days ........................... 30 days ........................... § 10.9(b). § 10.9(b)(3); § 10.10(b)(3). khammond on DSKJM1Z7X2PROD with RULES2 TABLE 5—TIMEFRAMES FOR RESPONDING TO REQUESTS FOR REPATRIATION If a museum or Federal agency . . . . . . it must . . . . . . no later than . . . See Receives competing requests for repatriation .......... Receives a request for repatriation .......................... Has completed all other steps .................................. Agrees to a request for repatriation of cultural items Receives competing requests for repatriation .......... Receives a returned notice ...................................... Send a written determination .................................. Respond to the request ........................................... Send a repatriation statement ................................. Submit a notice of intended repatriation ................. Inform all requestors ................................................ Resubmit a notice .................................................... 180 days ......................... 90 days ........................... 90 days ........................... 30 days ........................... 14 days ........................... 14 days ........................... § 10.9(h)(4); § 10.10(i)(3). § 10.9(e); § 10.10(g). § 10.9(g); § 10.10(h). § 10.9(f). § 10.9(h)(3); § 10.10(i)(2). § 10.9(f)(3); § 10.10(e)(3). While we understand the objections to the timelines and the concerns about insufficient staffing and funding, the Secretary, the Assistant Secretary, and the Department are committed to clearing a path to expeditious repatriation as Congress intended. In the 32 years since the passage of the Act, we have seen some of the largest repatriations occur when a museum or Federal agency changed course to invite and defer to the input of lineal descendants, Indian Tribes, and NHOs. By requiring that deference throughout these regulations, we hope more museums and Federal agencies will change course and complete the regulatory requirements for repatriation. We must stress that most of the timelines and deadlines under these regulations are triggered by a request for repatriation from a lineal descendant, Indian Tribe, or NHO. If a museum or Federal agency is involved in meaningful and effective consultation with lineal descendants, Indian Tribes, and NHOs, pressure to complete repatriation within a set timeframe may be significantly alleviated. The one exception to the request requirement is the timeline for a museum or Federal agency to update an inventory of human remains and associated funerary objects. We further stress that an extension of this deadline may be requested by any museum that has made a good faith effort to update its inventory. We have added to the requirements for an VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 extension the written agreement of consulting parties to the request. If a museum will need an additional 10 or 20 or even 50 years to complete its inventory, it can only do so by first engaging in meaningful and effective consultation with lineal descendants, Indian Tribes, and NHOs. With these changes to the regulations, we hope to provide a clear path to repatriation where lineal descendants, Indian Tribes, and NHOs, rather than museums and Federal agencies, can define what expeditious repatriation means. 93. Comment: We received 21 comments on the requirements in Subpart C for museums and Federal agencies to identify all holdings or collections that may contain human remains or cultural items. Most of these comments requested additional language to require museums and Federal agencies produce transparent information about the full extent of their holdings or collections, whether in their possession or control or custody. These comments requested the regulations eliminate the loophole that allows museums and Federal agencies to avoid disclosing information about their holdings or collections. One comment requested a requirement to identify items that may have been transferred, stolen, sold, or removed from a holding or collection. One comment requested standards and requirements for museums and Federal agencies to engage in some level of effort to identify PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 holdings or collections subject to the Act and these regulations. One comment appreciated the inclusion of lost or unknown holdings or collections in this subpart but stated that ‘‘negligence to care for native material culture is evident time and time again. The very fact that institutions like universities are continuing to discover Native American remains in their possession is absolutely unacceptable.’’ Several comments stressed the importance of consultation in identifying holdings or collections and suggested consultation should be initiated when a museum or Federal agency has reason to believe that human remains or cultural items are present in a holding or collection. One comment requested clarification on how museums and Federal agencies can be held accountable for conducting a full review of holdings or collections. On the other hand, a few comments questioned the Department’s authority to require a review of all holdings or collections and that this subpart must be limited to only those holdings or collections that are known to have human remains or cultural items. A few comments provided details on how long it takes identify human remains or cultural items in a holding or collection. One comment stated it takes weeks or months to complete a full review of a holding or collection and if done too quickly, human remains and cultural items will be left behind. One comment stated it takes 10 hours to review a E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86496 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations single, standard box to identify the presence of human remains or cultural items. An additional six to eight hours is needed to document each individual or object in the box, and another 40 hours is needed to produce a final report of the boxes from the same site. The comment also stated a significant amount of space is needed for this kind of review and that can often impair the effort to review a holding or collection. DOI Response: There is no ambiguity in the Act on the requirement for museums and Federal agencies to identify all human remains or cultural items in holdings or collections. The Act requires each museum or Federal agency that ‘‘has possession or control over holdings or collections’’ to identify all Native American human remains or cultural items. The Act required museums and Federal agencies to identify all cultural items within three years and all human remains and associated funerary objects within five years. The Act provided an option for museums to request an extension to identify human remains and associated funerary objects, provided the museum had made a good faith effort to do so. We agree that the initial step requires producing factual and transparent information about the holdings or collections. While determining possession or control of a holding or collection is a jurisdictional requirement and must be done on a case-by-case basis, the Act and these regulations make clear that the evaluation applies to all holdings or collections. We agree that when a museum or Federal agency has reason to believe human remains or cultural items are present in a holding or collection it must provide information to lineal descendants, Indian Tribes, and NHOs. We agree the Department does not have authority under the Act to require a museum or Federal agency review holdings or collections that are not subject to the Act. Only holdings or collections, or portions of holdings or collections, that may contain human remains or cultural items are required to be identified. If a museum or Federal agency knows that a certain holding or collection does not contain any human remains or cultural items, the holding or collection would not need to be included in a summary of cultural items or an itemized list of human remains and associated funerary objects. For example, a collection excavated from an historic era ranch that does not contain any Native American objects or items would not need to be included on a summary. We disagree that the Act and these regulations do not already require a VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 museum or Federal agency to review all holdings or collections in their possession or control. The Act and these regulations already impose standards and requirements for museums and Federal agencies to make an effort to identify human remains and cultural items. The standard is if a holding or collection may contain human remains or cultural items. The requirement is to comply with this subpart and complete a summary, an inventory, and notices. The mechanisms for ensuring accountability for a failure to comply with this subpart are civil penalties against museums or legal action against Federal agencies. Any museum or Federal agency that fails to identify a holding or collection that contains human remains or cultural items has failed to comply with the Act and these regulations. Several comments provided examples of human remains or cultural items that were not identified by museums and Federal agencies. In one case, an ‘‘archeological collection’’ was excluded from a summary because the museum assumed it did not contain any cultural items. However, archival information about the person who made the collection clearly identifies the collector removed objects from a funerary context and those objects are likely unassociated funerary objects. In another case, human remains were found during a physical review of a collection after the inventory was completed and a notice published. Museums and Federal agencies have discretion on which holdings or collections they include in a summary or inventory. When a museum or Federal agency decides to exclude a holding or collection from a summary or inventory, it is deciding that the Act and these regulations are not applicable to that holding or collection. If that holding or collection contains human remains or cultural items, the museum or Federal agency has failed to comply and could be subject to civil penalties or other legal action. Museums and Federal agencies also have discretion on how to evaluate the contents of a holding or collection. A museum or Federal agency can choose to review each box in a holding or collection to determine if it contains human remains or cultural items, but it must do so within the timeframes required by the Act and the regulations. Neither the Act nor the regulations require a physical review of a holding or collection to comply with the summary and inventory requirements. Under the final regulations, consent from lineal descendants, Indian Tribes, or NHOs is required prior to allowing any research on human remains or PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 cultural items. We have defined ‘‘research’’ to mean any study, analysis, examination, or other means of acquiring or preserving information. ‘‘Research’’ includes any activity to generate new or additional information beyond the information that is already available, for example, osteological analysis of human remains, physical inspection or review of collections, examination or segregation of comingled material (such as soil or faunal remains), or rehousing of collections. 94. Comment: We received 42 comments on specific steps in the repatriation process. Six comments from one submission made repeated requests to require unassociated funerary objects be listed in the inventory so they can be repatriated with the human remains and associated funerary objects. One comment requested testing for hazardous substances be required and two comments requested removal of hazardous substances must be required at the expense of museums and Federal agencies. One comment requested ‘‘acquisition’’ be replaced with ‘‘accession’’ so as not to disrespectfully identify human remains as objects. One comment requested additional information on documentation, analysis, or exhibition be included in a summary or an inventory. Six comments suggested changes to the steps for consultation. One comment stated identifying consulting parties is a difficult task that requires additional time than what is provided. One comment requested clarification on who identifies new consulting parties. Two comments requested clarification on if the regulations require re-initiation of consultations that are ongoing as of the effective date of these regulations. One comment requested how to proceed when consulting parties do not respond to invitations to consult. One comment requested clarification on the timeline for responding to an invitation to consult and that Indian Tribes and NHOs must be allowed to move at their own pace according to each sovereign’s capacity and resources. Three comments suggested changes to the kinds of information a consulting party can request from a museum or Federal agency, including that accession records be specifically included or the limitations on the use of the information be removed. Nine comments requested changes to the notices and requests for repatriation under this subpart. Four comments requested lineal descendants not be identified by name, and four comments requested amended notices be required when additional pieces of previously repatriated human remains or cultural E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations items are found. One comment requested additional information on documentation, analysis, or exhibition be included in a notice. Two comments requested that all Indian Tribes or NHOs with cultural affiliation be notified or consent to a request for repatriation. Two comments suggested requests for repatriation need not be in writing. One comment requested changing the timeline for sending a repatriation statement from the variable 30 to 90 days to 60 days. Three comments expressed concern about the timelines for competing requests and stays of repatriation. Two comments requested changes to the deadline for evaluating competing requests to either remove the deadline in favor of a deadline agreed upon in consultation or to include a timeline for requestors to submit additional information to support their requests. Two comments on stays of repatriation asked who determines if a court of competent jurisdiction enjoins the repatriation. One comment requested decisions made during a stay of repatriation must be made in consultation with requesting parties. DOI Response: We cannot include unassociated funerary objects in an inventory as that would be inconsistent with the Act. We cannot require testing for or removal of hazardous substances or who should pay for that testing or removal as there is no such requirement in the Act. We can and do require information about hazardous substances be shared, but only when a museum or Federal agency knows about the presence of any potentially hazardous substances. Testing or removal should be a part of consultation on human remains or cultural items, specifically under the duty of care requirements in § 10.1(d). We do not agree that ‘‘accession’’ is less disrespectful than ‘‘acquisition’’ since both are generally applied to property or collections. The use of ‘‘accession’’ could lead to confusion over human remains or cultural items that were not formally accessioned into a holding or collection. The Act uses the word ‘‘acquisition,’’ and we have retained that word in these regulations. We have not required additional information on documentation, analysis, or exhibition be included in a summary or inventory, but that information may be requested by a lineal descendant, Indian Tribe, or NHO and discussed during consultation on the duty of care for human remains or cultural items. We have not made changes to timeline or requirements for initiating consultation. Depending on the provenience and provenance of the VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 human remains or cultural items, identifying Indian Tribes or NHOs with potential cultural affiliation is not complex and a museum or Federal agency must make a good faith effort to identify consulting parties within the timeframe provided. There are several resources that can assist museums and Federal agencies with identifying consulting parties, including previously prepared summaries or inventories and published notices. Museums and Federal agencies are responsible for determining if a new consulting party can be identified. When consultation is ongoing as of the effective date of these regulations, there is no requirement to re-initiate consultation, provided the ongoing consultation included all consulting parties. We do not intend to impose timelines on lineal descendants, Indian Tribes, or NHOs to respond to an invitation to consult and can engage in the repatriation process at their own discretion. However, museums and Federal agencies are required to act under § 10.10 within certain timelines, and those timelines are required even if there is no response from a lineal descendant, Indian Tribe, or NHO to an invitation to consult. A museum or Federal agency must initiate consultation prior to completing or updating an inventory under § 10.10, but if there is no response to the invitation to consult, the museum or Federal agency must complete or update the inventory by the deadlines required under § 10.10(d) and submit a notice of inventory completion under § 10.10(e). As the Department noted in 1995 for the first deadline to complete an inventory if there is no response after repeated attempts to contact Tribal officials by telephone, fax, and mail, the museum or Federal agency official may be required to complete the inventory without consultation to meet the regulatory deadline. The Department suggested museum and Federal agency officials document attempts to contact Tribal officials to demonstrate good faith compliance with these regulations and the Act. (1995 Final Rule, 60 FR 62151). Although the methods to contact an Indian Tribe or NHO have changed since 1995, this advice continues to be applicable. Museums and Federal agencies must document attempts to contact lineal descendants, Indian Tribes, or NHOs to demonstrate a goodfaith effort to consult prior to the deadlines in these regulations. We have not made changes to the additional information consulting parties can request. The language in the regulations is taken directly from the Act, including the limitations. The PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 86497 regulations do not prevent a consulting party from requesting any other information not explicitly identified here. We feel accession records are a type of ‘‘records.’’ As noted elsewhere, we advise lineal descendants, Indian Tribes, and NHOs to make their requests as broad as possible to ensure all information about human remains or cultural items is available to them when making a request for repatriation. We have revised the required content of a notice to simplify the regulatory text, and we have included language to allow for the name of a lineal descendant to be withheld. In response to the comments on amended notices and to coincide with the overall changes in the process for repatriation, we have removed the requirement for amending a notice. After publication of a notice under this subpart, if additional human remains or cultural items are identified that were not previously included in a summary, inventory, or notice, the museum or Federal agency must begin with Step 1 in each process for the newly identified human remains or cultural items to ensure adequate consultation and notification occurs. We have not required additional information on documentation, analysis, or exhibition be included in the notice and feel it is important that these regulations require only the minimum amount of information required in a notice to prevent unnecessary delays or public disclosure of information. If an Indian Tribe or NHO wishes to have additional information included in a notice, it should inform the museum or Federal agency during consultation of this preference. The proposed regulations included requirements for notifying other Indian Tribes or NHOs of a request for repatriation of human remains and associated funerary objects. We have added these same requirements for requests for repatriation of cultural items; both the response to a request and the notice of intended repatriation must be sent to the requestor and any other consulting party. We cannot require museums and Federal agencies obtain consent from other consulting parties to a request for repatriation. Any consulting party may submit an additional, competing request for repatriation before a repatriation statement is sent. We have not removed the requirement for a request for repatriation to be submitted in writing. The existing regulations contain this same requirement, and the Act is clear that a request for repatriation is a requirement, although it does not specify the request be in writing. To require the actions that follow a request E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86498 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations for repatriation be completed by a certain date, the request for repatriation must be in writing. Throughout these regulations, we have provided flexibility in the timeline for sending a repatriation statement (between 30 and 90 days), and we have retained that timeline. In response to several comments, we reiterate that competing requests for repatriation must occur before a repatriation statement is sent and when a competing request is received, the timeline for a repatriation statement changes. If a competing request for repatriation is received the day before a repatriation statement is sent, the museum or Federal agency must wait to send the repatriation statement and evaluate the competing requests in accordance with the procedures and deadlines for evaluating competing requests for repatriation. One comment remarked that ‘‘[g]iven the busy schedules of Tribes and museums, and planning costs associated with repatriation, allowing requests a day before a repatriation statement is scheduled to be submitted would make decisions and obligations between museums and Tribe hollow and a potential point of contention.’’ This comment is precisely the main reason the regulations require a repatriation statement separate from physical transfer. Scheduling and incurring costs associated with physical transfer should wait until after a repatriation statement is sent, assuring all parties that their decisions and obligations can be upheld. In addition, we recommend a museum or Federal agency send a repatriation statement as early as possible under the regulations to ensure expeditious return. We further recommend that in a request for repatriation, the lineal descendant, Indian Tribe, or NHO request a repatriation statement be sent as early as possible under the regulations. As discussed elsewhere, if no competing requests are received, 31 days is the minimum amount of time between notice publication and sending a repatriation statement. We decline to remove the timeline for evaluating competing requests. We believe it is important to require museums and Federal agencies to make determinations within a set timeframe, even if that determination is that they cannot determine the most appropriate requestor. This option allows parties to continue consultation but ensures all parties have been informed of the museum or Federal agency’s decision. We have not added a timeline for submission of additional information, but we have included an option for submission of additional information in VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 the appropriate paragraphs and in § 10.3(e) Competing claims or requests. We note that any request for repatriation must provide information to meet the criteria and that information, along with the record of determining cultural affiliation, should be used to determine the most appropriate requestor. Where competing requests are between Indian Tribes or NHOs with cultural affiliation, the priority order under § 10.3(e) Competing claims or requests, as revised, relies on how the cultural affiliation determination was made (clearly identified or reasonably identified). Any party may seek assistance of a court of competent jurisdiction to resolve a conflict under these regulations. Given the variables in how a stay of repatriation might be resolved, we cannot require consultation after a resolution but we can and do require notification and repatriation within set timeframes. 95. Comment: We received 20 comments requesting that the Department create a repository for information related to repatriation under this subpart. Some of these comments requested that the repository include information on Indian Tribes with cultural affiliation to a geographical location. Other comments requested a contact database that is updated every six months. Many of these comments requested a digital repository with detailed information from inventories, summaries, and notices that is accessible only to Indian Tribes and NHOs and is protected from public release under the Freedom of Information Act. Four comments requested the Department publish a list of the museums and Federal agencies with the largest collections of human remains or cultural items. DOI Response: We decline to add any such requirement to the regulations as this is a matter of policy, subject to a wide variety of other laws, regulations, and policy for information technology, protection of personally identifiable information, and special relationships between the United States and Indian Tribes and NHOs. The Department, through the National NAGPRA Program, is responsible for receiving and maintaining many documents related to repatriation, including inventories, summaries, and notices. These documents are not exempt from public disclosure, as discussed under Comment 5, and we are unable to produce the kind of protected database some of the comments requested. We do, and have for nearly 20 years, provided information about repatriation through the National NAGPRA Program website. After nearly 33 years, one of PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 the best sources for information about cultural affiliation are the over 4,400 notices that have been published in the Federal Register. Fully text searchable beginning in 1994, notices can easily be searched at https:// www.federalregister.gov/ (accessed 12/ 1/2023). The National NAGPRA Program has and will continue to improve digital maintenance and access to data about repatriation through its website. Since 2020, the National NAGPRA Program has provided realtime data on inventories, summaries, and notices at https://www.nps.gov/ subjects/nagpra/databases.htm (accessed 12/1/2023). In addition to the databases, since 2019, the National NAGPRA Program has provided annual data in searchable data visualization tools at https://public.tableau.com/app/ profile/nationalnagpra (accessed 12/1/ 2023). We are committed to developing useful and innovative tools to share available data securely, safely, and publicly. 96. Comment: We received 35 comments on the provisions for a museum or Federal agency to request the Assistant Secretary’s written concurrence that human remains or cultural items are indispensable for completion of a specific scientific study. Most of these comments requested the Assistant Secretary consult with Indian Tribes and NHOs prior to issuing written concurrence or that the request from the museum or Federal agency include written consent from the appropriate Indian Tribe or NHO to the study. A few comments requested this section be removed entirely and the regulations should prohibit any scientific study of human remains or cultural items. DOI Response: We cannot remove the provisions for ‘‘scientific study’’ from these regulations as that would be inconsistent with the Act. ‘‘Scientific study’’ is used twice in the Act itself: • First, the Act explicitly and specifically does not require new scientific studies on human remains or associated funerary objects to complete an inventory or determine cultural affiliation (25 U.S.C. 3003(b)(2)). • Second, the Act requires that when a specific scientific study of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony will result in a major benefit to the United States, a museum or Federal agency may postpone repatriation but may not deny the request for repatriation (25 U.S.C. 3005(b)). The first statutory provision only applies to human remains and associated funerary objects (25 U.S.C. E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 3003(b)(2)). Similar language does not appear in the Act for unassociated funerary objects, sacred objects, and cultural patrimony (25 U.S.C. 3004(b)(2)). This is likely due to the difference between a summary and an inventory. As noted in the 1995 Final Rule, the difference between a summary and an inventory ‘‘reflects not only their subject matter, but also their detail (brief overview vs. item-by-item list), and place within the process’’ (60 FR 62140). Since a summary is a brief overview of a holding or collection, there is no need to include the first provision for unassociated funerary objects, sacred objects, and cultural patrimony. The second statutory provision for ‘‘scientific study’’ applies to all ‘‘Native American cultural items,’’ which are defined in the Act as human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony (25 U.S.C. 3005(b)). The Act refers to this exception in each of the four paragraphs that require expeditious repatriation (25 U.S.C. 3005(a)). As any elimination or restriction of 25 U.S.C. 3005(b) would require an act of Congress, we cannot remove the provisions that allow for ‘‘scientific study’’ entirely. We understand that ‘‘scientific study’’ in both §§ 10.9 and 10.10 is adverse to Tribal interests and may seem to allow or authorize scientific studies. While we cannot remove these statutorily required exceptions to expeditious repatriation, we can limit the implementation of these exceptions through the regulations. First, we have made changes to § 10.1(d) Duty of care to require museums and Federal agencies obtain consent from lineal descendants, Indian Tribes, or NHOs prior to conducting any research on human remains or cultural items. In that paragraph, we state ‘‘research’’ equates to the term ‘‘scientific study’’ in the Act and means any study, analysis, examination, or other means of acquiring or preserving information. ‘‘Research’’ includes any activity to generate new or additional information beyond the information that is already available, for example, osteological analysis of human remains, physical inspection or review of collections, examination or segregation of comingled material (such as soil or faunal remains), or rehousing of collections. ‘‘Research’’ is not required to identify the number of individuals or cultural items, or to determine cultural affiliation. Second, the proposed regulations provided procedures to administer the VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 second statutory provision as a stay of the repatriation timeline under §§ 10.9 and 10.10. A request to exercise this stay of repatriation must be submitted before publication of a notice of intended repatriation or a notice of inventory completion. This means that for human remains and associated funerary objects, a request must be made before the deadline to publish a notice of inventory completion (in the final regulations, this is five years and six months after the effective date of the final regulations). After the notice is published, this exemption cannot be used to delay repatriation. The proposed regulations and these final regulations require the Assistant Secretary’s written concurrence with the request and stipulates the specific requirements for such a request, including explaining the ‘‘major benefit’’ and why the human remains or cultural items are ‘‘indispensable.’’ The request must also state that the study has in place the requisite funding and a completion schedule and completion date. Third, we agree with the comments that the request must demonstrate consent from lineal descendants, Indian Tribes, or NHOs and that the Assistant Secretary must consult with Indian Tribes or NHOs before concurring with the request. We have added these requirements to the regulations in §§ 10.9 and 10.10. K. Section10.8 General 97. Comment: We received six comments on § 10.8 General. Four comments requested a deadline be imposed for museums and Federal agencies to determine possession or control of holdings or collections. One comment requested ‘‘authorized representatives’’ be replaced with ‘‘appropriate official.’’ One comment requested the regulations prohibit museums and Federal agencies from engaging with NAGPRA consultants or, if consultants are engaged, they be required to comport with the law and the regulations, and any violations be reviewed by the National NAGPRA Program. DOI Response: We have not made any of the requested changes. Museums and Federal agencies have deadlines to determine possession or control of holdings or collections under paragraphs (c) and (d) of this section and through the timelines requiring repatriation under §§ 10.9 and 10.10. The term ‘‘appropriate official’’ applies only to Subpart B and includes Indian Tribes and NHOs. Although this paragraph requires an authorized representative be identified, Subpart C does not use this term but instead makes PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 86499 the subject of these regulations the museum or Federal agency to reinforce who is responsible for acting under these regulations. We cannot prohibit or require review of NAGPRA consultants in these regulations. A museum or Federal agency may identify any authorized representative it chooses to, but the museum or Federal agency is responsible for the actions of that representative. Any failure to comply with these regulations is a failure of the museum or Federal agency who has responsibility under this subpart. 98. Comment: We received two comments on § 10.8(a) Museum holding or collections, in addition to those discussed elsewhere. One comment requested instructions on reporting newly acquired holdings or collection where the museum asserts a right of possession through donation or excavation conducted under State law. One comment requested clear guidelines for museums to determine possession or control. DOI Response: We have not made changes to this paragraph. We believe this paragraph provides clear guidelines for museums to determine possession or control, including for any new holdings or collections or previously lost or unknown holdings or collections. As discussed elsewhere, the Act and these regulations define a right of possession and apply it in some manner to human remains, funerary objects, sacred objects, and objects of cultural patrimony. When a museum or Federal agency asserts a right of possession to cultural items in its holding or collection, the museum or Federal agency must include those cultural items in its summary. When a museum or Federal agency can prove it has a right of possession to human remains, it may exclude those physical remains from its inventory. We note that when human remains and associated funerary objects are excavated from State or private land, requirements under State law may not equate to right of possession and a museum (including a State or local agency) should ensure it can prove it has a right of possession to human remains and associated funerary objects independent of such requirements. 99. Comment: We received eight comments requesting clarification on § 10.8(b) Federal agency holding or collection. All the comments questioned why a Federal agency must determine when or where a holding or collection was acquired. DOI Response: We have made clarifying changes to this paragraph. For a holding or collection, a Federal agency must determine if the human remains or E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86500 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations cultural items are subject to disposition under Subpart B or repatriation under Subpart C. To make this determination, the Federal agency must determine when and where the human remains or cultural items were removed. If the human remains or cultural items were removed from Federal or Tribal land after November 16, 1990, the Federal agency must use Subpart B to complete the disposition of those human remains or cultural items. If the human remains or cultural items were removed from Federal lands on or before November 16, 1990, or after that date from an unknown location or from lands that are not Federal or Tribal lands, the Federal agency must use Subpart C to complete the repatriation of those human remains or cultural items. For example, if a museum has custody of a holding or collection that was excavated from Federal land in 1991, the Federal agency who has responsibility for that Federal land must comply with Subpart B and identify the lineal descendant, Indian Tribe, or NHO that has priority for disposition of the human remains or cultural items by following the requirements of § 10.7. Regardless of how long the human remains or cultural items have been in the custody of the museum, the Federal agency has responsibilities for ensuring the disposition of those human remains or cultural items that were removed from Federal land after November 16, 1990. A Federal agency cannot apply the summary and inventory requirements in Subpart C to any human remains or cultural items that were removed from Federal or Tribal land after November 16, 1990. Under the Act, those human remains or cultural items are subject to disposition under Subpart B. 100. Comment: We received 18 comments on § 10.8(c) Museums with custody of a Federal agency holding or collection. Of the total comments, eight comments were supportive, although most referred to corresponding comments on the definition of ‘‘custody.’’ One supportive comment highlighted the presumptive language when a Federal agency fails to decide within the set timeline. Four comments requested publication of museum statements in the Federal Register or otherwise provided to Indian Tribes and NHOs. One comment was supportive but concerned that Federal agencies would be unable to respond within the timeframe while one comment felt the timeframe was too long and should be much shorter. One comment questioned how this would be enforced while one comment was concerned this would make Federal agencies responsible for VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 holdings or collections they haven’t yet taken responsibility for. One comment requested the statement be more than a statement and align with the requirements for a summary and inventory. One comment questioned the Department’s authority to require statements on non-NAGPRA collections, requested more information on joint possession or control, suggested changing possession or control to ownership or legal title, and posited Federal agencies must first request these statements under 36 CFR 79 rather than through these regulations. DOI Response: We have not made changes to this paragraph. Elsewhere in these regulations, we have addressed the definition of ‘‘custody.’’ We have not changed the deadline for a museum to issue a statement (one year after the effective date of the final regulations) or for a Federal agency to respond (six months or 180 calendar days after receipt of the museum’s statement). Both deadlines are important to ensure resolution to this long-standing barrier to repatriation. We understand and share the concern expressed by one comment that a Federal agency who has not shouldered responsibility for a collection to date will be required to take responsibility for it in the future. We believe that this requirement will result in increased awareness by Federal agencies of their responsibilities for these holdings or collections but also in an opportunity to hold Federal agencies accountable for those holdings or collections. We have not required publication of those statements in the Federal Register, but the statements will be added to the records kept by the National NAGPRA Program and will be available upon request. We plan to provide information on the program website, like what we provide for other records. The Department has authority for both these regulations and for 36 CFR part 79 and the Department recognizes the overlapping nature of these regulations for Federal agency holdings or collections that contain human remains or cultural items. We disagree that the Department does not have authority to require statements of holdings or collections that contain human remains or cultural items. As discussed elsewhere, when a Federal agency holding or collection is known to not contain human remains or cultural items, it is not subject to the Act or these regulations. 101. Comment: We received eight comments on § 10.8(d) Museums with custody of other holdings or collections. Five comments generally supported this requirement but suggested it be PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 broadened to include holdings or collections that are under the control of another entity or when control cannot be identified, except for those under Federal agency control. In addition, these comments requested custody be replaced with possession, consistent with comments on those definitions. Two comments opposed this requirement and thought the deadline was unrealistic. Both comments stated the requirement for a museum to identify legal ownership status of its holdings or collections was onerous and would require significant resources. One of these comments stated the issue was not a lack of information so much as it was too much information that required significant time to analyze and synthesize to decide. One comment specifically opposed any requirement for museums to notify State and local governments of holdings or collections, questioned how this would work with State repatriation laws, and suggested it could result in legal disputes. The comment stated many State and local governments are unaware of NAGPRA and do not have funding or staff to comply with these regulations. The comment questioned how these regulations would apply to criminal investigations and medical examiners who may hold samples of biological materials. DOI Response: We have not made changes to this paragraph. This paragraph requires museums to provide statements describing those holdings or collections for which it cannot identify an entity with possession or control. Where a museum can identify that a person, institution, or State or local government agency has possession or control of the holding or collection, no statement is required. We encourage a museum with custody of a holding or collection that contains human remains or cultural items to notify the entity that has possession or control, but we do not require that notification because doing so would exceed the Secretary’s authority under the Act. The entity that has possession or control of the human remains or cultural items is responsible for complying with these regulations. We understand that many museums do not have clear documentation for holdings or collections, and as one comment stated, museums may be required to undertake a comprehensive review of the legal ownership status to determine if the owner is, indeed, known. This is not only a requirement for purposes of these regulations, but is, in general, a professional and ethical requirement for museums. A central tenant of collections management and E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 care is documentation of not only the objects in a holding or collection, but of the legal ownership status of those holdings or collections. For holdings or collections that contain human remains or cultural items, a museum must ensure it can identify the legal ownership of the holding or collection or risk a failure to comply with these regulations. State and local government agencies are included in the definition of museum in the Act and these regulations and where such agencies have possession or control of human remains or cultural items, regardless of their physical location, and those agencies receive Federal funds, they must comply with the requirements for repatriation under this subpart. Any museum, including State or local government agencies, that fail to comply with these requirements are subject to the civil penalty provisions. As discussed elsewhere, unless local or State authorities obtain the full knowledge and consent of the next of kin or the official governing body of the appropriate Indian Tribe or NHO, coroners, medical examiners, and other local or State agencies should consider their requirements under the Act and these regulations for any Native American human remains, including biological samples. 102. Comment: We received six comments on adding a new paragraph to § 10.8 related to making grants to Indian Tribes, NHOs, and museums. In addition to the statutory language on grants, the comments suggested including a limitation on initiation of any new scientific study of human remains and associated funerary objects. DOI Response: We have not added the requested paragraph. We do not see a value in repeating the statutory language regarding grants in these regulations. We have addressed the issues of new scientific studies under § 10.1(d) Duty of care. The Notice of Funding Opportunity for NAGPRA grants provides guidance and limitations on potential use of grant funds and is the best place for any additional requirements to be added. L. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony 103. Comment: We received 11 comments generally on § 10.9 Repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony. Four comments objected to preparation of a summary prior to consultation with lineal descendants, Indian Tribes, or NHOs. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 One of these comments suggested reordering the steps so consultation occurs before a summary is developed. Another of these comments suggested changing ‘‘Complete a summary’’ to ‘‘Draft a summary’’ to recognize the need for consultation. On the other hand, seven comments supported the proposed regulations because it was clear that the requirement of a summary as a general description and the following step-by-step procedures were sufficient to ensure consultation prior to any determinations. DOI Response: We have not changed the order of the steps as that would be inconsistent with the Act. We have changed ‘‘Complete a summary’’ to ‘‘Compile a summary.’’ We agree with most of these comments that the proposed regulations are clear that a summary is a general description of a holding or collection and must be followed by consultation with lineal descendants, Indian Tribes, and NHOs. As the step-by-step procedures make clear, determinations related to specific cultural items come after a request for repatriation is received. In its response to the request, a museum or Federal agency must determine if the request meets the required criteria and, if not, must explain why. 104. Comment: We received nine comments on § 10.9(a) Step 1— Complete a summary of a holding or collection. Four comments requested that summaries should be published in the Federal Register or otherwise shared with Indian Tribes and NHOs by the National NAGPRA Program after they are submitted. One comment requested the summary be expanded to include all Native American objects in a collection. One comment requested a better definition of when a summary is complete because that will trigger other deadlines. One comment stated that when a holding or collection is transferred, the previously prepared summary can only be relied on if it was sufficient in the first place. One comment requested updated summaries be required in these regulations while one comment asked if previously submitted summaries were sufficient and did not require updates. DOI Response: We have not included a requirement for summaries to be published in the Federal Register or otherwise shared by the National NAGPRA Program. Museums and Federal agencies must send the summary with an invitation to consult to any lineal descendant and any Indian Tribe or NHO with potential cultural affiliation no later than 30 days after submitting the summary to the National NAGPRA Program. The National PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 86501 NAGPRA Program retains copies of all summaries it has received since 1990 and will provide them upon request. The National NAGPRA Program maintains an online database that identifies which museums and Federal agencies have submitted summaries and which Indian Tribes or NHOs were invited to consult. We cannot require a summary include all Native American objects in a holding or collection as this would be inconsistent with the Act. These regulations require a summary to include the entire holding or collection which may include cultural items. We note that only holdings or collections, or portions of holdings or collections, that may contain cultural items are required to be identified in a summary. Table 1 to § 10.9(a)(2) identifies the deadlines for compiling a summary after the effective date of these final regulations for holdings or collections that are newly acquired, previously lost or unknown, or in the possession or control of a museum or Federal agency that receives Federal funds for the first time. Prior to the effective date of these final regulations, summaries must have been submitted by the dates identified in paragraph (a)(3) of this section. When a holding or collection is transferred to a museum or Federal agency, the museum or Federal agency must inform the National NAGPRA Program by submitting the previously compiled summary within 30 days of acquiring the holding or collection. The museum or Federal agency must compile its own summary by the deadline in Table 1 to ensure that the contents of the summary are accurate, include any additional information available, and reflect the newly acquired holding or collection. Six months is the deadline in the existing regulations for submitting a summary for a newly acquired or previously lost or unknown holding or collection and has been since 2007 (see Future Applicability Final Rule, RIN 1024–AC84 (72 FR 13184, March 21, 2007). Anytime a museum or Federal agency becomes aware of a holding or collection that may contain cultural items and that has not been submitted in a summary, it must treat the holding or collection as a previously lost or unknown collection and compile a summary within six months of becoming aware of the holding or collection. As discussed in other responses, a museum or Federal agency is responsible for complying with the requirements of this subpart for all holdings or collections in its possession or control that may contain human remains or cultural items. Updated summaries are not required by the existing regulations or by these E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86502 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations final regulations. As discussed above, there are requirements for a summary to be submitted for newly acquired or previously lost or unknown holdings or collections. Similarly, when a new consulting party is identified, either based on new information or a newly federally recognized Indian Tribe, a museum or Federal agency must send an invitation to consult to the new consulting parties. Because a summary is a general description of a holding or collection, it does not require updates provided the initial summary adequately described the holding or collection. While many museums have submitted updated summaries under the existing regulations, these are better identified as new summaries covering new or previously unreported collections. More detailed information about specific cultural items in a holding or collection is more appropriate for consultation and a notice of intended repatriation and does not require an updated summary. 105. Comment: We received nine comments on § 10.9(d) Step 4—Receive and consider a request for repatriation. Seven comments noted that geographical affiliation, as used in the proposed regulations, was not one of the criteria for a request for repatriation. Two comments related to the third criterion for information to support a finding that the museum or Federal agency does not have right of possession. One comment felt this would require significant resources for Indian Tribes and NHOs while the other comment suggested stating that if an object meets the definition of one of the cultural items, the definition alone is sufficient to meet the criteria. DOI Response: Under the Act, there are three criteria for the repatriation of an unassociated funerary object, sacred object, and object of cultural patrimony: the establishment, as appropriate, of lineal descent or cultural affiliation; the establishment of the identity of the object as a cultural item; and the presentation of evidence which, if standing alone before the introduction of evidence to the contrary, could support a finding that the museum or Federal agency did not have a right of possession to the cultural item (25 U.S.C. 3005(a)(2) and (c)). Concerning this last criterion, the lineal descendant, Indian Tribe, or NHO making the request for repatriation is not required to do additional research on the object and can likely use the information provided by the museum or Federal agency about the object to satisfy all three criteria. For example, a museum has information that a pipe was acquired VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 and accessioned in 1985 from an individual donor, a doctor, who originally received the pipe in 1965 as a gift. During consultation, a traditional religious leader identified the pipe as a sacred object needed by present-day pipe carriers for a traditional pipe ceremony. By speaking with elders, the traditional religious leader learned that in 1954, the U.S. Government terminated the Indian Tribe of the last Native American to own the pipe. Termination resulted in the Tribe’s land base being sold, relocation of the Tribe’s people to multiple urban areas throughout the U.S., and the forced suspension of the traditional religious practice associated with the pipe. The Native American owner relocated to the metropolitan area of the museum in 1957 and was unemployed from 1963 until the end of his life in 1966. The terminated Indian Tribe and the Indian Tribe who identified the traditional religious leader have a relationship of shared group identity through their origin stories, inter-marriage, and pipe ceremonies. The historical context surrounding the acquisition of the sacred object by the museum would be evidence to support a finding that, while the Native American owner had the authority to alienate the pipe, this transaction was not made voluntarily or fully freely. Consequently, in making its request for repatriation of this sacred object, the Indian Tribe could state (1) the pipe is a sacred object, (2) the Indian Tribe has cultural affiliation to the pipe based on historical information, kinship, and expert opinion, and (3) the historical information surrounding the acquisition of the sacred object shows that the museum does not have a right of possession to the sacred object. 106. Comment: We received seven comments on § 10.9(e) Step 5—Respond to a request for repatriation. One comment stated that any request from a federally recognized Indian Tribe satisfies the criteria for repatriation and no other criteria should be required. Four comments believe the option for a museum or Federal agency to assert a right of possession was either impossible, a loophole, absurd, or intentionally obtuse. One comment stated a museum or Federal agency must show right of possession by a preponderance of the evidence. One comment stated that no museum or Federal agency could have possession or control of an object of cultural patrimony based on the definition of such an object. DOI Response: The criteria identified in paragraph (d) of this section are drawn from the Act itself at 25 U.S.C. 3005(a)(2)—requiring identification of PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 the specific type of cultural item and cultural affiliation to the requestor and 25 U.S.C. 3005(c)—requiring information regarding right of possession. Right of possession is not intended to be a loophole or intentionally obtuse, but it is a standard that must be applied to requests for repatriation. The legal language of the Act ‘‘presents evidence which, if standing alone before the introduction of evidence to the contrary, would support a finding that the Federal agency or museum did not have the right of possession’’ has been interpreted here to fit within the steps of receiving and responding to a request for repatriation. As discussed in the previous response, a request must include information to support a finding that the museum or Federal agency does not have right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony. In response to the information in the request for repatriation, a museum or Federal agency has an opportunity to ‘‘overcome such inference and prove that it has a right of possession to the objects.’’ The standard applied to right of possession is distinct from and in some ways harder to satisfy than preponderance of the evidence. A museum or Federal agency must prove it has a right of possession to refuse to repatriate a cultural item. A museum or Federal agency may have possession or control of an object of cultural patrimony, as those terms are defined in the Act and these regulations. It is unlikely that a museum or Federal agency will have a right of possession to an object of cultural patrimony, given the definition of that term. Nevertheless, each request for repatriation of an object of cultural patrimony must be evaluated based on the information available. 107. Comment: We received one comment on § 10.9(h) Evaluating competing requests for repatriation, objecting to the priority order that includes lineal descendants as it differs from the priority order in the Act at 25 U.S.C. 3002(a). DOI Response: We cannot make the requested change to remove lineal descendants from the priority order for unassociated funerary objects or sacred objects. The referenced priority order applies to human remains or cultural items removed from Federal or Tribal lands under Subpart B of these regulations. For holdings or collections under Subpart C of these regulations, the Act provides for lineal descendants to request sacred objects under 25 U.S.C. 3005(a)(5). By definition, an object of cultural patrimony cannot be connected to a lineal descendant. By E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 definition, an unassociated funerary object could be connected to a lineal descendant, provided that the related human remains are those of a known individual whose ancestry can be traced. The circumstances under which a lineal descendant can be identified for unassociated funerary objects is limited, but where possible, those lineal descendants have priority when there are competing requests. For example, in 1880, funerary objects were removed from the marked grave site of a known individual shortly after the individual’s death and burial. The human remains were not removed. In 1940, the family of the person who removed the funerary objects from the grave site donated the objects to a local historical society. Accession records and exhibit labels at the historical society identify the individual who was buried with the funerary objects by name. A lineal descendant who can trace ancestry to the known individual requests repatriation of the unassociated funerary objects. After the notice of intended repatriation is published in the Federal Register, the Indian Tribe with cultural affiliation also requests repatriation of the funerary objects. Using this paragraph, the historical society determines the lineal descendant is the most appropriate requestor. M. Section 10.10 Repatriation of Human Remains or Associated Funerary Objects 108. Comment: We received six comments on § 10.10(a) Step 1— Compile an itemized list of any human remains and associated funerary objects. Two comments supported this paragraph as proposed. Two comments requested additional language to require the inclusion of human remains and associated funerary objects that are identified in documentation that cannot be located or are known to have been destroyed. Two comments requested that this paragraph require consultation prior to any analysis and allow Indian Tribes and NHOs to dictate the level of documentation or analysis required to complete the itemized list. DOI Response: We have not made the requested changes. Based on the information available, a museum or Federal agency must determine if human remains or cultural items that are destroyed, deaccessioned, lost, or in any other way removed are under its possession or control and therefore subject to these regulations. As discussed elsewhere, a museum or Federal agency must ensure the itemized list is comprehensive and covers any holding or collection that VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 may contain human remains and associated funerary objects. We note that an itemized list may be prepared using only documentation identifying human remains and associated funerary objects and there is no requirement to physically locate the human remains and associated funerary objects. We have not added the requested requirement for consultation to this paragraph but have, nevertheless, provided that lineal descendants, Indian Tribes, and NHOs must consent to any analysis of human remains and associated funerary objects. As provided in this paragraph, museums and Federal agencies must identify the number of individuals in a reasonable manner based on the information available. No additional study or analysis is required to identify the number of individuals. If human remains are present in a holding or collection, the number of individuals is at least one. We have made changes to § 10.1(d) Duty of care to require museums and Federal agencies obtain consent from lineal descendants, Indian Tribes, or NHOs prior to conducting any research on human remains or cultural items. ‘‘Research’’ includes any activity to generate new or additional information beyond the information that is already available, for example, osteological analysis of human remains, physical inspection or review of collections, examination or segregation of comingled material (such as soil or faunal remains), or rehousing of collections. ‘‘Research’’ is not required to identify the number of individuals or cultural items, or to determine cultural affiliation. 109. Comment: We received three comments on § 10.10(b) Step 2—Initiate consultation. All three comments requested guidance on how to identify consulting parties for human remains and associated funerary objects with no known geographical location or a broad geographical location such as ‘‘Southwestern.’’ One of these comments recommended that human remains with no geographical location information should be assumed to be from a geographical location near the museum or Federal agency. ‘‘For human remains believed to be Native American such as those with no provenance, it makes sense to establish a presumption for return and reburial rather than indefinite curation of these ancestral human remains.’’ The comment stated broad consultation with all Indian Tribes and NHOs ‘‘. . . is an inefficient manner of handling disposition of Native American human remains with no provenance’’ (NPS–2022–0004– 0166). Another comment agreed stating ‘‘[s]ending consultation letters to all 574 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 86503 Tribes and engaging in consultation with respondents would be extremely burdensome for the museum or Federal agency and could impede other repatriation efforts’’ (NPS–2022–0004– 0125). On the other hand, one comment stated Indian Tribes and NHOs prefer for museums and Federal agencies to consult broadly with all 347 Indian Tribes in the contiguous 48 States, 227 Indian Tribes in Alaska, and all Native Hawaiian organizations. The comment stated ‘‘[w]hile only approximately 4% of individuals have no geographic location information, they deserve to be treated with equal respect.’’ The comment asked for clarification because ‘‘inconsistent guidance is provided by the Review Committee, which encourages broad consultation, and the National NAGPRA Program, which encourages making arrangements with the Tribe or Tribes whose aboriginal homeland includes the location of the museum’’ (NPS–2022–0004–0135). DOI Response: We have not made changes to this paragraph. We want to stress that broad consultation with all 574 Indian Tribes and all NHOs is not a requirement of either the existing regulations or the final regulations. We disagree that the Review Committee and the National NAGPRA Program have provided inconsistent guidance. Both the Review Committee and the National NAGPRA Program support consultation that leads to expeditious repatriation. Both the Review Committee and the National NAGPRA Program advise that broad consultation helps alleviate the potential for competing requests or disagreements. Under the existing regulations and these final regulations, a museum or Federal agency is responsible for identifying consulting parties and initiating consultation based on the information available. Museums and Federal agencies can choose to consult broadly, even if doing so is burdensome and less efficient. Under these final regulations, there is a specific timeframe for museums and Federal agencies to consult on human remains and associated funerary objects. Yet, it is still up to a museum or Federal agency to identify lineal descendants and Indian Tribes and NHOs with potential cultural affiliation and invite them to consult. For example, based only on acquisition history and the current location of the museum, a museum could decide its preference is to only invite Indian Tribes who currently reside in the county and State where the museum is located. Alternately, a museum could decide to invite all Indian Tribes who previously occupied the State where the museum is E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86504 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations located to participate in consultation. Or a museum could decide to invite all Indian Tribes who reside in the wider geographic region (northeast or southwest, for example) or all 574 Indian Tribes and all NHOs to participate in consultation. Provided the museum is acting in good faith, any of these options are sufficient, but a museum or Federal agency should keep in mind the deadline for completing or updating an inventory and publishing a notice of inventory completion. 110. Comment: We received four comments on § 10.10(d) Step 4— Complete an inventory of human remains and associated funerary objects that expressed concern about the determinations that are required in an inventory under paragraph (d)(1)(iii) of this section. DOI Response: We have revised the list of determinations in an inventory under paragraph (d)(1)(iii) to correspond to the changes in § 10.3 Determining cultural affiliation. For each entry in an itemized list, the inventory must include a determination identifying one of the following: 1. A known lineal descendant (whose name may be withheld); 2. The Indian Tribe or Native Hawaiian organization with cultural affiliation that is clearly identified by the information available; 3. The Indian Tribe or Native Hawaiian organization with cultural affiliation that is reasonably identified by the geographical location or acquisition history; or 4. No lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The two options for identifying cultural affiliation come directly from the Act, which we have also used in defining cultural affiliation and in § 10.3 Determining cultural affiliation. In the Act, cultural affiliation of human remains may be (1) clearly identified or (2) not clearly identified but determined by a reasonable belief given the ‘‘circumstances surrounding acquisition’’ (25 U.S.C. 3003(d)(2)(B) and (C)). Throughout this section of the Act, there is reference to an inventory identifying ‘‘geographical and cultural affiliation,’’ ‘‘geographical origin,’’ ‘‘basic facts surrounding acquisition and accession,’’ ‘‘[T]ribal origin,’’ and ‘‘totality of circumstances surrounding acquisition of the remains or objects’’ (25 U.S.C. 3003). The existing regulations require an inventory to include accession and catalogue entries and information related to the acquisition of each object, including: the name of the person from whom the VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 object was obtained, if known; the date of acquisition; the place each object was acquired; and the means of acquisition. The proposed regulations revised this into two separate and simplified requirements under § 10.10(a): (1) the county and State where the human remains and associated funerary objects were removed and (2) the acquisition history (provenance) of the human remains and associated funerary objects. In these final regulations, the requirements under § 10.10(a) are (1) the geographical location (provenience) by county or State where the human remains and associated funerary objects were removed; and (2) the acquisition history (provenance) of the human remains and associated funerary objects. ‘‘Acquisition’’ is not defined in the Act or these regulations and should be understood to have a standard, dictionary definition of ‘‘to get as one’s own; to come into possession or control of.’’ To elaborate and clarify what information the Act requires, we have separated the concept of acquisition into two separate parts: ‘‘provenience’’ and ‘‘provenance’’ which both mean ‘‘origin, source.’’ Provenance also means ‘‘the history of ownership of a valued object or work of art or literature’’ (https:// www.merriam-webster.com/dictionary/ acquire, https://www.merriamwebster.com/dictionary/provenience, and https://www.merriam-webster.com/ dictionary/provenance, accessed 12/1/ 2023). Therefore, under § 10.10(a) and (d), a museum or Federal agency must identify both the geographical location (provenience) from which the human remains and associated funerary objects were removed, but also the acquisition history (provenance) of the human remains and associated funerary objects. Even in the small number of cases where geographical location (provenience) of human remains and associated funerary objects is unknown, all human remains and associated funerary objects (as well as other cultural items) will have some kind of acquisition history or provenance. Even when the only information about human remains and associated funerary objects is that they were ‘‘found in collections’’ of a museum, that information is sufficient to identify the Indian Tribes or NHOs with potential cultural affiliation for consultation based solely on the location of or general collection practices of the museum. 111. Comment: We received nine other comments on § 10.10(d) Step 4— Complete an inventory of human remains and associated funerary objects. One comment objected to the requirement for updating an inventory PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 under paragraph (d)(4) of this section as work formerly deemed ‘‘complete’’ will now be ‘‘incomplete’’ and this undermines the goal of improving implementation and compliance with the Act. One comment requested changes to require the Assistant Secretary to monitor the work of museums who requested an extension. Seven comments requested clarification of the requirements when a holding or collection is transferred. DOI Response: We disagree that the requirement to update an inventory undermines the goal of improving implementation and compliance with the Act and these regulations. Just as they were required to do in 1990, museums and Federal agencies must initiate consultation, consult on human remains and associated funerary objects, and make determinations about cultural affiliation. In updating an inventory, the museums or Federal agencies already have a significant amount of information available in the previously prepared and submitted inventories. No additional research or analysis is required by these regulations. To fulfill this requirement, a museum could send its original inventory from 1995 along with the other required information to initiate consultation. In response, a consulting party might identify those human remains and associated funerary objects that it wishes to consult on and assert it has cultural affiliation to the human remains and associated funerary objects. The Assistant Secretary will decide on any request for an extension to the inventory deadlines and will publish a list of all museums who request an extension in the Federal Register. This will provide both the Assistant Secretary and the public with information needed to monitor the progress of museums who have not completed the inventory requirements by the deadline. We have clarified how a museum or Federal agency may rely on a previously completed or updated inventory after a transfer. The museum or Federal agency must still complete the inventory by the required deadline but only after initiating consultation. The criminal provisions of NAGPRA (18 U.S.C. 1170) clearly prohibit the sale, purchase, use for profit, or transportation for sale or profit of Native American human remains. Any museum or Federal agency that acquires possession or control of human remains must ensure they are not violating those provisions in any transfer of human remains. 112. Comment: We received five comments on the requirement to repatriate associated funerary objects E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations with all human remains, regardless of cultural affiliation. Two of these comments objected to the requirement. One comment stated the Department made a gross oversimplification of the issues raised in a taking of property in adding this requirement and that ‘‘[i]t is a blanket grab for objects not previously deemed covered under NAGPRA’’ (NPS–2022–0004–0188). Another objecting comment believes this change to the existing regulations ‘‘. . . is being made without a formal review of its Fifth Amendment takings implications under Executive Order 12630’’ and will ‘‘create an opportunity for lawsuits to overturn these rules—especially now that ‘Chevron deference’ has been significantly weakened. Experience has shown that such litigation is detrimental to the relationships that have been built between museums and Native groups over the past 30 years’’ (NPS–2022– 0004–0172). On the other hand, three comments supported this requirement, although one comment expressed concern over the legal review of this change. DOI Response: We have not made any change to the requirement for associated funerary objects to be repatriated with human remains. We have conducted a thorough, formal review of this requirement and these regulations. Information and analysis related to that review can be found in the 2022 Proposed Rule (87 FR 63226). 113. Comment: We received one comment on § 10.10(f) Step 6—Receive and consider a request for repatriation. The comment stated that any request from an Indian Tribe satisfies the criteria for repatriation and no other criteria should be required. DOI Response: In this section for human remains and associated funerary objects, the only criteria for a request for repatriation is that the lineal descendant, Indian Tribe, or NHO is identified in the notice of inventory completion. The lineal descendant, Indian Tribe, or NHO that is identified in a notice of inventory completion is determined in the inventory under § 10.10(d)(1) of this section and as discussed in detail in Comment 110. The procedures in this paragraph are necessary to set up an opportunity for additional requests for repatriation to be made. This paragraph provides an option for a requestor that is not identified in a notice of inventory completion. The requestor must show, by a preponderance of the evidence, that the requestor is a lineal descendant or an Indian Tribe or NHO with cultural affiliation. A museum or Federal agency may determine in an inventory and a VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 notice of inventory completion that for certain human remains and associated funerary objects there is no lineal descendant or any Indian Tribe or NHO with cultural affiliation. This paragraph provides that any lineal descendant, Indian Tribe, or NHO can make a request for repatriation of those human remains or cultural items. The museum or Federal agency must respond in writing to the request within 90 days. 114. Comment: We received 17 comments on § 10.10(k) Transfer or reinter human remains and associated funerary objects. Of that total, two comments supported this paragraph as proposed. Two comments requested we remove the option for reinternment as museums and Federal agencies should not be authorized to reinter human remains or cultural items. Two comments missed or misunderstood this paragraph and expressed concern that by removing the options under the existing regulations for culturally unidentifiable human remains, these regulations would eradicate a way forward for transfer of human remains without cultural affiliation or that have a relationship of shared group identity to Indian groups without Federal recognition. The Review Committee objected to the option in this paragraph for transfer of human remains to Indian groups without Federal recognition and requested a thorough legal review of this option. The Review Committee and others requested this paragraph include a requirement for the Review Committee and the Secretary to review agreements for transfer or reinterment prior to publication of a notice of intended transfer or reinterment. The Review Committee and one other comment also requested that any notice for reinterment include the specific law allowing for reinterment. Four comments requested that the regulations specifically protect information about any reinterment under this section or under § 10.7 from disclosure or dissemination and that reinterment be as close as possible to the location where the human remains and associated funerary objects were removed. DOI Response: We have revised this paragraph to apply only to human remains and associated funerary objects with no lineal descendant or no Indian Tribe or NHO with cultural affiliation. We believe the clarification and simplification of the cultural affiliation and repatriation processes for human remains and associated funerary objects that precedes this paragraph will address many of the concerns raised by these comments and that this paragraph will apply only to a small number of PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 86505 human remains and associated funerary objects. We reiterate that cultural affiliation as defined in the Act only applies to an NHO or an Indian Tribe, which means a federally recognized Indian Tribe. An Indian group without Federal recognition may have a shared group identity to an earlier group, but such an Indian group cannot have a cultural affiliation as defined under the Act or these regulations. As noted elsewhere, Indian groups without Federal recognition, including State recognized tribes, are not completely excluded from the repatriation processes. As is the current practice, Indian groups without Federal recognition can work with federally recognized Indian Tribes as part of a joint request for repatriation. We have removed the option to transfer unclaimed human remains or cultural items to Indian groups without Federal recognition. This change is in response to the strong objections we received from federally recognized Indian Tribes and discussed in Comment 3. This change also emphasizes and recognizes that the Act reflects the unique relationship between the Federal government and Indian Tribes and NHOs (25 U.S.C. 3010). This change is also based on experience over the last 13 years with repatriation involving Indian groups without Federal recognition. We have retained the option to transfer to an Indian Tribe or NHO or to reinter. At the discretion of the museum or Federal agency and after following the requirements of this paragraph, human remains and associated funerary objects may be transferred or reinterred. In Texas, for example, conflicts between federally recognized Indian Tribes and Indian groups without Federal recognition have resulted in a preference for reinterment rather than for transfer. In California, State law provides for more involvement of State recognized groups in repatriation and in many cases Indian Tribes have worked jointly with Indian groups without Federal recognition to complete repatriations and reburials. This paragraph provides for any Indian Tribe or NHO to request and receive physical transfer of human remains and associated funerary objects that have no cultural affiliation. We hope that this will allow for even more collaboration between federally recognized Indian Tribes and Indian groups without Federal recognition to achieve repose for these human remains and associated funerary objects. As reinterment is a discretionary action, these regulations cannot dictate where reinterment occurs. The E:\FR\FM\13DER2.SGM 13DER2 86506 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 regulations do not require identification of the reinterment location and do require sensitive information be protected from disclosure. After a thorough legal and policy review of this paragraph, we have determined neither the Review Committee nor the Secretary must review agreements between the parties prior to publication of a notice of intended transfer or reinterment. N. Section 10.11 Civil Penalties 115. Comment: We received 30 comments on § 10.11 Civil penalties. Of that total, 12 comments supported the section as proposed. Nine comments requested the regulations add procedures for investigating a Federal agency’s failure to comply with the requirements of the Act. Three comments objected to the revisions to this section and requested we reinstate or identify more limited categories for failure to comply. One comment stated that as proposed, the regulations ensure all museums will fail to comply with the requirements of the Act. Three comments requested clarification if certain actions, like releasing sensitive information, would be a failure to comply. One comment requested clarification if museums with custody of a Federal holding or collection are subject to civil penalties. One comment provided specific suggestions for this section to include (1) a fixed timeline, (2) a transparent procedure for investigations, (3) involvement of an aggrieved party, and (4) options for aggrieved parties to appeal a final decision. DOI Response: We cannot expand this section to include Federal agencies. As noted in the regulations, Federal agencies are not subject to the civil penalty provisions of the Act and any change would be inconsistent with the Act. It is not appropriate for this section to reference or include other Federal laws. The most broadly applicable way to allege that a Federal agency has failed to comply with the Act or these regulations is to send an allegation to the head of the appropriate Federal agency or to the Federal agency’s Office of the Inspector General. We have not revised the broad options for a failure to comply. All the requirements in Subpart C of these regulations can be the subject of a civil penalty. We have provided clear timelines for museums, after the effective date of these final regulations, to ensure they are in compliance with all these requirements. Museums should carefully consider these timelines when exercising the discretion they have on how to complete the required tasks. For example, as discussed elsewhere, a VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 museum has discretion in how it compiles an itemized list of human remains and associated funerary objects. Whether a specific action, like failing to protect sensitive information, constitutes a failure to comply will depend on the specific circumstances. A museum that has custody of a Federal agency holding or collection is responsible for sending the required statement under § 10.8(c) and a failure to do so could constitute a failure to comply under this section. As discussed in the following responses, this section provides timelines and transparency whenever possible. However, we note that given the nature of investigations and civil penalties, not all tasks can be made public. We have made edits to this section and the definitions to identify the Assistant Secretary as the individual with delegated authority under this section. We have made additional updates related to the address for the Department’s Office of Hearings and Appeals. 116. Comment: We received 30 comments on § 10.11(a) File an allegation. Most of these comments (25) requested we remove the requirement for an allegation to include the full name, mailing address, telephone number, and (if available) email address of the person alleging the failure to comply. A few of these comments also requested we reduce the requirements for an allegation to identify and enumerate violations in an allegation or to identify and enumerate the aggrieved parties. One comment requested that allegations be sent to the Department’s Office of the Inspector General, rather than the Manager, National NAGPRA Program. Two comments requested the regulations include a procedure for the Department to inspect or investigate museums proactively, rather than depending on allegations. Two comments requested a procedure for Indian Tribes to report when a request to a museum is denied or ignored. DOI Response: We cannot provide for anonymous allegations in these regulations. To ensure the Assistant Secretary can gather necessary information on an allegation, we require that a person alleging the failure to comply identify themselves and provide a method for us to contact them. However, that does not preclude any individual from submitting an anonymous tip regarding a failure to comply. While not an allegation, an anonymous tip could provide information for the Assistant Secretary to investigate and determine if a failure to comply has occurred. We have revised the requirement to only include PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 contact information (telephone or email) in an allegation. We have revised the requirements to enumerate violations, but we cannot revise the requirement to identify violations. The allegation must contain some information to determine if an investigation is warranted. Again, we note that any individual could submit a tip regarding a failure to comply where the individual has no information to identify a violation. An allegation may be submitted by an Indian Tribe or NHO when a museum denies or ignores a request, depending on the circumstances. Under these regulations, a museum must respond to a request for repatriation, and, if a museum determines the request does not meet the required criteria, it must provide a detailed explanation and provide an opportunity for the requestor to submit additional information. If a response to a request for repatriation is not sent by the deadline required or if it does provide detailed information, the Indian Tribe or NHO could allege a failure to comply. Under the Act, the Secretary has discretion for assessing a civil penalty pursuant to the procedures established in these regulations. The Secretary has delegated responsibility for receiving allegations of failure to comply to the Manager, National NAGPRA Program, but the Secretary has delegated responsibility for assessing a civil penalty to the Assistant Secretary. While these regulations do not require the Assistant Secretary inspect or investigate museums proactively, the Assistant Secretary may assess a civil penalty to any museum that fails to comply. 117. Comment: We received 12 comments on § 10.11(b) Respond to an allegation. Seven comments supported this paragraph as proposed, specifically the timeline for the Assistant Secretary to respond to an allegation. Four comments requested the regulations clarify what action the Assistant Secretary must take in 90 days. One comment stated that a civil penalty must always be the appropriate remedy to a failure to comply. DOI Response: We have made edits to clarify that no later than 90 days after receiving an allegation, the Assistant Secretary must determine if the allegation meets the requirements and must respond to the person making the allegation. After that, the Assistant Secretary may conduct any investigation that is necessary. We cannot place time constraints on the investigation, but we have ensured that the Assistant Secretary will decide on all allegations that meet the requirements for an allegation. The Assistant Secretary has E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations reserved the option to determine that a failure to comply is substantiated, but a penalty is not an appropriate remedy. 118. Comment: We received nine comments on § 10.11(c) Calculate the penalty amount. Four comments requested an increase in the base penalty amount while two comments requested penalties be calculated on a per day, per violation basis. One comment requested that since no monetary value can be placed on cultural items, the regulations should use civil penalties primarily to facilitate repatriation. One comment requested the regulations not reference the commercial value of human remains or cultural items. One comment requested the regulations make a connection between the options for increasing or decreasing a penalty amount so that the increasing factors can be used to justify denying any of the decreasing factors. DOI Response: We have not increased the base penalty amount or changed the calculation to per day and per violation. We believe the regulations provide sufficient means for the Assistant Secretary to calculate a penalty based on the number of separate violations and the factors for increasing the base amount. Coupled with the broadening of this section to include any failure to comply, we believe civil penalties will be an effective tool to facilitate repatriation. We cannot remove commercial value because that language is in the Act itself and must be a part of these regulations. 119. Comment: We received four comments on § 10.11(d) Notify a museum of a failure to comply that requested aggrieved parties be notified as well. We received two comments on § 10.11(e) Respond to a notice of failure to comply that requested aggrieved parties be included in any informal discussion of the failure to comply. DOI Response: We have included a requirement for any lineal descendant, Indian Tribe, or NHO named in a notice of failure to comply to receive a copy of the notice. If an aggrieved party is identified in an allegation or through the investigation of an allegation, that party would be named in the notice of failure to comply and receive a copy of the notice. We cannot require aggrieved parties be included in informal discussions regarding the notice of failure to comply. Prior to assessing a civil penalty, the Assistant Secretary may request information from any party and must consider that information in assessing the civil penalty. After receiving a copy of a notice of failure to comply, any aggrieved party may provide information to the Assistant Secretary related to the failure to VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 comply, especially if it will inform the penalty assessment. 120. Comment: We received two comments related to § 10.11(h) Respond to an assessment and four comments on § 10.11(n) Additional remedies. Two comments requested clarification on where money collected under a civil penalty goes. Four comments requested the Department use other civil penalties authorized under law beyond this section. DOI Response: Any payments for civil penalties are by certified check made payable to the U.S. Treasurer and the funds go to the general account of the U.S. Treasury. The Department reserves the right to pursue other available legal or administrative remedies in the final paragraph of this section. O. Section 10.12 Review Committee 121. Comment: We received 16 comments on § 10.12 Review Committee. Seven comments requested that the monitoring responsibilities of the Review Committee be added to this section. Four comments requested we expand this section to include other responsibilities or at least caveat the final paragraph to indicate it is not the only action the Review Committee can take. Three comments requested the duty to report to Congress be added to this section. One comment requested the responsibilities for compiling an inventory for certain human remains and recommending specific actions be added to this section, although the comment was clear the term ‘‘culturally unidentifiable’’ should not be used. One comment suggested the Review Committee take on regional cases, like the Review Committee’s finding for Moundville, to assist both Indian Tribes and NHOs and museums and Federal agencies to determine cultural affiliation and publish those decisions. DOI Response: We do not see a reason to simply add the language of the Act to these regulations. The enumerated responsibilities in the Act are still required regardless of their inclusion in the regulations. However, we do agree with many of the comments that providing additional procedures in these regulations for the Review Committee may further the goals of disposition or repatriation. Although some comments provided suggestions for adding language, we decline to add any additional procedures at this time. We commit to working with the Review Committee to develop additional paragraphs for this section of the regulations. Any additions will require additional consultation with Indian Tribes and NHOs as well as public comment. PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 86507 122. Comment: We received four comments on § 10.12(a) Recommendations requesting that we revise 90 days to 30 days. We received four comments discussed above that supported the 90-day timeframe. DOI Response: We decline to make this change. Under the Federal Advisory Committee Act, meeting minutes must be certified 90 days after a public meeting. Using this same time frame for publication of related notices will ensure that the meeting minutes that support the recommendations or findings are also available. 123. Comment: We received four comments on § 10.12(b) Nominations. Two comments related to the requirement that two traditional Indian religious leaders be nominated, at the exclusion of a traditional Native Hawaiian religious leader. One comment suggested that the seventh member be appointed from a list developed by only the three members nominated by Indian Tribes, NHOs, and traditional religious leaders. One comment requested clarification on the limitations of national museum or scientific organizations. DOI Response: We cannot make the changes requested to either the first or last category of nominations as doing so would be inconsistent with the Act. When Congress expressly identified traditional Indian religious leaders as being eligible to serve in two of the three specified slots, it excluded traditional Native Hawaiian religious leaders. The Act also specifies that the Secretary choose the seventh member from a list developed and consented to by all the other members. The Act did not provide any requirements beyond ‘‘national museum organizations and scientific organizations.’’ The additional information on these organizations was added in response to the Government Accountability Office report in 2010. ‘‘Lesser geographic scope’’ refers to a scope that is less than national. Similarly, the membership of the organization cannot be limited to one region of the United States. 124. Comment: We received three comments on § 10.12(c) Findings of fact or disputes on repatriation. One comment supported the paragraph as proposed. One comment requested grammatical changes. One comment requested we add scientists as affected parties under this paragraph. DOI Response: We decline to make any of the requested changes. The Act specifically limits the parties who may seek facilitation of disputes to lineal descendants, Indian Tribes, NHOs, museums, and Federal agencies. For findings of fact, the request must be E:\FR\FM\13DER2.SGM 13DER2 86508 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations from an affected party and relate to the identity, cultural affiliation, or return of human remains or cultural items. We do not find that scientists alone are affected parties in either circumstance. khammond on DSKJM1Z7X2PROD with RULES2 III. Response to Public Engagement and Request for Comments A. Public Engagement Between October 18, 2022, and January 31, 2023, the Department conducted consultation sessions with Indian Tribes and the Native Hawaiian Community. The Department conducted additional consultation sessions, upon request, with Indian Tribes or the Native Hawaiian Community to ensure sufficient opportunity to engage and comment in advance of this final rule and to respond to the previous requests received for additional consultation sessions. During consultation, the Department requested feedback from Indian Tribes and NHOs on how to further allow Indian Tribes and NHOs flexibility and discretion regarding the regulatory requirements and the new responsibilities under Subpart B and the deadlines under Subpart C. We received several comments related to these specific requests and have responded to them directly elsewhere in this document (see Comments 4, 30, 64, 65, 80, 85, 92, 94, 105, and 111). Other comments from Indian Tribes provided additional input on these specific requests, and we have incorporated any suggestions, to the extent possible, to provide Indian Tribes and NHOs with flexibility and discretion in these regulatory requirements. One comment provided specific and direct feedback related to these specific requests, and we are providing a summary of that comment and a direct response here as an illustrative example. In the comment, the Indian Tribe expressed concerns about the timelines for updating inventories, specifically, and the potential for the burden of consultation to be placed on Indian Tribes. The Indian Tribe requested that the regulations provide options for Indian Tribes to determine if or when they wished to consult and to delay consultation as needed. The Indian Tribe felt that some of the regulatory procedures were streamlined and simplified but did not feel that consultation was any more efficient than the existing regulations. The Indian Tribe believed the proposed regulations stressed consultation and repatriation requests at the end of the inventory, rather than at the beginning, and requested that the regulations be revised to stress the requirement for consultation at the beginning of the VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 process. The Indian Tribe also asked to extend the deadline for the updated inventory and that the regulations make clear that a request for an extension of the deadline is an option. The Indian Tribe stated, ‘‘At issue is not the regulatory process, but the fact that the majority of museums do not know what they have in their collections. Any attempts to project a budget or timeframe for resources needed tend to be woefully inadequate. Museums also seem unwilling to review their collection boxes physically or lack the expertise to review osteological material’’ (NPS–2022–0004–0185). The Indian Tribe provided an example of a recent consultation that resulted in the identification of an additional 19 sites and 500 funerary objects during a cursory review. The Indian Tribe expressed a concern echoed in many comments from all constituents that the new deadlines would result in ancestors being left behind and a general lack of due diligence on the part of museums and Federal agencies. As discussed elsewhere in this document, we do not intend to impose requirements on lineal descendants, Indian Tribes, or NHOs to respond to invitations to consult or to submit requests for repatriation. Those are actions that lineal descendants, Indian Tribes, and NHOs may choose to take, but are not required. However, museums and Federal agencies are required to act within certain timelines, and those timelines are required even if there is no response from a lineal descendant, Indian Tribe, or NHO to an invitation to consult. In § 10.10, a museum or Federal agency must initiate consultation prior to completing or updating an inventory, but if there is no response to the invitation to consult, the museum or Federal agency must complete or update the inventory by the deadlines required under § 10.10(d) and submit a notice of inventory completion under § 10.10(e). We stress that an extension of this deadline may be requested by any museum that has made a good faith effort to update its inventory. We have added to the requirements for an extension the written agreement of consulting parties to the request. If a museum will need additional time to complete its inventory, it can only do so by first engaging in meaningful and effective consultation with lineal descendants, Indian Tribes, and NHOs. With these changes to the regulations, we hope to provide a clear path to repatriation where lineal descendants, Indian Tribes, and NHOs, rather than museums or PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 Federal agencies, define what ‘‘expeditious’’ repatriation means. Regarding due diligence and the potential for human remains or cultural items to be left behind, we note that the Act and these regulations impose standards and requirements for museums and Federal agencies to make an effort to identify human remains and cultural items. Any museum or Federal agency that fails to identify a holding or collection that contains human remains or cultural items has failed to comply with the Act and these regulations. It is therefore advantageous for a museum or Federal agency to be broadly inclusive of collections, especially those that might contain human remains. The Department proactively engaged with a subset of affected entities, including Indian Tribes, NHOs, museums, and Federal agencies, to understand if the regulatory revisions could impact these entities’ capacity and resources. The Department requested feedback from Indian Tribes, NHOs, museums, and Federal agencies on how to ensure the step-by-step process for repatriation is streamlined and simplified by the regulatory revisions under Subpart C. In preparing the proposed regulations, the Department was not aware of any capacity and resource limitations that would prevent these entities from completing the new requirement to update inventories, submit requests to consult, engage in consultation, and publish notices following the effective date of a final rule. As discussed elsewhere in this document, but especially in Comment 4, we received substantial and specific feedback on the impact to capacity and resources under these regulations. We have addressed many of these comments in the revised Cost-Benefit and Regulatory Flexibility Threshold Analyses for the final regulations. We have incorporated any suggestions, to the extent possible, to ensure the stepby-step process for repatriation is streamlined and simplified under Subpart C. The same submission from an Indian Tribe provided specific and direct feedback related to this specific request as well, and we are providing a summary of that comment and a direct response here as an illustrative example. The Indian Tribe stated its staff would be overwhelmed by requests to consult and requested that the regulations make clear that, after receiving an invitation to consult from a museum or Federal agency, Indian Tribes should be allowed to move at their own pace according to each sovereign’s capacity and resources. The Indian Tribe stated that it currently consults or has consulted with 347 E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 entities on NAGPRA collections, and every year that number increases. The Indian Tribe explained that, depending on size, scope, and context of the collection, some consultations require mere hours while others require years of sustained work. The Indian Tribe believes there is no way to truly calculate the costs or to accurately forecast if there will be sufficient opportunity to submit requests and engage in meaningful consultation. The Indian Tribe explained that, based on experience, review of collections is often necessary as museums fail to accurately identify funerary objects and other cultural items. The Indian Tribe requested that the regulations allow flexibility, to be guided by considerations and consultations with Indian Tribes. Throughout these regulations, we require museums and Federal agencies to defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and NHOs. We have required museums and Federal agencies to not only consult but also obtain consent prior to allowing exhibition of, access to, or research on Native American human remains or cultural items. We have reiterated the requirements of the Act for museums and Federal agencies to rely on the information available (previous inventories, catalog cards, accession records, etc.) to identify consulting parties, conduct consultation, determine cultural affiliation, update the inventory, and submit a notice of inventory completion. Any museum or Federal agency that fails to identify a holding or collection that contains human remains or cultural items has failed to comply with the Act and these regulations. It is therefore advantageous for a museum or Federal agency to be broadly inclusive of collections, especially those that might contain funerary objects or other cultural items. B. Requests for Comments In addition to the public engagement and outreach discussed above, the Department solicited comment from the public on the entirety of the proposed rule. The Department received comments from the public on the costbenefit and regulatory flexibility analyses, including the conclusions about the expected costs of complying with the rule. In particular, the Department requested responses to the following questions about the proposed regulations (labeled a through g): a. For each regulatory requirement, does the estimated time per response seem reasonable? If not, what range of time per response would be more VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 reasonable for a specific regulatory requirement? As noted elsewhere in this document, we received several comments that provided input or alternative estimates for specific tasks. Two comments stated the rate used to calculate costs should be increased to $100 to $120 per hour. A few comments provided estimated costs to Indian Tribes and NHOs of $17.2 million per year. This estimate was developed using grant awards from 2011 to 2021 to estimate the average cost for a notice of inventory completion ($14,416 per notice). After calculating an estimated cost for museums and Federal agencies to comply with the regulations, the estimate calculated the costs for Indian Tribes and NHOs by applying the percentage of funding awarded in grants from 2011–2021 to museums (58%) and Indian Tribes or NHOs (42%) to estimate a total burden for the regulations at $91.4 million over 30 months or $36.6 million per year (NPS–2022–004–0174). One museum provided a variety of estimates based on current project budgets which ranged from $200,000 to $500,000 per project per year for one museum. The comment estimated the burden for the single museum at 19,000 hours per year ($1.273 million per year per museum assuming an hourly rate of $67/hour). When applied to all 407 museums that will be required to update inventories under these regulations, that amounts to the highest estimate of $518.1 million per year for museums alone, although the comment noted that not all museums will require the same number of hours (NPS–2022–004–0125). One individual detailed the hours involved in one part of a two-part project over 15 months. While a total estimated cost was not provided, elsewhere the comment suggested at minimum $100 to $120 an hour should be used in dollar estimates. Using the lower hourly figure and the rough number of hours provided, the estimate for the first phase of the project is $123,000 over 15 months or $98,400 per year. When applied to all 407 museums that will be required to update inventories under these regulations, it equals an estimated $40 million per year for museums. The comment noted that these estimates do not include the hours involved in preparation of the original inventory of human remains and associated funerary objects completed in the early 1990s (NPS–2022–004–0135). Each of these estimates uses a different method to estimate the costs for repatriation of human remains and associated funerary objects, but we do not feel they accurately estimate the costs of compliance with either the PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 86509 existing regulations or this regulatory action. We believe that any estimate based on current practice or past grant awards is inherently flawed and does not account for the specific objective of this regulatory action to simplify and improve the systematic processes within specific timeframes. We agree that our estimates do not reflect the actual amount of time some museums and Federal agencies currently spend on compliance with these regulations. We strongly disagree, however, that our estimates do not reflect what is required by these regulations. In the 33 years since the passage of the Act, each museum or Federal agency has approached the requirements of these regulations in different ways, and, as a result, there is a wide variation in how much time and money is spent to comply with these regulations. As one of the goals for this regulatory action is to improve efficiency and consistency in meeting these requirements, this will necessarily mean a difference between the estimated costs and current practices. b. For Subpart B, is the estimated number of annual discoveries on Federal or Tribal lands reasonable? We used the average number of notices on Federal lands over the last three years, but we have no data on the number of discoveries on Tribal lands to inform this estimate. Our initial estimate relied on an average of 11 notices of intended disposition submitted by Federal agencies in the three years (FY2019 = 13, FY2020 = 9, and FY2021 = 10). In the most recent year, seven notices were submitted (FY2022). We received input from Federal agencies that the estimate is low, likely because of underreporting. Federal agencies provided higher estimates for the number of annual discoveries and the time per response which are incorporated into the revised Cost-Benefit and Regulatory Flexibility Threshold Analyses for the final regulations. The number of discoveries and excavations on Tribal lands remains unknown. For example, in estimating the number of responses to a discovery on Federal lands, we relied on input from Federal agencies and increased the estimated number from 11 responses to 60 responses each year. One Federal agency with a large land area reported an average of 20 discoveries per year, leaving most stabilized in place and not excavated or removed, and thus not listed in notices of intended disposition. Another Federal agency with a smaller land area reported an average of 5 discoveries per year. This change to the number of responses for one regulatory E:\FR\FM\13DER2.SGM 13DER2 86510 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations requirement impact others that build off this number. For example, we estimate that the number of Federal agencies conducting consultation is 50% of the discoveries on Federal lands. Federal agencies also provided estimates on the time per response for each regulatory requirement. For responding to a discovery, they estimated it spanned from 8 hours to 40 hours. Given that a response is required within 3 days, we feel the maximum amount of time may not exceed 30 hours (one person for 8 hours for 3 days plus one person for 6 hours total). We estimate the time per response ranges from 10 hours to 30 hours, depending on the size and complexity of the discovery, for a median of 20 hours. As Table 6 below shows, changes to both the number of responses and to the time per response resulted in a significant increase to our estimated costs under Subpart B. TABLE 6—CHANGES TO ESTIMATED COSTS IN SUBPART B Number of responses Estimate Annual hours Annual costs 2022 Proposed Regulations * .................................................................................... 2023 Final Regulations * ............................................................................................ 65 318 465.5 6,599.5 $29,738 473,568 Change ............................................................................................................... +253 +6,134 +443,830 * See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. c. For Subpart C, is the estimated number of museums and Federal agencies required to update inventory data under the proposed regulations reasonable? We assume fewer inventory records will require less time to update. We assume museums previously prepared and submitted inventories in accordance with the existing regulations and an update to that inventory requires less time than submission of a new inventory. We estimate the time per response will range from less than one hour to 100 hours, depending on the size and complexity of the update, for a median of 50.25 hours. As discussed elsewhere in this document, we received several comments on our estimated costs in Subpart C. One of these comments noted that a previously prepared inventory did not reduce the necessary time, as previous inventories are generally ‘‘woefully inadequate.’’ Two comments stated that the estimates should not rely on responses from the last three years to estimate costs due to the pandemic. We received consistent feedback that the estimate is low and does not reflect real costs. Some comments provided alternative estimates on the time per response which we incorporated into our estimate or explained why we were unable to incorporate the suggestion. Despite the concerns that the pandemic has resulted in fewer submissions, the available information does not support this, and in fact, we have had more submissions in the last two years than in any previous year. Our estimate relies on the average number of submissions by museums and Federal agencies over the last four or five years or calculates an estimate based on those submissions (NPS, National NAGPRA Program Annual Reports, https://www.nps.gov/ subjects/nagpra/reports.htm, accessed 12/1/2023). Specifically for the number of museums and Federal agencies required to update an inventory, we estimate 407 museums and 122 Federal agencies will be required to update inventories within five years after promulgation of a final rule. The final regulatory action will allow for inventory updates to be combined by geographic location or other defining features. We have revised the estimated number of updated inventories based on comments. As the size of collections vary greatly, we analyzed previously reported inventory data to estimate the number of updated inventories as both a high estimate (by inventory records) and a low estimate (by geographic location). We calculated a high estimate using the number of inventory records, according to the original inventory submission and previous updates, and for every 10 inventory records, we estimate one updated inventory will be required. We calculated a low estimate using the number of unique geographical States from which the human remains were removed, according to the original inventory submission and previous updates, and for each State represented, we estimated one updated inventory will be required. We calculated a median value for each estimate and divided the total number of updated inventories by five years for an estimated number of annually updated inventories in each estimate. While we modified our estimate for the number of updated inventories between the baseline conditions and the final regulatory action, we did not change the time required for each response. Federal agencies provided estimates on the time per response that spanned from 50 hours to 218 hours, but some of those estimates included time for preparing a notice which is calculated separately. In response to comments, we increased the estimated time per response to range from 5 hours to 200 hours, depending on the size and complexity of the update, for a median of 102.5 hours. As Table 7 below shows, this resulted in a smaller change to the baseline costs estimate in the number of responses, but much larger changes in the number of hours and costs. khammond on DSKJM1Z7X2PROD with RULES2 TABLE 7—CHANGES TO ESTIMATED COSTS IN SUBPART C Number of responses Estimate 2022 Baseline: Proposed Regulations * ...................................................................................... 2023 Baseline: Final Regulations * .............................................................................................. Change ................................................................................................................................. 1,218 1,232 +14 Annual hours 36,750.25 73,475.50 +36,725.25 Annual costs $2,361,014 4,916,458 +2,555,444 * See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations In other cases, we relied on other available data to calculate an estimated number of responses. In estimating the responses to a request for repatriation, we relied on the number of notices as the two requirements have a direct connection. We estimate requests for repatriation are 80% of the total number of notices of inventory completion (which precede a request) and 100% of the notice of intended repatriation (which follow a request). Depending on the regulatory framework (baseline conditions under the existing regulations or under the final regulatory action), the same calculation applies but results in a different number of estimated responses. In the final regulatory action, museums and Federal agencies have specific options for responding to a request and responses should be based on information available in previously prepared summaries, inventories, and notices. Federal agencies provided estimates on the time per response that spanned from 8 hours to 25 hours. One comment requested the timeframe for responding to a request for repatriation be increased to a minimum of one year. We disagree with this suggestion and have not adopted it. Throughout the 86511 final regulatory action, a response to a request for repatriation is required within 90 days of receiving the request, or at maximum, 480 hours for one full time employee (12 weeks × 40 hours per week). We find this maximum estimate to be an extreme circumstance for an action based only on available information and with set options for a response. We estimate the time per response will range from 4 hours to 150 hours, depending on the complexity of the request, for a median of 77 hours. Table 8 shows the change in our estimate from the 2022 Proposed Rule to the final regulations. TABLE 8—CHANGES TO ESTIMATED COSTS IN SUBPART C Number of responses Estimate 2022 Regulatory Action years 1–3: Proposed Regulations * ...................................................... 2023 Regulatory Action years 1–5: Final Regulations * .............................................................. Change ................................................................................................................................. Annual hours 2,962 3,086 +124 Annual costs 46,262.25 172,360.50 +126,098.25 $2,971,955 11,536,684 +8,564,729 khammond on DSKJM1Z7X2PROD with RULES2 * See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. d. For Subpart C, many museums and Federal agencies update inventories at their own discretion, going beyond what is required by the Act and the existing regulations, which only requires use of ‘‘information possessed by such museum or Federal agency’’ (25 U.S.C. 3003(a)). Given the potential expense of more extensive studies not required by the Act or the revised regulations, how should the Department account for these costs in this rulemaking? We also request public data about the potential costs of updating inventories under the revised regulations. We did not receive specific comments on how to account for costs that go beyond what is required by the Act. A few comments stated they did not understand this question as museums and Federal agencies only do the minimum required by the Act and these regulations. As discussed elsewhere in this document, we received several estimates on the costs of updating inventories, but these estimates were, with two exceptions, not based on actual expenses incurred. The Society for American Archaeology (SAA) estimated annual costs to museums and Federal agencies of $250 million for repatriation of human remains and funerary objects. This estimate is based on the current museum completion rate of 21%, the amount of funding awarded through grants ($50 million since 1994), and a multiplying factor of 10, representing additional funds provided by museums, Federal agencies, and Indian Tribes VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 outside of grant funds (https:// documents.saa.org/container/docs/ default-source/doc-governmentaffairs/ final_scia_testimony_ 02162022.pdf?sfvrsn=63d7c331_2, accessed 12/1/2023). One museum estimated annual costs to museums and Federal agencies of more than $117 million for repatriation of human remains and funerary objects. This estimate is based on the costs incurred by the museum over the past 20 years to repatriate 3,490 items multiplied by the total number of human remains and associated funerary objects currently pending repatriation (Field Museum of Natural History (FMNH) Background062722 available at https://www.reginfo.gov/public/do/ viewEO12866Meeting?viewRule=true& rin=1024-AE19& meetingId=139323&acronym=1024-DOI/ NPS, accessed 12/1/2023). One comment from an individual estimated annual costs to museums and Federal agencies of nearly $20 million for repatriation of human remains and funerary objects. This estimate is based on a detailed analysis of grants awarded to museums since 2011 and the resulting number of notices published by those museums. The estimate then applies an average cost per notice to the number of human remains pending notification under the existing regulations. The shorter timeframe in this estimate (30 months) is based on the proposed regulatory action requiring notice publication within two years and six months after promulgation of final PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 regulations (https:// www.regulations.gov/comment/NPS2022-0004-0174, accessed 12/1/2023). Given the enormous variation in these estimates and past estimates related to these regulations, we have continued to employ the method used in the initial estimate but revised the number of responses and time per response based on comments. We believe we have accounted for all actions that are required under the existing regulations to calculate the baseline conditions and under these final regulations to estimate the future costs. Table 9 shows a summary of other annual estimates for inventories. TABLE 9—OTHER ANNUAL ESTIMATES FOR INVENTORIES Estimated costs $524,380 2,971,955 5,300,000 6,000,000 11,536,684 19,400,000 25,000,000 40,048,800 117,000,000 250,000,000 518,111,000 Reference 2010 Final Rule (75 FR 12402). 2022 Proposed Rule Analysis (see NPS–2022–0004–0002). 1993 Proposed Rule (58 FR 31124). 1990 H. Rpt. 101–877, at 22. 2023 Final Rule Analysis. NPS–2022–0004–0174. NPS–2022–0004–0131. NPS–2022–0004–0135. NPS–2022–0004–0136. SAA (cited above). NPS–2022–0004–0125. e. For Subpart C, is the estimated number of museums required to report on Federal holdings or collections reasonable? We estimate the number of museums required to submit statements is 5% of all museums that previously E:\FR\FM\13DER2.SGM 13DER2 86512 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations submitted information under the existing regulations. We only received specific input from Federal agencies on this estimate. A few stated the estimate was too low or unreasonable but did not offer any alternative estimates or related data. One Federal agency stated it has more than 150 non-federal repositories. Another Federal agency stated only 10% of the 170 identified non-federal repositories have submitted inventory and summary information. Another Federal agency stated only a small percentage of the 175 non-federal repositories have been reviewed and the estimate doesn’t anticipate identification of new non-federal repositories. One Federal agency stated it knows of only 13 non-federal repositories with unresolved collections and that the 5% estimate seemed reasonable. Another Federal agency stated it believes there are 24 nonfederal repositories holding its collections. We estimate the number of museums (n=140) required to submit statements is 10% of all museums (n=1,388, rounded up) that previously submitted information under the existing regulations. A statement is a simple written document describing a holding or collection. These statements are required no later than one year after the effective date of the final rule, but we have annualized the cost over five years for purposes of this estimate so as not to compound the costs in calculating the total costs over five years. We estimated the time per response for both museums to generate the statement and Federal agencies to respond to statements. We note that some comments estimated museums would need multiple staff members working full-time for the entire year to complete these statements. We disagree with this estimate and have not adopted it. We estimate the time per response for museums will range from 10 hours to 500 hours, depending on the size and complexity of a collection, for a median of 255 hours. Federal agencies provided estimates on the time per response that spanned from 8 hours to 30 hours. We estimate the time per response will range from 8 hours to 30 hours, depending on the size and complexity of a collection, for a median of 19 hours. Table 10 shows the estimated costs for statements of Federal agency holdings or collections to both museums and Federal agencies. TABLE 10—CHANGES TO ESTIMATED COSTS FOR STATEMENTS OF FEDERAL AGENCY HOLDINGS OR COLLECTIONS Number of responses Estimate 2022 Regulatory Action: Proposed Regulations * ....................................................................... Museums .............................................................................................................................. Federal agencies .................................................................................................................. 2023 Regulatory Action: Final Regulations * ............................................................................... Museums .............................................................................................................................. Federal agencies .................................................................................................................. Change ........................................................................................................................................ 140 70 70 280 140 140 +140 Annual hours 735 367.5 367.5 38,360 35,700 2,660 +37,625 Annual costs $47,232 23,616 23,616 5,570,504 2,392,257 178,247 +5,523,272 khammond on DSKJM1Z7X2PROD with RULES2 * See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. f. Is the estimated number of competing claims for disposition or competing requests for repatriation reasonable? We received specific input from Federal agencies on this estimate, and most stated it seemed reasonable or that they did not have experience or data related to it. One Federal agency believed the estimate is too low given the changes to the regulations, especially as it relates to Tribal land of an NHO where they anticipate an increase in competing claims or requests to occur. One Federal agency estimated that 20% of discoveries result in competing claims on Federal lands. On Federal lands, Federal agencies provided estimates on the time per response that spanned from 25 hours to 40 hours. Federal agencies provided estimates on the time per response that spanned from 25 hours to 80 hours. One comment from a museum stated evaluating competing requests and resolving stays of repatriation required significantly more time, estimating between 100 and 1,000 hours, especially when considering the involvement of legal departments, executives, and board members in those tasks. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 When a competing claim or request is received, the timeline for a disposition or repatriation statement changes, but we believe it is important to require museums and Federal agencies to decide on competing claims or requests within a set timeframe (six months or 180 calendar days after informing the claimants or requestors of the competing claims or requests). Under Subpart C, one option for a museum or Federal agency is to determine a most appropriate requestor cannot be determined. This option would allow parties to continue consultation but ensure all parties have been informed of the museum or Federal agency’s decision in a timely manner or to seek assistance of a court of competent jurisdiction to resolve a conflict under these regulations. The information needed to evaluate competing requests is submitted by requestors and evaluated against the criteria in the regulations. Where competing requests are between Indian Tribes or NHOs with cultural affiliation, the priority order under § 10.3(e), as revised, relies on how the cultural affiliation determination was made (clearly identified or reasonably identified). We PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 intended for these final regulations to provide adequate guidance and procedures for museums and Federal agencies to follow in determining the most appropriate requestor, and as a result, lessen the burden and expense of those determinations. We estimate the time per response ranges from 25 hours to 100 hours, depending on the size and complexity of the competing claims, for a median of 62.5 hours. Under Subpart B, the information needed to evaluate competing claims is submitted by claimants and evaluated against the priority of custody. However, Federal agencies must identify the most appropriate claimant or claimants. While this is not a new requirement, we do expect, as one Federal agency stated, the added procedures in these final regulations for resolving competing claims on Federal lands will likely increase the time per response from baseline conditions. Given that competing claims follow notification and consultation, we estimate the time per response ranges 40 hours to 500 hours for a median of 270 hours. g. Using data on implementation since 2012, we estimate it will take an E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations additional 26 years to complete consultation and notification for all 117,000 Native American human remains currently pending in the existing regulatory framework. Is this 26-year time horizon reasonable? Will the proposed regulatory requirements result in a change in consultation activities per year, and if so, how should the Department account for the change in costs to Indian Tribes or NHOs for engaging in consultation? We did not receive specific feedback on the estimate under the existing regulatory framework. We did receive many comments on the timelines under Subpart C in general (see Comment 92 and 93). Most comments felt the twoyear timeline in the proposed regulations was too short, unrealistic, unworkable, and unachievable. Two comments predicted it would take 20 or 50 years to complete consultation and notification for all Native American human remains. Most comments on the timelines expressed concerns about insufficient staffing and funding to complete the work of repatriation. As discussed elsewhere in this document, we have changed the deadline for museums and Federal agencies to update inventories of human remains and associated funerary objects to five years after the effective date of these final regulations. We have also revised our estimate for the timeline under the existing regulations. In Fiscal Year 2022, the largest number of human remains in the history of the Act and these regulations completed the regulatory process. As of August 2023, we expect Fiscal Year 2023 to surpass the previous year. We therefore adjusted our estimate in the Cost-Benefit and Regulatory Flexibility Threshold Analyses for these final regulations. 86513 Using data on implementation since 2012, the Department estimates it will take an additional 20 years to complete consultation and notification for all approximately 108,000 Native American human remains currently pending in the existing regulatory framework. Over the last 11 years, the average number of human remains completing the existing regulatory process for repatriation per year is 5,460 individual sets of Native American human remains (NPS, National NAGPRA Program Annual Reports, https://www.nps.gov/subjects/ nagpra/reports.htm, accessed 12/1/ 2023). As Table 11 shows, the number of human remains completing the existing regulatory process varies from year to year, depending on the decisionmaking of museums and Federal agencies on repatriation. TABLE 11—NATIVE AMERICAN HUMAN REMAINS Total published in notices Fiscal year khammond on DSKJM1Z7X2PROD with RULES2 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. ................................................................................................................................................................. Regarding the costs for lineal descendants, Indian Tribes, and NHOs to participate in consultation, we have added an estimate to the Cost-Benefit and Regulatory Flexibility Threshold Analyses for these final regulations. In the existing regulations, consultation is required throughout the regulatory processes in both Subpart B and C for any decision-making action by a Federal agency or museum. However, the existing regulations do not require any Indian Tribe or NHO to participate in such consultation. Choosing to participate in consultation is an act of sovereignty and these regulations, either existing or revised, do not require any Indian Tribe or NHO to consult. Our initial estimates did not include the costs to lineal descendants, Indian Tribes, or NHOs to participate in consultation as the variables of this estimate are too great and dependent on many factors. For example, one Tribal official stated publicly that under the existing regulations, consultation can require one email exchange or, in the most extreme case, eight years of regular VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 consultation meetings. As discussed elsewhere in this section, a comment from an Indian Tribe stated consultations can require mere hours while some require years of sustained work. In addition to the varying time required to consult with museums and Federal agencies, the costs for Indian Tribes and NHOs to consult internally with religious leaders or to develop their own procedure and protocol for conducting consultation cannot and should not be estimated by the Federal government. In preparing our initial and revised estimate, we reviewed other regulations for any estimate on the costs to Indian Tribes or NHOs to engage in consultation but were unable to find a relevant example. Our estimate is based on a 1:1 relationship between the number of participants and the number of museums and Federal agencies conducting consultation. We know this is an underestimate and that consultation requires participation by more than one lineal descendant, Indian Tribe, or NHO. However, we have no way to estimate this number. While we PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 Annual change 43,525 45,975 48,588 51,558 56,336 63,885 67,077 79,093 83,076 84,677 100,370 3,220 2,450 2,613 2,970 4,778 7,549 3,192 12,016 3,983 1,601 15,693 have provided an estimate on the costs to participate in consultation, we maintain we do not have sufficient information to adequately quantify these costs to lineal descendants, Indian Tribes, or NHOs. C. Use of Received Feedback The Department used all received feedback to inform this final rule and made changes to this final rule based on received feedback. IV. Compliance With Other Laws, Executive Orders and Department Policy A. Regulatory Planning and Review (Executive Orders 12866 and 13563 and 14094) Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in OMB will review all significant regulatory actions. OIRA has determined that this rule is a significant regulatory action. Executive Order 14094 amends Executive Order 12866 and reaffirms the E:\FR\FM\13DER2.SGM 13DER2 86514 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations principles of Executive Order 12866 and Executive Order 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. Executive Order 13563 reaffirms the principles of Executive 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. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. B. Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Executive Order 13985) This final rule is expected to advance racial equity in agency actions and programs, in accordance with the Executive Order 13985. C. Regulatory Flexibility Act This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This certification is based on the costbenefit and regulatory flexibility analyses found in the report entitled ‘‘Benefit-Cost and Regulatory Flexibility Threshold Analyses: Native American Graves Protection and Repatriation Act Regulations’’ that may be viewed online at https://www.regulations.gov. The analyses conclude that this final regulatory action will likely generate benefits for museums, Federal agencies, Indian Tribes, and NHOs that are greater than the temporary increase in reporting costs for museums. For all entities, the NPS anticipates a temporary increase of $6.948 million in annual costs for the first five years under the final regulatory action compared to baseline conditions. Starting year six, NPS anticipates a $2.978 million benefit in reduced annual costs compared to baseline conditions. This final regulatory action would produce a net benefit when reduced annual costs exceed the total increase in costs from the first five years. We estimate that this would occur after 17 years (for undiscounted costs and benefits), 21 years (for 3% discounting), or 47 years (for 7% discounting). Across the horizon of 50 years, the net savings in costs of the final regulatory action totals $99.3 million (for undiscounted costs and benefits), $31.2 million (for 3% discounting), or $0.4 million (for 7% discounting). Therefore, the results of this cost-benefit analysis indicate that positive net benefits will be generated by implementing the final regulatory action. Given that, NPS concludes that the benefits associated with the final regulatory action justify the associated costs. Further, this final regulatory action is not expected to have an annual economic effect of $100 million. Most of the state, local, and private museums required to report under NAGPRA are large not-for-profit enterprises, part of a university or college, or state or local government entities. The Small Business Administration size standard for museums is $34 million in average annual receipts (see https:// www.sba.gov/document/support-tablesize-standards, accessed 12/1/2023). However, using available information, NPS analyzed the 1,388 museums reporting under NAGPRA and determined that 419 are classified as state entities, 382 as local government entities, and 587 as private museums. Of the private museums, 141 are classified as universities or colleges, 18 as large urban museums, 42 as large historical societies, 247 as not-for profit museums or organizations that are large or dominant in the field, and the remaining 139 entities would be considered small museums, historical societies, or nature parks. We received 1 comment on the proposed rule from a small entity which was generally supportive of the changes. Based on this analysis, we estimate that the average annual cost per small entity is $2,191 under baseline conditions, $5,844 under the final action in years one through five, and $916 beginning in year six. For each small entity, this is an increase in years one through five of $3,653 per year and a decrease beginning in year six of $1,275 per year compared to baseline conditions. The impact on these small entities aligns with their normal duties of collections management. In an effort to reduce respondent burden, we provide templates and technical assistance to direct inquiries by phone and email. We assist many small entities directly with drafting and completing the notice requirements, which generally fall outside the scope of normal collections management duties. The increase in costs associated with the new requirements is temporary and will not exist after the small entities complete the required inventory updates which is expected to happen within five years of implementation. We assume the majority of small entities impacted by this rule also have a small number of employees. According to the available data summarized in Table 12 below, smaller firms also have smaller payroll costs. Even in the most extreme scenario (establishments with less than 5 employees) the annual costs of compliance during the first five years of the final regulatory action would be no more than 10% the average entities payroll costs. TABLE 12—MUSEUMS NAICS 712110: EMPLOYMENT SIZES AND PAYROLL * Number of establishments khammond on DSKJM1Z7X2PROD with RULES2 Employment size All establishments .............................................................................................................. Less than 5 employees ..................................................................................................... 5 to 9 employees ............................................................................................................... 10 to 19 employees ........................................................................................................... 20 to 49 employees ........................................................................................................... 50 to 99 employees ........................................................................................................... 100 to 249 employees ....................................................................................................... VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 Annual payroll ($1,000) ** 5,297 3,188 910 551 372 141 102 E:\FR\FM\13DER2.SGM 13DER2 $3,346,074 194,629 197,668 294,715 507,049 468,509 772,161 Mean payroll per establishment ($1,000) $632 61 217 535 1,363 3,323 7,570 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 86515 TABLE 12—MUSEUMS NAICS 712110: EMPLOYMENT SIZES AND PAYROLL *—Continued Number of establishments Employment size 250 to 499 employees ....................................................................................................... 500 to 999 employees ....................................................................................................... Annual payroll ($1,000) ** 27 5 506,069 257,054 Mean payroll per establishment ($1,000) 18,743 51,411 * 2021 Economic Census Business Survey, https://data.census.gov/table/CBP2021.CB2100CBP?q=712110:%20Museums, accessed 12/1/ 2023. ** Sales data are not available by employment size. The U.S. Census Bureau has a Quarterly Services Survey that reports on revenues for NAICS 712 ‘‘Museums, historical sites, and similar institutions.’’ For 2022, total revenue (Q1–Q4) was $21,468 million. Dividing this by 7,062 (the total number of employer firms in the 3-digit NAICS code 712), the mean annual revenue per firm is $3 million. While we recognize there may be a wide range of revenues at the individual firm level, this data suggest that for the average firm in this category, compliance costs will be small when compared to annual revenue. We do not have data that would allow a more rigorous analysis. D. Congressional Review Act (CRA) This rule does not meet the criteria set forth in 5 U.S.C. 804(2), the CRA. This rule: (a) Does not have an annual effect on the economy of $100 million or more; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. khammond on DSKJM1Z7X2PROD with RULES2 E. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. 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. F. Takings (Executive Order 12630) This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 G. 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. H. 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. I. Consultation With Indian Tribes (Executive Order 13175 and Department Policy) The Department 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. We have evaluated this rule under the Department’s consultation policy and under the criteria in Executive Order 13175 and have identified direct Tribal implications. Accordingly, we have developed this final rule after consulting with federally recognized Indian Tribes. In addition, we developed this final rule in consultation with the Native American Graves Protection and Repatriation Review Committee, which includes members nominated by Indian Tribes. From March to July of 2011, the Department consulted with Indian Tribes and the Review Committee, as well as others, on full revisions to the regulations implementing the Act. In April 2012 (77 FR 12378), the Department published a proposed rule to revise the regulations for accuracy and consistency based on some of those comments. Additional comments on PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 that proposed rule requested changes that went beyond the scope of accuracy and consistency. Since 2012, the Department has heard repeatedly from Indian Tribes, NHOs, museums, and Federal agencies on the implementation of the Act through the regulations. From 2012 to 2019 at 21 meetings of the Review Committee, public commenters have highlighted concerns with the regulations or challenges in implementing its procedures. The Review Committee has heard frequently that the regulations themselves pose barriers to successful and expedient repatriation. As a result of previous consultation, public comment, and input from the Review Committee, the Department developed a draft text of regulatory revisions and on July 8, 2021, invited Indian Tribes to consult on the draft text. Along with the draft text, the Department provided a summary of the 2011 consultation with Indian Tribes and how the draft text was responsive to that input. The Department hosted virtual consultation sessions with Indian Tribes on August 9, 13, and 16, 2021. In addition, the Department accepted written input until September 30, 2021. In total, we received 71 individual comment letters, which when combined with oral comments from consultation sessions, yielded over 700 specific comments on sections of the draft text. The Department reviewed each comment provided during consultation and in writing and, wherever possible, adjusted the proposed regulations to address them. In a separate document available in the docket for the proposed rule, the Department provided a summary of each comment and specific detailed responses. During the comment period on the proposed rule, the Department scheduled Review Committee meetings, Tribal consultation sessions, Native Hawaiian consultation sessions, and public listening sessions. Review Committee meetings were held virtually on January 5 and 10, 2023, from 2 p.m. to 6 p.m. ET. Tribal consultation sessions were held virtually on E:\FR\FM\13DER2.SGM 13DER2 86516 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations December 15, 2022, from 3 p.m. to 5 p.m. EST, and December 19, 2022, from 1 p.m. to 4 p.m. EST, and in person on January 12, 2023, from 10 a.m. to 1 p.m. MST in Phoenix, Arizona. Native Hawaiian consultation sessions were held virtually on January 9, 2023, from 9 a.m. to 11 a.m. HST and on January 10, 2023, from 6 p.m. to 8 p.m. HST. At all sessions, the Department provided a short overview of the proposed regulation, highlighted the major changes, and provided an opportunity for questions. The Department provided additional resources related to the proposed regulations on the National NAGPRA Program website. Review Committee meetings, Tribal Consultation sessions, and Native Hawaiian Consultation sessions were recorded and transcribed to ensure a record of all comments were available to the Department in preparing the final rule. All of the oral comments received during the meetings and consultation sessions were repeated in the written comments submitted by the Review Committee and Indian Tribes and are summarized in this document. J. Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) 1. Overview The Paperwork Reduction Act (PRA) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a ‘‘collection of information,’’ unless it displays a currently valid OMB control number. Collections of information include any request or requirement that persons obtain, maintain, retain, or report information to an agency, or disclose information to a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)). These final regulations contain existing and new information collection requirements that are subject to review by OMB under the PRA. OMB previously reviewed and approved information collection related to 43 CFR part 10 and assigned the following OMB control number 1024–0144 (expires 4/ 30/2025). The information collection activities in these final regulations are described below along with estimates of the annual burdens. These activities, along with annual burden estimates, do not include activities that are considered usual and customary industry practices. Included in the burden estimates are the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection requirements. The Department of the Interior requests comment on any aspect of this information collection, including: a. Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; b. The accuracy of the estimate of the burden for this collection of information, including the validity of the methodology and assumptions used; c. Ways to enhance the quality, utility, and clarity of the information to be collected; and d. How the agency might minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response. 2. Summary of Information Collection Requirements Title of Collection: Native American Graves Protection and Repatriation Regulations. OMB Control Number: 1024–0144. Form Number: None. Type of Review: Revision of a currently approved collection. Respondents/Affected Public: Any person, any affected party, lineal descendants, Indian Tribes, Native Hawaiian organizations, and State and local governments, universities, and museums, that receive Federal funds and have possession or control of Native American human remains and cultural items. Respondent’s Obligation: Mandatory, voluntary, and required to obtain or retain a benefit. Frequency of Collection: On occasion. Total Estimated Number of Annual Responses: 3,008. Estimated Completion Time per Response: Varies from 1 hour to 270 hours depending on respondent and/or activity. Total Estimated Number of Annual Burden Hours: 161,195. Total Estimated Annual Non Hour Burden Cost: None. Information collections Subpart Subpart A—General ............................................................................................................................. Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands ................. Subpart C—Repatriation of Human Remains or Cultural Items by Museums or Federal Agencies ... khammond on DSKJM1Z7X2PROD with RULES2 Subpart D—Review Committee ............................................................................................................ Subpart A—General does not contain any information collection requirements subject to the PRA. References to written documents in this Subpart refer to the specific information collection requirements in the three subparts below. Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands contains seven information collection requirements subject to the PRA. On Federal or Tribal lands, any person who knows or has reason to VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 know of the discovery of human remains or cultural items must provide specified information to third parties. On Federal lands, an Indian Tribe or NHO may participate in consultation or submit a claim for disposition by disclosing specified information to third parties. On Tribal lands, an Indian Tribe or NHO must maintain specified records related to discoveries, excavations, and dispositions. Subpart C—Repatriation of Human Remains or Cultural Items by Museums PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 0 1 6 1 2 2 14 1 Respondents None. Any person Indian Tribes or NHOs. Any person. Lineal descendants. Indian Tribes/NHOs. Museums. Any affected party. or Federal Agencies contains 19 information collection requirements subject to the PRA. State and local governments, universities, and museums that receive Federal funds and have possession or control of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony must submit information to the Federal government, maintain specified records, and disclose specified information to third parties. Lineal descendants, Indian Tribes, or E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations NHOs may participate in consultation and submit a request for repatriation by disclosing specified information to third parties. Any person alleging a failure to comply may voluntarily submit information to the Federal government. Museums may respond to a civil penalty action by submitting information to the Federal government. 86517 Subpart D—Review Committee contains one information collection requirements subject to the PRA. Any affected party may voluntarily submit information to the Federal government. Information collection requirement Final regulations New information collection requirements in Subpart B Participate in consultation .................................................................................................................................. Report a discovery on Federal or Tribal lands .................................................................................................. Respond to a discovery ..................................................................................................................................... Consent to an excavation .................................................................................................................................. Submit a claim for disposition ............................................................................................................................ Delegate or accept responsibility on Tribal land ............................................................................................... Complete a disposition statement ...................................................................................................................... § 10.4(b)(2). § 10.5(a)–(b). § 10.5(c)(1) and § 10.5(e). § 10.6(a). § 10.7(c)(3). § 10.5(c); § 10.6(a); § 10.7(b). § 10.7(b). Currently approved information collections requirements in Subpart C New Summary/Inventory .................................................................................................................................... Updated Inventory Data ..................................................................................................................................... Notices for publication in the Federal Register ................................................................................................ Updated Summary Data .................................................................................................................................... Notify Tribes and Request Information .............................................................................................................. Response to requests for information ................................................................................................................ § 10.9(a) and § 10.10(d). § 10.10(d). § 10.9(f) and § 10.10(e). Removed. Removed. Removed. New information collection requirements in Subpart C Conduct consultation .......................................................................................................................................... Participate in consultation .................................................................................................................................. Submit a request for repatriation ....................................................................................................................... Document physical transfer ............................................................................................................................... File an allegation of failure to comply ................................................................................................................ Respond to a civil penalty action ....................................................................................................................... Submit statements describing holdings or collection ......................................................................................... Make a record of consultation ........................................................................................................................... Respond to a request for repatriation ................................................................................................................ Send a repatriation statement ............................................................................................................................ Evaluate competing requests and resolve stays of repatriation ........................................................................ Transfer or reinter human remains and associated funerary objects ............................................................... § 10.9(c) and § 10.10(c) § 10.9(c) and § 10.10(c). § 10.9(d) and § 10.10(f). § 10.9(g) and § 10.10(h). § 10.11(a). § 10.11(e), (h), (i), and (k). § 10.8(c)–(d). § 10.9(c)(3) and § 10.10(c)(3). § 10.9(e) and § 10.10(g). § 10.9(g) and § 10.10(h). § 10.9(h)–(i); § 10.10(i)–(j). § 10.10(k). New information collection requirements in Subpart D Request assistance of the Review Committee .................................................................................................. khammond on DSKJM1Z7X2PROD with RULES2 3. Information That Is Not an Information Collection Subject to the PRA Lineal descendants, Indian Tribes, and Native Hawaiian organizations may take certain actions that are not information collections subject to the PRA. Requesting to consult is an acknowledgement that entails no burden other than that necessary to identify the respondent, the date, the respondent’s address, and the nature of the consultation. Federal agencies and the Department of Hawaiian Home Lands (DHHL) must take certain actions that are not information collections subject to the PRA. The Hawaiian Homes Commission Act, 1920 (HHCA), 42 Stat. 108, is a cooperative federalism statute, a compound of interdependent Federal and State law that establishes a Federal law framework but also provides for VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 implementation through State law (see 81 FR 29777 and 29787, May 13, 2016, 43 CFR 47 and 48, Land Exchange Procedures and Procedures to Amend the Hawaiian Homes Commission Act, 1920). These written documents are required by employees of the Federal government or DHHL when acting within the scope of their employment. Indian Tribes, Native Hawaiian organizations, traditional religious leaders, national museum organizations, and national scientific organizations may take certain actions that are not information collections subject to the PRA. These actions are generally solicited through a notice in the Federal Register, impact fewer than ten persons, and occur less often than annually. § 10.12(c). regulations. In total, we estimate that we will receive, annually, 3,008 responses totaling 161,195 annual hour burden. We estimate the annual dollar value is $10,786,570 (rounded). We estimate the frequency of response for each of the information collections is once per year, but the number of respondents may not be the same as the number of responses, depending on the type of information collected. In our estimate, we have only used the number of responses to simplify our estimate and remain consistent across the types of information collected. For some information collections, the time per response varies widely because of differences in activity, size, and complexity. 4. Burden Estimates The Department has identified 27 information collections in the final PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\13DER2.SGM 13DER2 86518 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 5. Written Comments or Additional Information Written comments and suggestions on the information collection requirements should be submitted by the date specified above in DATES to https:// www.reginfo.gov/public/do/PRAMain. Find this information collection by selecting ‘‘Currently under Review— Open for Public Comments’’ or by using the search function. Please provide a copy of your comments to the NPS Information Collection Clearance Officer (ADIR–ICCO), 13461 Sunrise Valley Drive, (MS–242) Reston, VA 20191 (mail); or phadrea_ponds@nps.gov (email). Please include OMB Control Number 1024–0144 in the subject line of your comments. To request additional information about this ICR, contact Melanie O’Brien, Manager, National NAGPRA Program by email at melanie_o’brien@nps.gov, or by telephone at (202) 354–2204. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-ofcontact in the United States. You may also view the ICR at https:// www.reginfo.gov/public/do/PRAMain. khammond on DSKJM1Z7X2PROD with RULES2 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-bycase.’’ 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. L. Effects on the Energy Supply (Executive Order 13211) This rulemaking is not a significant energy action under the definition in Executive Order 13211; the rule is not likely to have a significant adverse effect 17:04 Dec 12, 2023 Jkt 262001 Drafting Information This final rule was prepared by staff of the National NAGPRA Program, National Park Service; Office of Regulations and Special Park Uses, National Park Service; Office of Native Hawaiian Relations; Office of Regulatory Affairs & Collaborative Action, Office of the Assistant Secretary—Indian Affairs; Office of the Assistant Secretary for Fish and Wildlife and Parks; and Office of the Solicitor, Division of Parks and Wildlife and Division of Indian Affairs, Department of the Interior. This final rule was prepared in consultation with the Native American Graves Protection and Repatriation Review Committee under the Act (25 U.S.C. 3006(c)(7)). List of Subjects in 43 CFR Part 10 Administrative practice and procedure, Alaska, Cemeteries, Citizenship and naturalization, Colleges and universities, Hawaiian Natives, Historic preservation, Human remains, Indians, Indians—claims, Indians—law, Indians—lands, Museums, Penalties, Public lands, Reporting and recordkeeping requirements, Treaties. In consideration of the foregoing, the Department of the Interior revises 43 CFR part 10 to read as follows: ■ K. National Environmental Policy Act (NEPA) VerDate Sep<11>2014 on the supply, distribution, or use of energy, and the rule has not otherwise been designated by the Administrator of OIRA as a significant energy action. A Statement of Energy Effects in not required. PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS Sec. Subpart A—General 10.1 Introduction. 10.2 Definitions for this part. 10.3 Determining cultural affiliation. Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands 10.4 General. 10.5 Discovery. 10.6 Excavation. 10.7 Disposition. Subpart C—Repatriation of Human Remains or Cultural Items By Museums or Federal Agencies 10.8 General. 10.9 Repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony. 10.10 Repatriation of human remains or associated funerary objects. 10.11 Civil penalties. Subpart D—Review Committee 10.12 Review Committee. PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 Authority: 25 U.S.C. 3001 et seq. and 25 U.S.C. 9. Subpart A—General § 10.1 Introduction. (a) Purpose. The Native American Graves Protection and Repatriation Act (Act) of November 16, 1990, recognizes the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations in Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. (1) The Act and these regulations provide systematic processes to: (i) Protect Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony; and (ii) Restore Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony to lineal descendants, Indian Tribes, and Native Hawaiian organizations. (2) The Act and these regulations require consultation with lineal descendants, Indian Tribes, and Native Hawaiian organizations. (3) Consistent with the Act, these regulations require deference to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations. (b) Applicability. These regulations pertain to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. (1) These regulations require certain actions by: (i) Any institution or State or local government agency (including any institution of higher learning) within the United States that receives Federal funds and has possession or control of a holding or collection; (ii) Any Federal agency that has possession or control of a holding or collection or that has responsibilities on Federal or Tribal lands; (iii) Indian Tribes on Tribal lands in Alaska and the continental United States; and (iv) The State of Hawai‘i Department of Hawaiian Home Lands (DHHL) on Tribal lands in Hawai‘i. (2) Lineal descendants, Indian Tribes, and Native Hawaiian organization may, but are not required to, consult, submit claims for disposition, or submit requests for repatriation. (c) Accountability. These regulations are applicable to and binding on all museums, Federal agencies, and DHHL for implementing the systematic processes for disposition and E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations repatriation of human remains or cultural items under this part. (d) Duty of care. These regulations require a museum, Federal agency, or DHHL to care for, safeguard, and preserve any human remains or cultural items in its custody or in its possession or control. A museum, Federal agency, or DHHL must: (1) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations on the appropriate storage, treatment, or handling of human remains or cultural items; (2) Make a reasonable and good-faith effort to incorporate and accommodate the Native American traditional knowledge of lineal descendants, Indian Tribes, or Native Hawaiian organizations in the storage, treatment, or handling of human remains or cultural items; and (3) Obtain free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items. Research includes, but is not limited to, any study, analysis, examination, or other means of acquiring or preserving information about human remains or cultural items. Research of any kind on human remains or cultural items is not required by the Act or these regulations. (e) Delivery of written documents. These regulations require written documents to be sent, such as requests for repatriation, claims for disposition, invitations to consult, or notices for publication. (1) Written documents must be sent by one of the following: (i) Email, with proof of receipt, (ii) Personal delivery with proof of delivery date, (iii) Private delivery service with proof of date sent, or (iv) Certified mail. (2) Communication to the Manager, National NAGPRA Program, must be sent electronically to nagpra_info@ nps.gov. If electronic submission is not possible, physical delivery may be sent to 1849 C Street NW, Mail Stop 7360, Washington, DC 20240. If either of these addresses change, a notice with the new address must be published in the Federal Register no later than 7 days after the change. (f) Deadlines. These regulations require certain actions be taken by a specific date. Unless stated otherwise in these regulations: (1) Days mean calendar days. If a deadline falls on a Saturday, Sunday, or Federal holiday, the action is deemed timely if taken no later than the next calendar day that is not a Saturday, VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 Sunday, or Federal holiday. For purposes of this part, Federal holidays include any days during which the Federal government is closed because of a Federal holiday, lapse in appropriations, or other reasons. (2) Written documents are deemed timely based on the date sent, not the date received. (3) Parties sending or receiving written documents under these regulations must document the date sent or date received, as appropriate, when these regulations require those parties to act based on the date sent or date received. (g) Failure to make a claim or a request. Failure to make a claim for disposition or a request for repatriation before disposition, repatriation, transfer, or reinterment of human remains or cultural items under this part is deemed an irrevocable waiver of any right to make a claim or a request for the human remains or cultural items once disposition, repatriation, transfer, or reinterment of the human remains or cultural items has occurred. (h) Judicial jurisdiction. The United States district courts have jurisdiction over any action by any person alleging a violation of the Act or this part. (i) Final agency action. For purposes of the Administrative Procedure Act (5 U.S.C. 704), any of the following actions by a Federal agency constitutes a final agency action under this part: (1) A final determination making the Act or this part inapplicable; (2) A final denial of a claim for disposition or a request for repatriation; and (3) A final disposition or repatriation determination. (j) Information collection. The information collection requirements contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned control number 1024– 0144. A Federal agency may not conduct or sponsor, and you are not required to respond to, the collection of information under this part unless the Federal agency provides a currently valid OMB control number. (k) Severability. If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of the regulations and their applicability to other people or circumstances are intended to continue to operate to the fullest possible extent. § 10.2 Definitions for this part. Act means the Native American Graves Protection and Repatriation Act. PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 86519 Ahupua1a (singular and plural) means a traditional land division in Hawai1i usually extending from the uplands to the sea. Appropriate official means any representative authorized by a delegation of authority within an Indian Tribe, Native Hawaiian organization, Federal agency, or Department of Hawaiian Home Lands (DHHL) that has responsibility for human remains or cultural items on Federal or Tribal lands. ARPA means the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa–mm) and the relevant Federal agency regulations implementing that statute. ARPA Indian lands means lands of Indian Tribes, or individual Indians, which are either held in trust by the United States Government or subject to a restriction against alienation imposed by the United States Government, except for any subsurface interests in lands not owned or controlled by an Indian Tribe or an individual Indian. ARPA Public lands means lands owned and administered by the United States Government as part of: (1) The national park system; (2) The national wildlife refuge system; (3) The national forest system; and (4) All other lands the fee title to which is held by the United States Government, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution. Assistant Secretary means the official of the Department of the Interior designated by the Secretary of the Interior as responsible for exercising the Secretary of the Interior’s authority under the Act. Consultation or consult means the exchange of information, open discussion, and joint deliberations made between all parties in good-faith and in order to: (1) Seek, discuss, and consider the views of all parties; (2) Strive for consensus, agreement, or mutually acceptable alternatives; and (3) Enable meaningful consideration of the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations. Cultural affiliation means there is a reasonable connection between human remains or cultural items and an Indian Tribe or Native Hawaiian organization based on a relationship of shared group identity. Cultural affiliation may be identified clearly by the information available or reasonably by the geographical location or acquisition E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86520 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations history of the human remains or cultural items. Cultural items means a funerary object, sacred object, or object of cultural patrimony according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. Custody means having an obligation to care for the object or item but not a sufficient interest in the object or item to constitute possession or control. In general, custody through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency. Discovery means exposing, finding, or removing human remains or cultural items whether intentionally or inadvertently on Federal or Tribal lands without a written authorization for an excavation under § 10.6 of this part. Disposition means an appropriate official recognizes a lineal descendant, Indian Tribe, or Native Hawaiian organization has ownership or control of human remains or cultural items removed from Federal or Tribal lands. Excavation means intentionally exposing, finding, or removing human remains or cultural items on Federal or Tribal lands with a written authorization under § 10.6 of this part. Federal agency means any department, agency, or instrumentality of the United States Government. This term does not include the Smithsonian Institution. Federal lands means any lands other than Tribal lands that are controlled or owned by the United States Government. For purposes of this definition, control refers to lands not owned by the United States Government, but in which the United States Government has a sufficient legal interest to permit it to apply these regulations without abrogating a person’s existing legal rights. Whether the United States Government has a sufficient legal interest to control lands it does not own is a legal determination that a Federal agency must make on a case-by-case basis. Federal lands include: (1) Any lands selected by, but not yet conveyed to, an Alaska Native Corporation organized under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); (2) Any lands other than Tribal lands that are held by the United States Government in trust for an individual Indian or lands owned by an individual Indian and subject to a restriction on VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 alienation by the United States Government; and (3) Any lands subject to a statutory restriction, lease, easement, agreement, or similar arrangement containing terms that grant to the United States Government indicia of control over those lands. Funerary object means any object reasonably believed to have been placed intentionally with or near human remains. A funerary object is any object connected, either at the time of death or later, to a death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. This term does not include any object returned or distributed to living persons according to traditional custom after a death rite or ceremony. Funerary objects are either associated funerary objects or unassociated funerary objects. (1) Associated funerary object means any funerary object related to human remains that were removed and the location of the human remains is known. Any object made exclusively for burial purposes or to contain human remains is always an associated funerary object regardless of the physical location or existence of any related human remains. (2) Unassociated funerary object means any funerary object that is not an associated funerary object and is identified by a preponderance of the evidence as one or more of the following: (i) Related to human remains but the human remains were not removed, or the location of the human remains is unknown, (ii) Related to specific individuals or families, (iii) Removed from a specific burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization, or (iv) Removed from a specific area where a burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization is known to have existed, but the burial site is no longer extant. Holding or collection means an accumulation of one or more objects, items, or human remains for any temporary or permanent purpose, including: (1) Academic interest; (2) Accession; (3) Catalog; (4) Comparison; (5) Conservation; (6) Education; (7) Examination; PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 (8) Exhibition; (9) Forensic purposes; (10) Interpretation; (11) Preservation; (12) Public benefit; (13) Research; (14) Scientific interest; or (15) Study. Human remains means any physical part of the body of a Native American individual. This term does not include human remains to which a museum or Federal agency can prove it has a right of possession. (1) Human remains reasonably believed to be comingled with other materials (such as soil or faunal remains) may be treated as human remains. (2) Human remains incorporated into a funerary object, sacred object, or object of cultural patrimony are considered part of the cultural items rather than human remains. (3) Human remains incorporated into an object or item that is not a funerary object, sacred object, or object of cultural patrimony are considered human remains. Indian Tribe means any Tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for the special programs and services provided by the United States Government to Indians because of their status as Indians by its inclusion on the list of recognized Indian Tribes published by the Secretary of the Interior under the Act of November 2, 1994 (25 U.S.C. 5131). Inventory means a simple itemized list of any human remains and associated funerary objects in a holding or collection that incorporates the results of consultation and makes determinations about cultural affiliation. Lineal descendant means: (1) A living person tracing ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to a known individual whose human remains, funerary objects, or sacred objects are subject to this part; or (2) A living person tracing ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to all the known individuals represented by comingled human remains (example: the human remains of two individuals have been comingled, and a living person can trace ancestry directly to both of the deceased individuals). E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations Manager, National NAGPRA Program, means the official of the Department of the Interior designated by the Secretary of the Interior as responsible for administration of the Act and this part. Museum means any institution or State or local government agency (including any institution of higher learning) that has possession or control of human remains or cultural items and receives Federal funds. The term does not include the Smithsonian Institution. Native American means of, or relating to, a Tribe, people, or culture that is indigenous to the United States. To be considered Native American under this part, human remains or cultural items must bear some relationship to a Tribe, people, or culture indigenous to the United States. (1) A Tribe is an Indian Tribe. (2) A people comprise the entire body of persons who constitute a community, Tribe, nation, or other group by virtue of a common culture, history, religion, language, race, ethnicity, or similar feature. The Native Hawaiian Community is a ‘‘people.’’ (3) A culture comprises the characteristic features of everyday existence shared by people in a place or time. Native American traditional knowledge means knowledge, philosophies, beliefs, traditions, skills, and practices that are developed, embedded, and often safeguarded by or confidential to individual Native Americans, Indian Tribes, or the Native Hawaiian Community. Native American traditional knowledge contextualizes relationships between and among people, the places they inhabit, and the broader world around them, covering a wide variety of information, including, but not limited to, cultural, ecological, linguistic, religious, scientific, societal, spiritual, and technical knowledge. Native American traditional knowledge may be, but is not required to be, developed, sustained, and passed through time, often forming part of a cultural or spiritual identity. Native American traditional knowledge is expert opinion. Native Hawaiian organization means any organization that: (1) Serves and represents the interests of Native Hawaiians, who are descendants of the indigenous people who, before 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai‘i; (2) Has as a primary and stated purpose the provision of services to Native Hawaiians; and (3) Has expertise in Native Hawaiian affairs, and includes but is not limited to: VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (i) The Office of Hawaiian Affairs established by the constitution of the State of Hawai‘I; (ii) Native Hawaiian organizations (including ‘ohana) who are registered with the Secretary of the Interior’s Office of Native Hawaiian Relations; and (iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations and Homestead Associations as defined under 43 CFR 47.10. Object of cultural patrimony means an object that has ongoing historical, traditional, or cultural importance central to a Native American group, including any constituent sub-group (such as a band, clan, lineage, ceremonial society, or other subdivision), according to the Native American traditional knowledge of an Indian Tribe or Native Hawaiian organization. An object of cultural patrimony may have been entrusted to a caretaker, along with the authority to confer that responsibility to another caretaker. The object must be reasonably identified as being of such importance central to the group that it: (1) Cannot or could not be alienated, appropriated, or conveyed by any person, including its caretaker, regardless of whether the person is a member of the group, and (2) Must have been considered inalienable by the group at the time the object was separated from the group. 1Ohana (singular and plural) means a group of people who are not asserting that they are lineal descendants but comprise a Native Hawaiian organization whose members have a familial or kinship relationship with each other. Person means: (1) An individual, partnership, corporation, trust, institution, association, or any other private entity; or (2) Any representative, official, employee, agent, department, or instrumentality of the United States Government or of any Indian Tribe or Native Hawaiian organization, or of any State or subdivision of a State. Possession or control means having a sufficient interest in an object or item to independently direct, manage, oversee, or restrict the use of the object or item. A museum or Federal agency may have possession or control regardless of the physical location of the object or item. In general, custody through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency. PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 86521 Receives Federal funds means an institution or State or local government agency (including an institution of higher learning) directly or indirectly receives Federal financial assistance after November 16, 1990, including any grant; cooperative agreement; loan; contract; use of Federal facilities, property, or services; or other arrangement involving the transfer of anything of value for a public purpose authorized by a law of the United States Government. This term includes Federal financial assistance provided for any purpose that is received by a larger entity of which the institution or agency is a part. For example, if an institution or agency is a part of a State or local government or a private university, and the State or local government or private university receives Federal financial assistance for any purpose, then the institution or agency receives Federal funds for the purpose of these regulations. This term does not include procurement of property or services by and for the direct benefit or use of the United States Government or Federal payments that are compensatory. Repatriation means a museum or Federal agency relinquishes possession or control of human remains or cultural items in a holding or collection to a lineal descendant, Indian Tribe, or Native Hawaiian organization. Review Committee means the advisory committee established under the Act. Right of possession means possession or control obtained with the voluntary consent of a person or group that had authority of alienation. Right of possession is given through the original acquisition of: (1) An unassociated funerary object, a sacred object, or an object of cultural patrimony from an Indian Tribe or Native Hawaiian organization with the voluntary consent of a person or group with authority to alienate the object; or (2) Human remains or associated funerary objects which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or, when no next of kin is ascertainable, the official governing body of the appropriate Indian Tribe or Native Hawaiian organization. Sacred object means a specific ceremonial object needed by a traditional religious leader for presentday adherents to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. While many items might be imbued with sacredness in a culture, this term is specifically limited to an object needed for the observance or E:\FR\FM\13DER2.SGM 13DER2 86522 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations may be provided by an Indian Tribe or Native Hawaiian organization. (1) One or more of the following equally relevant types of information about human remains or cultural items may be available: (i) Anthropological; (ii) Archaeological; (iii) Biological; (iv) Folkloric; (v) Geographical; (vi) Historical; (vii) Kinship; (viii) Linguistic; (ix) Oral Traditional; or (x) Other relevant information or expert opinion, including Native American traditional knowledge. (2) A lack of any type of information does not preclude a determination of cultural affiliation. One type of information may be used to determine cultural affiliation when no other relevant information is available. (b) Step 2: Identify the required criteria. Using the information available, including information provided by an Indian Tribe or Native Hawaiian organization, a museum, Federal agency, or DHHL must identify the three criteria for cultural affiliation. (1) Each of the following criteria must be identified in the information available: (i) One or more earlier groups connected to the human remains or cultural items; (ii) One or more Indian Tribes or Native Hawaiian organizations; and (iii) A relationship of shared group identity between the earlier group and the Indian Tribe or Native Hawaiian organization that can be reasonably traced through time. (2) One type of information may be § 10.3 Determining cultural affiliation. sufficient to reasonably identify the Throughout this part, cultural required criteria when no other relevant affiliation ensures that disposition or information is available. For example, repatriation of human remains or geographical information about human cultural items is based on a reasonable remains or cultural items may identify: connection with an Indian Tribe or (i) The earlier groups of people Native Hawaiian organization. Cultural connected to a geographical location; affiliation must be determined by the (ii) The Indian Tribe or Native information available, including Hawaiian organization connected to a information provided by an Indian Tribe geographical location; and or Native Hawaiian organization. (iii) A relationship of shared group Cultural affiliation does not require identity between the two traced through exhaustive studies, additional research, time. or continuity through time. Cultural (c) Step 3: Make a determination of affiliation is not precluded solely cultural affiliation. A museum, Federal because of reasonable gaps in the agency, or DHHL must make a written information available. record of its determination of cultural (a) Step 1: Collect information affiliation that briefly describes the available. A museum, Federal agency, or information available under paragraph DHHL must collect information it holds (a) of this section and the criteria about human remains or cultural items, identified under paragraph (b) of this including, but not limited to, records, section. catalogues, relevant studies, and other (1) The determination must be one of pertinent data. Additional information the following: khammond on DSKJM1Z7X2PROD with RULES2 renewal of a Native American religious ceremony. Summary means a written description of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony. Traditional religious leader means a person needed to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. Tribal lands means: (1) All lands that are within the exterior boundaries of any Indian reservation; (2) All lands that are dependent Indian communities; and (3) All lands administered by the Department of Hawaiian Home Lands (DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 108) and Section 4 of the Act to Provide for the Admission of the State of Hawai1i into the Union (73 Stat. 4), including ‘‘available lands’’ and ‘‘Hawaiian home lands.’’ Tribal lands of an NHO means Tribal lands in Hawai1i that are under the stewardship of a Native Hawaiian organization through a lease or license issued under HHCA section 204(a)(2), second paragraph, second proviso, or section 207(c)(1)(B). Unclaimed human remains or cultural items means human remains or cultural items removed from Federal or Tribal lands whose disposition has not occurred under this part. United States means the 50 States and the District of Columbia. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 (i) Cultural affiliation is identified clearly by the information available, (ii) Cultural affiliation is identified reasonably by the geographical location or acquisition history, or (iii) Cultural affiliation cannot be clearly or reasonably identified. (2) Cultural affiliation of human remains or cultural items may be with more than one Indian Tribe or Native Hawaiian organization. For example, an identifiable earlier group may have a relationship to more than one Indian Tribe or Native Hawaiian organization, or two or more earlier groups may be connected to human remains or cultural items and a relationship may be reasonably traced to two or more Indian Tribes or Native Hawaiian organizations that do not themselves have a shared group identity. In Hawai‘i, two or more Native Hawaiian organizations may be part of the same Native Hawaiian Community, but may have distinct beliefs, protocols, and other cultural practices passed down through different familial, cultural, and geographical lineages. (d) Joint disposition or repatriation. When a museum, Federal agency, or DHHL determines cultural affiliation of human remains or cultural items with two or more Indian Tribes or Native Hawaiian organizations, any Indian Tribe or Native Hawaiian organization with cultural affiliation may submit a claim for disposition or a request for repatriation. Any Indian Tribe or Native Hawaiian organization with cultural affiliation may agree to joint disposition or joint repatriation of the human remains or cultural items. Claims or requests for joint disposition or joint repatriation of human remains or cultural items are considered a single claim or request and not competing claims or requests. A single claim or request may be on behalf of multiple Indian Tribes or Native Hawaiian organizations. Disposition or repatriation statements required under this part must identify all joint claimants or requestors. (e) Competing claims or requests. When there are competing claims for disposition or competing requests for repatriation of human remains or cultural items, a museum, Federal agency, or DHHL must determine the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation. In support of a competing claim or request, each claimant or requestor may provide information to show by a preponderance of the evidence that it has a stronger relationship of shared group identity to the human remains or cultural items. E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations (1) The Indian Tribe with the closest cultural affiliation, in the following order, is: (i) The Indian Tribe whose cultural affiliation is clearly identified by the information available. (ii) The Indian Tribe whose cultural affiliation is reasonably identified by the geographical location and acquisition history of the human remains or cultural items. (iii) The Indian Tribe whose cultural affiliation is reasonably identified by only the geographical location of the human remains or cultural items. (iv) The Indian Tribe whose cultural affiliation is reasonably identified by only the acquisition history of the human remains or cultural items. (2) The Native Hawaiian organization with the closest cultural affiliation, in the following order, is: (i) The 1ohana that can trace an unbroken connection of named individuals to one or more of the human remains or cultural items, but not necessarily to all the human remains or cultural items from a specific site. (ii) The 1ohana that can trace a relationship to the ahupua‘a where the human remains or cultural items were removed and a direct kinship to one or more of the human remains or cultural items, but not necessarily an unbroken connection of named individuals. (iii) The Native Hawaiian organization with cultural affiliation only to the earlier occupants of the ahupua‘a where the human remains or cultural items were removed, and not to the earlier occupants of any other ahupua‘a. (iv) The Native Hawaiian organization with cultural affiliation to either: (A) The earlier occupants of the ahupua‘a where the human remains or cultural items were removed, as well as to the earlier occupants of other ahupua‘a on the same island, but not to the earlier occupants of all ahupua‘a on that island, or to the earlier occupants of any other island of the Hawaiian archipelago; or (B) The earlier occupants of another island who accessed the ahupua‘a where the human remains or cultural items were removed for traditional or customary practices and were buried there. (v) The Native Hawaiian organization with cultural affiliation to the earlier occupants of all ahupua‘a on the island where the human remains or cultural items were removed, but not to the earlier occupants of any other island of the Hawaiian archipelago. (vi) The Native Hawaiian organization with cultural affiliation to the earlier occupants of more than one island in the Hawaiian archipelago that has been in continuous existence from a date prior to 1893. (vii) Any other Native Hawaiian organization with cultural affiliation. 86523 Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands § 10.4 General. Each Indian Tribe, Native Hawaiian organization, Federal agency, and the State of Hawai‘i Department of Hawaiian Home Lands (DHHL) that has responsibility for Federal or Tribal lands must comply with the requirements of this subpart. Any permit, license, lease, right-of-way, or other authorization issued for an activity on Federal or Tribal lands must include a requirement to report any discovery of human remains or cultural items under § 10.5 of this part. Prior to any excavation of human remains or cultural items on Federal or Tribal lands, a written authorization is required under § 10.6 of this part. When human remains or cultural items are removed from Federal or Tribal lands, a disposition statement is required under § 10.7 of this part. (a) Appropriate official. To ensure compliance with the Act, the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL that has responsibility for Federal or Tribal lands must designate one or more appropriate officials to carry out the requirements of this subpart, as shown in table 1 of this paragraph (a). khammond on DSKJM1Z7X2PROD with RULES2 TABLE 1 TO § 10.4(a)—APPROPRIATE OFFICIAL For human remains or cultural items on . . . the appropriate official is a representative for the . . . Federal lands in the United States ........................................................... Tribal lands in Alaska and the continental United States ........................ Tribal lands in Hawai1i .............................................................................. Tribal lands of an NHO ............................................................................ Federal agency with primary management authority. Indian Tribe. DHHL. DHHL or a Native Hawaiian organization that has agreed in writing to be responsible for its Tribal lands. (b) Plan of action. When a Federal agency or DHHL has responsibility for a discovery or excavation on Federal or Tribal lands, a plan of action is required. A plan of action is not required when an Indian Tribe or Native Hawaiian organization has responsibility for a discovery or excavation on Tribal lands. The Federal agency or DHHL must prepare a plan of action before any planned activity that is likely to result in a discovery or excavation of human remains or cultural items. The likelihood of a discovery or excavation must be based on previous studies, discoveries, or excavations in the general proximity of the planned activity and in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization. If not VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 part of a planned activity, a plan of action is required after a discovery of human remains or cultural items. After consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, the Federal agency or DHHL must approve and sign a plan of action. (1) Step 1—Initiate consultation. Before a planned activity or after a discovery, the Federal agency or DHHL must identify consulting parties and invite the parties to consult. (i) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation. (ii) An invitation to consult must be in writing and must include: (A) A description of the planned activity or discovery and its PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 geographical location by county and State; (B) The names of all consulting parties; and (C) A proposed timeline and method for consultation. (2) Step 2—Consult on the plan of action. The Federal agency or DHHL must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on the plan of action may continue until the Federal agency or DHHL sends a disposition statement to a claimant under § 10.7(c)(5) of this subpart. (i) In response to a consulting party, the Federal agency or DHHL must ask for the following information, if not already provided: E:\FR\FM\13DER2.SGM 13DER2 86524 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations (A) Preferences on the proposed timeline and method for consultation; and (B) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation. (ii) Consultation must address the content of the plan of action under paragraph (b)(3) of this section. (iii) The Federal agency or DHHL must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the content of the plan of action. (3) Step 3—Approve and sign the plan of action. Before a planned activity or after a discovery, the Federal agency or DHHL must approve and sign a plan of action and must provide a copy to all consulting parties. At a minimum, the written plan of action must include: (i) A description of the planned activity or discovery and its geographical location by county and State; (ii) A list of all consulting parties under paragraph (b)(1) of this section; (iii) A record of consultation under paragraph (b)(2) of this section; (iv) The preference of consulting parties for: (A) Stabilizing, securing, and covering human remains or cultural items in situ, or (B) Protecting, securing, and relocating human remains or cultural items, if removed; (v) The duty of care under § 10.1(d) for any human remains or cultural items; and (vi) The timeline and method for: (A) Informing all consulting parties of a discovery; (B) Evaluating the potential need for an excavation; and (C) Completing disposition, to include publication of a notice of intended disposition, under § 10.7 of this part. (c) Comprehensive agreement. A Federal agency or DHHL may develop a written comprehensive agreement for all land managing activities on Federal or Tribal lands, or portions thereof, under its responsibility. The written comprehensive agreement must: (1) Be developed in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization identified under paragraph (b)(1) of this section; (2) Include, at minimum, a plan of action under paragraph (b)(3) of this section; (3) Be consented to by a majority of consulting parties under paragraph (b)(2) of this section. Evidence of consent means the authorized representative’s signature on the agreement or by official correspondence to the Federal agency or DHHL; and (4) Be signed by the Federal agency or DHHL. (d) Federal agency coordination with other laws. To manage compliance with the Act, a Federal agency may coordinate its responsibility under this subpart with its responsibilities under other relevant Federal laws. Compliance with this subpart does not relieve a Federal agency of the responsibility for compliance with the National Historic Preservation Act (54 U.S.C. 306108, commonly known as Section 106) or the Archeological and Historic Preservation Act (54 U.S.C. 312501–312508). § 10.5 Discovery. When a discovery of human remains or cultural items on Federal or Tribal lands occurs, any person who knows or has reason to know of the discovery must inform the appropriate official for the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL and the additional point of contact. The appropriate official must respond to a discovery and, if applicable, certify when an activity may resume. (a) Report any discovery. Any person who knows or has reason to know of a discovery of human remains or cultural items on Federal or Tribal lands must: (1) Immediately report the discovery in person or by telephone to the appropriate official and any additional point of contact shown in table 1 of this paragraph (a). khammond on DSKJM1Z7X2PROD with RULES2 TABLE 1 TO § 10.5(a)(1)—REPORT A DISCOVERY ON FEDERAL OR TRIBAL LANDS Where the discovery is on . . . the appropriate official is the representative for the . . . and the additional point of contact is the . . . Federal lands in the United States * .................. Federal agency with primary management authority. Tribal lands in Alaska and the continental United States. Indian Tribe ...................................................... Tribal lands in Hawai1i ........................................ DHHL ............................................................... * Federal lands in Alaska selected but not yet conveyed under the Alaska Native Claims Settlement Act (ANCSA, 43 U.S.C. 1601). Bureau of Land Management or Federal agency with primary management authority. Any Indian Tribe or Native Hawaiian organization with potential cultural affiliation, if known. Bureau of Indian Affairs or the Federal agency with primary management authority, if any. Any Native Hawaiian organization with potential cultural affiliation, if known. Alaska Native Corporation organized under ANCSA. (2) Make a reasonable effort to secure and protect the human remains or cultural items, including, as appropriate, stabilizing or covering the human remains or cultural items; and (3) No later than 24 hours after the discovery, send written documentation of the discovery to the appropriate official and the additional point of contact shown in Table 1 to paragraph (a)(1) of this section stating: (i) The geographical location by county and State; (ii) The contents of the discovery; and VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (iii) The steps taken to secure and protect the human remains or cultural items. (b) Cease any nearby activity. If a discovery is related to an activity (including but not limited to construction, mining, logging, or agriculture), the person responsible for the activity must: (1) Immediately stop any activity that could threaten the discovery; (2) Report the discovery according to paragraph (a) of this section; and PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 (3) In the written documentation of the discovery required under paragraph (a)(3) of this section include: (i) The related activity and any potential threats to the discovery; and (ii) Confirmation that all activity around the discovery has stopped and must not resume until the date in a written certification issued under paragraph (e) of this section. (c) Respond to a discovery. No later than three days after receiving written documentation of a discovery, the appropriate official must respond to a E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations discovery. The appropriate official must comply with the requirements of this section immediately upon learning of the discovery even if the discovery has not been properly reported. (1) The appropriate official must make a reasonable effort to: (i) Secure and protect the human remains or cultural items; (ii) Verify that any activity around the discovery has stopped; and (iii) Notify the additional point of contact shown in table 1 to paragraph (a)(1) of this section. (2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for the discovery to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraphs (d) and (e) of this section. (3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for discoveries on its Tribal lands and then must respond to any discovery under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for discoveries, DHHL is responsible for completing the requirements in paragraph (d) and (e) of this section for any discoveries on those Tribal lands of an NHO. (d) Approve and sign a plan of action. When a Federal agency or DHHL has responsibility for a discovery on Federal or Tribal lands, a plan of action is required. A plan of action is not required when an Indian Tribe or Native Hawaiian organization has responsibility for a discovery on Tribal lands. The Federal agency or DHHL must carry out the plan of action for any human remains or cultural items that are removed. (1) No later than 30 days after receiving written documentation of a discovery, the Federal agency or DHHL, in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, must approve and sign a plan of action under § 10.4(b). (2) This requirement does not apply if, before receiving written documentation of the discovery, the Federal agency or DHHL signed: (i) A plan of action under § 10.4(b); or (ii) A comprehensive agreement under § 10.4(c). (e) Certify when an activity may resume. No later than 30 days after receiving written documentation of a VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 discovery, the appropriate official must send a written certification if the discovery is related to an activity (including but not limited to construction, mining, logging, or agriculture). Written certification must be sent to the person responsible for the activity and the additional point of contact shown in table 1 to paragraph (a)(1) of this section. The written certification must provide: (1) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information; (2) Instructions for protecting, securing, stabilizing, or covering the human remains or cultural items, if appropriate; and (3) The date (no later than 30 days after the date of the written certification) on which lawful activity may resume around the discovery. § 10.6 Excavation. When an excavation of human remains or cultural items on Federal or Tribal lands is needed, the appropriate official must comply with this section when authorizing the excavation. A permit under Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is on Federal or Tribal lands that are also ARPA Indian lands or ARPA Public lands, and there is no applicable permit exception or exemption under the ARPA uniform regulations at 18 CFR part 1312, 32 CFR part 229, 36 CFR part 296, or 43 CFR part 7. When the excavation is on Federal or Tribal lands that are not ARPA Indian lands or ARPA Public lands, an equivalent permit from the relevant jurisdiction is required, if applicable. (a) On Tribal lands. Before an excavation of human remains or cultural items may occur, the Indian Tribe or Native Hawaiian organization must consent in writing by providing a written authorization for the excavation. (1) At minimum, the written authorization must document: (i) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items; and (ii) Any permit that the Indian Tribe or Native Hawaiian organization legally requires. (2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for authorizing the excavation to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 86525 with primary management authority is responsible for completing the requirements in paragraph (b) of this section. (3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for excavations on its Tribal lands and then must provide written authorizations under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for excavations, DHHL is responsible for completing the requirements in paragraph (b) of this section for any excavations on those Tribal lands of an NHO. (b) On Federal or Tribal lands. When a Federal agency or DHHL has responsibility for an excavation on Federal or Tribal lands, a plan of action and a written authorization are required. When an Indian Tribe or Native Hawaiian organization has responsibility for an excavation on Tribal lands, no plan of action is required and the Indian Tribe or Native Hawaiian organization must comply with paragraph (a) of this section. (1) Approve and sign a plan of action. Prior to authorizing an excavation, the Federal agency or DHHL, in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, must approve and sign a plan of action under § 10.4(b). The Federal agency or DHHL must carry out the plan of action for any human remains or cultural items that are excavated and removed. (i) This requirement does not apply if, prior to authorizing the excavation, the Federal agency or DHHL signed: (A) A plan of action under § 10.4(b); or (B) A comprehensive agreement under § 10.4(c). (ii) For an excavation on Tribal lands, the plan of action must include written consent to the excavation by the appropriate Indian Tribe or Native Hawaiian organization. (2) Authorize an excavation. At minimum, the written authorization must include: (i) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information, (ii) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items, and (iii) Any permit that the Federal agency or DHHL legally requires. § 10.7 Disposition. When human remains or cultural items are removed from Federal or E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86526 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations Tribal lands, as soon as possible (but no later than one year) after the discovery or excavation of the human remains or cultural items, the appropriate official must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization that has priority for disposition of human remains or cultural items using this section. (a) Priority for disposition. The disposition of human remains or cultural items removed from Federal or Tribal lands must be in the following priority order: (1) The known lineal descendant, if any, for human remains or associated funerary objects; (2) The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed; (3) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part; (4) On Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian Tribe, the Indian Tribe with the strongest relationship to the human remains or cultural items, which is: (i) The Indian Tribe recognized as aboriginally occupying the geographical location where the human remains or cultural items were removed; or (ii) A different Indian Tribe who shows by a preponderance of the evidence a stronger relationship to the human remains or cultural items; or (5) Any Indian Tribe or Native Hawaiian organization that requests transfer of the human remains or cultural items as unclaimed under paragraph (d) of this section. (b) On Tribal lands. The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section. (1) The Indian Tribe or Native Hawaiian organization must complete and retain a written disposition statement to recognize: (i) A lineal descendant (whose name may be withheld) has ownership or control of the human remains or associated funerary objects removed from Tribal lands; or (ii) A lineal descendant could not be ascertained, and the Indian Tribe or Native Hawaiian organization has ownership or control of the human remains or cultural items removed from Tribal lands. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for disposition of human remains or cultural items to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (c) of this section. (3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for disposition of human remains or cultural items from its Tribal lands and then must provide written disposition statements under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for dispositions, DHHL is responsible for completing the requirements in paragraph (c) of this section for any dispositions from those Tribal lands of an NHO. (4) After completing a disposition statement, nothing in the Act or this part: (i) Limits the authority of an Indian Tribe or Native Hawaiian organization to enter into any agreement with the lineal descendant or another Indian Tribe or Native Hawaiian organization concerning the human remains or cultural items; (ii) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or (iii) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects. (c) On Federal or Tribal lands. When a Federal agency or DHHL has responsibility for disposition of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must inform and notify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section. (1) Step 1—Inform consulting parties. As soon as possible but no later than six months after removal of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must send a written document informing all consulting parties listed in the plan of action under § 10.4(b)(3) of this part. Consultation on disposition of human remains or cultural items may continue PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 until the Federal agency or DHHL sends a disposition statement to a claimant under paragraph (c)(5) of this section. (i) The written document must include: (A) A description of the human remains or cultural items, including the date and geographical location by county and State of removal; and (B) The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization identified as having priority for disposition of the human remains or cultural items. (ii) For human remains or cultural items removed from Federal or Tribal lands whose disposition is not complete prior to January 12, 2024, the Federal agency or DHHL must: (A) Identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section; and (B) No later than July 12, 2024, send a written document under paragraph (c)(1)(i) of this section. (iii) If the Federal agency or DHHL cannot identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition of human remains or cultural items, the Federal agency or DHHL must report the human remains or cultural items as unclaimed under paragraph (d) of this section. (2) Step 2—Submit a notice of intended disposition. No earlier than 30 days and no later than six months after informing consulting parties, the Federal agency or DHHL must submit a notice of intended disposition. If the human remains or cultural items are evidence in an ongoing civil or criminal action under ARPA or a criminal action under NAGPRA, the deadline for the notice is extended until the conclusion of the ARPA or NAGPRA case. (i) A notice of intended disposition must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register. (ii) A notice of intended disposition must conform to the mandatory format of the Federal Register and include: (A) An abstract of the information in the written document under paragraph (c)(1)(i) of this section; (B) The name, phone number, email address, and mailing address of the appropriate official for the Federal agency or DHHL who is responsible for receiving claims for disposition; (C) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the Federal agency or DHHL may send a disposition statement to a claimant; and E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations (D) The date (to be calculated by the Federal Register one year from the date of publication) on which the human remains or cultural items become unclaimed human remains or cultural items if no claim for disposition is received from a lineal descendant, Indian Tribe, or Native Hawaiian organization. (iii) No later than 21 days after receiving a notice of intended disposition, the Manager, National NAGPRA Program, must: (A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (c)(2)(ii) of this section; or (B) Return to the Federal agency or DHHL any submission that does not conform to the requirements under paragraph (c)(2)(ii) of this section. No later than 14 days after the submission is returned, the Federal agency or DHHL must resubmit the notice of intended disposition. (3) Step 3—Receive and consider a claim for disposition. After publication of a notice of intended disposition in the Federal Register, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the appropriate official for the Federal agency or DHHL a written claim for disposition of human remains or cultural items. (i) A claim for disposition of human remains or cultural items must be received by the Federal agency or DHHL before a disposition statement for the human remains or cultural items is sent to a claimant under paragraph (c)(5) of this section or the transfer or reinterment of the human remains or cultural items under paragraph (d)(4) of this section. A claim for disposition received by the Federal agency or DHHL before the publication of the notice of intended disposition is dated the same date the notice was published. (ii) Claims from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint disposition of the human remains or cultural items are considered a single claim and not competing claims. (iii) A claim for disposition must satisfy one of the following criteria: (A) The claimant is identified in the notice of intended disposition with priority for disposition; or (B) The claimant is not identified in the notice of intended disposition, but the claim for disposition shows that the claimant is a lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section. (iv) One year after publishing a notice of intended disposition under paragraph VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (c)(2) of this section, if no lineal descendant, Indian Tribe, or Native Hawaiian organization has submitted a claim for disposition, the Federal agency or DHHL must report the human remains or cultural items as unclaimed under paragraph (d) of this section. (4) Step 4—Respond to a claim for disposition. No earlier than 30 days after publication of a notice of intended disposition but no later than 90 days after receiving a claim for disposition, the Federal agency or DHHL must send a written response to the claimant with a copy to any other party identified in the notice of intended disposition with priority for disposition. (i) In the written response, the Federal agency or DHHL must state one of the following: (A) The claim meets the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must send a disposition statement to the claimant under paragraph (c)(5) of this section, unless the Federal agency or DHHL receives additional, competing claims for disposition of human remains or cultural items. (B) The claim does not meet the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must provide a detailed explanation why the claim does not meet the criteria and an opportunity for the claimant to provide additional information to meet the criteria. (C) The Federal agency or DHHL has received competing claims for disposition of the human remains or cultural items that meet the criteria and must determine the most appropriate claimant using the procedures and deadlines under paragraph (c)(4)(ii) of this section. (ii) At any time before sending a disposition statement for human remains or cultural items under paragraph (c)(5) of this section, the Federal agency or DHHL may receive additional, competing claims for disposition of the human remains or cultural items that meet the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must determine the most appropriate claimant using the priority for disposition under paragraph (a) of this section and the following procedures and deadlines: (A) No later than 14 days after receiving a competing claim, the Federal agency or DHHL must send a written letter to each claimant identifying all claimants and the date each claim was received. In response, the claimants may provide additional information to show by a preponderance of the evidence that PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 86527 the claimant has a stronger relationship to the human remains or cultural items. (B) No later than 180 days after informing the claimants of competing claims, the Federal agency or DHHL must send a written determination to each claimant identifying the most appropriate claimant(s). (C) No earlier than 30 days but no later than 90 days after sending a determination of the most appropriate claimant(s), the Federal agency or DHHL must send a disposition statement to the most appropriate claimant(s) under paragraph (c)(5) of this section. (5) Step 5—Disposition of the human remains or cultural items. No later than 90 days after responding to a claim for disposition that meets the criteria, the Federal agency or DHHL must send a written disposition statement to the claimant(s) and a copy to the Manager, National NAGPRA Program. A disposition statement must recognize the claimant(s) has ownership or control of the human remains or cultural items. In the case of joint claims for disposition, a disposition statement must identify and be sent to all claimants. (i) After sending a disposition statement, the Federal agency or DHHL must: (A) Consult with the claimant(s) on custody and physical transfer; (B) Document any physical transfer; and (C) Protect sensitive information, as identified by the claimant(s), from disclosure to the general public to the extent consistent with applicable law. (ii) After a disposition statement is sent, nothing in the Act or this part: (A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the lineal descendant, Indian Tribe, or Native Hawaiian organization concerning the human remains or cultural items; (B) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or (C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects. (d) Unclaimed human remains or cultural items removed from Federal or Tribal lands. When a Federal agency or DHHL has custody of unclaimed human remains or cultural items, the Federal agency or DHHL must report the human remains or cultural items. (1) Step 1—Submit a list of unclaimed human remains or cultural items. No E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86528 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations later than January 13, 2025, the Federal agency or DHHL must submit to the Manager, National NAGPRA Program, a list of any unclaimed human remains or cultural items in its custody. The Federal agency or DHHL must submit updates to its list of unclaimed human remains or cultural items by December 31 each year. (i) Human remains or cultural items are unclaimed when: (A) One year after publishing a notice of intended disposition under paragraph (c)(2) of this section, no lineal descendant, Indian Tribe, or Native Hawaiian organization submits a written claim for disposition; or (B) One year after discovery or excavation of the human remains or cultural items, the Federal agency or DHHL did not identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section. (ii) A list of unclaimed human remains or cultural items must include: (A) A description of the human remains or cultural items, including the date and geographical location by county and State of removal; (B) The names of all consulting parties; (C) If unclaimed under paragraph (d)(1)(i)(A) of this section, the name of each Indian Tribe or Native Hawaiian organization with priority for disposition under paragraph (a) of this section; and (D) If unclaimed under paragraph (d)(1)(i)(B) of this section, the information considered under § 10.3(a) of this part and the criteria identified under § 10.3(b) of this part to explain why no Indian Tribe or Native Hawaiian organization with cultural affiliation could be identified. (2) Step 2—Agree to transfer or decide to reinter human remains or cultural items. At the discretion of the Federal agency or DHHL, a Federal agency or DHHL may: (i) Agree in writing to transfer unclaimed human remains or cultural items to an Indian Tribe or Native Hawaiian organization; (ii) Decide in writing to reinter unclaimed human remains or cultural items according to applicable laws and policies; or (iii) At any time before transferring or reinterring human remains or cultural items under paragraph (d)(4) of this section, the Federal agency or DHHL may receive a claim for disposition of the human remains or cultural items and must evaluate whether the claim meets the criteria under paragraph (c)(3) of this section. Any agreement to VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 transfer or decision to reinter the human remains or cultural items under this paragraph is stayed until the claim for disposition is resolved under paragraph (c) of this section. (A) If the claim meets the criteria under paragraph (c)(3) of this section and a notice of intended disposition was published under paragraph (c)(2) of this section, the Federal agency or DHHL must respond in writing under paragraph (c)(4) and proceed with disposition under (c)(5) of this section. (B) If the claim meets the criteria under paragraph (c)(3) of this section but no notice of intended disposition was published, the Federal agency or DHHL must submit a notice of intended disposition under paragraph (c)(2), respond in writing under paragraph (c)(4), and proceed with disposition under (c)(5) of this section. (C) If the claim does not meet the criteria under paragraph (c)(3) of this section, the Federal agency or DHHL must respond in writing under paragraph (c)(4) and may proceed with transfer or reinterment under paragraph (d)(3) of this section. (3) Step 3—Submit a notice of proposed transfer or reinterment. No later than 30 days after agreeing to transfer or deciding to reinter the human remains or cultural items, the Federal agency or DHHL must submit a notice of proposed transfer or reinterment. (i) A notice of proposed transfer or reinterment must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register. (ii) A notice of proposed transfer or reinterment must conform to the mandatory format of the Federal Register and include: (A) An abstract of the information in the list of unclaimed human remains or cultural items under paragraph (d)(1)(ii) of this section; (B) The Indian Tribe or Native Hawaiian organization requesting transfer of the human remains or cultural items or a statement that the Federal agency or DHHL agrees to reinter the human remains or cultural items; (C) The name, phone number, email address, and mailing address of the appropriate official for the Federal agency or DHHL who is responsible for receiving claims for disposition; and (D) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the Federal agency or DHHL may proceed with the transfer or reinterment of the human remains or cultural items. PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 (iii) No later than 21 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, must: (A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (d)(3)(ii) of this section; or (B) Return to the Federal agency or DHHL any submission that does not conform to the requirements under paragraph (d)(3)(ii) of this section. No later than 14 days after the submission is returned, the Federal agency or DHHL must resubmit the notice of proposed transfer or reinterment. (4) Step 4—Transfer or reinter the human remains or cultural items. No earlier than 30 days and no later than 90 days after publication of a notice of proposed transfer or reinterment, the Federal agency or DHHL must transfer or reinter the human remains or cultural items and send a written statement to the Manager, National NAGPRA Program, that the transfer or reinterment is complete. (i) After transferring or reinterring, the Federal agency or DHHL must: (A) Document the transfer or reinterment of the human remains or cultural items, and (B) Protect sensitive information about the human remains or cultural items from disclosure to the general public to the extent consistent with applicable law. (ii) After transfer or reinterment occurs, nothing in the Act or this part: (A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the requestor concerning the human remains or cultural items; (B) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or (C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects. Subpart C—Repatriation of Human Remains or Cultural Items by Museums or Federal Agencies § 10.8 General. Each museum and Federal agency that has possession or control of a holding or collection that may contain human remains, funerary objects, sacred objects, or objects of cultural patrimony must comply with the requirements of this subpart, regardless of the physical location of the holding or collection. E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations Each museum and Federal agency must identify one or more authorized representatives who are responsible for carrying out the requirements of this subpart. (a) Museum holding or collection. A museum must comply with this subpart for any holding or collection under its possession or control that may contain human remains or cultural items, including a new holding or collection or a previously lost or previously unknown holding or collection. (1) A museum must determine whether it has sufficient interest in a holding or collection to constitute possession or control on a case-by-case basis given the relevant information about the holding or collection. (i) A museum may have custody of a holding or collection but not possession or control. In general, custody of a holding or collection through a loan, lease, license, bailment, or other similar arrangement is not sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency. (ii) If a museum has custody of a holding or collection, the museum may be required to report the holding or collection under paragraphs (c) or (d) of this section. (2) Any museum that sends a repatriation statement for human remains or cultural items or that transfers or reinters human remains or associated funerary objects in good faith under this subpart shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of State law that are inconsistent with the provisions of the Act or this part. (b) Federal agency holding or collection. A Federal agency must comply with this subpart for any holding or collection in its possession or control that may contain human remains or cultural items, including a previously lost or previously unknown holding or collection. (1) A Federal agency must determine, given the relevant information, if a holding or collection: (i) Was in its possession or control on or before November 16, 1990; or (ii) Came into its possession or control after November 16, 1990, and was removed from: (A) An unknown location; or (B) Lands that are neither Federal nor Tribal lands as defined in this part. (2) A Federal agency may have custody of a holding or collection that VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 was removed from Federal or Tribal lands after November 16, 1990, and must comply with § 10.7(c) of this part. (c) Museums with custody of a Federal agency holding or collection. No later than January 13, 2025, each museum that has custody of a Federal agency holding or collection that may contain Native American human remains or cultural items must submit a statement describing that holding or collection to the authorized representatives of the Federal agency most likely to have possession or control and to the Manager, National NAGPRA Program. (1) No later than 180 days following receipt of a museum’s statement, the Federal agency must respond to the museum and the Manager, National NAGPRA Program, with a written acknowledgement of one of the following: (i) The Federal agency has possession or control of the holding or collection; (ii) The Federal agency does not have possession or control of the holding or collection; or (iii) The Federal agency and the museum agree that they have joint possession or control of the holding or collection. (2) Failure to issue such a determination by the deadline constitutes acknowledgement that the Federal agency has possession or control. The Federal agency is responsible for the requirements of this subpart for any holdings or collections under its possession or control, regardless of the physical location of the holdings or collection. (d) Museums with custody of other holdings or collections. No later than January 13, 2025, each museum that has custody of a holding or collection that may contain Native American human remains or cultural items and for which it cannot identify any person, institution, State or local government agency, or Federal agency with possession or control of the holding or collection, must submit a statement describing that holding or collection to the Manager, National NAGPRA Program. (e) Contesting actions on repatriation. An affected party under § 10.12(c)(1)(ii) who wishes to contest actions made by museums or Federal agencies under this subpart is encouraged to do so through informal negotiations to achieve a fair resolution of the matter. Informal negotiations may include requesting the assistance of the Manager, National PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 86529 NAGPRA Program, or the Review Committee under § 10.12. § 10.9 Repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony. Each museum and Federal agency that has possession or control of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony must follow the steps in this section. The purpose of this section is to provide general information about a holding or collection to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation. (a) Step 1—Compile a summary of a holding or collection. Based on the information available, a museum or Federal agency must compile a summary describing any holding or collection that may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony. Depending on the scope of the holding or collection, a museum or Federal agency may organize its summary into sections based on geographical area, accession or catalog name or number, or other defining attributes. A museum or Federal agency must ensure the summary is comprehensive and covers any holding or collection relevant to this section. (1) A summary must include: (i) The estimated number and a general description of the holding or collection, including any potential cultural items; (ii) The geographical location (provenience) by county or State where the potential cultural items; (iii) The acquisition history (provenance) of the potential cultural items; (iv) Other information relevant for identifying: (A) A lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation, and (B) Any object as an unassociated funerary object, sacred object, or object of cultural patrimony; and (v) The presence of any potentially hazardous substances used to treat any of the unassociated funerary objects, sacred objects, or objects of cultural patrimony, if known. (2) After January 12, 2024, a museum or Federal agency must submit a summary to the Manager, National NAGPRA Program, by the deadline in Table 1 of this paragraph (a)(2). E:\FR\FM\13DER2.SGM 13DER2 86530 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 TABLE 1 TO § 10.9(a)(2)—DEADLINES FOR COMPILING A SUMMARY If a museum or Federal agency . . . . . . a summary must be submitted . . . acquires possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony. locates previously lost or unknown unassociated funerary objects, sacred objects, or objects of cultural patrimony. receives Federal funds for the first time after January 12, 2024, and has possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony. 6 months after acquiring possession or control of the unassociated funerary objects, sacred objects, or objects of cultural patrimony. 6 months after locating the unassociated funerary objects, sacred objects, or objects of cultural patrimony. 3 years after receiving Federal funds for the first time after January 12, 2024. (3) After January 12, 2024, when a holding or collection previously included in a summary is transferred to a museum or Federal agency, the museum or Federal agency acquiring possession or control of the holding or collection may rely on the previously compiled summary. (i) No later than 30 days after acquiring the holding or collection, the museum or Federal agency must send the previously compiled summary to the Manager, National NAGPRA Program. (ii) No later than the deadline in Table 1 to paragraph (a)(2) of this section, the museum or Federal agency must compile a summary under paragraph (a)(1) of this section based on the previously compiled summary and additional information available. The museum or Federal agency must submit the summary to the Manager, National NAGPRA Program, and must initiate consultation under paragraph (b) of this section. (4) Prior to January 12, 2024, a museum or Federal agency must have submitted a summary to the Manager, National NAGPRA Program: (i) By November 16, 1993, for unassociated funerary objects, sacred objects, or objects of cultural patrimony subject to the Act; (ii) By October 20, 2007, for unassociated funerary objects, sacred objects, or objects of cultural patrimony acquired or located after November 16, 1993; (iii) By April 20, 2010, for unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of a museum that received Federal funds for the first time after November 16, 1993; (iv) After October 20, 2007, six months after acquiring or locating unassociated funerary objects, sacred objects, or objects of cultural patrimony; or (v) After April 20, 2010, three years after receiving Federal funds for the first time. (b) Step 2—Initiate consultation. No later than 30 days after compiling a summary, a museum or Federal agency must identify consulting parties based VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 on information available and invite the parties to consult. (1) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation. (2) An invitation to consult must be in writing and must include: (i) The summary described in paragraph (a)(1) of this section; (ii) The names of all consulting parties; and (iii) A proposed method for consultation. (3) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must invite the party to consult. An invitation to consult under paragraph (b)(2) of this section must be sent: (i) No later than 30 days after identifying a new consulting party based on new information; or (ii) No later than six months after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 5131). (c) Step 3—Consult on cultural items. A museum or Federal agency must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on an unassociated funerary object, sacred object, or object of cultural patrimony may continue until the museum or Federal agency sends a repatriation statement for that object to a requestor under paragraph (g) of this section. (1) In response to a consulting party, a museum or Federal agency must ask for the following information, if not already provided: (i) Preferences on the proposed timeline and method for consultation; and (ii) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation. (2) Consultation must address identification of: PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 (i) Lineal descendants; (ii) Indian Tribes or Native Hawaiian organizations with cultural affiliation; (iii) The types of objects that might be unassociated funerary objects, sacred objects, or objects of cultural patrimony; and (iv) The duty of care under § 10.1(d) for unassociated funerary objects, sacred objects, or objects of cultural patrimony. (3) The museum or Federal agency must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the identifications in paragraph (c)(2) of this section. (4) At any time before a museum or Federal agency sends a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section, the museum or Federal agency may receive a request from a consulting party for access to records, catalogues, relevant studies, or other pertinent data related to the holding or collection. A museum or Federal agency must provide access to the additional information in a reasonable manner and for the limited purpose of determining cultural affiliation, including the geographical location or acquisition history, of the unassociated funerary object, sacred object, or object of cultural patrimony. (d) Step 4—Receive and consider a request for repatriation. After a summary is compiled, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the museum or Federal agency a written request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony. (1) A request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for that unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section. A request for repatriation received by the museum or Federal agency before the deadline E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations for compiling a summary in table 1 to paragraph (a)(2) of this section is dated the same date as the deadline for compiling the summary. (2) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony are considered a single request and not competing requests. (3) A request for repatriation must satisfy the following criteria: (i) Each unassociated funerary object, sacred object, or object of cultural patrimony being requested meets the definition of an unassociated funerary object, a sacred object, or an object of cultural patrimony; (ii) The request is from a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and (iii) The request includes information to support a finding that the museum or Federal agency does not have right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony. (e) Step 5—Respond to a request for repatriation. No later than 90 days after receiving a request for repatriation, a museum or Federal agency must send a written response to the requestor with a copy to any other consulting party. Using the information available, including relevant records, catalogs, existing studies, and the results of consultation, a museum or Federal agency must determine if the request for repatriation satisfies the criteria under paragraph (d) of this section. In the written response, the museum or Federal agency must state one of the following: (1) The request meets the criteria under paragraph (d) of this section. The museum or Federal agency must submit a notice of intended repatriation under paragraph (f) of this section. (2) The request does not meet the criteria under paragraph (d) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria and an opportunity for the requestor to provide additional information to meet the criteria. (3) The request meets the criteria under paragraph (d)(3)(i) and (ii) of this section, but the museum or Federal agency asserts a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony and refuses repatriation of the requested object to the requestor. The museum or Federal agency must provide information to prove that the museum VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 or Federal agency has a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony. (4) The museum or Federal agency has received competing requests for repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony that meet the criteria and must determine the most appropriate requestor using the procedures and deadlines under paragraph (h) of this section. (f) Step 6—Submit a notice of intended repatriation. No later than 30 days after responding to a request for repatriation that meets the criteria, a museum or Federal agency must submit a notice of intended repatriation. The museum or Federal agency may include in a single notice any unassociated funerary objects, sacred objects, or objects of cultural patrimony with the same requestor. (1) A notice of intended repatriation must be sent to all requestors, any consulting parties, and to the Manager, National NAGPRA Program, for publication in the Federal Register. (2) A notice of intended repatriation must conform to the mandatory format of the Federal Register and include: (i) An abstract of the information compiled under paragraph (a) of this section; (ii) The total number and brief description of the unassociated funerary objects, sacred objects, or objects of cultural patrimony (counted separately or by lot); (iii) The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization requesting repatriation of the unassociated funerary objects, sacred objects, or objects of cultural patrimony; (iv) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and (v) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may send a repatriation statement to the requestor. (3) No later than 21 days after receiving a notice of intended repatriation, the Manager, National NAGPRA Program, must: (i) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (f)(2) of this section; or (ii) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (f)(2) of this section. No later PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 86531 than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of intended repatriation. (5) At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency must determine the most appropriate requestor using the procedures and deadlines under paragraph (h) of this section. (g) Step 7—Repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony. No earlier than 30 days and no later than 90 days after publication of a notice of intended repatriation, a museum or Federal agency must send a written repatriation statement to the requestor and a copy to the Manager, National NAGPRA Program. In a repatriation statement, a museum or Federal agency must relinquish possession or control of the unassociated funerary object, sacred object, or object of cultural patrimony to the lineal descendant, Indian Tribe, or Native Hawaiian organization. In the case of joint requests for repatriation, a repatriation statement must identify and be sent to all requestors. (1) After sending a repatriation statement, the museum or Federal agency must: (i) Consult with the requestor on custody and physical transfer; (ii) Document any physical transfer; and (iii) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law. (2) After a repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the unassociated funerary object, sacred object, or object of cultural patrimony. (h) Evaluating competing requests for repatriation. At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, a museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86532 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations must determine the most appropriate requestor using this paragraph. (1) For an unassociated funerary object or sacred object, in the following priority order, the most appropriate requestor is: (i) The lineal descendant, if any; or (ii) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part. (2) For an object of cultural patrimony, the most appropriate requestor is the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part. (3) No later than 14 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request was received. In response, the requestors may provide additional information to show by a preponderance of the evidence that the requestor has a stronger relationship of shared group identity to the cultural items. (4) No later than 180 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following: (i) The most appropriate requestor has been determined and the competing requests were received before the publication of a notice of intended repatriation. The museum or Federal agency must: (A) Identify the most appropriate requestor and explain how the determination was made; (B) Submit a notice of intended repatriation in accordance with paragraph (f) of this section no later than 30 days after sending the determination; and (C) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section; (ii) The most appropriate requestor has been determined and a notice of intended repatriation was previously published. The museum or Federal agency must: (A) Identify the most appropriate requestor and explain how the determination was made; and (B) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section; or (iii) The most appropriate requestor cannot be determined, and repatriation is stayed under paragraph (i)(2) of this section. The museum or Federal agency must briefly describe the information considered and explain how the determination was made. (i) Stay of repatriation. Repatriation under paragraph (g) of this section is stayed if: (1) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must: (i) No later than 14 days after a resolution, send a written statement of the resolution to each requestor and the Manager, National NAGPRA Program; (ii) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section, unless a court of competent jurisdiction directs otherwise. (2) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (h) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must: (i) No later than 14 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program; (ii) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section. (3) Before the publication of a notice of intended repatriation under paragraph (f) of this section, the museum or Federal agency has both requested and received the Assistant Secretary’s written concurrence that the unassociated funerary object, sacred object, or object of cultural patrimony is indispensable for completion of a specific scientific study, the outcome of which is of major benefit to the people of the United States. (i) To request the Assistant Secretary’s concurrence, the museum or Federal agency must send to the Manager, PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 National NAGPRA Program, a written request of no more than 10 doublespaced pages. The written request must: (A) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative; (B) Describe the specific scientific study, the date on which the study commenced, and how the study is of major benefit to the people of the United States; (C) Explain why retention of the unassociated funerary object, sacred object, or object of cultural patrimony is indispensable for completion of the study; (D) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date; (E) Provide the position titles of the persons responsible for each step in the schedule; (F) Affirm that the study has in place the requisite funding; and (G) Provide written documentation showing free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations to the study. (ii) In response to the request, the Assistant Secretary must: (A) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations that consented to the study; (B) Send a written determination of concurrence or denial to the museum or Federal agency with a copy to the consulting parties; and (C) If the Assistant Secretary concurs, specify in the written determination the date by which the scientific study must be completed. (iii) No later than 30 days after the completion date in the Assistant Secretary’s determination, the museum or Federal agency must submit a notice of intended repatriation in accordance with paragraph (f) of this section. (iv) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section. § 10.10 Repatriation of human remains or associated funerary objects. Each museum and Federal agency that has possession or control of a holding or collection that may contain human remains or associated funerary objects must follow the steps in this section. The purpose of this section is to provide notice of determinations, following consultation, about human remains or E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations associated funerary objects to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation. (a) Step 1—Compile an itemized list of any human remains and associated funerary objects. Based on information available, a museum or Federal agency must compile a simple itemized list of any human remains and associated funerary objects in a holding or collection. Depending on the scope of the holding or collection, a museum or Federal agency may organize its itemized list into sections based on geographical area, accession or catalog name or number, or other defining attributes. A museum or Federal agency must ensure the itemized list is comprehensive and covers all holdings or collections relevant to this section. The simple itemized list must include: (1) The number of individuals identified in a reasonable manner based on the information available. No additional study or analysis is required to identify the number of individuals. If human remains are in a holding or collection, the number of individuals is at least one; (2) The number of associated funerary objects and types of objects (counted separately or by lot); (3) The geographical location (provenience) by county or State where the human remains or associated funerary objects were removed; (4) The acquisition history (provenance) of the human remains or associated funerary objects; (5) Other information available for identifying a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and (6) The presence of any potentially hazardous substances used to treat any of the human remains or associated funerary objects, if known. (b) Step 2—Initiate consultation. As soon as possible after compiling an itemized list, a museum or Federal agency must identify consulting parties based on information available and invite the parties to consult. (1) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation. (2) An invitation to consult must be in writing and must include: (i) The itemized list described in paragraph (a) of this section; (ii) The names of all consulting parties; and (iii) A proposed timeline and method for consultation. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (3) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must invite the party to consult. An invitation to consult under paragraph (b)(2) of this section must be sent: (i) No later than 30 days after identifying a new consulting party based on new information; or (ii) No later than two years after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 5131). (c) Step 3—Consult on human remains or associated funerary objects. A museum or Federal agency must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on human remains or associated funerary objects may continue until the museum or Federal agency sends a repatriation statement for those human remains or associated funerary objects to a requestor under paragraph (h) of this section. (1) In the response to a consulting party, a museum or Federal agency must ask for the following information, if not already provided: (i) Preferences on the proposed timeline and method for consultation; and (ii) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation. (2) Consultation must address identification of: (i) Lineal descendants; (ii) Indian Tribes or Native Hawaiian organizations with cultural affiliation; (iii) The types of objects that might be associated funerary objects, including any objects that were made exclusively for burial purposes or to contain human remains; and (iv) The duty of care under § 10.1(d) for human remains or associated funerary objects. (3) The museum or Federal agency must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the identifications in paragraph (c)(2) of this section. (4) At any time before the museum or Federal agency sends a repatriation statement for human remains or associated funerary objects to a requestor under paragraph (h) of this section, a museum or Federal agency PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 86533 may receive a request from a consulting party for access to records, catalogues, relevant studies, or other pertinent data related to those human remains or associated funerary objects. A museum or Federal agency must provide access to the additional information in a reasonable manner and for the limited purpose of determining cultural affiliation, including the geographical location or acquisition history, of the human remains or associated funerary objects. (d) Step 4—Complete an inventory of human remains or associated funerary objects. Based on information available and the results of consultation, a museum or Federal agency must submit to all consulting parties and the Manager, National NAGPRA Program, an inventory of any human remains and associated funerary objects in the holding or collection. (1) An inventory must include: (i) The names of all consulting parties and dates of consultation; (ii) The information, updated as appropriate, from the itemized list compiled under paragraph (a) of this section; (iii) For each entry in the itemized list, a determination identifying one of the following: (A) A known lineal descendant (whose name may be withheld); (B) The Indian Tribe or Native Hawaiian organization with cultural affiliation that is clearly identified by the information available about the human remains or associated funerary objects; (C) The Indian Tribe or Native Hawaiian organization with cultural affiliation that is reasonably identified by the geographical location or acquisition history of the human remains or associated funerary objects; or (D) No lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The inventory must briefly describe the information considered under § 10.3(a) of this part and the criteria identified under § 10.3(b) of this part to explain how the determination was made. (2) After January 12, 2024, a museum or Federal agency must submit an inventory to all consulting parties and the Manager, National NAGPRA Program, by the deadline in table 1 of the paragraph (d)(2). E:\FR\FM\13DER2.SGM 13DER2 86534 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 TABLE 1 TO § 10.10(d)(2)—DEADLINES FOR COMPLETING AN INVENTORY If a museum or Federal agency . . . an inventory must be submitted . . . acquires possession or control of human remains or associated funerary objects. locates previously lost or unknown human remains or associated funerary objects. receives Federal funds for the first time after January 12, 2024, and has possession or control of human remains or associated funerary objects. 2 years after acquiring possession or control of human remains or associated funerary objects. 2 years after locating the human remains or associated funerary objects. 5 years after receiving Federal funds for the first time after January 12, 2024. (3) No later than January 10, 2029, for any human remains or associated funerary objects listed in an inventory but not published in a notice of inventory completion prior to January 12, 2024, a museum or Federal agency must: (i) Initiate consultation as described under paragraph (b) of this section; (ii) Consult with consulting parties as described under paragraph (c) of this section; (iii) Update its inventory under paragraph (d)(1) of this section and ensure the inventory is comprehensive and covers all holdings or collections relevant to this section; and (iv) Submit an updated inventory to all consulting parties and the Manager, National NAGPRA Program. (4) After January 12, 2024, when a holding or collection previously included in an inventory is transferred to a museum or Federal Agency, subject to the limitations in 18 U.S.C. 1170(a), the museum or Federal agency acquiring possession or control of the holding or collection may rely on the previously completed or updated inventory. (i) No later than 30 days after acquiring the holding or collection, the museum or Federal agency must send the previously completed or updated inventory to initiate consultation under paragraph (b) of this section and notify the Manager, National NAGPRA Program. (ii) No later than the deadline in Table 1 to paragraph (d)(2) of this section, the museum or Federal agency must complete an inventory under paragraphs (d)(1) and (d)(2) of this section based on the previously completed or updated inventory, additional information available, and the results of consultation. (5) Any museum may request an extension to complete or update its inventory if it has made a good faith effort but is unable to do so by the appropriate deadline. A request for an extension must be submitted to the Manager, National NAGPRA Program, before the appropriate deadline. The Manager, National NAGPRA Program must publish in the Federal Register a VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 list of any museum who request an extension and the Assistant Secretary’s determination on the request. A request for an extension must include: (i) Information showing the initiation of consultation; (ii) The names of all consulting parties and consent to the extension request from a majority of consulting parties, evidenced by a signed agreement or official correspondence to the museum; (iii) The estimated number of human remains and associated funerary objects in the holding or collection; and (iv) A written plan for completing or updating the inventory, which includes, at minimum: (A) The specific steps required to complete or update the inventory; (B) A schedule for completing each step and estimated inventory completion or update date; (C) Position titles of the persons responsible for each step in the schedule; and (D) A proposal to obtain any requisite funding needed to complete or update the inventory. (6) Prior to January 12, 2024, a museum or Federal agency must have submitted an inventory to all consulting parties and the Manager, National NAGPRA Program: (i) By November 16, 1995, for human remains or associated funerary objects subject to the Act; (ii) By April 20, 2009, for human remains or associated funerary objects acquired or located after November 16, 1995; (iii) By April 20, 2012, for human remains or associated funerary objects in the possession or control of a museum that received Federal funds for the first time after November 16, 1995; (iv) After April 20, 2009, two years after acquiring or locating the human remains or associated funerary objects; or (v) After April 20, 2012, five years after receiving Federal funds for the first time after April 20, 2012. (e) Step 5—Submit a notice of inventory completion. No later than six months after completing or updating an PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 inventory under paragraph (d) of this section, a museum or Federal agency must submit a notice of inventory completion for all human remains or associated funerary objects in the inventory. The museum or Federal agency may include in a single notice any human remains or associated funerary objects having the same determination under paragraph (d)(1)(iii) of this section. (1) A notice of inventory completion must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register. (2) A notice of inventory completion must conform to the mandatory format of the Federal Register and include the following for all human remains or associated funerary objects in the notice: (i) An abstract of the information compiled under paragraph (d)(1)(ii) of this section; (ii) The determination under paragraph (d)(1)(iii) of this section; (iii) The total number of individuals and associated funerary objects (counted separately or by lot); (iv) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and (v) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may send a repatriation statement to a requestor. (3) No later than 21 days after receiving a notice of inventory completion, the Manager, National NAGPRA Program, must: (i) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (e)(2) of this section; or (ii) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (e)(2) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of inventory completion. E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations (f) Step 6—Receive and consider a request for repatriation. After publication of a notice of inventory completion in the Federal Register, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the museum or Federal agency a written request for repatriation of human remains or associated funerary objects. (1) A request for repatriation of human remains or associated funerary objects must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for those human remains or associated funerary objects under paragraph (h) of this section. A request for repatriation received by the museum or Federal agency before the publication of the notice of inventory completion is dated the same date the notice was published. (2) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the human remains or associated funerary objects are considered a single request and not competing requests. (3) A request for repatriation must satisfy one of the following criteria: (i) The requestor is identified in the notice of inventory completion, or (ii) The requestor is not identified in the notice of inventory completion, and the request shows, by a preponderance of the evidence, that the requestor is a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation. (g) Step 7—Respond to a request for repatriation. No earlier than 30 days after publication of a notice of inventory completion but no later than 90 days after receiving a request for repatriation, a museum or Federal agency must send a written response to the requestor with a copy to any other party identified in the notice of inventory completion. Using the information available, including relevant records, catalogs, existing studies, and the results of consultation, a museum or Federal agency must determine if the request satisfies the criteria under paragraph (f) of this section. (1) In the written response, the museum or Federal agency must state one of the following: (i) The request meets the criteria under paragraph (f) of this section. The museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless the museum or Federal agency receives additional, competing requests for repatriation. VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (ii) The request does not meet the criteria under paragraph (f) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria, and an opportunity for the requestor to provide additional information to meet the criteria. (iii) The museum or Federal agency has received competing requests for repatriation that meet the criteria and must determine the most appropriate requestor using the procedures and deadlines under paragraph (i) of this section. (2) At any time before sending a repatriation statement for human remains or associated funerary objects under paragraph (h) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of those human remains or associated funerary objects that meet the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor using the procedures and deadlines under paragraph (i) of this section. (h) Step 8—Repatriation of the human remains or associated funerary objects. No later than 90 days after responding to a request for repatriation that meets the criteria, a museum or Federal agency must send a written repatriation statement to the requestor and a copy to the Manager, National NAGPRA Program. In a repatriation statement, a museum or Federal agency must relinquish possession or control of the human remains or associated funerary objects to a lineal descendant, Indian Tribe, or Native Hawaiian organization. In the case of joint requests for repatriation, a repatriation statement must identify and be sent to all requestors. (1) After sending a repatriation statement, the museum or Federal agency must: (i) Consult with the requestor on custody and physical transfer, (ii) Document any physical transfer, and (iii) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law. (2) After a repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the human remains or associated funerary objects. (i) Evaluating competing requests for repatriation. At any time before sending a repatriation statement for human remains or associated funerary objects PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 86535 under paragraph (h) of this section, a museum or Federal agency may receive additional, competing requests for repatriation of those human remains or associated funerary objects that meets the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor using this paragraph. (1) In the following priority order, the most appropriate requestor is: (i) The known lineal descendant, if any; or (ii) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part. (2) No later than 14 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request for repatriation was received. In response, requestors may provide additional information to show by a preponderance of the evidence that the requestor has a stronger relationship of shared group identity to the human remains or associated funerary objects. (3) No later than 180 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following: (i) The most appropriate requestor has been determined. The museum or Federal agency must: (A) Identify the most appropriate requestor and explain how the determination was made; (B) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (h) of this section. (ii) The most appropriate requestor cannot be determined, and repatriation is stayed under paragraph (j)(2) of this section. The museum or Federal agency must briefly describe the information considered and explain how the determination was made. (j) Stay of repatriation. Repatriation under paragraph (h) of this section is stayed if: (1) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must: (i) No later than 14 days after a resolution, send a written statement of E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86536 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations the resolution to each requestor and the Manager, National NAGPRA Program; (ii) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless a court of competent jurisdiction directs otherwise. (2) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (i) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must: (i) No later than 14 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program; (ii) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section. (3) Before the publication of a notice of inventory completion under paragraph (e) of this section, the museum or Federal agency has both requested and received the Assistant Secretary’s written concurrence that the human remains or associated funerary objects are indispensable for completion of a specific scientific study, the outcome of which is of major benefit to the people of the United States. (i) To request the Assistant Secretary’s concurrence, the museum or Federal agency must send to the Manager, National NAGPRA Program, a written request of no more than 10 doublespaced pages. The written request must: (A) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative; (B) Describe the specific scientific study, the date on which the study commenced, and how the study is of major benefit to the people of the United States; (C) Explain why retention of the human remains or associated funerary objects is indispensable for completion of the study; (D) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date; VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (E) Provide the position titles of the persons responsible for each step in the schedule; (F) Affirm that the study has in place the requisite funding; and (G) Provide written documentation showing free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations to the study. (ii) In response to the request, the Assistant Secretary must: (A) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations that consented to the study; (B) Send a written determination of concurrence or denial to the museum or Federal agency with a copy to the consulting parties; and (C) If the Assistant Secretary concurs, specify in the written determination the date by which the scientific study must be completed. (iii) No later than 30 days after the completion date in the Assistant Secretary’s concurrence, the museum or Federal agency must submit a notice of inventory completion in accordance with paragraph (e) of this section. (iv) No earlier than 30 days after publication of the notice of inventory completion and no later than 90 days after responding to a request for repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section. (k) Transfer or reinter human remains or associated funerary objects. For human remains or associated funerary objects with no lineal descendant or no Indian Tribe or Native Hawaiian organization with cultural affiliation, a museum or Federal agency, at its discretion, may agree to transfer or decide to reinter the human remains or associated funerary objects. The museum or Federal agency must ensure it has initiated consultation under paragraph (b) of this section before taking any of the following steps. (1) Step 1—Agree to transfer or decide to reinter. A museum or Federal agency may: (i) Agree in writing to transfer the human remains or associated funerary objects to an Indian Tribe or Native Hawaiian organization; (ii) Decide in writing to reinter the human remains or associated funerary objects according to applicable laws and policies; or (iii) Receive a request for repatriation of the human remains or associated funerary objects at any time before transfer or reinterment and must evaluate whether the request meets the PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 criteria under paragraph (f) of this section. (A) If the request for repatriation meets the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and proceed with repatriation under paragraph (h) of this section. (B) If the request does not meet the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and may proceed with transfer or reinterment after publication of a notice. (2) Step 2—Submit a notice of proposed transfer or reinterment. No later than 30 days after agreeing to transfer or deciding to reinter the human remains or associated funerary objects, the museum or Federal agency must submit a notice of proposed transfer or reinterment. (i) A notice of proposed transfer or reinterment must be sent to all consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register. (ii) A notice of proposed transfer or reinterment must conform to the mandatory format of the Federal Register and include: (A) An abstract of the information compiled under paragraph (d)(1)(ii) of this section; (B) The total number of individuals and associated funerary objects (counted separately or by lot); (C) The determination under paragraph (d)(1)(iii)(D) of this section that no lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The notice must briefly describe the information considered and explain how the determination was made. (D) The names of all consulting parties identified under paragraph (b) of this section; (E) The Indian Tribe or Native Hawaiian organization requesting the human remains or associated funerary objects or a statement that the museum or Federal agency agrees to reinter the human remains or associated funerary objects; (F) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and (G) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may proceed with the E:\FR\FM\13DER2.SGM 13DER2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations transfer or reinterment of the human remains or associated funerary objects. (iii) No later than 21 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, must: (A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (k)(2)(ii) of this section; or (B) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (k)(2)(ii) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of proposed transfer or reinterment. (3) Step 3—Transfer or reinter the human remains or associated funerary objects. No earlier than 30 days and no later than 90 days after publication of a notice of proposed transfer or reinterment, the museum or Federal agency must transfer or reinter the human remains or associated funerary objects and send a written statement to the Manager, National NAGPRA Program, that the transfer or reinterment is complete. (i) After transferring or reinterring, the museum or Federal agency must: (A) Document the transfer or reinterment of the human remains or associated funerary objects, and (B) Protect sensitive information from disclosure to the general public to the extent consistent with applicable law. (ii) After transfer or reinterment occurs, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the human remains or associated funerary objects. khammond on DSKJM1Z7X2PROD with RULES2 § 10.11 Civil penalties. Any museum that fails to comply with the requirements of the Act or this subpart may be assessed a civil penalty by the Assistant Secretary. This section does not apply to Federal agencies, but a Federal agency’s failure to comply with the requirements of the Act or this part may be subject to other remedies under Federal law. Each instance of failure to comply constitutes a separate violation. The Assistant Secretary must serve the museum with a written notice of failure to comply under paragraph (d) of this section or a notice of assessment under paragraph (g) of this section by personal delivery with proof of delivery date, certified mail with return receipt, or private delivery service with proof of delivery date. (a) File an allegation. Any person may file an allegation of failure to comply by sending a written allegation to the VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 Manager, National NAGPRA Program. Each allegation: (1) Must include the name and contact information (either a mailing address, telephone number, or email address) of the person alleging the failure to comply; (2) Must identify the specific provision or provisions of the Act or this subpart that the museum is alleged to have violated; (3) May enumerate the separate violations alleged, including facts to support the number of separate violations. The number of separate violations is determined by establishing relevant factors such as: (i) The number of lineal descendants, Indian Tribes, or Native Hawaiian organizations determined to be aggrieved by the failure to comply; or (ii) The number of individuals or the number of funerary objects, sacred objects, or objects of cultural patrimony involved in the failure to comply; (4) May include information showing that the museum has possession or control of human remains or cultural items involved in the alleged failure to comply; and (5) May include information showing that the museum receives Federal funds. (b) Respond to an allegation. No later than 90 days after receiving an allegation, the Assistant Secretary must determine if the allegation meets the requirements of paragraph (a) of this section and respond to the person alleging the failure to comply. (1) The Assistant Secretary may request any additional relevant information from the person making the allegation, the museum, or other parties. The Assistant Secretary may conduct any investigation that is necessary to determine whether an alleged failure to comply is substantiated. The Assistant Secretary may also investigate appropriate factors for justifying an increase or reduction to any penalty amount that may be calculated. (2) If the allegation meets the requirements of paragraph (a) of this section, the Assistant Secretary, after reviewing all relevant information, must determine one of the following for each alleged failure to comply: (i) The alleged failure to comply is substantiated, the number of separate violations is identified, and a civil penalty is an appropriate remedy. The Assistant Secretary must calculate the proposed penalty amount under paragraph (c) of this section and notify the museum under paragraph (d) of this section; (ii) The alleged failure to comply is substantiated, the number of separate violations is identified, but a civil PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 86537 penalty is not an appropriate remedy. The Assistant Secretary must notify the museum under paragraph (d) of this section; or (iii) The alleged failure to comply is unsubstantiated. The Assistant Secretary must send a written determination to the person making the allegation and to the museum. (c) Calculate the penalty amount. If the Assistant Secretary determines under paragraph (b)(2)(i) of this section that a civil penalty is an appropriate remedy for a substantiated failure to comply, the Assistant Secretary must calculate the amount of the penalty in accordance with this paragraph. The penalty for each separate violation must be calculated as follows: (1) The base penalty amount is $7,475, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114– 74). (2) The base penalty amount may be increased after considering: (i) The ceremonial or cultural value of the human remains or cultural items involved, as identified by any aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization; (ii) The archaeological, historical, or commercial value of the human remains or cultural items involved; (iii) The economic and non-economic damages suffered by any aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization, including expenditures by the aggrieved party to compel the museum to comply with the Act or this subpart; (iv) The number of prior violations by the museum that have occurred; or (v) Any other appropriate factor justifying an increase. (3) The base penalty amount may be reduced if: (i) The museum comes into compliance; (ii) The museum agrees to mitigate the violation in the form of an actual or an in-kind payment to an aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization; (iii) The penalty constitutes excessive punishment under the circumstances; (iv) The museum is unable to pay the full penalty and the museum has not previously been found to have failed to comply with the Act or this subpart. The museum has the burden of proving it is unable to pay by providing verifiable, complete, and accurate financial information to the Assistant Secretary. The Assistant Secretary may request that the museum provide such financial information that is adequate and relevant to evaluate the museum’s E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 86538 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations financial condition, including the value of the museum’s cash and liquid assets; ability to borrow; net worth; liabilities; income tax returns; past, present, and future income; prior and anticipated profits; expected cash flow; and the museum’s ability to pay in installments over time. If the museum does not submit the requested financial information, the museum is presumed to have the ability to pay the civil penalty; or (v) Any other appropriate factor justifies a reduction. (d) Notify a museum of a failure to comply. If the Assistant Secretary determines under paragraph (b)(2)(i) or (b)(2)(ii) of this section that an alleged failure to comply is substantiated, the Assistant Secretary must serve the museum with a written notice of failure to comply and send a copy of the notice to each person alleging the failure to comply and any lineal descendant, Indian Tribe, or Native Hawaiian organization named in the notice of failure to comply. The notice of failure to comply must: (1) Provide a concise statement of the facts believed to show a failure to comply; (2) Specifically reference the provisions of the Act and this subpart with which the museum has failed to comply; (3) Include the proposed penalty amount calculated under paragraph (c) of this section; (4) Include, where appropriate, any initial proposal to reduce or increase the penalty amount or an explanation of the determination that a penalty is not an appropriate remedy; (5) Identify the options for responding to the notice of failure to comply under paragraph (e) of this section; and (6) Inform the museum that the Assistant Secretary may assess a daily penalty amount under paragraph (m)(1) of this section if the failure to comply continues after the date the final administrative decision of the Assistant Secretary takes effect. (e) Respond to a notice of failure to comply. No later than 45 days after receiving a notice of failure to comply, a museum may file a written response to the notice of failure to comply or take no action and await service of a notice of assessment under paragraph (g) of this section. A response which is not timely filed must not be considered. Any written response must be signed by an authorized representative of the museum and must be sent to the Assistant Secretary. In the written response, a museum may: (1) Seek an informal discussion of the failure to comply; VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (2) Request either or both of the following forms of relief, with a full explanation of the legal or factual basis for the requested relief: (i) That the Assistant Secretary reconsider the determination of a failure to comply, or (ii) That the Assistant Secretary reduce the proposed penalty amount; or (3) Accept the determination of a failure to comply and agree in writing, which constitutes an agreement between the Assistant Secretary and the museum, that the museum must: (i) Pay the proposed penalty amount, if any; (ii) Complete the mitigation required to reduce the penalty, if offered in the notice; and (iii) Waive any right to receive notice of assessment under paragraph (g) of this section and to request a hearing under paragraph (i) of this section. (f) Assess the civil penalty. After serving a notice of failure to comply, the Assistant Secretary may assess a civil penalty and must consider all available, relevant information related to the failure to comply, including information timely provided by the museum during any informal discussion or request for relief, furnished by another party, or produced upon the Assistant Secretary’s request. (1) The assessment of a civil penalty is made after the latter of: (i) The 45-day period for a response has expired and the museum has taken no action; (ii) Conclusion of informal discussion, if any; (iii) Review and consideration of a petition for relief, if any; or (iv) Failure to meet the terms of an agreement established under paragraph (e)(3) of this section. (2) If a petition for relief or informal discussion warrants a conclusion that no failure to comply has occurred, the Assistant Secretary must send written notification to the museum revoking the notice of failure to comply. No penalty is assessed. (g) Notify the museum of an assessment. If the Assistant Secretary determines to assess a civil penalty, the Assistant Secretary must serve the museum with a notice of assessment. Unless the museum seeks further administrative remedies under this section, the notice of assessment is the final administrative decision of the Assistant Secretary. The notice of assessment must: (1) Specifically reference the provisions of the Act or this subpart with which the museum has not complied; (2) Include the final amount of any penalty calculated under paragraph (c) PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 of this section and the basis for determining the penalty amount; (3) Include, where appropriate, any increase or reduction to the penalty amount or an explanation of the determination that a penalty is not an appropriate remedy; (4) Include the daily penalty amount that the Assistant Secretary may assess under paragraph (m)(1) of this section if the failure to comply continues after the date the final administrative decision of the Assistant Secretary takes effect. The daily penalty amount for each continuing violation shall not exceed $1,496 per day, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114–74); (5) Identify the options for responding to the notice of assessment under paragraph (h) of this section; and (6) Notify the museum that it has the right to seek judicial review of the final administrative decision of the Assistant Secretary only if it has exhausted all administrative remedies under this section, as set forth in paragraph (l) of this section. (h) Respond to an assessment. No later than 45 days after receiving a notice of assessment, a museum must do one of the following: (1) Accept the assessment and pay the penalty amount by means of a certified check made payable to the U.S. Treasurer, Washington, DC, sent to the Assistant Secretary. By paying the penalty amount, the museum waives the right to request a hearing under paragraph (i) of this section. (2) File a written request for a hearing under paragraph (i) of this section to contest the failure to comply, the penalty assessment, or both. If the museum does not file a written request for a hearing in 45 days, the museum waives the right to request a hearing under paragraph (i) of this section. (i) Request a hearing. The museum may file a written request for a hearing with the Departmental Cases Hearings Division (DCHD), Office of Hearings and Appeals (OHA), U.S. Department of the Interior, at the mailing address specified in the OHA Standing Orders on Contact Information, or by electronic means under the terms specified in the OHA Standing Orders on Electronic Transmission. A copy of the request must be served on the Solicitor of the Department of the Interior at the address specified in the OHA Standing Orders on Contact Information. The Standing Orders are available on the Department of the Interior OHA’s website at https:// www.doi.gov/oha. The request for hearing and any document filed E:\FR\FM\13DER2.SGM 13DER2 khammond on DSKJM1Z7X2PROD with RULES2 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations thereafter with the DCHD under paragraphs (i) or (j) of this section are subject to the rules that govern the method and effective date of filing and service under the subparts applicable to DCHD in 43 CFR part 4. The request for a hearing must: (1) Include a copy of the notice of failure to comply and the notice of assessment; (2) State the relief sought by the museum; and (3) Include the basis for challenging the facts used to determine the failure to comply or the penalty assessment. (j) Hearings. Upon receiving a request for a hearing, DCHD must assign an administrative law judge to the case and promptly give notice of the assignment to the parties. Thereafter, each filing must be addressed to the administrative law judge and a copy served on each opposing party or its counsel. (1) To the extent they are not inconsistent with this section, the rules in the subparts applicable to DCHD in 43 CFR part 4 apply to the hearing process. (2) Subject to the provisions of 43 CFR 1.3, a museum may appear by authorized representative or by counsel and may participate fully in the proceedings. If the museum does not appear and the administrative law judge determines that this absence is without good cause, the administrative law judge may, at his or her discretion, determine that the museum has waived the right to a hearing and consents to the making of a decision on the record. (3) The Department of the Interior counsel is designated by the Office of the Solicitor of the Department of the Interior. No later than 20 days after receipt of its copy of the written request for hearing, Departmental counsel must file with the DCHD an entry of appearance on behalf of the Assistant Secretary and the following: (i) Any written communications between the Assistant Secretary and the museum during any informal discussions under paragraph (e)(1) of this section; (ii) Any petition for relief submitted under paragraph (e)(2); and (iii) Any other information considered by the Assistant Secretary in reaching the decision being challenged. (4) After Departmental counsel files an entry of appearance with DCHD, the museum must serve each document filed with the administrative law judge on Departmental counsel. (5) In a hearing on the penalty assessment, the amount of the penalty assessment must be determined in accordance with paragraph (c)(2) of this section and may not be limited to the VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 amount originally assessed or by any previous reduction, increase, or offer of mitigation. (6) The administrative law judge has all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process, and to render a decision, under 5 U.S.C. 554–557 and 25 U.S.C. 3007. (7) The administrative law judge must render a written decision. The decision must set forth the findings of fact and conclusions of law, and the reasons and basis for them. (8) The administrative law judge’s decision takes effect as the final administrative decision of the Assistant Secretary 31 days from the date of the decision unless the museum files a notice of appeal as described in paragraph (k) of this section. (k) Appealing the administrative law judge’s decision. Any party who is adversely affected by the decision of the administrative law judge may appeal the decision by filing a written notice of appeal no later than 30 days after the date of the decision. The notice of appeal must be filed with the Interior Board of Indian Appeals (IBIA), Office of Hearings and Appeals (OHA), U.S. Department of the Interior, at the mailing address specified in the OHA Standing Orders on Contact Information, or by electronic means under the terms specified in the OHA Standing Orders on Electronic Transmission. The Standing Orders are available on the Department of the Interior OHA’s website at https:// www.doi.gov/oha. The notice of appeal must be accompanied by proof of service on the administrative law judge and the opposing party. The notice of appeal and any document filed thereafter with the IBIA are subject to the rules that govern the method and effective date of filing under 43 CFR 4.310. (1) To the extent they are not inconsistent with this section, the provisions of 43 CFR part 4, subpart D, apply to the appeal process. The appeal board’s decision must be in writing and takes effect as the final penalty assessment and the final administrative decision of the Assistant Secretary on the date that the appeal board’s decision is rendered, unless otherwise specified in the appeal board’s decision. (2) OHA decisions in proceedings instituted under this section are posted on OHA’s website. (l) Exhaustion of administrative remedies. A museum has the right to seek judicial review, under 5 U.S.C. 704, of the final administrative decision of the Assistant Secretary only if it has exhausted all administrative remedies PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 86539 under this section. No decision, which at the time of its rendition is subject to appeal under this section, shall be considered final so as to constitute agency action subject to judicial review. The decision being appealed shall not be effective during the pendency of the appeal. (m) Failure to pay penalty or continuing failure to comply. (1) If the failure to comply continues after the date the final administrative decision of the Assistant Secretary takes effect, as described in paragraphs (g), (j)(6), or (k)(1) of this section, or after a date identified in an agreement under paragraph (e)(3) of this section, the Assistant Secretary may assess an additional daily penalty amount for each continuing violation not to exceed $1,496 per day, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114–74). In determining the daily penalty amount, the Assistant Secretary must consider the factors in paragraph (c)(2) of this section. This penalty starts to accrue on the day after the effective date of the final administrative decision of the Assistant Secretary or on the date identified in an agreement under paragraph (e)(3) of this section. (2) If the museum fails to pay the penalty, the Attorney General of the United States may institute a civil action to collect the penalty in an appropriate U.S. District Court. In such action, the validity and amount of the penalty are not subject to review by the court. (n) Additional remedies. The assessment of a penalty under this section is not deemed a waiver by the Department of the Interior of the right to pursue other available legal or administrative remedies. Subpart D—Review Committee § 10.12 Review Committee. The Review Committee advises the Secretary of the Interior and Congress on matters relating to sections 3003, 3004, and 3005 of the Act and other matters as specified in section 3006 of the Act. The Review Committee is subject to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.). (a) Recommendations. Any recommendation, finding, report, or other action of the Review Committee is advisory only and not binding on any person. Any records and findings made by the Review Committee may be admissible as evidence in actions brought by persons alleging a violation of the Act. Findings and E:\FR\FM\13DER2.SGM 13DER2 86540 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES2 recommendations made by the Review Committee must be published in the Federal Register no later than 90 days after making the finding or recommendation. (b) Nominations. The Review Committee consists of seven members appointed by the Secretary of the Interior. (1) Three members are appointed from nominations submitted by Indian Tribes, Native Hawaiian organizations, and traditional religious leaders. At least two of these members must be traditional Indian religious leaders. A traditional Indian religious leader is a person who an Indian Tribe identifies as serving it in the practice of traditional Native American religion. (2) Three members are appointed from nominations submitted by national museum organizations or national scientific organizations. An organization that is created by, is a part of, and is governed in any way by a parent national museum or scientific organization must submit a nomination through the parent organization. National museum organizations and national scientific organizations are organizations that: (i) Focus on the interests of museums and science disciplines throughout the United States, as opposed to a lesser geographical scope; VerDate Sep<11>2014 17:04 Dec 12, 2023 Jkt 262001 (ii) Offer membership throughout the United States, although such membership need not be exclusive to the United States; and (iii) Are organized under the laws of the United States Government. (3) One member is appointed from a list of more than one person developed and consented to by all other appointed members specified in paragraphs (b)(1) and (b)(2) of this section. (c) Findings of fact or disputes on repatriation. The Review Committee may assist any affected party through consideration of findings of fact or disputes related to the inventory, summary, or repatriation provisions of the Act. One or more of the affected parties may request the assistance of the Review Committee or the Secretary of the Interior may direct the Review Committee to consider a finding of fact or dispute. Requests for assistance must be made before repatriation of the human remains or cultural items has occurred. (1) An affected party is either a: (i) Museum or Federal agency that has possession or control of the human remains or cultural items; or (ii) Lineal descendant, or an Indian Tribe or Native Hawaiian organization with potential cultural affiliation to the human remains or cultural items. (2) The Review Committee may make an advisory finding of fact on questions related to: PO 00000 Frm 00090 Fmt 4701 Sfmt 9990 (i) The identity of an object as human remains or cultural items; (ii) The cultural affiliation of human remains or cultural items; or (iii) The repatriation of human remains or cultural items. (3) The Review Committee may make an advisory recommendation on disputes between affected parties. To facilitate the resolution of disputes, the Review Committee may: (i) Consider disputes between an affected party identified in paragraph (c)(1)(i) of this section and an affected party identified in paragraph (c)(1)(ii) of this section; (ii) Not consider disputes among lineal descendants, Indian Tribes, and Native Hawaiian organizations; (iii) Not consider disputes among museums and Federal agencies; (iv) Request information or presentations from any affected party; and (v) Make advisory recommendations directly to the affected parties or to the Secretary of the Interior. Matthew J. Strickler, Deputy Assistant Secretary Exercising the Delegated Authority of the Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2023–27040 Filed 12–7–23; 4:15 pm] BILLING CODE 4312–52–P E:\FR\FM\13DER2.SGM 13DER2

Agencies

[Federal Register Volume 88, Number 238 (Wednesday, December 13, 2023)]
[Rules and Regulations]
[Pages 86452-86540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27040]



[[Page 86451]]

Vol. 88

Wednesday,

No. 238

December 13, 2023

Part II





Department of the Interior





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43 CFR Part 10





Native American Graves Protection and Repatriation Act Systematic 
Processes for Disposition or Repatriation of Native American Human 
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural 
Patrimony; Final Rule

Federal Register / Vol. 88 , No. 238 / Wednesday, December 13, 2023 / 
Rules and Regulations

[[Page 86452]]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

[NPS-WASO-NAGPRA-NPS0036506; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19


Native American Graves Protection and Repatriation Act Systematic 
Processes for Disposition or Repatriation of Native American Human 
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural 
Patrimony

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: This final rule revises and replaces definitions and 
procedures for lineal descendants, Indian Tribes, Native Hawaiian 
organizations, museums, and Federal agencies to implement the Native 
American Graves Protection and Repatriation Act of 1990. These 
regulations clarify and improve upon the systematic processes for the 
disposition or repatriation of Native American human remains, funerary 
objects, sacred objects, or objects of cultural patrimony. These 
regulations provide a step-by-step roadmap with specific timelines for 
museums and Federal agencies to facilitate disposition or repatriation. 
Throughout these systematic processes, museums and Federal agencies 
must defer to the Native American traditional knowledge of lineal 
descendants, Indian Tribes, and Native Hawaiian organizations.

DATES: This rule is effective January 12, 2024. Comments on the 
information collection requirements in this final rule must be 
submitted to the Office of Management and Budget by January 12, 2024.

ADDRESSES: All public comments and attachments received, as well as 
supporting documentation used in the preparation of these regulations, 
are available online at https://www.regulations.gov in Docket No. NPS-
2022-0004. Written comments and suggestions on the information 
collection requirements should be submitted by the date specified above 
in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to the NPS Information Collection Clearance 
Officer (ADIR-ICCO), 13461 Sunrise Valley Drive, Reston, VA 20191. 
Please include ``1024-AE19'' in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, National NAGPRA 
Program, National Park Service, (202) 354-2201, 
melanie_o'[email protected]. Questions regarding the NPS's information 
collection request (ICR) may be submitted to Phadrea Ponds, NPS 
Information Collection Clearance Officer, [email protected]. Please 
include ``1024-AE19'' in the subject line of your email request. In 
compliance with the Providing Accountability Through Transparency Act 
of 2023, the plain language summary of the proposal is available on 
https://www.regulations.gov in the docket for this rulemaking.

SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Public Comments and Responses
    A. General Comments
    B. Section 10.1 Introduction
    C. Section 10.2 Definitions for This Part
    D. Section 10.3 Determining Cultural Affiliation
    E. Subparts B and C
    F. Section 10.4 General
    G. Section 10.5 Discovery
    H. Section 10.6 Excavation
    I. Section 10.7 Disposition
    J. Subpart C
    K. Section 10.8 General
    L. Section 10.9 Repatriation of Unassociated Funerary Objects, 
Sacred Objects, or Objects of Cultural Patrimony
    M. Section 10.10 Repatriation of Human Remains or Associated 
Funerary Objects
    N. Section 10.11 Civil Penalties
    O. Section 10.12 Review Committee
III. Response to Public Engagement and Request for Comments
    A. Public Engagement
    B. Requests for Comment
    C. Use of Received Feedback
IV. Compliance With Other Laws, Executive Orders, and Department 
Policy

I. Background

    On November 16, 1990, President George Bush signed into law the 
Native American Graves Protection and Repatriation Act (NAGPRA or Act) 
(25 U.S.C. 3001, et seq.). The Act recognizes the rights of lineal 
descendants, Indian Tribes, and Native Hawaiian organizations (NHOs) in 
Native American human remains, funerary objects, sacred objects, and 
objects of cultural patrimony. The Secretary of the Interior is 
responsible for promulgating regulations to carry out the provisions of 
the Act and delegated this authority to the Assistant Secretary. Since 
1993, the Department of the Interior (Department) has published rules 
under the title ``Native American Graves Protection and Repatriation 
Act Regulations'' including:
     RIN 1024-AC07, 1993 Proposed Rule (58 FR 31122, May 28, 
1993) and 1995 Final Rule (60 FR 62134, December 4, 1995);
     RIN 1024-AC84, Civil Penalties Final Rule (68 FR 16354, 
April 3, 2003) and Future Applicability Final Rule (72 FR 13184, March 
21, 2007);
     RIN 1024-AD68, 2007 Proposed Rule Disposition of 
Culturally Unidentifiable Human Remains (72 FR 58582, October 16, 2007) 
and 2010 Final Rule Disposition of Culturally Unidentifiable Human 
Remains (75 FR 12378, March 15, 2010); and
     RIN 1024-AE00, Disposition of Unclaimed Cultural Items 
Final Rule (80 FR 68465, November 5, 2015).

II. Summary of Public Comments and Responses

    The Department (we) published a proposed rule (RIN 1024-AE19) in 
the Federal Register on October 18, 2022 (87 FR 63202, hereafter 2022 
Proposed Rule) to clarify and improve upon the systematic processes for 
disposition or repatriation of Native American human remains and 
cultural items. We accepted public comments for 90 days via the mail, 
hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. After considering several requests for extensions 
of the public comment period beyond the original 90 days, we extended 
the comment period an additional 14 days until January 31, 2023.
    All comments received by the deadline are publicly available on 
https://www.regulations.gov, Docket No. NPS-2022-0004. During the 
comment period, we received a total of 206 submissions which included 
181 individual submissions posted to the docket and 25 attachments as 
identified by the submitter. When necessary, we have cited to specific 
submissions as NPS-2022-0004-XXXX. We received submissions from a range 
of sources including individual members of the public, Indian Tribes, 
museums, and organizations. Table 1 shows the number of submissions by 
type of submitter.

               Table 1--Submissions Received by Submitter
------------------------------------------------------------------------
                        Submitter                           Submissions
------------------------------------------------------------------------
Individuals.............................................              95
Federally recognized Indian Tribes*.....................              48
Museums.................................................              13
Museum or scientific organizations**....................               9
Native American organizations...........................               8
Duplicate submissions...................................               4

[[Page 86453]]

 
Indian groups without Federal recognition...............               3
Federal Advisory Review Committee.......................               1
Native Hawaiian organizations...........................               0
------------------------------------------------------------------------
* Two submissions were on behalf of multiple Indian Tribes making the
  total number of Indian Tribes represented 55.
** These submissions are by professional organizations representing
  museums or scientific professionals and they are separate and distinct
  from the museums above.

    In these final regulations, we focus our discussion on changes from 
the 2022 Proposed Rule based on comments we received during the comment 
period and our further consideration of the issues raised. For 
background on the statutory and legislative history and case law 
relevant to these regulations, we refer the reader to the previously 
published rules under the title ``Native American Graves Protection and 
Repatriation Act Regulations'' referenced in I. Background. We reviewed 
and considered all comments prior to developing this final rule. We 
have provided 124 summaries of comments and our direct responses below; 
we combined similar comments where appropriate. Table 2 shows the 
largest number of comments by issue.

              Table 2--Top 10 Issues by Number of Comments
------------------------------------------------------------------------
                                      Number of        See comment and
              Issue                    comments            response
------------------------------------------------------------------------
Changes to ``affiliation''......                102  Comment 58. to 61.
Role of Indian groups without                    53  Comment 3. and 39.
 Federal recognition.                                 See also Comment
                                                      91. and 114.
Steps for consultation..........                 53  Comment 64.
Timelines under Subpart C.......                 46  Comment 92.
Require consent or consultation                  45  Comment 15.
 before allowing scientific
 study.
Duty of care, including                          44  Comment 12. to
 scientific study.                                    Comment 17.
``Possession or control''.......                 44  Comment 49.
Specific steps in Subpart C.....                 42  Comment 94.
Purpose of this rule............                 42  Comment 9.
``Consultation''................                 39  Comment 30.
------------------------------------------------------------------------

    In addition, we received 109 comments generally supporting the 
regulations and the changes (see Comment 1.), and we received 96 
comments on the estimated burden and information collection 
requirements for the revised regulations (see Comment 4.). We received 
43 comments requesting action by the Department of the Interior outside 
of the scope of these regulations (see Comment 6.). Four comments 
requested changes in these regulations from business days to calendar 
days, which is significant in that it impacts all the timelines under 
this final rule (see Comment 19).
    In response to these comments and others discussed in detail below, 
we made the following major changes in the final rule:
    1. Removed ``geographical affiliation'' in its entirety, simplified 
the process for cultural affiliation to provide that one type of 
information, including geographical information, is sufficient for 
cultural affiliation, and replaced ``preponderance of the evidence'' 
with ``clearly or reasonably identify'' (Sec.  10.3 Determining 
cultural affiliation).
    2. Removed all reference to Indian groups without Federal 
recognition and prioritized the rights of federally recognized Indian 
Tribes in disposition and repatriation (Sec.  10.2 Definitions for this 
part ``Indian Tribe'' and Sec. Sec.  10.7(d) Disposition and 10.10(k) 
Repatriation).
    3. Required free, prior, and informed consent before any exhibition 
of, access to, or research on human remains or cultural items (Sec.  
10.1(d) Duty of Care).
    4. Extended the timeline to allow five years (rather than two as 
proposed) for museums and Federal agencies to consult and update 
inventories of human remains and associated funerary objects (Sec.  
10.10(d) Repatriation).
    5. Replaced ``business days'' with ``calendar days'' and extended 
deadlines as a result (Sec.  10.1(f) Deadlines).
    6. Revised ``consultation'' to provide more instruction on goals 
and process (Sec.  10.2 Definitions for this part ``Consultation'').
    7. Removed the requirement for written requests to consult from 
Indian Tribes or NHOs, and therefore removed the requirement for a 
museum or Federal agency to respond within a set timeframe (Sec. Sec.  
10.4(b), 10.9(b), and 10.10(b) Initiate consultation).
    Despite receiving many comments, we have not revised the 
definitions or application of ``possession or control'' and 
``custody.'' As in the Act, ``possession or control'' is a 
jurisdictional requirement for human remains or cultural items subject 
to these regulations and for repatriation (Sec.  10.2 Definitions for 
this part ``custody'' and ``possession or control'').

A. General Comments

    1. Comment: We received 109 comments generally supporting these 
regulations and the overall goals of disposition or repatriation. 
Comments from individuals, including many students in high school, 
college, and graduate school, offered support for the general principle 
of returning ancestors and objects to lineal descendants, Indian 
Tribes, and NHOs. Museum and museum and scientific organizations 
supported the overall goals to clarify and improve upon the systematic 
processes for disposition and repatriation. A few comments from museums 
focused on the impact the revised regulations would have on the museum 
profession. One comment stated ``Overall, the language in the proposed 
draft reflects contemporary best practices around repatriation and 
codification in 43 CFR part 10 makes sense in an effort to standardize 
repatriation activities across diverse institutions, agencies, and 
Tribes'' (NPS-2022-0004-0129). Another museum commented:

    A fundamental shift in priorities is necessary at institutions 
who have fallen short in their efforts to comply with the 
legislation's intent. It is time for institutions to prioritize this 
work, in both the allocation of resources and the ethical commitment 
to genuinely engage in consultation with Native Nations. The passage 
of these proposed revisions is a necessary step towards addressing 
the legacy of colonial injustices imposed upon Indigenous Peoples in 
the United States (NPS-2022-0004-0115).


[[Page 86454]]


    Many Indian Tribes and Native American organizations also expressed 
appreciation and support for the revisions and felt the changes better 
reflected Congressional intent. One Indian Tribe stated:

    We appreciate the difficult work and coordination the Department 
has undertaken to make vast and meaningful changes to shift the 
burden of NAGPRA compliance to where it belongs--to federal agencies 
and museums. We explain below several changes that we support. While 
in the interest of brevity, we focus our comments on areas of 
concern, the Department should understand that our Tribes welcome 
this proposed rule. With our comments below addressed, we believe 
the new regulations will better implement NAGPRA and facilitate the 
repatriation of our Ancestors and sacred objects as Congress 
intended (NPS-2022-0004-0158).

    DOI Response: As discussed more fully throughout this document, we 
agree with many of these statements; and, as a result, we are 
publishing this final rule. We appreciate the comments from 
individuals, especially from students, not only for supporting this 
effort but for engaging in the rulemaking process. We appreciate the 
supportive, yet constructive comments from museums and museum and 
scientific organizations. We are indebted to the many Indian Tribes who 
provided comments as well as those who provided input during 
consultation throughout the process of developing these regulations.
    2. Comment: We received nine comments generally objecting to the 
changes to these regulations. One comment stated the process was more 
of a political statement than a necessity. One comment supported the 
idea of clarifying the repatriation process but felt the proposed rule 
would undermine existing efforts and result in a rushed, transactional 
process. One comment felt the proposed regulations would hinder 
meaningful consultation and impede the progress that museums, Indian 
Tribes, and NHOs have made so far. One comment believed the revisions 
compounded difficulties that both museums and Indian Tribes already 
face and would reduce efficiency rather than improve it. One comment 
stated that in addition to a lack of statutory authority for some of 
the revisions, the Department had not identified any inadequacies or 
difficulties in the existing regulations, particularly with respect to 
Subpart B. One comment saw the revisions as a reversal rather than a 
strengthening of Congressional intent and stated that, as the drafted, 
the revisions are ``based upon `restorative justice' rather than the 
words and intent of Congressional legislation, [and] has gone too 
far.'' The comment stated the revisions reflected a larger cultural 
shift and that Native activist groups ``have urged aggressive claims 
for repatriation and demanded that [T]ribal permission be sought for 
the transfer of objects long in legal circulation'' (NPS-2022-0004-
0188). Three comments from Indian Tribes expressed concerns that the 
revisions would slow down or even stop the work of repatriation. All 
three comments believed the revisions are too extensive and too complex 
and will, ultimately, create more issues than the revisions resolve. 
One of these comments was especially concerned that the revisions did 
not address two central and persistent issues that Indian Tribes have 
long asked for: enhanced enforcement and protection of private 
information.
    DOI Response: As discussed more fully throughout this document, we 
disagree with many of these statements; and, as a result, we are 
proceeding with publication of this final rule despite these 
objections. These regulations reflect and implement the legal 
requirements established by Congress. We understand that some of the 
timelines under this final rule will require faster action by museums 
and Federal agencies than under the existing regulations. However, 
certain deadlines can be extended or actions delayed, provided the 
appropriate lineal descendant, Indian Tribe, or NHO has agreed to 
extend or delay the process. We believe the changes in these 
regulations will enhance meaningful consultation and ensure that 
resulting efforts are based on consensus or agreement. We believe that 
the increased transparency and communication required by these 
regulations will resolve some of the existing challenges faced by all 
parties. As discussed in more detail throughout this document, these 
revisions are within the Secretary's statutory authority and based on 
over 30 years of input, comment, and experience in implementing the 
Act. As reflected in the supportive comments above, these revisions 
reflect best practices and changes in the wider professional 
disciplines, while at the same time adhering to the language and limits 
provided by Congress. We have incorporated requests from Indian Tribes 
and NHOs to the maximum extent possible, but we do not believe these 
revisions will stop the work of repatriation or create more issues than 
are resolved. We do anticipate that the work of repatriation may be 
slowed as all parties adjust to the revisions in these regulations and 
especially as all parties re-evaluate past practices considering these 
simplified, clarified, and streamlined regulations. We reiterate here, 
as we have throughout this document, that the goal of this final rule 
is to clarify and improve the systematic processes for disposition and 
repatriation by making the requirements clear to all parties involved.
    3. Comment: We received 53 comments on the standing of Indian 
groups without Federal recognition under these regulations. Of that 
total, 40 comments supported giving standing to Indian groups without 
Federal recognition while 13 comments opposed it. Some comments also 
suggested changes to 25 CFR part 83 to recognize more groups and that 
the National NAGPRA Program should help educate groups on how to 
achieve Federal recognition.
    DOI Response: The recognition process and training concerning it 
are outside the scope of these regulations. Furthermore, as discussed 
below under that definition, these regulations cannot expand the 
definition of ``Indian Tribe'' beyond that provided in the Act. Indian 
groups without Federal recognition, including State recognized tribes, 
are not completely excluded from the disposition or repatriation 
processes. As is the current practice, Indian groups without Federal 
recognition can work with federally recognized Indian Tribes as part of 
a joint claim for disposition or joint request for repatriation. See 
also Comment 39.
    4. Comment: We received 96 comments about the estimated burden and 
related information collection requirements of the proposed 
regulations. Of that total, nine comments supported some part of the 
burden estimate, including agreeing that there is a wide variation in 
the actual time required because of differences in size and complexity 
of the required responses. Two of these comments supported the overall 
burden estimate and agreed that the changes would yield long-term 
savings, despite the short-term increased costs. Five of these comments 
agreed that the collection of information is necessary and has a 
practical utility. One comment specifically stated the information 
collected had no practical utility and should not be required. Five 
comments suggested one way to minimize the burden of these regulations 
was for the Department to provide online resources to assist with 
identifying Indian Tribes with potential cultural affiliation.
    Eighteen comments generally objected to the burden estimate. Many 
of these comments felt the methods and assumptions were flawed and did 
not

[[Page 86455]]

reflect the actual amount of effort required to comply with these 
regulations. Several comments stated that the proposed regulations 
significantly expanded the administrative, staffing, and financial 
burdens already imposed on museums and Federal agencies and that 
museums and Federal agencies are already facing capacity and resource 
limitations that prevent them from completing the already burdensome 
requirements under the existing regulations. Five comments stated that, 
regarding the quality, utility, and clarity of the information to be 
collected, there was a disconnect between oral statements by the 
National Park Service staff and the proposed regulations on the 
requirements for consultation and reporting (see NPS-2022-0004-0081). A 
few comments stated additional financial resources must be provided 
before any additional tasks can be required and that it was 
unreasonable and misguided to expect museums and Federal agencies to 
comply without providing additional funds. Two comments stated that the 
estimates should not rely on responses from the last three years to 
estimate costs due to the pandemic. One comment requested that the 
General Accountability Office estimate the costs of the proposed 
regulations. One comment questioned the authority of the Department to 
collect information that could be used to monitor the repatriation 
process.
    A total of 31 comments specifically discussed the impact of these 
regulations on Indian Tribes and NHOs and suggested some possible 
solutions to lessen the burden. Of that total, 18 comments suggested 
the Department create a dedicated grant program for Indian Tribes and 
NHOs. One of these comments expressed that museums have been wasting 
grant funds on unnecessary tasks since 1994 and more grant funding 
should be provided to Indian Tribes and NHOs. Five comments felt the 
burden on Indian Tribes and NHOs in these regulations was 
underestimated, too high, or prohibitively expensive. One comment from 
an individual stated the burden on Indian Tribes and NHOs could not be 
minimized with technology due to a general lack of access to the 
internet in Indian Country. One comment requested the regulations 
provide more funding as well as flexibility for Indian Tribes to engage 
with repatriation at their own pace. Seven comments questioned the 
costs to Indian Tribes under Subpart B of the proposed regulations, 
which some estimated to be $40 million per year.
    Eighteen comments provided input or alternative estimates for 
specific tasks. Two comments believe tasks are missing from the 
estimate, such as documentation review, correspondence after 
consultation, travel arrangements, hosting arrangements, inventory/
packet/documentation preparation, room setup, consultation 
participation, documentation of consultation, administrative 
requirements, moving items to or from storage, and implementation of 
care guidance. One comment stated the costs of physical transfer should 
be included and, for a large repatriation, staff time alone can exceed 
$100,000 for physical transfer. Two comments stated the estimate for 
initiating consultation should be much higher, from 40 hours to at 
least 140 hours, to include the time required to identify consulting 
parties, prepare, and distribute letters or emails, and to make follow 
up phone calls. One comment suggested the estimate for conducting 
consultation be increased to provide for staff to retrieve collections 
from storage and travel by many representatives (sometimes up to ten 
people) from Indian Tribes or NHOs to conduct a physical review. Three 
comments stated the estimate for completing an inventory was too low as 
even an inventory update was an enormous undertaking that required 
significant time and resources. One of these comments noted that a 
previously prepared inventory did not reduce the necessary time, as 
previous inventories are generally ``woefully inadequate.'' One of 
these comments stated that, based on experience, it takes 10 hours to 
inventory one box plus an additional 6-8 hours to describe each 
individual or object in the box and an additional 40 hours per site to 
produce a final report. The comment estimated that for 200 boxes, it 
would take 2,000 hours to inventory the boxes, and this did not include 
additional time to describe each object or write a site report (NPS-
2022-0004-0125). One comment stated the estimate for a summary was also 
underestimated and stated it takes anywhere from 6 months to two years 
to prepare a summary and then an additional six months for illustration 
and documentation of the objects. Five comments believe the estimate 
for preparing notices (either for inventory completion or intended to 
repatriation) were underestimated. One of these comments estimated it 
takes 120 hours to facilitate a notice of inventory completion plus 
additional time to verify the information with a physical review. Four 
of these comments suggested that for each notice type, the minimum 
amount of time required was 2 hours while the maximum amount of time 
was between 10 and 30 hours per notice, plus additional time to consult 
on the draft notice. One comment stated evaluating competing requests 
and resolving stays of repatriation required significantly more time, 
estimating between 100 and 1,000 hours, especially when considering the 
involvement of legal departments, executives, and board members in 
those tasks. Two comments stated the rate used to calculate costs 
should be $100 to $120 per hour.
    Fourteen comments provided estimates for the total costs of Subpart 
C of these regulations. For Indian Tribes and NHOs several estimated a 
cost of $17.2 million per year. For museums and Federal agencies one 
comment estimated $19.4 million per year. The two estimates were 
developed by one individual, using grant awards from 2011 to 2021 to 
estimate the average cost for a notice of inventory completion ($14,416 
per notice). After calculating an estimated cost for museums and 
Federal agencies to comply with the proposed regulations, the estimate 
calculated the costs for Indian Tribes and NHOs by using the percentage 
of funding awarded in grants from 2011-2021 to museums (58%) and Indian 
Tribes or NHOs (42%) to estimate a total burden for the proposed 
regulations at $91.4 million over 30 months or $36.6 million per year 
(see NPS-2022-0004-0174). Other comments estimated a total for museums 
only between $25 million and $118 million per year. One museum provided 
a variety of estimates based on current project budgets which ranged 
from $200,000 to $500,000 per project per year for one museum. The 
comment estimated the burden for the single museum at 19,000 hours per 
year ($1.273 million per year per museum assuming an hourly rate of 
$67/hour). When applied to all 407 museums that will be required to 
update inventories under these regulations, that amounts to the highest 
estimate of $518.1 million per year for museums alone, although the 
comment noted that not all museums will require the same number of 
hours). The same comment questioned how the Department estimated that 
the proposed regulations do not impose an unfunded mandate on State, 
local, or [T]ribal governments or the private sector of more than $100 
million per year (see NPS-2022-0004-0125).
    One comment detailed the hours involved in one part of a two-part 
project over 15 months. The first phase of the project included 13 
consultation meetings which required hundreds of

[[Page 86456]]

hours of time by Indian Tribes and museum staff, including hundreds of 
phone calls. Consultants hired to develop and complete the first phase 
of the project spent thousands of hours on the first phase and travel 
expenses totaled $3,000. In the first phase, 31 notices of inventory 
completion were published, although the comment stated that the number 
of notices could be irrelevant as each notice involved a single group 
of Indian Tribes and one museum and could have been a single notice. 
The first phase of the project covered 1,021 individuals and 11,590 
associated funerary objects. The comment noted that these estimates do 
not include the hours involved in preparation of the original inventory 
of human remains and associated funerary objects completed in the early 
1990s. Although a total estimated cost for this phase of the project 
was not provided, elsewhere the comment suggested at minimum $100 to 
$120 an hour should be used in dollar estimates (see NPS-2022-0004-
0135). Using the lower hourly figure and the number of hours provided, 
the estimate for the first phase of the project is $123,000 over 15 
months or $98,400 per year. When applied to all 407 museums that will 
be required to update inventories under these regulations, it equals an 
estimated $40 million per year for museums.
    DOI Response: We appreciate the specific input on the estimated 
costs for certain requirements in these regulations. We have addressed 
many of these comments in the revised Cost-Benefit and Regulatory 
Flexibility Threshold Analyses for the final regulations. We reiterate 
that the Department believes the short-term increased costs of these 
regulations are justified by the associated long-term quantitative and 
qualitative benefits. We believe the information collected under these 
regulations is necessary and any information collected by the 
Department under these regulations is required by the Act for 
administrative purposes (such as publishing notices) and is not used 
for monitoring or evaluating the quality of that information. The 
Department will develop and provide templates for all information 
collection requirements, and we will provide additional resources to 
assist with identifying consulting parties to minimize the burdens of 
these regulations, as discussed further in Comment 95. Any changes to 
the amount of available funding through grants are beyond the scope of 
these regulations and are the purview of Congress and the 
appropriations process. We cannot limit the grant awards to only Indian 
Tribes and NHOs as that would be inconsistent with the Act.
    Regarding the hourly rate used to calculate costs, we used the 
Bureau of Labor Statistics (BLS) News Release USDL-23-1305, March 2023 
Employer Costs for Employee Compensation--released June 16, 2023 
(https://www.bls.gov/news.release/ecec.nr0.htm, accessed 12/1/2023). 
This is a standard source we have used in estimating the burden of 
these regulations as a part of our compliance with the Paperwork 
Reduction Act. Any person equates to Civil workers. Table 2 lists the 
hourly rate for full-time workers as $43.07, including benefits. Lineal 
descendants equate to Private Industry Workers: Table 6 lists the 
hourly rate for all workers as $40.79, including benefits. Any Affected 
Party, Indian Tribes/NHOs, Federal agencies, and museums equates to 
State and Local Government Workers. Table 3 lists the hourly rate for 
Professional and related Workers as $67.01, including benefits.
    Regarding the impact of these regulations on Indian Tribes and 
NHOs, we anticipate a change in how grant funds are awarded due to the 
changes in these regulations. During the first five years after 
publication of the final regulations, grant funds will likely continue 
to go to consultation and documentation projects to consult and update 
inventories. After five years, we anticipate more grant funds will be 
requested by Indian Tribes or NHOs for repatriation assistance or for 
making requests for repatriation. As noted in Comment 102, the Notice 
of Funding Opportunity for NAGPRA grants is where any changes to the 
allowable activities for grants will be made. We do not intend to 
impose requirements on lineal descendants, Indian Tribes, or NHOs to 
respond to invitations to consult or to submit claims for disposition 
or requests for repatriation. Those are actions that lineal 
descendants, Indian Tribes, and NHOs may choose to take but are not 
required.
    We agree there are new requirements for Indian Tribes to take 
certain actions under Subpart B that under the existing regulations are 
voluntary. We disagree that all those requirements under Subpart B are 
new, and we strongly disagree with the estimate provided. As discussed 
in Comment 70 and Comment 83, we disagree that the Act, the existing 
regulations, or any other regulations designate that the BIA is 
responsible for discovery, excavation, and disposition on Tribal lands 
in Alaska and the continental United States. We agree that Indian 
Tribes have discretion under the existing regulations in responding to 
a discovery on Tribal lands and that the final regulations will require 
Indian Tribes to respond to discoveries on Tribal land. This is to 
improve consistency with the Act and clarify the responsibilities in 
these regulations. We understand that in some cases these 
responsibilities may exceed the capacity or resources of an Indian 
Tribe, and in those cases, the Indian Tribe can delegate these 
responsibilities to the Bureau of Indian Affairs or another Federal 
agency with primary management authority. Lastly, we note that Tribal 
laws, policies, and administrative capacity vary greatly, and the 
comments do not seem to take that into account by applying a blanket 
assumption of the same cost for each Indian Tribe. The comments also do 
not consider the small number of actions on Tribal lands per year, 
which is not likely to significantly change based on the final 
regulations.
    Regarding the alternative estimates provided by some comments, we 
believe that any estimate based on current practice or past grant 
awards is inherently flawed and does not account for the specific 
objective of the proposed and final regulations to simplify and improve 
the systematic processes within specific timeframes. We understand that 
our estimates do not reflect the actual amount of time some museums and 
Federal agencies currently spend on compliance with these regulations. 
We strongly disagree, however, that our estimates do not reflect what 
is required by these regulations. In the 33 years since the passage of 
the Act, each museum or Federal agency has approached the requirements 
of these regulations in different ways, and, as a result, there is a 
wide variation in how much time and money is spent to comply with these 
regulations. As noted in the proposed regulations and elsewhere in this 
document, one of our goals in revising the regulations is to improve 
efficiency and consistency in meeting these requirements. Necessarily, 
this will mean a difference between our estimated costs for these 
regulations and current practices. While we understand the objections 
to our estimates and the concerns about insufficient funding to carry 
out these requirements, the Secretary, the Assistant Secretary, and the 
Department are committed to changing the implementation of the Act and 
to clearing a path to expeditious repatriation as Congress intended.
    Concerns about the financial burden of the Act and these 
regulations on museums were expressed even before the Act was passed. 
In discussing the key compromises made to the final bill

[[Page 86457]]

in 1990, Representative Campbell stated that limiting the inventory 
requirement to only human remains and associated funerary objects 
``will go a long way to reduce cost to museum and at the same time 
encourage both sides to sit down early together to discuss their 
options'' (136 Cong. Rec. 31938). With this change and the 
authorization of a grant program to assist museums with the inventory 
requirements, the Association of American Museums and the Antique 
Tribal Arts Dealers Association withdrew their objections to the final 
legislation.
    As envisioned by Congress, most of the requirements for 
repatriation under the Act should have been completed by 1995, although 
extensions were authorized in some cases. In 1990, the Congressional 
Budget Office (CBO) reviewed the Act and estimated the legislation 
would cost between $20 million and $50 million over five years. The 
main costs of the Act were in preparing inventories of human remains, 
estimated between $5 million and $30 million over five years, ``for 
museums to provide [T]ribes with the basic information required by the 
bill.'' The CBO acknowledged that to some extent, ``the total cost is 
discretionary--the more funds made available, the more accurate and 
comprehensive will be the information collected by museums.'' More 
extensive and expensive studies might be required for some human 
remains, but, as the CBO noted, such studies were not required by the 
Act. CBO noted that ``If museums were required to identify all of their 
holdings definitively, the costs of this bill would be significantly 
higher than the $30 million estimate.'' The other $15 million to $20 
million in estimated costs were for identifying funerary objects and 
completing summaries as well as for Indian Tribes to make claims and 
repatriate human remains or cultural items (H. Rpt. 101-877, at 21-22).
    After nearly 33 years of implementation, the total cost of 
repatriation is clearly discretionary, and, in addition to funds, the 
more time that has been available to complete an inventory of human 
remains, the more comprehensive, extensive, and expensive the 
inventories have become. After meeting the initial deadline for 
inventories in 1995, many museums and Federal agencies have continued 
to update inventories at their own discretion, going beyond what is 
required by the Act and the existing regulations. Under the Act and the 
existing regulations, an inventory of human remains only requires use 
of ``information possessed by such museum or Federal agency'' (25 
U.S.C. 3003(a)). Yet, despite the minimum requirements, hundreds of 
museums and several Federal agencies submit updated inventories each 
year. The number of museums updating inventory data is relatively large 
and accounts for multiple submissions each year from a single museum 
because the data is updated on a case-by-case basis at the discretion 
of the museum.
    Since 1993, the Department has provided estimated hours for tasks 
under these regulations as a part of its compliance with the Paperwork 
Reduction Act. These estimates are far below the estimates provided by 
some comments, but these estimates have been consistently used by the 
Department and reflect what the Department believes is required by the 
Act and these regulations. The 1993 Proposed Rule included an estimate 
of ``100 hours for the exchange of summary/inventory information 
between a museum or Federal agency and an Indian [T]ribe or Native 
Hawaiian organization . . .'' (58 FR 31124). From 1993 until publishing 
the proposed regulations in 2022, we continued to use the estimate of 
100 hours per museum for a new summary or inventory. This is far less 
than the comment that stated a museum spends 19,000 hours per year on 
its inventory and summary and related tasks.
    The 1993 Proposed Rule included an estimate of ``six hours per 
response for the notification to the Secretary, including time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the collected 
information'' (58 FR 31124). In 2012, we increased this estimate to 10 
hours per notice. This is less than the estimate provided in the 
comments of 120 hours to facilitate a notice, including gathering and 
maintaining data and reviewing and verifying the information, or the 
estimated range of two hours to 30 hours, for a median of 16 hours, to 
just complete the notice template. The estimate based on previous 
grants suggests a notice costs $14,416 each which equates to between 
120 hours and 225 hours per notice, depending on the hourly rate 
applied. We agree with the one comment that stated the number of 
notices is irrelevant to estimating the burden involved. Although not 
explicitly stated in the existing regulations, the final regulations 
clearly state that museums or Federal agencies may include in a single 
notice all human remains and associated funerary object having the same 
lineal descendant or cultural affiliation for efficiency and 
expediency. The comment that stated 31 notices could have been combined 
in to one notice demonstrates the discretion museums and Federal 
agencies exercise in complying with these regulations.
    The 2010 Final Rule added a new estimate related to the new 
regulatory requirements. Under the regulations, museums and Federal 
agencies were required to (1) provide to Indian Tribes and NHOs a list 
of Indian groups without Federal recognition that may have a 
relationship to human remains and associated funerary items and (2) 
request from Indian Tribes and NHOs the temporal and/or geographic 
criteria used to identify the groups of human remains to be included in 
consultation. The estimated burden on museums for this collection of 
information was 30 minutes total, including time for reviewing existing 
data sources, gathering and maintaining data, and preparing a 
transmission to other consulting parties. In the 2022 Proposed Rule, we 
renamed this requirement ``Initiating consultation and requesting 
information,'' and we increased the estimated time required to range 
from less than one hour, or 0.50 hours, up to 5 hours, or a median of 
2.75 hours. This is far less than the comments that suggested this 
should be much higher and range from 40 hours to 140 hours, or a median 
of 90 hours to initiate consultation and request information.
    In preparing the Cost-Benefit and Regulatory Flexibility Threshold 
Analyses for the 2022 Proposed Rule, we accounted for all actions that 
are required under the existing regulations to calculate the baseline 
conditions. We disagree that our estimate is missing required tasks, 
and the tasks identified by comments as missing are generally included 
in the estimate for conducting consultation. The costs of conducting 
consultation vary greatly, depending on the size and complexity of the 
consultation. However, we note that consultation does not require any 
specific documentation beyond what was already prepared in the initial 
summary or inventory. The additional tasks of inventory/packet/
documentation preparation or even moving items from storage for 
purposes of consultation are not required by the regulations. A 
physical inspection of a collection is not required by these 
regulations, although we understand that for some museums, lineal 
descendants, Indian Tribes, or NHOs, in person consultation is 
preferred. As for the costs of physical transfer, we address this 
further in Comments 51 and 66 in this document. Physical transfer, and 
any costs that accompany that effort, are not required by these

[[Page 86458]]

regulations, and we note that grants are provided specifically for 
assisting with the costs of physical transfer.
    As these comments clearly emphasize, the burden estimates vary 
widely. In its 1990 evaluation of the Act, the Congressional Budget 
Office made a similar conclusion, noting ``[t]here is considerable 
disagreement about the nature of the inventory required by H.R. 5237,'' 
and widely varied estimates of costs. In the end, the CBO estimated 
only $5 million to $30 million over five years would be required which 
reflected the ``costs of an inventory of museums' collections, as well 
as a review of existing information to determine [Tribal] origin'' (H. 
Rpt. 101-877, at 22).
    5. Comment: We received 25 comments expressing concerns for the 
protection of sensitive information in the regulations. Some comments 
suggested use of the Privacy Act and the Archeological Resources 
Protection Act (ARPA) to withhold information about human remains and 
cultural items. Other comments suggested changes to the regulations to 
require that museums and Federal agencies keep sensitive information 
confidential.
    DOI Response: While we appreciate the suggestions, we cannot make 
the requested changes. First, neither the Privacy Act nor ARPA apply. 
Deceased individuals do not have any Privacy Act rights, nor do 
executors or next-of-kin. See, generally, OMB 1975 Guidelines, 40 FR 
28, 40 FR 951 (also available at https://www.justice.gov/paoverview_omb-75, accessed 12/1/2023) (stating ``the thrust of the Act 
was to provide certain statutory rights to living as opposed to 
deceased individuals'' and ``the Act did not contemplate permitting 
relatives and other interested parties to exercise rights granted by 
the Privacy Act to individuals after the demise of those 
individuals''). Similarly, the exemption from disclosure under ARPA 
applies specifically to ``the nature and location of any archaeological 
resource for which the excavation or removal requires a permit or other 
permission under [ARPA] or under any other provision of Federal law'' 
(16 U.S.C. 470hh(a)). Thus, the ARPA provision is directed to 
archaeological resources that would require a permit for excavation or 
removal, which applies to some but not all human remains and cultural 
items under the Act and these regulations.
    In the proposed regulations and in these final regulations, the 
Department has taken steps to remove requirements for museums or 
Federal agencies to disclose sensitive information in an inventory, 
summary, or notice. While we cannot dictate how a museum or Federal 
agency responds to a request for disclosure of sensitive information, 
we encourage a museum or Federal agency, at the request of a lineal 
descendant, Indian Tribe, or NHO, to ensure that information of a 
particularly sensitive nature is not made available to the public. 
Since 1995, the Department has recommended museum or Federal officials 
ensure that sensitive information does not become part of the public 
record by not collecting, or writing down, such information in the 
first place (1995 Final Rule, 60 FR 62154).
    6. Comment: We received 43 comments requesting additional action by 
the Department of the Interior outside of these regulations. Of that 
total, nine comments requested the Department impose NAGPRA-related 
conditions on any museum that received any Federal grant. Seven 
comments requested the Department move the National NAGPRA Program out 
of the National Park Service. A total of 11 comments requested the 
Department conduct more consultation on these regulations before 
issuing final regulations; five comments requested consultation with 
only Indian Tribes and NHOs while six comments requested consultation 
with all constituents. Five comments requested further engagement with 
the Department on these regulations. Five comments requested the 
Department conduct or request an audit of the National NAGPRA Program, 
Federal agency compliance, or the grant program. Four comments 
requested the Department provide more information about the changes to 
these regulations, either through training or simplified documents 
outlining the changes. One comment requested the Department ensure its 
own bureaus follow these regulations. One comment requested the 
proposed regulations be withdrawn and the Department start a new effort 
to develop these regulations in consultation with Indian Tribes and 
NHOs.
    DOI Response: We appreciate the requests for additional action by 
the Department. We agree that additional information about changes to 
these regulations will be needed, and we plan on providing as many 
opportunities as we can for training sessions, discussions, and 
guidance documents once the regulations are effective. We welcome any 
other suggestions for how we can support museums, lineal descendants, 
Indian Tribes, or NHOs with these regulations. We are working to ensure 
all the bureaus within the Department of the Interior have adequate 
staffing and support to ensure compliance with these regulations.
    We decline to include in these regulations a requirement for 
imposing NAGPRA-related conditions on Federal grants. All Federal grant 
recipients are required to provide assurances that they will comply 
with all applicable requirements of Federal laws, regulations, and 
policies (see ``Assurances for Construction/Non-Construction Programs 
(SF-424D and SF-424B)'' at https://www.grants.gov/forms/forms-repository/sf-424-family, accessed 12/1/2023). While we cannot include 
the requested provisions in these regulations, we agree to work with 
the Office of Management and Budget to explore whether and how a 
NAGPRA-specific condition might be included in the general assurances 
required for all Federal grant programs. We decline to withdraw the 
proposed regulations or to engage in additional consultations at this 
time. We are committed to implementing the final regulations as soon as 
possible to ensure these long-overdue changes are implemented.
    Regarding the location of the National NAGPRA Program, we 
appreciate the input we received during Tribal consultation in 2021 and 
in response to the proposed regulations. Currently, we have not decided 
about the future location of the National NAGPRA Program. Regarding the 
requests for an audit of the National NAGPRA Program, Federal agency 
compliance, or the grant program, all Federal agency programs, 
including the National NAGPRA Program, Federal agency NAGPRA programs, 
and the NAGPRA grant program, are subject to regular internal control 
reviews under the Office of Management and Budget Circular A-123, 
Management's Responsibility for Enterprise Risk Management and Internal 
Control (revised 7/15/2016). Along with other management and 
performance evaluation processes, the National NAGPRA Program and all 
Federal agency programs undergo routine and regular review. We will 
continue to consider the need for additional management oversight.
    7. Comment: We received 22 comments concerning how the regulations 
should balance the interests of, on the one hand, repatriation, and on 
the other hand, scientific study. Of that total, 17 comments outright 
objected to the regulations giving museums or Federal agencies 
decision-making authority for disposition or repatriation. Thirteen of 
these comments, which came from one submission, asserted that decisions 
on cultural affiliation, evaluation of requests, repatriation, and 
competing requests should be in the

[[Page 86459]]

hands of the appropriate Indian Tribes or NHOs and not museums and 
Federal agencies (see NPS-2022-0004-0157). Four comments provided 
similar sentiments. One comment requested that an independent authority 
evaluate decisions made by museums and Federal agencies. One comment 
noted that despite positive changes, the proposed regulations still had 
not truly shifted the burden of having to prove the identity or 
cultural affiliation of human remains or cultural items off Indian 
Tribes or NHOs because the regulations did not give the power of 
decision making to Indian Tribes or NHOs.
    By contrast, two comments objected to the proposed regulations 
claiming that they eliminate the balance of interests that Congress 
intended when it passed the Act. Both comments referenced or quoted 
from statements made by Senators Inouye and McCain in 1992, to the 
effect that the Act represents a balance between scientific study and 
respectful treatment of human remains and cultural items. One of these 
comments stressed that the proposed regulations were inherently 
imbalanced because they were developed through consultation only with 
Indian Tribes and NHOs and not with museums, scientific organizations, 
and Federal agencies (see NPS-2022-0004-0150). Citing to ``. . . words 
such as `balance' and `compromise' [in] describing the law in a special 
issue of the Arizona State Law Journal published shortly after the bill 
was passed (vol. 24, 1992),'' the other objecting comment stated, 
``[i]n my view, a rule published in 2010 (43 CFR 10.11) began to move 
NAGPRA away from the balance that Congress intended. The new 
regulations proposed here would make that balance go away entirely'' 
(see NPS-2022-0004-0172).
    Three comments directly refuted the two objecting comments as gross 
misrepresentations of the Act. One of these comments concluded that the 
imbalance is because the Act vests decision making with museums and 
Federal agencies and stated ``where there is disagreement between 
institutions and Tribes regarding affiliation, it requires that the 
Tribes take extraordinary lengths to press claims. The challenge is, 
can this rule or any rule really overcome the inherent imbalance in the 
Act?'' (see NPS-2022-0004-0129). Another comment supported the proposed 
regulations in trying to shift the balance more toward Indian Tribes 
and NHOs because, since 1990, repatriation has been too slow, and the 
burdens placed on Indian Tribes and NHOs has been too great. The 
comment supported the proposed regulations as representing the 
``continued evolution to ensure NAGPRA's relevance to its true 
constituents-Indian [T]ribes and Native Hawaiian organizations'' (see 
NPS-2022-0004-0080). A third comment refuting the objecting comments 
stated:

    Though some argue that repatriation is a weighing of interests 
between science and human rights, that interest is absent from the 
Act, which is singularly aimed at providing restitution. The Act 
creates an administrative process for repatriation and disposition 
to provide restitution for harms that have been called out by 
Congress as genocide and human rights violations. The only exception 
the Act provides to repatriation is when a museum or agency can 
prove that they have a ``right of possession.'' Even permitting 
completion of a scientific study of major benefit to the United 
States does not prevent repatriation, and will only delay it. 25 
U.S.C. 3005(b).
    Museums--even well-funded ones--have admitted that they will not 
be proactive with their CUI inventories, even with the NAGPRA 
funding they request, and that instead, they will continue to work 
to overcomplicate the process, based on the current regulations and 
criteria outlined there. Thus, it is imperative that the Secretary 
take over this duty and correct the Ancestors and their belongings 
that languish under a label called ``unidentifiable'' (NPS-2022-
0004-0153).

    DOI Response: Nowhere in the Act did Congress say that decisions 
about disposition or repatriation are made by balancing the interests 
of science against the interests of human rights. While we are aware of 
the statements made by Senators Inouye and McCain in 1992, we 
understand those statements to say that the Act itself is the product 
of balancing these interests. The lengthy process of developing, 
drafting, and agreeing to the language of the Act is how Congress 
ensured a balance between scientific study and respectful treatment of 
human remains and cultural items.
    To ensure all information related to the Congressional record is 
available, the documents that provide legislative intent are available 
on the National NAGPRA Program website (https://www.nps.gov/subjects/nagpra/the-law.htm, accessed 12/1/2023). Beyond the two reports, the 
Congressional Record provides statements by individual members of 
Congress. In the Senate, Senator Inouye's full statement is available 
in the Congressional Record Senate (October 26, 1990) on page 35678-
35679. Senator McCain's opening statement is on the preceding page 
35677. A discussion of the impact of the legislation on development 
activities on Federal lands by Senators McCain and Simpson is on page 
35679-35680. In the House, Representatives Campbell (D-CO), Rhodes (R-
AZ), Collins (D-IL), Richardson (D-NM), Bennett (D-FL), Mink (D-HI), 
and Udall (D-AZ) provided statements in the Congressional Record House 
(October 22, 1990) on pages 31937-31941.
    We agree with the objecting comments that the Congressional record 
is replete with references to the balance, compromise, and agreement in 
both the process to develop the Act and in the content of the Act 
itself. We agree with the objecting comments that the Act creates a 
balance, but we believe that the balance is built into the Act itself 
through compromises made in the Act before its final passage. The 
objecting comments appear to indicate that the balance Congress 
intended comes in only repatriating some human remains and even fewer 
associated funerary objects (as suggested by the objecting comments 
reference to the 2010 Final Rule) or that in each decision on 
disposition or repatriation, a museum or Federal agency must balance 
the interests of science with those of human rights. We disagree with 
this interpretation of the legislative history.
    The Congressional record of the House clearly identified ``points 
of compromise'' in the final version of the Act. Representatives 
Campbell and Richardson stated the Act represents a compromise on the 
following issues:


    1. Limiting the inventory requirement to only human remains and 
associated funerary objects rather than all Native American 
collections;
    2. Clarifying the definition of cultural affiliation to 
incorporate anthropological and archeological criteria (i.e., traced 
historically or prehistorically);
    3. Adding a standard of repatriation for unassociated funerary 
objects, sacred objects, and objects of cultural patrimony by 
defining ``right of possession;''
    4. Tightening the definitions of unassociated funerary objects 
and sacred objects;
    5. Clarifying the definition of museum to not apply to private 
individuals who receive Federal payments such as social security; 
and
    6. Balancing representation of the Review Committee to include 
all groups affected by the Act.

    Representative Campbell's statement included two other compromises 
in the final version of the Act:

    The bill takes into account that many of these items may be of 
considerable scientific value and allows for current studies to 
continue with repatriation occurring after the completion of such a 
study. It further acknowledges that repatriation is not the only 
alternative and I encourage all sides to try and work out agreeable 
compromises where all interested parties can benefit from

[[Page 86460]]

access to some of the items (136 Cong. Rec. 31938, emphasis added).

    We agree with the last comment summarized above that the only 
exception to expeditious repatriation under the Act is proving a 
``right of possession'' (25 U.S.C. 3005(c)). Any need to complete a 
scientific study does not prevent repatriation but only delays it (25 
U.S.C. 3005(b)). In addition, we note that any need to excavate human 
remains or cultural items on Federal or Tribal lands is only permitted 
after consultation (on Federal lands) or consent (on Tribal lands), and 
that regardless of any scientific study, disposition of human remains 
or cultural items to the appropriate lineal descendant, Indian Tribe, 
or NHO is always required (25 U.S.C. 3002(c)). Accordingly, we conclude 
that the objective of the systematic processes in the Act is the 
disposition or repatriation of human remains or cultural items, not to 
achieve any kind of balance between the interests of science and the 
interests of human rights.
    We intend these regulations to better align with the processes for 
disposition and repatriation found in the Act. In these regulations, we 
cannot remove the decision-making authority vested in museums and 
Federal agencies because doing so would be inconsistent with the Act. 
We can, and have, included requirements for museums and Federal 
agencies to consult, collaborate, and, in the case of scientific study 
or research, obtain consent from lineal descendants, Indian Tribes, or 
NHOs (see Comment 15). In addition, these regulations require museums 
and Federal agencies to defer to the Native American traditional 
knowledge of lineal descendants, Indian Tribes, and NHOs in all 
decision-making steps.
    In developing both the proposed and final regulations, we 
emphasized consultation with Indian Tribes and NHOs and incorporated 
comments from consultation to the maximum extent possible. This does 
not indicate an imbalance in the process to develop these regulations 
or in the resulting product, but rather reflects the special 
relationship between the Federal government and Indian Tribes and NHOs 
(25 U.S.C. 3010). Furthermore, while the Act is the primary authority 
for these regulations, Congress authorized the Secretary to make such 
regulations for carrying into effect the various provisions of any act 
relating to Indian affairs (25 U.S.C. 9). As the Act is Indian law 
(Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. 
Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate this 
provision under the broad authority to supervise and manage Indian 
affairs given by Congress (United States v. Eberhardt, 789 F. 2d 1354, 
1360 (9th Cir. 1986)).
    Finally, a statement in the Congressional record by Senator Inouye 
is directly relevant to the objective of these revised regulations to 
better reflect Congressional intent:

    This legislation is designed to facilitate a more open and 
cooperative relationship between native Americans and museums. For 
museums that have dealt honestly and in good faith with native 
Americans, this legislation will have little effect. For museums and 
institutions which have consistently ignored the requests of native 
Americans, this legislation will give native Americans greater 
ability to negotiate. Mr. President, I believe this bill represents 
a major step in correcting an injustice that started over 100 years 
ago. It is appropriate that Congress take an active role in helping 
to restore these rights to native Americans and I urge the adoption 
of this measure by the Senate (136 Cong. Rec. 35678).

    8. Comment: We received two comments requesting the Department 
develop guidance and a framework to establish reburial areas for 
repatriated collections. The comments point to the U.S. Department of 
Agriculture, Forest Service, as an example of how land-managing Federal 
agencies can assist and support reburials on Federal lands.
    DOI Response: We appreciate the request, and we understand the 
significant issues involved with securing lands for reburial. While 
this request is outside the scope of these regulations, the Department 
will consider how guidance and policy might be used to effectuate the 
requested change.

B. Section 10.1 Introduction

    9. Comment: We received 42 comments on Sec.  10.1(a) Purpose. Of 
that total, 18 comments supported the revised paragraph, specifically 
the inclusion of deference to lineal descendants, Indian Tribes, and 
NHOs in the purpose paragraph. An additional 19 comments, while 
generally supportive, also suggested changes to the paragraph. 
Suggested changes include adherence to the purpose as stated by 
Congress, emphasizing the limited exceptions to disposition or 
repatriation, a significant change to verb tense, and defining and 
referencing deference in the regulatory text. On the other hand, four 
comments specifically objected to the inclusions of deference in the 
purpose paragraph and expressed concerns about how deference applies 
when there are disagreements among Indian Tribes or when other 
requirements or definitions do not allow for deference to lineal 
descendants, Indian Tribes, or NHOs. One comment generally objected to 
the change in the purpose as an entire rewrite of the regulations that 
would impede the systematic repatriation process.
    DOI Response: We specifically requested input on the proposed 
purpose paragraph, and we appreciate the response and have made changes 
where permissible. As many comments indicate, the proposed purpose 
paragraph was not as clear or effective as we had intended. Although 
some comments suggested we delete the sentence on the rights the Act 
recognizes, we have retained the sentence given the number of 
supporting comments we received, but we have changed the verb tense as 
requested. We have revised the purpose paragraph as suggested by 
several comments to paraphrase the language used by Congress (H. Rpt. 
101-877, at 8) which outlines the two separate processes for 
disposition and repatriation under the Act. The purpose paragraph uses 
plain language to describe the overall goals of these two separate 
processes for disposition and repatriation (protect and restore). In 
response to the objections and concerns about deference, we have 
included both consultation and deference as a part of the purpose for 
these regulations to ensure meaningful consideration of Native American 
traditional knowledge throughout these processes. It is through 
consultation and deference that these regulations ensure the rights of 
lineal descendants, Indian Tribes, and NHOs the Act recognizes.
    10. Comment: We received four comments on Sec.  10.1(b) 
Applicability. Three comments suggested editorial changes to the 
paragraph while one comment strongly supported the paragraph, 
especially with its focus on museums and Federal agencies as the 
applicable party.
    DOI Response: Considering the revisions to Sec.  10.1(a), we have 
made changes to this paragraph to emphasize the applicable parties that 
are responsible for each major section of these regulations. We tried 
to make this paragraph clear that many parts of the Act and these 
regulations are not limited to Federal or Tribal lands. In response to 
other comments on the requirements of these regulations, we have 
clarified that lineal descendants, Indian Tribes, and NHOs are not 
required to consult or to make a claim for disposition or a request for 
repatriation.
    11. Comment: We received two comments related to Sec.  10.1(c) 
Accountability. One comment suggested

[[Page 86461]]

requiring a duty of candor by museums and Federal agencies to disclose 
any human remains or cultural items that were destroyed, deaccessioned, 
lost, or in any other way removed from the provisions of these 
regulations. One comment suggested adding transparency to the 
accountability requirements.
    DOI Response: We cannot make the requested change regarding candor 
as it is contrary to the requirements of the Act. A museum or Federal 
agency must compile a summary of cultural items and an itemized list of 
human remains and associated funerary objects in its possession or 
control (25 U.S.C. 3003(a) and 3004(a)). Based on the information 
available, a museum or Federal agency must determine if human remains 
or cultural items that are destroyed, deaccessioned, lost, or in any 
other way removed are under its possession or control and therefore 
subject to these regulations. We note that in these regulations, as in 
the proposed regulations, a museum or Federal agency must ensure the 
summary and itemized list are comprehensive and cover any holding or 
collection relevant to Sec.  10.9 and Sec.  10.10.
    12. Comment: We received five comments objecting to Sec.  10.1(d) 
Duty of care because the requirements went beyond the statutory 
authority and should be recommendations not requirements. Some of these 
comments suggested that the costs to comply with this paragraph would 
be substantial, that additional curation and collections facilities may 
need to be constructed, and that conflicts might arise with standard 
curation, conservation, and preservation principles or practices. One 
comment questioned how conflicts among Indian Tribes should be handled. 
Another comment stated that research on human remains and cultural 
items is necessary to determine cultural affiliation and, therefore, 
the requirements in this paragraph conflict with the requirements in 
Sec.  10.3. One comment suggested that ``to the maximum extent 
possible'' and ``safeguard and preserve'' should be replaced with 
``reasonable effort'' and a cross-reference to requirements in 36 CFR 
part 79, respectively.
    DOI Response: We disagree that these requirements go beyond the 
statutory authority or that these requirements should only be 
recommendations. The Secretary's authority for promulgating these 
regulations is discussed extensively in other responses to comments 
(see Comment 7), the 2010 Final Rule (75 FR 12379), and the 2022 
Proposed Rule (87 FR 63207). Given the number of supporting comments 
for this paragraph during consultation in 2021, including from the 
Secretary's Federal Advisory Review Committee (Review Committee), and 
comments on the proposed regulations requesting we strengthen these 
requirements (see Comments 13-17), we chose not to revise these 
requirements into recommendations. We strongly disagree with the 
comment that research on human remains or cultural items is required by 
the Act or these regulations to determine cultural affiliation or for 
any other purpose. Rather, the Act explicitly and specifically does not 
require new scientific studies or other means of acquiring or 
preserving information (25 U.S.C. 3003(b)(2)), and we have incorporated 
similar language into this paragraph to clarify (see Comment 16).
    Earlier drafts of these regulations referenced 36 CFR part 79, as 
suggested by one comment, but we received substantial negative feedback 
on this during consultation in 2021 and from the Review Committee. Most 
of that feedback felt the inclusion of 36 CFR part 79 in these 
regulations was confusing or concerning. Federal agencies and their 
repositories must still care for and manage collections that are 
covered by the provisions of 36 CFR part 79. Regarding speculation on 
substantial costs, conflicts with conservation and preservation 
principles, and conflicts among lineal descendants, Indian Tribes, or 
NHOs, the final regulations now require museums and Federal agencies to 
make a ``reasonable and good-faith effort'' to incorporate and 
accommodate Native American traditional knowledge in the storage, 
treatment, or handling of human remains or cultural items (see Comment 
14).
    13. Comment: We received 16 comments supporting Sec.  10.1(d) Duty 
of care as proposed while 23 comments were generally supportive but 
suggested changes to strengthen the requirements. Many comments 
requested this paragraph clearly apply to all Native American 
collections, even those on loan or where specific cultural items 
subject to the Act have not been identified. Some comments specifically 
requested ``custody'' be deleted from the paragraph in line with 
requested changes to expand ``possession or control'' or that this 
paragraph clearly state that a museum or Federal agency only has a duty 
of care and does not have rightful ownership of Native American human 
remains or cultural items. Several comments requested a definition of 
``care for, safeguard, and preserve.'' One comment requested this 
paragraph include a requirement for the National NAGPRA Program to make 
sporadic inspections of all museums and Federal agencies to ensure 
professional museum and archival standards are met, including 
physically securing collections through clean, rodent-free, and locked 
areas with limited access. One comment requested additional clarifying 
language to ensure these requirements do not serve as a justification 
to delay or avoid repatriation. One comment requested two additional 
paragraphs be included to require museums and Federal agencies to 
provide specific and detailed information on any study or research of 
Native American collections conducted after 1990, including copies of 
published work and photographs.
    DOI Response: We cannot require that this paragraph, or this part, 
apply to all Native American collections as that would be inconsistent 
with the Act (25 U.S.C. 3003(a) and 3004(a)). The requirements of this 
paragraph are limited to human remains and cultural items as defined by 
the Act and these regulations. We cannot remove ``custody'' from the 
first sentence and still ensure that this paragraph will apply to human 
remains and cultural items that are on loan but still subject to the 
Act (see the definitions of ``custody'' and ``possession or control'' 
discussed elsewhere). We have intentionally included ``custody'' in the 
duty of care requirement to ensure all Native American human remains 
and cultural items are cared for, safeguarded, and preserved until the 
disposition and repatriation processes are complete. However, the 
inclusion of museums or Federal agencies with ``custody'' is not 
intended to limit the ability of the museum or Federal agency with 
possession or control of the human remains or cultural items from 
carrying out its responsibilities under this paragraph or these 
regulations. We cannot include the requested statement on rightful 
ownership as it would be contrary to the provisions of the Act where a 
museum or Federal agency can prove it has a right of possession to a 
cultural item. We have not changed or defined ``to care for, safeguard, 
and preserve,'' and these terms should be understood to have a 
standard, dictionary definition. We believe these terms, along with 
paragraphs (d)(1), (d)(2), and (d)(3), are sufficient to ensure an 
adequate standard of care for human remains and cultural items, 
including that the human remains or cultural items are properly stored 
and physically secured in a clean and locked area and are reasonably 
believed to be safe from damage or destruction by pests or natural 
elements. We believe the

[[Page 86462]]

timelines included in the disposition or repatriation processes ensure 
that these requirements will not be used to delay or avoid 
repatriation, and we note that any request for an extension of the 
deadlines for repatriation or for a stay of repatriation for scientific 
studies would require consultation with and consent of the appropriate 
lineal descendant, Indian Tribe, or NHO. While we appreciate the 
suggestion to require information on any past research or study be 
provided to lineal descendants, Indian Tribes, or NHOs as a part of a 
duty of care, this provision is already provided for in Sec. Sec.  
10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal 
descendants, Indian Tribes, and NHOs have a right to request records, 
catalogues, relevant studies, or other pertinent data (25 U.S.C. 
3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies 
are required to share that information (25 U.S.C. 3005(d)). As required 
by the Act, additional information is only provided upon request of an 
Indian Tribe or NHO, and we cannot make this a requirement that applies 
to all human remains or cultural items absent such a request.
    In conjunction with that reasoning, we have removed the requirement 
for lineal descendants, Indian Tribes, or NHOs to first make a request 
for the duty of care requirements that follow, and we have removed ``to 
the maximum extent possible'' from the introductory phrase (see Comment 
14). We have revised this paragraph to include paragraphs (d)(1), 
(d)(2), and (d)(3) on what a museum or Federal agency must do as a part 
of its more general duty of care for human remains or cultural items. 
These three requirements align with the purpose of the Act, these 
regulations, and Congressional intent, which was stated as follows:

    The [Senate] Committee intends the provisions of this Act to 
establish a process which shall provide a framework for discussions 
between Indian [T]ribes and museums and Federal agencies. The 
Committee believes that the process established under this Act will 
prevent many of the past instances of cultural insensitivity to 
Native American peoples. The Committee has received testimony 
describing instances where museums have treated Native American 
human remains and funerary objects in a manner entirely different 
from the treatment of other human remains. Several [T]ribal leaders 
expressed their outrage at the manner in which Native American human 
remains had been treated, stored or displayed and the use of 
culturally sensitive materials and objects in violation of 
traditional Native American religious practices. In the long history 
of relations between Native Americans and museums, these culturally 
insensitive practices have occurred because of the failure of 
museums to seek the consent of or consult with Indian [T]ribes (S. 
Rpt. 101-473, at 3).

    Section 10.1(d)(1) requires museums and Federal agencies to consult 
on the appropriate storage, treatment, or handling of human remains or 
cultural items, which was reiterated in the proposed regulations at 
Sec. Sec.  10.4, 10.9, and 10.10. In these final regulations, we have 
revised those specific sections to refer to this paragraph.
    Section 10.1(d)(2) requires museums and Federal agencies to make a 
reasonable and good-faith effort to incorporate and accommodate 
requests made by consulting parties (see Comment 14).
    Section 10.1(d)(3) requires museums and Federal agencies to obtain 
consent from consulting parties prior to any exhibition of, access to, 
or research on human remains or cultural items (see Comment 15-17).
    14. Comment: Of the 23 comments requesting we strengthen the duty 
of care requirements, many requested ``deference'' replace ``to the 
maximum extent possible.'' In addition, all comments objecting to the 
duty of care requirements raised concerns about the vagueness of this 
phrase and the potential for conflict between and among consulting 
parties on the implementation of this phrase.
    DOI Response: We have removed the phrase and revised Sec.  
10.1(d)(2) to require museums and Federal agencies make a reasonable 
and good-faith effort (in place of ``to the maximum extent possible'' 
in the proposed regulations) to incorporate and accommodate the Native 
American traditional knowledge in caring for human remains or cultural 
items. As the purpose of the Act and these regulations is the 
disposition or repatriation of human remains and cultural items, 
museums and Federal agencies must prioritize requests for storage, 
treatment, or handling by lineal descendants, Indian Tribes, or NHOs 
who will be the future caretakers of the human remains or cultural 
items. These requests may require alterations or exceptions to standard 
curation or preservation practices. In addition, as noted elsewhere, 
when consultation on the duty of care does not result in consensus, 
agreement, or mutually agreeable alternatives, the consultation record 
must describe the concurrence, disagreement, or nonresponse of the 
consulting parties.
    As an example of how this requirement might be implemented, a 
consulting Indian Tribe might request that an offering of organic 
material be placed with human remains until repatriation and physical 
transfer of the collection is complete. During consultation, the museum 
and Indian Tribe might agree on how to accommodate this request while 
still protecting and preserving the collection. The resulting agreement 
might include increased pest monitoring in the area with the offering, 
enclosing the offering in a glass jar next to the human remains or 
cultural items, or identifying an alternative location for the 
offering.
    As another example of this requirement, a consulting Indian Tribe 
might request that a particular type of oil or substance be applied to 
an animal hide that is incorporated into a cultural item. Traditional 
knowledge indicates that the oil or substance provides both physical 
and spiritual protection of the cultural item until it is repatriated. 
During consultation, the museum and Indian Tribe could agree on the 
appropriate individual, possibly a trained conservator or a Tribal 
member, and the appropriate method to apply the substance that does not 
affect other parts of the cultural item or other items in the 
collection.
    Other examples of requests a lineal descendant, Indian Tribe, or 
NHO might make for specific human remains or cultural items in a 
collection include smudging in a collection storage space; using 
specific cloth to cover collections; restrictions on who, how, or when 
collections are handled; orienting collections in a certain direction; 
storing certain collections separately or storing certain collections 
together. Each of these requests must be considered in light of other 
policies or systems, such as safety precautions, fire suppression 
systems, human resource policies, or space limitations. Through 
consultation, these requests may be incorporated and accommodated in a 
mutually agreeable way. Resources from the School for Advanced Research 
and the American Alliance of Museums are available to assist all 
parties with these types of discussions and accommodations (``Standards 
for Museums with Native American Collections,'' May 2023, https://sarweb.org/iarc/smnac/, and ``Indigenous Collections Care Guide,'' 
publication pending, https://sarweb.org/iarc/icc/, accessed 12/1/2023).
    15. Comment: Of the 23 comments requesting that we strengthen the 
duty of care requirements, many requested that museums and Federal 
agencies must obtain consent from lineal descendants, Indian Tribes, or 
NHOs before any activity occurs that involves any Native American 
collections, but especially prior to allowing access to or research on 
human remains and cultural items. Some comments requested adding a 
requirement to remove human

[[Page 86463]]

remains or cultural items from display or public access. Some comments 
requested replacing ``Limit'' with ``Prohibit'' and include 
``exhibition of'' with ``access to and research on'' in Sec.  
10.1(d)(3). One of the comments objecting to the duty of care 
requirement stated that a limitation on research conflicted with the 
requirements for determining cultural affiliation, which requires 
research.
    In addition to these comments, 45 comments on provisions for 
``scientific study'' found in Subpart C echoed these requests that the 
regulations strengthen the protection of human remains or cultural 
items in holdings or collections. Most of these comments requested that 
museums and Federal agencies obtain consent from lineal descendants, 
Indian Tribes, or NHOs prior to allowing any research on human remains 
or cultural items. The second largest group of comments suggested that 
museums and Federal agencies must consult with lineal descendants, 
Indian Tribes, or NHOs prior to allowing research on human remains or 
cultural items. One comment from a museum and scientific organization 
requested that the regulations better align with the ethical principles 
of professional archaeological and anthropological organizations, which 
call for input, consensus, and informed consent from descendant 
communities (NPS-2022-0004-0139). One comment from an Indian Tribe 
explained that research and scientific studies continue to be conducted 
on human remains and cultural items, despite the repeated requests of 
Indian Tribes, and this research and study has delayed or even 
prevented repatriation in some cases. The comment states:

    We have raised these issues many times at the Congressional 
level before the Senate Committee on Indian Affairs and before the 
NAGPRA Review Committee and nothing was done to prevent the illegal 
study of our relatives or the lengthy delays in their repatriation 
and reburial. Changes must be made now to prevent any further 
privileged use of the Act by agencies and museums who have been 
allowed to ignore the plain speech in the Act regarding the study of 
our deceased ancestors and their burial property.
    It is plain to see that agencies and museums have had more than 
enough time (the 33 years that NAGPRA has existed plus all the 
decades our relatives sat ignored and collecting dust in museum or 
agency repositories) to conduct their illegal studies and analyses 
of our poor deceased relatives and their burial property and insist 
that steps be taken now to prevent any further studies of our 
deceased relatives and their burial property (NPS-2022-0004-0123).

    DOI Response: In response to these comments, we revised Sec.  
10.1(d)(3), by replacing ``Limit'' with ``Obtain free, prior, and 
informed consent'' and adding ``exhibition of'' to ``access to or 
research on human remains or cultural items.'' We cannot, as requested 
by some comments, prohibit exhibition, access, or research on human 
remains or cultural items as that would exceed the Secretary's 
authority under the Act and would be contrary to Congressional intent. 
While the Act is the primary authority for these regulations, Congress 
authorized the Secretary to make such regulations for carrying into 
effect the various provisions of any act relating to Indian affairs (25 
U.S.C. 9). As the Act is Indian law (Yankton Sioux Tribe v. United 
States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 
2000)), the Secretary may promulgate this provision under the broad 
authority to supervise and manage Indian affairs given by Congress 
(United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). 
Ambiguities in statutes passed for the benefit of Indians are to be 
construed to the benefit of the Indians (Bryan v. Itasca County, 426 
U.S. 373 (1976)).
    The Act does not prohibit museums or Federal agencies from 
conducting scientific studies of human remains or cultural items but 
does clearly state that such studies are not authorized by or required 
to comply with the Act (25 U.S.C. 3003(b)(2)). The Act allows for a 
scientific study to delay, but not to prevent, repatriation (25 U.S.C. 
3005(b)). The Act provides only one exception to expeditious 
repatriation by proving a ``right of possession'' (25 U.S.C. 3005(c)). 
In addition, the Act allows for excavation of human remains or cultural 
items from Federal or Tribal lands for purposes of a study, but only 
after consultation (on Federal lands) or consent (on Tribal lands) (25 
U.S.C. 3002(c)). As a result, there is some ambiguity in the Act 
related to scientific study, which has been interpreted to mean that 
the Act neither authorizes nor prohibits scientific study of human 
remains or cultural items. In exercising the Secretary's authority for 
these regulations, the Department considered both the legislative and 
regulatory history related to scientific study of human remains or 
cultural items subject to the Act, as well as related recommendations 
from the Review Committee who is responsible for monitoring the 
repatriation process (25 U.S.C. 3006(c)(2)).
    The legislative history shows Congress intended for the Act to give 
lineal descendants, Indian Tribes, and NHOs a more equitable voice in 
any future scientific study of human remains or cultural items. One 
central goal of the Act was ``to allow for the development of 
agreements between Indian [T]ribes and museums which reflect an 
understanding of the important historic and cultural value of the 
remains and objects in museums collections'' (S. Rpt. 101-473, at 4). 
The Senate Report provided a model of this kind of agreement where a 
museum agreed to return human remains to an Indian Tribe for burial, 
and the Indian Tribe chose to bury the human remains in a specially 
designed crypt that could be opened periodically to provide access for 
scientists to continue the study of the human remains. Earlier drafts 
of the legislation allowed for a request for repatriation to be denied 
if the requested item was part of a scientific study (H. Rpt. 101-877, 
at 11). In explaining the substitute amendment that ultimately became 
the Act, Congress explained the change to only delaying, not denying, 
repatriation for a scientific study was a means of urging ``the 
scientific community to enter into mutually agreeable situations with 
culturally affiliated [T]ribes in such matters'' (H. Rpt. 101-877, at 
15).
    As discussed in Comment 7, in describing the compromises in the 
final legislation, Representative Campbell stated that the Act 
acknowledges ``that many of these items may be of considerable 
scientific value'' and ``that repatriation is not the only 
alternative.'' Representative Campbell recommended ``agreeable 
compromises where all interested parties can benefit from access to 
some of the items'' (136 Cong. Rec. 31938). Similarly, in urging the 
passage of the bill, Senator Inouye stated ``[f]or museums and 
institutions which have consistently ignored the requests of native 
Americans, this legislation will give native Americans greater ability 
to negotiate'' (136 Cong. Rec. 35678). This sentiment was echoed by 
Senator Akaka who stated the Act would, among other things, ``eliminate 
the longstanding policy of scientific research on future remains 
found'' (136 Cong. Rec. 35678).
    In its final version, the Act used the term ``scientific study'' 
twice. First, in describing what documentation may be requested, the 
Act explicitly and specifically does not require new scientific studies 
on human remains or associated funerary objects (25 U.S.C. 3003(b)(2), 
referred to here as ``scientific studies are not required''). Second, 
the Act requires that when a specific scientific study of human 
remains, associated funerary objects, unassociated funerary objects, 
sacred objects, or objects of cultural patrimony will result in a major 
benefit to the United States, a museum or Federal agency may postpone 
repatriation but

[[Page 86464]]

may not deny the request for repatriation (25 U.S.C. 3005(b)), referred 
to here as ``delay for scientific study'').
    The regulations as proposed in 1993 and as promulgated in 1995 
addressed only the delay for scientific study under the exceptions to 
repatriation in Sec.  10.10. The regulations included the statutory 
language on documentation of human remains at Sec.  10.9 but did not 
include that scientific studies are not required. The 1995 Final Rule 
made a reference to both scientific study provisions in responding to 
one comment that repatriation could not occur until a scientific 
analysis was completed. The Department responded stating:

    Section 5 (a) specifies that the geographic and cultural 
affiliation of human remains and associated funerary objects be 
determined `to the extent possible based on information possessed by 
the museum of Federal agency.' No new scientific research is 
required. Delaying repatriation until new scientific research is 
completed contradicts the intent of Congress unless that scientific 
research is considered to be of major benefit to the United States 
(60 FR 62156).

    The 2007 Proposed Rule, Disposition of Culturally Unidentifiable 
Human Remains, added that scientific studies are not required to the 
paragraph on documentation of human remains at Sec.  10.9. The 2007 
Proposed Rule added text to explain (1) any documentation provided is a 
public record and (2) a request for documentation cannot be construed 
as authorizing a new scientific study or other means of acquiring 
information. These additions were drawn directly from the Review 
Committee's recommendations on culturally unidentifiable human remains 
(discussed below).
    In the 2010 Final Rule, Disposition of Culturally Unidentifiable 
Human Remains, the Department responded to three comments on scientific 
study specifically. Under General Comments, Comment 3 summarized 
comments opining that ``Congress intended to allow study of ancient, 
unaffiliated remains.'' The Department responded that ``The Act does 
not draw a distinction between `ancient' and more recent remains'' and 
then reiterated that scientific studies are not required (75 FR 12380). 
Under Section 10.9 Other General Comments, Comment 57 summarized 
comments that ``requested a clear and explicit explanation of how the 
proposed rule takes into account the potential interests of the public 
in scientific research and education.'' The Department responded that 
scientific studies are not required (75 FR 12387).
    In the 2010 Final Rule, under Section 10.9(e)(5) Additional 
Documentation, Comment 46 summarized 20 comments regarding the addition 
in the proposed regulations that scientific studies are not required. 
Some comments stated the language would ``create a seemingly impossible 
conundrum, would severely hinder the scientific study of ancient 
remains, and are `an obvious attempt to end-run Congressional intent 
and a Federal court ruling in the long-fought Kennewick Man case.' '' 
One comment requested language be added to clarify that scientific 
studies are not prohibited, and another comment requested language be 
added to allow scientific studies if the consulting parties agree. The 
largest number of comments requested language stating that human 
remains must be treated with respect and ``should not be subject to any 
further scientific research or used for teaching purposes.'' In 
response to these comments, the Department simply stated that the 
language came directly from the Act and reflected Congressional intent 
(2010 Final Rule at 12386). Since 2010, both provisions on scientific 
study have been codified in the regulations.
    While the existing regulations include both provisions on 
scientific study, the existing regulations do not provide any 
mechanisms for ensuring that scientific studies are not required or for 
administering the delay for scientific study. In the 2021 draft 
revisions of the regulations prepared for Tribal consultation, the 
Department introduced a procedure, through the Secretary, to administer 
the delay for scientific study but did not include any reference that 
scientific studies are not required. We received a significant number 
of comments regarding both scientific study provisions during Tribal 
consultation and from the Review Committee. As a result of this input, 
the proposed regulations included in the duty of care requirement a 
limitation on ``access to or research on'' human remains or cultural 
items which would provide for implementation as well as enforcement 
that scientific studies are not required. The proposed regulations also 
provided procedures to administer the delay for scientific study by 
both requesting and receiving concurrence of the Secretary as a stay of 
the repatriation timeline under Sec. Sec.  10.9 and 10.10.
    In preparing these final regulations, we looked at not only the 
comments we received on the proposed regulations but also to the 
legislative and regulatory history discussed above and to input from 
the Review Committee on these issues. As noted above, the addition to 
the regulations in 2007 that scientific studies are not required was 
based on a Review Committee recommendation. Notably, the Review 
Committee's recommendation was not to include the statutory language, 
but to clarify that scientific studies must be agreed to by all parties 
through consultation. In its 2000 final recommendations on culturally 
unidentifiable human remains, the Review Committee recommended:

    Documentation must occur within the context of the consultation 
process. Additional study is not prohibited if the parties (Federal 
agencies, museums, lineal descendants, Indian [T]ribes, and Native 
Hawaiian organizations) in consultation agree that such study is 
appropriate (65 FR 36463, June 8, 2000).

    Between July 2021 and June 2022, the Review Committee reviewed and 
discussed the draft regulatory text and, in its final recommendations, 
developed its own duty of care requirement:

    Duty of care. Through meaningful consultation with [T]ribes and 
Native Hawaiian organizations, Federal agencies, museums, 
universities, and repositories shall provide standards of care based 
upon the free, prior, and informed consent of [T]ribes and Native 
Hawaiian organizations for human remains and cultural items. Museums 
and Federal agencies have an obligation to adhere to a standard of 
reasonable care while performing any act that would foreseeably harm 
any cultural item in their possession or control. This duty includes 
taking affirmative steps to verify the location and condition of all 
cultural items in the control of the museum or Federal agency, and 
consulting with any lineal descendants and any culturally or 
geographically affiliated Indian [T]ribes or Native Hawaiian 
organizations to determine the standard of care they consider 
reasonable (NPS-2002-0004-0003, attachment page 2).

    As noted in the document, one Review Committee member objected to 
the requirement of ``consent'' by Indian Tribes or NHOs to the 
standards of curatorial treatment for Native American human remains and 
other cultural items. The Review Committee member stated ``[s]uch a 
unilaterally-imposed requirement might not be appropriate or 
reasonable, and in some circumstances might violate existing binding 
administrative agreements, legal obligations, and/or professional 
standards of the curating organization'' (NPS-2022-0004-0003, 
attachment page 2, footnote 1).
    In preparing the proposed regulations, we adopted the Review 
Committee's recommendation to include consultation, collaboration, and 
consent but, in response to the objecting comment, caveated the 
requirement with ``to the maximum extent possible.'' The proposed 
regulations did not include the Review Committee's suggested language 
of ``free, prior, and informed consent'' and the last sentence

[[Page 86465]]

of the Review Committee's recommendation was incorporated directly into 
Subpart C. In preparing these final regulations, we revisited the 
Review Committee's recommendations and found we were able to 
incorporate the concept of ``free, prior, and informed consent'' by 
clarifying the provisions in Sec.  10.1 pertaining to duty of care. 
Paragraph (d)(1) requires consultation, paragraph (d)(2) requires 
collaboration, and paragraph (d)(3) requires consent. We agree with the 
Review Committee member and some of the comments on the proposed 
regulations that curatorial standards and other requirements may limit 
a museum or Federal agency's ability to incorporate or accommodate 
requests from lineal descendants, Indian Tribes, or NHOs, and, as 
discussed in Comment 14, museums and Federal agencies must make a 
reasonable and good-faith effort to do so. We have limited the 
requirement to obtain consent only to the exhibition of, access to, or 
research on human remains and cultural items.
    As the purpose of the Act and these regulations is the disposition 
or repatriation of human remains or cultural items, we find it 
appropriate that museums and Federal agencies must obtain consent from 
lineal descendants, Indian Tribes, or NHOs before conducting activities 
that might physically or spiritually harm human remains or cultural 
items. For purposes of the duty of care paragraph, the lineal 
descendants, Indian Tribes, or NHOs are those identified as consulting 
parties under Sec. Sec.  10.4(b)(1), 10.9(b)(1), and 10.10(b)(1): 
Consulting parties are any lineal descendant and any Indian Tribe or 
NHO with potential cultural affiliation. If a museum or Federal agency 
cannot identify any consulting parties for specific human remains or 
cultural items, the duty of care requirement still applies. Until 
consulting parties are identified, the museum or Federal agency may not 
be required to consult under paragraph (d)(1) or collaborate under 
paragraph (d)(2) of Sec.  10.1. Until consulting parties are 
identified, the museum or Federal agency must not allow any exhibition 
of, access to, or research on human remains or cultural items as doing 
so may be subject to a failure to comply with the requirements of these 
regulations. If a museum or Federal agency wished to conduct a specific 
scientific study of human remains or cultural items, it could do so by 
following the requirements for a stay of repatriation under Sec. Sec.  
10.9 or 10.10. After following the requirements of these regulations, 
nothing would preclude a museum or Federal agency from exhibiting, 
allowing access to, or conducting research on collections that are not 
subject to the Act or, after disposition or repatriation, reaching an 
agreement with the requesting lineal descendant, Indian Tribe, or NHO.
    16. Comment: We received four comments requesting the regulations 
include in Sec.  10.10 the related statutory language from 25 U.S.C. 
3003(b)(2) on ``scientific study.'' Another comment questioned if 
``scientific study'' as used in Sec. Sec.  10.9 and 10.10 equated to a 
single study that records paleopathology on an individual or a long-
term archaeological project at a site that includes many sub-projects 
that study different bioarcheological and physical anthropological 
topics.
    DOI Response: We incorporated the statutory language on 
``scientific study'' into paragraph (d)(3) by adding two sentences to 
clarify that the term ``research'' as used here equates to the term 
``scientific study'' in the Act and to emphasize that ``research'' of 
any kind is not required by the Act or these regulations. We have 
defined ``research'' to mean any study, analysis, examination, or other 
means of acquiring or preserving information. ``Research'' includes any 
activity to generate new or additional information beyond the 
information that is already available, for example, osteological 
analysis of human remains, physical inspection or review of 
collections, examination or segregation of comingled material (such as 
soil or faunal remains), or rehousing of collections. ``Research'' is 
not required to identify the number of individuals or cultural items or 
to determine cultural affiliation.
    For example, if a museum wished to physically examine its 
collection to identify the number of individuals or associated funerary 
objects, the museum must first obtain consent from lineal descendants, 
Indian Tribes, or NHOs. Until that consent is obtained, the museum must 
rely on the information available (previous inventories, catalog cards, 
accession records, etc.) to identify consulting parties, conduct 
consultation, update the inventory, and submit a notice of inventory 
completion.
    If a Federal agency wished to examine an unprocessed collection of 
archaeological material excavated from Federal land after 1990 to 
identify if any human remains or cultural items were present, it could 
do so until human remains or cultural items were identified. At that 
time, any further examination or inspection of the collection would 
require obtaining consent from a lineal descendant, Indian Tribe or 
NHO. Until that consent is obtained, the Federal agency must rely on 
the information available (excavation location, field notes, etc.) to 
identify consulting parties, conduct consultation, and complete the 
disposition of the human remains or cultural items.
    17. Comment: We received five comments, including those by the 
Review Committee, objecting to the inclusion of unassociated funerary 
objects, sacred objects, or objects of cultural patrimony in the delay 
for scientific study because it is inconsistent with the Act and 
adverse to Tribal interests. These comments requested that the stay of 
repatriation in Sec.  10.9 for ``scientific study'' be deleted in its 
entirety (see NPS-2022-0004-0096; NPS-2022-0004-0143; NPS-2022-0004-
0151; NPS-2022-0004-0177; and NPS-2022-0004-0183).
    DOI Response: We believe these comments conflated the two statutory 
provisions for ``scientific study'' we outlined in response to Comment 
16 (``scientific studies are not required'' and ``delay for scientific 
study''). We agree that the Act limits the provision that scientific 
studies are not required to only human remains and associated funerary 
objects (25 U.S.C. 3003(b)(2)). Similar language does not appear in the 
Act for unassociated funerary objects, sacred objects, and cultural 
patrimony (25 U.S.C. 3004(b)(2)).
    We do not agree, however, that extending the provision that 
scientific studies are not required or the corresponding paragraph at 
(d)(3) to unassociated funerary objects, sacred objects, or objects of 
cultural patrimony is adverse to Tribal interests. Rather, we feel this 
extension accomplishes the request made by many individuals, Indian 
Tribes, and Native American organizations to prohibit all ``research'' 
on human remains as well as any cultural item (see NPS-2022-0004-0107; 
NPS-2022-0004-0138; NPS-2022-0004-0158; NPS-2022-0004-0161; and NPS-
2022-0004-0187). Therefore, paragraph (d)(3) on duty of care that 
requires consent for exhibition, access, or research applies to human 
remains, associated funerary objects, unassociated funerary objects, 
sacred objects, and objects of cultural patrimony.
    We understand that the delay for scientific study in both 
Sec. Sec.  10.9 and 10.10 is adverse to Tribal interests and may seem 
to allow or authorize scientific studies. As one comment stated 
clearly:

    Finally, please note our previous statement that we are 
categorically opposed to any

[[Page 86466]]

scientific study of our ancestors, their burial property or any item 
of our sacred or cultural patrimony and we specifically request that 
any language allowing any type of scientific study of any NAGPRA-
related item be stricken from this rulemaking for the reasons 
submitted by our Nation, above (NPS-2022-0004-0123).

    We cannot remove reference to ``scientific study'' or research from 
these regulations. The delay for scientific study applies to all 
``Native American cultural items,'' which are defined in the Act as 
human remains, associated funerary objects, unassociated funerary 
objects, sacred objects, and objects of cultural patrimony (25 U.S.C. 
3005(b)). As any elimination or restriction of 25 U.S.C. 3005(b) would 
require an act of Congress, we cannot remove the reference to 
``scientific study'' entirely or make the requested change to remove 
Sec.  10.9(i)(3). We have, however, strengthened the requirements under 
duty of care in this final rule to ensure better implementation and 
enforcement that scientific studies are not required.
    18. Comment: We received three comments requesting clarification of 
Sec.  10.1(e) Delivery of written documents. One comment requested an 
editorial change to the text and the other two comments requested an 
explanation of proof of receipt. One comment stated that tracking the 
sending and receipt of written documents was a considerable burden on 
all parties and would require a significant outlay of resources (NPS-
2022-0004-0135).
    DOI Response: We have made the requested editorial change to 
paragraph (e)(1) and added ``one of the following'' to ``must be sent 
by.'' Regarding ``proof of receipt'' for email, many email systems 
include an option to request a read receipt automatically. While these 
systems may not constitute legal proof, use of such systems is 
sufficient for the purposes of these regulations. If an email system 
does not provide this option, other software or services can provide 
proof of receipt for little to no cost. However, we do not expect or 
require additional software or services to meet this requirement. The 
minimum requirement to satisfy ``proof of receipt'' would be to request 
that the recipient acknowledge receipt of the email. If no 
acknowledgment is received, the sender may follow up with a phone call 
to ensure the email was received. A call log or note to the file would 
be sufficient ``proof of receipt.''
    19. Comment: We received four comments suggesting changes to Sec.  
10.1(f) Deadlines and timelines. One comment noted that Tribal holidays 
may not coincide with Federal holidays and should be included. Another 
comment requested this paragraph clarify that the Federal Register 
calculates calendar days. One comment questioned how the Manager, 
National NAGPRA Program, will meet the notice publication deadline if 
there is a lapse in appropriations. One comment specifically questioned 
the use of business days in relation to the requirements under Sec.  
10.5 and stated that under the Act, ``days'' means calendar days. By 
using business days, the total maximum work stoppage under Sec.  10.5 
could increase to some 95 calendar days. In enacting the 30-day stop-
work period, Congress said ``days,'' which is commonly understood as 
calendar days. Similarly, Rule 6(a) of the Federal Rules of Civil 
Procedure provides that, in computing any time period specified in the 
Rules, in any local rule or court order, or in any statute that does 
not specify a method of computing time, when a period is stated in days 
or a longer unit of time, every day is counted, including intermediate 
Saturdays, Sundays, and legal holidays. Furthermore, the comment 
states, except for using three ``working days'' for the ministerial 
certification of receipt of a notice of discovery, the Department has 
always used calendar days as the metric for calculating a period in the 
existing regulations stated in days or a longer unit.
    DOI Response: We agree that in the Act, days means calendar days. 
We appreciate the comment on Tribal holidays, but given the great 
variation in those dates, we cannot accommodate the request to include 
or observe Tribal holidays. The purpose of this paragraph is to provide 
clear instruction on how to calculate dates for the deadlines and 
timelines in these regulations. Earlier drafts of these regulations 
used calendar days. We received requests during consultation in 2021 to 
use business days and to account for a lapse in appropriations. We 
noted this change would lengthen most deadlines in the regulations but 
accepted the suggested change in the proposed regulations. We have 
revised paragraph (f)(1) in Sec.  10.1 to calendar days and included an 
exception for when a deadline falls on a Saturday, Sunday, or Federal 
holiday, including a lapse in appropriations.
    20. Comment: We received seven comments suggesting changes to Sec.  
10.1(g) Failure to make a claim or a request. Five comments requested 
we delete this paragraph because the Act does not provide the Secretary 
with the authority to include this waiver of rights language in the 
regulations. These comments state that an Indian Tribe or NHO must 
never lose its rights to claim disposition or request repatriation of 
human remains or cultural items. One comment requested clarification 
and guidance on the application of this paragraph to the time between 
sending a repatriation statement and completing physical transfer of 
human remains or cultural items. One comment requested the regulations 
require clear and concise written proof of compliance with the notice 
and consultation requirements prior to any waiver of a right to make a 
claim or a request.
    DOI Response: The Secretary's authority for promulgating these 
regulations is discussed extensively in the 2010 Final Rule (75 FR 
12379) and the 2022 Proposed Rule (87 FR 63207). The purpose of a 
disposition or repatriation statement is to provide clear and concise 
written proof that the requirements of the Act have been fulfilled (25 
U.S.C. 3002(a) and 3005(a)). With the disposition or repatriation 
statement, the museum or Federal agency divests itself of any interest 
in the human remains or cultural items.
    We cannot remove this paragraph without jeopardizing the entire 
disposition or repatriation processes provided by the Act and these 
regulations. This paragraph has been included in these regulations 
since the 1993 Proposed Rule (58 FR 31132) and ensures that any claim 
for disposition or request for repatriation must be considered by a 
museum or Federal agency prior to disposition, repatriation, transfer, 
or reinterment of human remains or cultural items. Once disposition, 
repatriation, transfer, or reinterment occurs, a museum or Federal 
agency cannot accept a claim or request from another party as the 
museum or Federal agency no longer has any rights to or interest in the 
human remains or cultural item. This paragraph provides protection for 
lineal descendants, Indian Tribes, and NHOs as well as for museums and 
Federal agencies that once a disposition or repatriation statement is 
sent, it is not subject to future appeal or challenge.
    21. Comment: We received four comments suggesting changes to Sec.  
10.1(h) Judicial jurisdiction. Three comments requested we include the 
role of the U.S. Court of Federal Claims in resolving specific matters. 
One comment asked if this paragraph restricted the role of Tribal 
courts in any related legal actions.
    DOI Response: Nothing in the Act or these regulations is intended 
to abrogate any concurrent Tribal jurisdiction that may exist with 
respect to alleged violations of similar Tribal laws on Tribal lands. 
Regarding the U.S. Court of Federal Claims, we disagree with the

[[Page 86467]]

suggested change. This paragraph reflects the statutory description of 
judicial jurisdiction for violations of the Act (25 U.S.C. 3013). It is 
not intended to address judicial jurisdiction for potential 
constitutional violations, such as the possibility of a Fifth Amendment 
taking as described in the Act's definition for ``right of possession'' 
(25 U.S.C. 3001(13)). It is unnecessary for these regulations to 
address the Court of Federal Claims' jurisdiction over Fifth Amendment 
takings claims, which is well-established and not specific to this Act. 
Regarding collection of civil penalties, this is already included in 
Sec.  10.11, specifically in paragraph (m)(2) of these regulations.
    22. Comment: We received 19 comments suggesting changes to Sec.  
10.1(i) Final agency action. Four comments requested clarification as 
to how to interpret final agency action and confirming that disposition 
or repatriation determinations are final agency actions. Four comments 
considered the categories of final agency action to be too narrow as 
written and recommended adding language to clarify and including 
examples of determinations that would make this part inapplicable, such 
as determinations regarding plans of action, excavations, Federal land 
ownership, and possession or control. On the other hand, one comment 
described how those categories of final agency action impermissibly 
broaden the concept. Six comments urged the Department to approve all 
museum determinations under these regulations or compel museum action, 
and that such approval or failure to compel should be defined as final 
agency action. Four comments recommended that the Assistant Secretary's 
decision not to assess a civil penalty be considered reviewable as 
final agency action.
    DOI Response: The Act does not grant the Secretary authority to 
approve or compel museum determinations, other than by assessing civil 
penalties for failures to comply. Regarding civil penalties, we have 
not made changes that would make decisions to assess civil penalties 
reviewable as final agency action because, first, the Act makes this 
decision permissive, not required, and second, such decisions are 
comparable to those in a criminal context (United States v. Halper, 490 
U.S. 435 (1989)) and generally considered unreviewable under the 
Administrative Procedure Act in order to preserve prosecutorial 
discretion (Heckler v. Cheney, 470 U.S. 821 (1985)). While we 
appreciate the remaining recommendations, we believe that the concerns 
underlying each are already addressed by the language as it appeared in 
the proposed regulations. First, the inclusion of any final 
determination making the Act or this part inapplicable is intentionally 
broad and inclusive enough to capture the examples and other regulatory 
actions described in the comments. Second, at the same time, because 
this determination must be final, because it is on its own terms 
limited to situations where the information available to the Federal 
agency has informed the determination that the Act or this part is 
inapplicable, and because the determination in question is specific to 
the application of this Act or this part, the category is sufficiently 
limited in scope so as to ensure consistency with the Administrative 
Procedure Act. The Department does not consider this language in these 
regulations to redefine final agency action, but only to clarify its 
existing application across the entirety of the Act and this part.
    In addition, we have added a paragraph (k) to this section on 
severability. While this rule is intended to create systematic 
processes for implementing the Act, if a court holds any provision of 
one part of this rule invalid, it should not impact the other parts of 
the rule. For example, a decision holding a portion of Subpart B 
invalid should not impact Subpart C, since they are two separate 
processes for two different situations. Similarly, a decision holding 
part of the inventory process invalid should not impact the summary or 
repatriation processes. Any decision finding any provisions in this 
rule to be invalid would not impact the remaining provisions, which 
would remain in force. The intent of this rule is to streamline the 
processes and increase deference to lineal descendants, Indian Tribes, 
and NHOs as a whole, but the rule is not an interdependent whole--other 
provisions of the rule would implement that intent even if a court 
declared certain provisions invalid.

C. Section 10.2 Definitions for This Part

    23. Comment: We received four comments requesting we add new 
definitions. Three comments requested we define ``deference.'' One 
comment requested we define ``simple itemized list,'' ``lot,'' and 
``specific area'' for funerary objects.
    DOI Response: We have not defined ``deference'' in these 
regulations. As used in these regulations, this term is intended to 
ensure meaningful consideration of Native American traditional 
knowledge of lineal descendants, Indian Tribes, and NHOs throughout the 
systematic processes for disposition and repatriation. The term should 
be understood to have a standard, dictionary definition: ``respect and 
esteem due a superior or an elder; also affected or ingratiating regard 
for another's wishes'' (Merriam-Webster definition of ``deference'' 
https://www.merriam-webster.com/dictionary/deference, accessed 12/1/
2023). The requirement for deference is not intended to remove the 
decision-making responsibility of a museum or Federal agency under the 
Act or these regulations but is intended to require that a museum or 
Federal agency recognize that lineal descendants, Indian Tribes, and 
NHOs are the primary experts on their cultural heritage. We believe the 
application of deference in these regulations is clear, and we have 
reinforced its application through changes to paragraphs in Sec.  
10.1(a) Purpose and (d) Duty of care and in the definition of 
``consultation'' below.
    We do not believe it is necessary to define ``simple itemized 
list,'' ``lot,'' or ``specific area.'' Each of these terms should be 
understood to have a standard, dictionary definition, and when a museum 
or Federal agency is trying to apply them, we note that consultation 
with lineal descendants, Indian Tribes, or NHOs should inform that 
decision.
    24. Comment: We received six comments supporting the definitions in 
the proposed regulations. These comments appreciated that the 
definition of ``cultural item'' (and the definitions of specific kinds 
of cultural items) included language that recognizes lineal 
descendants, Indian Tribes, and NHOs are the primary experts on their 
own cultural heritage. One comment requested these definitions be 
further strengthened by requiring museums and Federal agencies defer to 
the determination of the lineal descendant, Indian Tribe, or NHO. 
Similar comments were repeated in each of the definitions of specific 
kinds of cultural items.
    DOI Response: We have retained the language in the definition of 
``cultural item,'' ``funerary object,'' ``sacred object,'' and ``object 
of cultural patrimony.'' We have not added a requirement for deference 
to the determinations of lineal descendants, Indian Tribes, or NHOs as 
it would be inconsistent with the Act. Museums and Federal agencies are 
responsible for making determinations under the Act and these 
regulations, but must do so after consulting with lineal descendants, 
Indian Tribes, and NHOs. We have changed the order of the sentences to

[[Page 86468]]

reflect the importance of Native American traditional knowledge (which 
includes customs and traditions) in these definitions. Furthermore, we 
have strengthened the application of these definitions through changes 
to paragraphs in Sec.  10.1(a) Purpose and (d) Duty of care and in the 
definition of ``consultation'' below.
    25. Comment: We received 21 comments on the proposed definitions of 
``acknowledged aboriginal land'' and ``adjudicated aboriginal land.'' 
Of that total, 13 comments suggested changes to the definitions while 
eight comments supported both definitions as proposed.
    DOI Response: Due to the changes to the definition of ``cultural 
affiliation,'' we are not finalizing the proposed definitions of 
aboriginal land in this rule. We believe the changes to cultural 
affiliation address the concerns expressed by the comments and ensure 
consultation on and consideration of information about aboriginal 
occupation in determining cultural affiliation. We have replaced 
``adjudicated aboriginal land'' in the regulatory text with the 
elements of the definition.
    26. Comment: We received 21 comments on the definition of 
``affiliation.'' Of that total, 14 comments suggested changes to the 
definition while seven comments supported it. One comment questioned if 
the Secretary has the authority to alter a definition in the statute 
and opposed the generalized and simplistic meaning of ``affiliation.'' 
The other comments requested that the definition of ``affiliation'' be 
used to define ``cultural affiliation.''
    DOI Response: We agree with the suggestion to add ``cultural'' 
before affiliation in this definition. We have clarified this 
definition by incorporating the Congressional intent of this definition 
``to ensure that the claimant has a reasonable connection with the 
materials'' (H. Rpt. 101-877, at 14, and S. Rpt. 101-473, at 6). The 
additional language found in the definition in the Act (traced through 
time and identifiable earlier group) has been incorporated into the 
procedure for determining cultural affiliation and the related changes 
explained in our responses under Sec.  10.3. We included in the 
definition of cultural affiliation the two ways cultural affiliation 
may be identified (clearly or reasonably), taken from the language in 
the Act (25 U.S.C. 3003(d)(2)).
    27. Comment: We received two comments suggesting changes to the 
definition of ``ahupua`a.''
    DOI Response: We agree with the comments and have made the 
suggested changes. We appreciate the feedback that the definition of 
ahupua`a includes extra contextual information that is already 
incorporated in Sec.  10.3. We also note that priority for cultural 
affiliation is not given to an NHO based on the NHO's location or 
cultural practice at the time of their claim or request but rather 
priority for cultural affiliation is based on the NHO's relationship to 
the earlier occupants of the ahupua-a from where the human remains or 
cultural items were removed or in which they are discovered.
    28. Comment: We received three comments suggesting changes to the 
definition of ``appropriate official.'' One comment suggested that the 
appropriate official be trained on the time requirements of that job. 
The other comments wanted the Department to provide a contact list of 
appropriate officials.
    DOI Response: The responsible Indian Tribe, NHO, DHHL, or Federal 
agency is responsible for the training the appropriate official. The 
National NAGPRA Program maintains contact information on its website at 
https://grantsdev.cr.nps.gov/NagpraPublic/Home/Contact (accessed 12/1/
2023). We encourage Indian Tribes, NHOs, Federal agencies, and museums 
to provide or update contact information on a regular basis. We also 
point out that the Advisory Council on Historic Preservation keeps an 
updated list of Federal Preservation Officers for each Federal agency 
at https://www.achp.gov/protecting-historic-properties/fpo-list 
(accessed 12/1/2023). The National Park Service and the Bureau of 
Indian Affairs maintain contact information on Tribal Historic 
Preservation Offices at https://grantsdev.cr.nps.gov/THPO_Review/index.cfm (accessed 12/1/2023) and Tribal Leaders at https://www.bia.gov/bia/ois/tribal-leaders-directory/ (accessed 12/1/2023).
    29. Comment: We received 10 comments suggesting changes to the 
definitions of ``ARPA Indian land'' and ``ARPA public land.'' Most of 
the comments said that the definitions are inconsistent with the Act 
and would unduly narrow the application of the Act and these 
regulations. One comment noted that the definition of ``ARPA Indian 
land'' includes the term ``individual Indian.'' The comment stated that 
the latter term was undefined in the proposed regulations and suggested 
that it be replaced with the defined term ``lineal descendant.''
    DOI Response: We have not changed these definitions. These 
definitions do not change the application of NAGPRA. NAGPRA applies to 
its fullest extent on ``Federal land'' or ``Tribal land,'' as defined 
in both the statute and these regulations. Rather, the terms ``ARPA 
Indian land'' and ``ARPA public land'' define which excavations under 
NAGPRA require a permit issued under ARPA and which do not. 
Specifically, NAGPRA requires that human remains or cultural items may 
only be excavated or removed from Federal or Tribal land if, among 
other requirements, ``such items are excavated or removed pursuant to a 
permit issued under [ARPA] which shall be consistent with [NAGPRA].'' 
25 U.S.C. 3002(c)(1). Since both NAGPRA and ARPA are intended to 
protect important cultural resources, they must be construed together. 
Further, ``issued under ARPA'' is an adjectival phrase modifying 
``permit.'' Thus, it is not ARPA that ``shall be consistent with 
NAGPRA,'' but rather the ARPA permit that must be consistent with 
NAGPRA. This is supported by the NAGPRA legislative history. The Senate 
Indian Affairs Committee specifically noted that it ``[intended] the 
notice and permit provisions of this section to be fully consistent 
with the provisions of [ARPA]'' (S. Rpt. 101-473, at 7). Likewise, the 
House Committee on Interior and Insular Affairs, in discussing the 
stopping of work for an inadvertent discovery, noted that, ``[a]lthough 
a specific time limit was not added here, the Committee does intend to 
protect the remains and objects found and does not intend to weaken any 
provisions of other laws, such as [ARPA], regarding similar 
situations.'' Like the Senate Committee, the House Committee also 
stated that, ``[s]ubsection (c) provides that items covered by this Act 
can be excavated from Federal or [T]ribal land if proof exists that a 
permit has been acquired under Section 4 of the [ARPA]'' (H. Rpt. 101-
877, at 15 and 17).
    Therefore, the provisions of ARPA, including the scope of public 
land and Indian land, are not affected by NAGPRA. So, the terms ``ARPA 
Indian land'' and ``ARPA public land'' are defined in these regulations 
using the exact same definitions of ``Indian land'' and ``public land'' 
in ARPA, including use of the term ``individual Indian,'' which is used 
in ARPA to denote land that is owned by an individual Indian, who may 
or may not be a ``lineal descendant'' as defined in NAGPRA. The 
protection of the scope of both statutes is reflected in these 
regulations by the requirement that ARPA permits are issued for NAGPRA 
excavations just as they are for ARPA excavations, keeping the full 
protections of each statute in place, as Congress intended.

[[Page 86469]]

    30. Comment: We received 39 comments on the definition of 
``consultation.'' Of that total, two comments objected to the 
definition because ``to the maximum extent possible'' was a vague and 
troubling standard. These two comments also objected to the use of 
consensus and requested it be removed or made a recommendation rather 
than a requirement because, as one comment stated, ``it is not within 
the ability of museums to seek consensus or mediate potential 
disagreements among sovereign nations during the consultation process'' 
(NPS-2022-0004-0136). In addition, one comment didn't object to the 
definition but requested clarification as to whether ``seek consensus'' 
would mean museums and Federal agencies must ensure responses are 
received from all parties invited to consult.
    On the other hand, nine comments supported the definition as 
proposed while 27 comments supported the definition but suggested 
changes to strengthen it. Most of these comments suggested changing 
``seek consensus'' to ``achieve'' or ``strive for'' consensus, 
replacing ``incorporating'' with ``deferring to,'' replacing ``to the 
maximum extent possible'' with ``as the Indian Tribe or Native Hawaiian 
organization understands them,'' or removing ``to the maximum extent 
possible.'' A few comments suggested adding that consultation is 
between equal parties or that it must be conducted in good faith. A few 
comments suggested including a requirement for museum or Federal agency 
decision-makers to be present at consultation, for consultation to be 
continual, or to add ``transparent'' and ``formal'' to the definition. 
One comment renewed a request to use the definition of consultation in 
36 CFR part 800.
    DOI Response: Consultation is a critical, central, and continual 
part of the systematic processes for disposition or repatriation 
provided by the Act and these regulations. However, neither the Act nor 
the existing regulations define consultation. Earlier drafts of these 
regulations drew directly on Congressional report language that 
``consultation'' under NAGPRA means ``the open discussion and joint 
deliberations with respect to potential issues, changes, or actions by 
all interested parties'' (H. Rpt. 101-877, at 16). Specific to the 
inventory, Congress emphasized the need for ``cooperative exchange of 
information between Indian [T]ribes or Native Hawaiian organizations 
and museums regarding objects in museum collections'' (S. Rpt. 101-473, 
at 8). In the proposed regulations, we added specific types of 
information that are exchanged during consultation (identifications, 
recommendations, and Native American traditional knowledge). We also 
drew language from other definitions for consultation found in 36 CFR 
part 800, Executive Order 13175, and draft guidance and language that 
became the November 2022 White House memorandum on Uniform Standards 
for Tribal Consultation.
    In response to comments that objected to the proposed definition, 
we have removed ``to the maximum extent possible'' and clarified the 
goal of consultation is to strive for consensus, agreement, or mutually 
agreeable alternatives. We did not and do not intend for ``consensus'' 
to imply museums or Federal agencies are required to mediate potential 
or even actual disagreements among lineal descendants, Indian Tribes, 
or NHOs. Likewise, ``consensus'' does not require a museum or Federal 
agency receive a response from every invited consulting party before it 
can proceed. The consultation record should include efforts to invite 
consulting parties. When consultation does not result in consensus, 
agreement, or mutually agreeable alternatives, the consultation record 
must describe the concurrence, disagreement, or nonresponse of the 
consulting parties.
    In response to comments that requested strengthening the definition 
for consultation, we have revised the second half of the sentence to 
better reflect the goals of consultation. We have added ``good faith'' 
to the definition to ensure honest and fair consideration of all points 
of view and removed it from each of the regulatory steps on 
consultation. We have expanded the definition to clearly identify the 
goals of consultation, drawing on other sources suggested by the 
comments. ``Seek, discuss, and consider the views of all parties'' 
comes from language in 36 CFR part 800.16. Although we received several 
comments requesting we change ``seek'' to ``achieve,'' we have used 
``strive for'' which was suggested by some comments and is found in the 
November 2022 White House memorandum on Uniform Standards for Tribal 
Consultation. We feel this change better reflects the goal of 
consultation and is stronger than ``seek consensus'' but still reflects 
consensus may not be achieved. We have also added to the goal of 
consensus ``agreement'' and ``mutually acceptable alternatives.'' 
Although we received several comments requesting we add deference to 
this definition, we have instead added that consultation enables 
consideration of the kinds of information that can be provided by 
lineal descendants, Indian Tribes, and NHOs. This replaces the more 
limited list of information in the proposed regulations, and we expect 
it will provide a more robust and clearer record of information shared 
by lineal descendants, Indian Tribes, and NHOs during consultation.
    In response to all the comments and as noted elsewhere, when 
consultation does not result in consensus, agreement, or mutually 
agreeable alternatives, the consultation record must describe the 
concurrence, disagreement, or nonresponse of the consulting parties. 
Although a few comments suggested we require in the definition that 
decision makers attend consultations, we have not included this in 
these regulations. We believe this requirement may not fit every 
situation and might end up delaying or eliminating the efficiencies of 
these regulations. Rather, we note that when consultation does not 
result in consensus, agreement, or mutually acceptable alternatives, 
consulting parties may wish to involve decision makers from all parties 
to see if a resolution can be found.
    Lastly, we note that consultation as defined here is different than 
consultation defined in other contexts, especially consultation between 
a Federal agency and an Indian Tribe or NHO. For purposes of 
disposition or repatriation, Federal agencies are required to comply 
with this definition of consultation as well as any applicable policy 
on government-to-government/sovereign consultation that would apply in 
all contexts. For purposes of repatriation, we cannot require museums 
to conduct the same level of consultation that would be required for a 
Federal agency. We feel this definition of consultation provides 
requirements that can be met by both museums and Federal agencies, 
fills in a missing piece of the Act and the existing regulations, and 
ensures consultation remains a critical, central, and continual part of 
the systematic processes for disposition or repatriation.
    31. Comment: We received 20 comments on the definition of 
``cultural item.'' Of that total, 16 comments suggested changes to the 
definition while four comments supported it. Four comments stated that 
changing the definition of cultural item to exclude human remains 
exceeded the Secretary's authority. One comment objected to the 
definition without further request for changes. One comment suggested a 
grammatical change. One comment suggested

[[Page 86470]]

cultural item be broadened to include documents and records (including 
photographs) associated with human remains or cultural items to ensure 
repatriation of those documents and records. Six comments requested the 
definition of cultural items be expanded to require Tribal 
consultation. The comments pointed out that the definitions in the Act 
``depend in part on [T]ribal use and cultural significance. 25 U.S.C. 
3001(3). Courts have clarified that Indian Tribes play a role in 
determining whether items possess the requisite cultural significance 
to meet NAGPRA's definitions, especially regarding `cultural 
patrimony.' See United States v. Tidwell, 191 F.3d 976, 981 (9th Cir. 
1999); United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997).'' 
(see NPS-2022-0004-0119 for one of the six comments). Three comments 
objected to the definition as proposed because the required deference 
to Indian Tribes and NHOs in the regulations and the definitions of 
cultural items had the potential to create conflict between types of 
information or among Indian Tribes or NHOs.
    DOI Response: As we stated in the proposed regulations, use of the 
phrase ``human remains or cultural items'' is responsive to requests of 
Indian Tribes and NHOs. The existing regulations do not define 
``cultural items'' but still use the term to include human remains. 
This change from ``cultural items'' to ``human remains or cultural 
items'' is only editorial and does not have any impact on the 
applicability or scope of these regulations. This editorial change is 
within the Secretary's authority, as the Department asserted in the 
1993 Proposed Rule (58 FR 31122).
    We have not made the requested grammatical change (from singular to 
plural) as it is unnecessary in regulatory definitions. Throughout 
these final regulations, a singular term includes and applies to 
several persons, parties, or things. We cannot expand the definition to 
include documents and records (including photographs) as that would be 
inconsistent with the Act. We note that requesting documents and 
records (which could include photographs) is already provided for in 
Sec. Sec.  10.9(c)(4) and 10.10(c)(4). Under the Act and these 
regulations, lineal descendants, Indian Tribes, and NHOs have a right 
to request records, catalogues, relevant studies, or other pertinent 
data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and 
Federal agencies are required to share that information (25 U.S.C. 
3005(d)). As required by the Act, additional information is only 
provided upon request of an Indian Tribe or NHO, and we cannot require 
documents and records be provided by including these in the definition 
of cultural items. We advise lineal descendants, Indian Tribes, and 
NHOs to make their requests as broad as possible to ensure all 
information about cultural items, including digital data, is provided.
    Regarding the request to strengthen the definition, we are unable 
to change ``according to'' to ``as determined by'' as it would be 
inconsistent with the Act. Museums and Federal agencies are responsible 
for making determinations under the Act and these regulations, but must 
do so after consulting with lineal descendants, Indian Tribes, and 
NHOs. We have changed the order of the sentence to reflect the 
importance of Native American traditional knowledge (which includes 
customs and traditions) in this definition.
    We disagree that the definition is over-broad, a reversal of 
Congressional intent, or contrary to explicit statements in the 
Congressional record. Deference to Native American traditional 
knowledge is necessary to ensure the rights of lineal descendants, 
Indian Tribes, and NHOs the Act recognizes. The addition of ``according 
to Native American traditional knowledge'' in this definition is to 
ensure meaningful consideration of this information during 
consultation.
    We believe this addition to the various definitions of cultural 
items will lead to more informed decision-making and help to avoid the 
lengthy and costly delays in disposition or repatriation. In crafting 
the definitions of cultural items, Congress clearly intended that the 
definitions ``will vary according to the [T]ribe, village, or Native 
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is 
required throughout the Act prior to any determination, is how an 
Indian Tribe or NHO shares the information needed to identify a 
cultural item.
    32. Comment: We received 14 comments on the definition of 
``custody.'' Of that total, nine comments suggested changes to the 
definition while five comments supported it. Eight comments recommended 
deleting this definition and replacing it with the concept of 
possession in the definition of ``possession or control.'' One comment 
recommended replacing the term ``sufficient interest'' with the term 
``legal authority.''
    DOI Response: We have not made changes to this definition. We 
cannot replace this definition with an expanded definition for 
``possession or control,'' as discussed in the response to comments on 
that definition (see comment 49). Custody without ``possession or 
control'' is a distinct concept from ``possession or control'' itself. 
This distinct concept requires definition to implement certain 
requirements, including a duty of care and certain reporting 
requirements. Further, we did not replace the term ``sufficient 
interest,'' which is a threshold determination that museums and Federal 
agencies must make. Changing this phrase would presume application of 
the Act before that determination has been made. As discussed in more 
detail in the response to comments for the definition of ``possession 
or control,'' whether a museum or Federal agency has a sufficient 
interest in an object or item to establish ``possession or control'' is 
a legal determination that must be made on a case-by-case basis.
    33. Comment: We received two comments requesting changes to the 
definition of ``discovery.'' One comment raised a concern that removal 
of human remains or cultural items from Federal or Tribal lands is 
either excavation or theft, not a discovery. One comment questioned why 
the word ``inadvertent'' is no longer used with the word ``discovery.''
    DOI Response: We understand the concern but cannot make the 
requested change to eliminate ``removing'' from the definition of 
discovery and still ensure that human remains or cultural items are 
protected on Federal or Indian lands under these regulations. As one 
comment notes, an intentional removal without a written authorization 
for an excavation could violate other Federal laws, depending on the 
circumstances. These regulations do not replace or supplant the other 
protections available on Federal or Tribal lands. Rather this 
definition and these regulations provide a process for the disposition 
of those human remains or cultural items that may be discovered.
    The definition of discovery includes both inadvertent and 
intentional discovery of human remains or cultural items. This ensures 
that any human remains or cultural items are subject to these 
regulations, regardless of how they were discovered.
    34. Comment: We received seven comments requesting clarification of 
the definition of ``Federal lands.'' Four comments did not consider the 
definition to be sufficiently clear or instructive to Federal agencies. 
One comment noted that the definition should include lands leased by 
the Federal government. One comment noted that the definition could 
impact museum collections under Subpart C. One comment noted that the 
definition should include language to provide for

[[Page 86471]]

the protection and disposition of Native American children buried at 
Indian boarding schools on lands not owned or controlled by the Federal 
Government, but where the Indian boarding school was operated by or for 
the U.S. Government.
    DOI Response: We have not made these changes. Whether a Federal 
agency's control of the lands on which it conducts it programs or 
activities is sufficient to apply these regulations depends on the 
circumstances and scope of that Federal agency's authority, and on the 
nature of State and local jurisdiction. Because of the wide array of 
agency-specific authorities that can establish federally controlled 
lands, the Federal agency officials must make such determinations on a 
case-by-case basis. In some circumstances, the definition may include 
lands leased by the Federal agency, depending on the nature of that 
lease, the Federal agency's statutory authority, and other case-by-case 
circumstances. The Department cannot instruct Federal agencies any 
further on their own circumstances or statutory authorities, and 
recommends Federal agencies consult with their legal counsel in making 
such determinations. The definition is not applied to museum 
collections in Subpart C.
    Regarding lands on which Native American children were buried at 
Indian boarding schools, we cannot amend the regulatory definition of 
``Federal lands'' as requested. Congress specifically and explicitly 
defined Federal lands based on control or ownership, not on receipt of 
Federal funds (as it did in the definition of a ``museum''). Thus, 
``[w]e have here an instance where the Congress, presumably after due 
consideration, has indicated by plain language a preference to pursue 
its stated goals . . . . In such case, neither [a] court nor the agency 
is free to ignore the plain meaning of the statute and to substitute 
its policy judgment for that of Congress'' (Alabama Power Co. v. United 
States EPA, 40 F. 3d 450, 456 (D.C. Cir. 1994); United Keetoowah Band 
of Cherokee Indians Of Okla. v. United States HUD, 567 F. 3d 1235, 1243 
(10th Cir. Okla. 2009) (same); Chevron U.S.A. v. Natural Resources 
Defense Council, 467 U.S. 837, 842-43 (1984) (``If the intent of 
Congress is clear, that is the end of the matter; for the court, as 
well as the agency, must give effect to the unambiguously expressed 
intent of Congress'')). However, the Department does encourage the 
custodians of records from boarding schools not on Federal or Tribal 
lands, and the current owners of those boarding schools and cemeteries, 
to fully consult with lineal descendants, Indian Tribes, and NHOs on 
identification, disinterment, and repatriation of Native American 
children. The Department stands ready to assist lineal descendants, 
Indian Tribes, and NHOs to the fullest extent of its authority.
    35. Comment: We received two comments suggesting changes to the 
definition of Federal agency to include the Smithsonian Institution.
    DOI Response: We cannot make this change. The Act expressly 
excludes the Smithsonian Institution from the definition of Federal 
agency.
    36. Comment: We received 22 comments on the definition of 
``funerary object.'' Of that total, 8 comments supported the definition 
in the proposed regulations while 14 comments requested changes to it. 
Two comments objected to the definition as being too expansive by 
replacing ``preponderance of the evidence'' in the existing regulations 
with ``according to'' which the comments believed would create 
ambiguity and confusion in applying the definition. On the other hand, 
two comments suggested changing ``according to'' to be ``as determined 
by'' to further strengthen the deference to lineal descendants, Indian 
Tribes, and NHOs on identification of funerary objects. One comment 
suggested integrating the definition of funerary object in to two 
separate definitions for associated and unassociated funerary objects. 
This same comment raised concerns about the example provided in the 
proposed regulations. One comment expressed frustration with the use of 
acronyms for funerary objects which the comment stated are offensive 
and dismissive.
    Six comments provided an extensive argument and requested removing 
the temporal limitation on human remains related to associated funerary 
object (``are, or were after November 16, 1990'') (see NPS-2022-0004-
0119 for one of the six comments). One comment requested clarification 
of and emphasis on the location of human remains for unassociated 
funerary objects. One comment objected to the statement that a burial 
site could ever be ``no longer extant.''
    DOI Response: We reemphasize that the proposed revisions to the 
existing regulations, specifically the removal of ``preponderance of 
the evidence'' from the definition of funerary object, is to align the 
definitions in the regulations with those in the Act. The existing 
regulations limit the definition of a funerary object by including the 
statutory language intended to apply only to unassociated funerary 
objects. In 1995, the Department accepted the suggestion to combine the 
definitions of associated funerary objects and unassociated funerary 
object into a single definition of funerary object and in doing so, 
attached the statutory language for unassociated funerary object to all 
funerary objects. In 1995, the Department asserted:

    The statutory language makes it clear that only those objects 
that are associated with individual human remains are considered 
funerary objects. The distinction between associated and 
unassociated funerary objects is based on whether the individual 
human remains are in the possession or control of a museum or 
Federal agency. (60 FR 62137).

    The Department reiterated and clarified this statement in the 2022 
Proposed Rule, ``. . . determining if the funerary object is associated 
or unassociated does not require identifying the specific individual 
with which the object was placed, but rather, only requires identifying 
the location of the related human remains'' (87 FR 63211). The intent 
of revising this definition is to clarify long-standing confusion over 
the distinction between associated and unassociated funerary objects 
and align the definitions with those in the Act. We have retained the 
single defintion for funerary object and the two related definitions of 
associated or unassociated funerary object as we believe it clarifies 
the definitions.
    It is important to note ``individual human remains'' as used in the 
Act means the human remains of an individual or individuals. We have 
removed ``individual'' from the definition of funerary object to 
simplify and clairfy the definition. The Act does not require a 
funerary object be identified to a specific individual. Rather, a group 
of individuals may be related to a single funerary object and the 
object may be a funerary object without identifying specifically with 
which individual the object was placed.
    We have retained the phrase ``with or near'' as we believe it 
approporiately expands the definition of what may be a funerary object. 
As noted in the 1995 Final Rule, ``[t]he clause was included to 
accommodate variations in Native American death rites or ceremonies'' 
(60 FR 62138). We have retained the requirement for the object to be 
``intentionally'' placed. As noted in the 1995 Final Rule, ``[t]he term 
is included to emphasize the intentional nature of death rites or 
ceremonies. Items that indadvertently came into proximity or contact 
with human remains are not considered funerary objects'' (60 FR 62137). 
For funerary objects, broad categorical identifications, including 
everything from a burial site or specific area, may meet the definition 
of a

[[Page 86472]]

funerary object depending on the information available and the results 
of consultation. As noted in the example in the 2022 Proposed Rule, it 
may be reasonable to believe an object was placed intentionally in a 
location because of the human remains even if the object was placed 
there many centuries after the human remains (87 FR 63211). As one 
comment suggested, this may result in the funerary object having a 
different cultural affiliation than the human remains. We have revised 
the definition of funeary object to ensure, as in the Act, that 
cultural affiliation is not a required element to meet the definition 
of a funerary object.
    Table 3 compares the definition of ``funerary object'' from the 
Act, the existing regulations, and this final rule and indicates the 
changes to the definition in the Act by underline (additions), 
strikethrough (removals), and moved text (brackets).
[GRAPHIC] [TIFF OMITTED] TR13DE23.000

    Regarding the request to strengthen the definition, we are unable 
to change ``according to'' to ``as determined by'' as it would be 
inconsistent with the Act. Museums and Federal agencies are responsible 
for making determinations under the Act and these regulations, but must 
do so after consulting with lineal descendants, Indian Tribes, and 
NHOs. We have changed the order of the sentence to reflect the 
importance of Native American traditional knowledge (which includes 
customs and traditions) in this definition.
    We disagree that the definition is over-broad, a reversal of 
Congressional intent, or contrary to explicit statements in the 
Congressional record. Deference to Native American traditional 
knowledge is necessary to ensure the rights of lineal descendants, 
Indian Tribes, and NHOs the Act recognizes. The addition of ``according 
to Native American traditional knowledge'' in this definition is to 
ensure meaningful consideration of this information during 
consultation.
    We believe this addition to the various definitions of cultural 
items will lead to more informed decision-making and help to avoid the 
lengthy and costly delays in disposition or repatriation. In crafting 
the definitions of cultural items, Congress clearly intended that the 
definitions ``will vary according to the [T]ribe, village, or Native 
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is 
required throughout the Act prior to any determination, is how an 
Indian Tribe or NHO shares the information needed to identify a 
cultural item.
    In response to the extensive comments on the definition of 
``associated funerary object,'' we appreciate and share the concern 
regarding the inappropriate and inaccurate misreading of NAGPRA. We 
clearly and affirmatively state that the Act and these regulations 
apply to any museum or Federal agency that has possession or control of 
Native American human remains or cultural items. Identification of 
where or when the human remains or cultural items were removed may 
impact which entity has possession or control, but where or when the 
human remains or cultural items were removed does not impact the 
identification of human remains or cultural items for purposes of these 
definitions.
    We have revised the definition as requested to remove the date and 
avoid possible misunderstanding. The Act requires that for a funerary 
object to be an associated funerary object, the related human remains 
must be ``presently'' in the possession or control of a museum or 
Federal agency, but the Act does not require the human remains to be in 
the possession or control of the same museum or Federal agency as the 
associated funerary object. The 1995 Final Rule clarified that when 
another museum or Federal agency has possession or control of the 
related human remains, the related funerary objects are still 
``associated funerary objects'' (60 FR 62138). By using ``presently'' 
in the Act, Congress intended to distinguish associated funerary 
objects from unassociated funerary objects based on the location of the 
related human remains. Where human remains and funerary objects were 
removed from a burial site and when the location of those human remains 
is known, the funerary objects are associated funeary objects. Even if 
the human remains were removed with the funerary objects and the human 
remains are properly repatriated and reburied, the associated funerary 
objects do not lose their status as associated funerary objects. 
Associated funeary objects are still associated to the human remains as 
long as the location of the human remains is known.
    Regarding the other comments, we reiterate that when the location 
of human remains related to a funerary object is unknown, the funerary 
objects are unassociated funerary objects but are still funeray objects 
subject to the Act and these regulations. Additional information about 
unassociated funerary objects is necessary to satisfy the

[[Page 86473]]

definition and meet the criteria for disposition or repatriation of the 
unassociated funerary objects. For example, an object that was 
intentionally placed with or near human remains and is connected to a 
death rite or ceremony of a Native American culture meets the 
definition of a funerary object. If the location of the related human 
remains is unknown, the funerary object meets the definition of 
unassociated funerary object. If cultural affiliation of the 
unassociated funerary object is reasonably identified by the 
geographical location where the unassociated funerary object was 
removed, the unassociated funerary object may satisfy the criteria for 
repatriation, provided the museum or Federal agency cannot prove it has 
a right of possession to the unassociated funerary object.
    We understand the comment that in some Native American traditions a 
burial site never ceases to exist, we have retained the option for an 
unassociated funerary object to be identified when in a specific area, 
such as a flood plain or a shore line, the burial site is no longer 
extant. Lastly, we appreciate and will strive to no longer use acronyms 
for associated funerary objects or unassociated funerary objects that 
may be offensive. We encourage all parties to discuss appropriate 
terminology during consultation to recognize and reflect the 
significance of human remains and cultural items to lineal descendants, 
Indian Tribes, and NHOs.
    37. Comment: We received two comments on the definition of 
``holding or collection,'' both supporting the definition as proposed.
    DOI Response: These regulations retain this definition to assist 
all parties with identifying the application of the Act and these 
regulations.
    38. Comment: We received 37 comments requesting changes to the 
definition of ``human remains.'' One comment objected to considering 
human remains incorporated into a cultural item as the cultural item 
and not human remains. One comment requested adding that soil 
associated with burials and likely containing human remains be 
accounted for in this definition. Two comments requested we remove the 
sentence on comingled material (such as soil or faunal remains) being 
treated as human remains while one comment supported it.
    One comment letter stated in five separate comments that animal 
remains should be included in the definition of human remains or 
cultural items and a Review Committee comment agreed. These comments 
requested animal burials be included separately and distinctly from 
cultural items because these animals are imbued with the same spirit as 
human remains and, therefore, require the same treatment under the Act 
and these regulations. An additional comment suggested the Department 
look at incorporating protections for ceremonial animal interments.
    Of the total number of comments, 13 comments requested we expand 
the definition of human remains to include casts, 3-D scans, and all 
other digital data. Some of these comments also suggested expanding the 
definition to include any information or samples taken from an 
individual, including pictures, biological samples, isotope readings, 
soft tissue, and any other biological remnants. Some of these comments 
requested we add that any data collected directly relating to a Native 
American individual should also be considered human remains. A few of 
these comments requested that we require museums and Federal agencies 
to provide references to all casts of human remains, any replicas from 
3-D scans, and all other digital data produced from human remains or 
cultural items and require consultation on the proper treatment of 
those references. The comments also requested we add that ``No such 
casts, replicas, or digital data scanned from Native American human 
remains, funerary objects, sacred objects or cultural patrimony shall 
be offered for sale or exchange without the free, prior, and informed 
consent of the culturally affiliated Indian Tribe or Native Hawaiian 
organization. Failure to comply shall be deemed a violation of 
NAGPRA.'' Separately, one comment suggested the definition of human 
remains be broadened to include documents and records associated with 
human remains or cultural items to ensure repatriation of those 
documents and records.
    In addition, 12 comments requested we delete from the definition 
the sentence that excludes from the definition any human remains or 
portions of human remains that are determined to have been freely given 
or naturally shed.
    DOI Response: We understand there is a wide variety of opinions on 
how human remains that are incorporated into a cultural item might be 
identified. The Department sought input on this issue in the 1993 
Proposed Rule and retained the language in the 1995 Final Rule as it 
was ``recommended by the Review Committee to preclude the destruction 
of items that might be culturally affiliated with one Indian Tribe that 
incorporated human remains culturally affiliated with another Indian 
Tribe.'' The 1995 Final Rule also noted that ``[d]etermination of the 
proper disposition of such human remains must necessarily be made on a 
case-by-case basis'' (60 FR 62137). In the 2022 Proposed Rule, we 
included these two ways human remains may be incorporated into an 
object or item to ensure, as Congress intended, that human remains of 
any ancestry be treated with respect, and any Native American human 
remains must be made available for disposition or repatriation. We 
decline to make the requested change.
    Regarding an admixture of comingled materials, the Act requires 
identification of all human remains in a holding or collection, 
including human remains reasonably believed to be comingled with other 
material (such as soil or faunal remains). Museums and Federal agencies 
are required to identify these comingled materials in its itemized list 
and during consultation should evaluate if the entire admixture can be 
treated as human remains. If it is not possible to treat the admixture 
as human remains, the record of consultation should include the effort 
to identify a mutually agreeable alternative, which may include 
additional handling, with consent of the lineal descendant, Indian 
Tribe, or NHO, to separate the human remains from other materials. We 
are aware that comingled materials are a significant issue for many 
Indian Tribes, NHOs, museums, and Federal agencies. The intent of this 
addition to the definition is to ensure these kinds of collections are 
included on an itemized list and made available to lineal descendants, 
Indian Tribes, and NHOs during consultation and for repatriation.
    The term ``human remains'' appears in the definition section of the 
Act even though it is an undefined term. We have defined ``human'' 
using the commonly understood meaning of the word, i.e., a member of 
the species homo sapiens. For this reason, we cannot make the requested 
change to include animal burials as a separate and distinct category of 
human remains as that would be inconsistent with the Act. We note, too, 
that purposefully buried remains that do not include human remains are 
not included in the definition of human remains. Other kinds of burials 
and remains that are not human remains should be carefully considered, 
through consultation, as cultural items. For example, animal burials 
that are not related to the burial of human remains and, therefore, are 
not funerary objects, may be needed by traditional Native American 
religious leaders for the practice of traditional religions and may be 
sacred objects.

[[Page 86474]]

    We cannot expand the definition of human remains to include casts, 
3-D scans, or other digital data, documents, or records as that would 
be inconsistent with the Act. We note that the right to request 
documents and records, which could include casts, 3-D scans, 
photographs, digital data, or other information, is already provided 
for in Sec. Sec.  10.9(c)(4) and 10.10(c)(4). Under the Act and these 
regulations, lineal descendants, Indian Tribes, and NHOs have a right 
to request records, catalogues, relevant studies, or other pertinent 
data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and 
Federal agencies are required to share that information (25 U.S.C. 
3005(d)). We advise lineal descendants, Indian Tribes, and NHOs to make 
their requests as broad as possible to ensure all information about 
human remains, including digital data, is provided. In addition, we 
cannot make the requested addition to prohibit the sale or exchange of 
casts, replicas, or digital data of human remains as that would be 
inconsistent with the Act.
    We have always interpreted biological samples (including DNA), soft 
tissue, and any other biological remnants to be within the definition 
of human remains and subject to the Act and these regulations. The 
definition of human remains is purposefully broad to ensure that ANY 
physical remains of the body of a Native American individual are 
included (with the one exception discussed below). In the 1993 Proposed 
Rule, the Department included an example clause in the definition of 
human remains as ``including, but not limited to bones, teeth, hair, 
ashes, or mummified or otherwise preserved soft tissues of a person of 
Native American ancestry'' (58 FR 31126). In the 1995 Final Rule, the 
Department considered comments requesting the definition of human 
remains exclude isolated teeth, finger bones, cut finger nails, 
coprolites, blood residues, and tissue samples taken by coroners. In 
response, the Department stated:

    The Act makes no distinction between fully-articulated [sic] 
burials and isolated bones and teeth. Additional text has been added 
excluding ``naturally shed'' human remains from consideration under 
the Act. This exclusion does not include any human remains for which 
there is evidence of purposeful disposal or deposition. The 
exemplary clause has been deleted (60 FR 62137).

    Identification of human remains for the purposes of the Act and 
these regulations requires a case-by-case assessment, in consultation 
with lineal descendants, Indian Tribes, and NHOs. Recent examples have 
demonstrated that the example clause from the 1993 Proposed Rule is 
beneficial in identifying human remains subject to the Act and these 
regulations, especially when it comes to hair samples taken from living 
individuals, coprolites, blood residues, tissue samples, and DNA 
extractions. The definition of human remains is intentionally broad and 
contains only one exception (discussed below). The definition does not 
include a requirement for the human remains to be from an archeological 
context, of a certain age, or from a deceased person. The definition 
does not exclude human anatomical collections used by medical schools 
for training or teaching collections. Again, the definition of human 
remains is purposefully broad to ensure that ANY physical remains of 
the body of a Native American individual are included (with the one 
exception discussed below).
    We appreciate the comments requesting removal of the sentence that 
excludes human remains that were freely given or naturally shed. We 
agree with the comments of the Review Committee that state: 
``[a]llowing museums and Federal agencies to predetermine if such 
remains were freely given or naturally shed and not report them in 
their inventories deprives Indian [T]ribes and Native Hawaiian 
organizations with necessary information'' (see NPS-2022-0004-0096). 
However, we disagree that a museum or Federal agency should be required 
to complete an inventory for human remains that were obtained with full 
knowledge and consent of the individual or next of kin. In the 1995 
Final Rule, one comment requested clarification if human remains 
included blood sold or given to a blood bank by a Native American 
individual (60 FR 62137). In the 2010 Final Rule, two comments 
recommended excluding human anatomical collections used by medical 
schools for training from the definition of human remains. In response, 
the Department stated, ``[t]hough not excluded from the inventory 
provisions, medical schools that receive Federal funds would not be 
required to repatriate Native American human remains obtained with the 
voluntary consent of an individual or group that had authority of 
alienation'' (75 FR 12393).
    We have revised the sentence in the definition to require a higher 
standard of information for human remains that are excluded from the 
Act and these regulations. We agree with the Review Committee that a 
museum or Federal agency must be able to prove the original acquisition 
of Native American human remains was obtained with the full knowledge 
and consent of the individual, next of kin, or the official governing 
body of the appropriate Indian Tribe or NHO (see ``right of 
possession'' 25 U.S.C. 3001(13)). In the Act, Congress acknowledged 
that a right of possession is qualified with respect to human remains 
and associated funerary objects. Congress did not provide for a museum 
or Federal agency to assert a right of possession to human remains and 
associated funerary objects identified in an inventory. This approach 
is consistent with Congress' intent to distinguish human remains and 
associated funerary objects from cultural items as quasi-property. 
Applicable common law in the United States generally accepts that human 
remains and associated burial items cannot be ``owned'' in the same 
manner as conventional property. The Act follows the common law by 
distinguishing between the quasi-property attributes of Native American 
human remains and associated funerary objects and the property 
attributes of Native American unassociated funerary objects, sacred 
objects, or objects of cultural patrimony.
    In line with applicable common law in the United States, Congress 
stated that the original acquisition of Native American human remains 
which were exhumed, removed, or otherwise obtained with full knowledge 
and consent of the next of kin or the official governing body of the 
appropriate Indian Tribe or NHO is deemed to give right of possession 
to those human remains. Therefore, these regulations cannot require a 
museum or Federal agency to complete an inventory or repatriate Native 
American human remains where the museum or Federal agency can show it 
has a right of possession.
    For example, when any individual, regardless of ancestry, dies, 
local or State law dictates certain actions by law enforcement, medical 
examiners, and other local or State officials. Local or State law 
generally requires consent by the next of kin prior to any other action 
by the local or State authorities. When the deceased individual is 
Native American and when no next of kin is ascertainable, the local or 
State authorities may be required to treat the individual as human 
remains under the Act and these regulations, unless the local or State 
authorities obtain the full knowledge and consent of the official 
governing body of the appropriate Indian Tribe or NHO. Coroners, 
medical examiners, and other local or State agencies should consider 
their requirements under the Act and these

[[Page 86475]]

regulations for any Native American human remains.
    The Department interprets ``full knowledge and consent'' 
considering the history of Indian country and recognizes that ``full 
knowledge and consent'' does not include ``consent'' given under duress 
or because of bribery, blackmail, fraud, misrepresentation, or 
duplicity on the part of the recipient. As such, consent in this 
definition must be shown to have been fully free, prior, and informed 
consent.
    39. Comment: We received 24 comments suggesting changes to the 
definition of ``Indian Tribe.'' Several of the comments relied on the 
decision which held, based on the definition of ``group'' in the 1992 
regulations at 25 CFR part 83, an Indian group without Federal 
recognition was an ``Indian Tribe'' for purposes of NAGPRA (Abenaki 
Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D.Vt., 1992), aff'd 
per curiam, 900 F.2d 729 (2nd Cir. 1993)). Some comments also disagreed 
with the addition of a reference to the List Act in this definition, 
arguing that the definition of Indian Tribe under NAGPRA is different 
than the standard for inclusion on the list published under the List 
Act. Many of those comments requested we reiterate the statutory 
definition verbatim. A few comments adamantly opposed any changes to 
the definition of Indian Tribe beyond federally recognized Indian 
Tribes.
    DOI Response: NAGPRA defines ``Indian [T]ribe'' as ``any [T]ribe, 
band, nation, or other organized group or community of Indians, 
including any Alaska Native village (as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act [43 U.S.C. 1601 et 
seq.]), which is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians'' (25 U.S.C. 3001(7) (emphasis added)). This 
definition was based on the definition in the Indian Self-Determination 
and Education Assistance Act (ISDEAA), which defines ``Indian [T]ribe'' 
as ``any Indian [T]ribe, band, nation, or other organized group or 
community, including any Alaska Native village or regional or village 
corporation as defined in or established pursuant to the Alaska Native 
Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians'' 
(25 U.S.C. 5304(e) (emphasis added)). Finally, the List Act requires 
that the Secretary ``publish in the Federal Register a list of all 
Indian [T]ribes which the Secretary recognizes to be eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians'' (25 U.S.C. 5131(a) (emphasis 
added)).
    The Supreme Court of the United States recently ruled that the 
ISDEAA definition referred only to federally recognized Tribes and 
Alaska Native Corporations (Yellen v. Confederated Tribes of the 
Chehalis Reservation, 141 S. Ct. 2434 (2021)). The only difference 
between the ISDEAA definition and the NAGPRA definition is Congress's 
intentional deletion of Alaska Native Corporations (see Statement of 
Representative Bill Richardson, 136 Cong. Rec. 36815). Therefore, under 
the Supreme Court's reasoning on ISDEAA, the NAGPRA definition only 
applies to federally recognized Indian Tribes. Because Congress also 
used the same language ``eligible for the special programs and 
services'' in both NAGPRA and the List Act, the list of federally 
recognized Tribes is the list of Indian Tribes for the purposes of 
NAGPRA.
    The Abenaki decision is not persuasive. First, the decision not 
only precedes the List Act, but also solely relies on a definition that 
no longer appears in the 25 CFR part 83 regulations. Second, the 
decision focuses on that definition while ignoring the rest of the 
NAGPRA definition concerning recognition of eligibility for services. 
Finally, it is a Tribal-specific analysis that has not been followed by 
any other court. In contrast, the list of federally recognized Tribes 
under the List Act is based on the current recognition regulations in 
part 83, which are specifically designed ``for the Department to use to 
determine whether a petitioner is an Indian [T]ribe eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians.'' 25 CFR 83.2. The plain language 
congruence of the ISDEAA definition, the NAGPRA definition, and the 
purpose and foundation of the list under the List Act, as confirmed by 
the Yellen decision, are more persuasive than the Abenaki case, and 
fully support the definition in these regulations. The definition in 
these regulations has not been changed. The Department believes it is 
important to codify this definition and clarify any continuing 
misinterpretation or misunderstanding.
    Throughout these final regulations, the term ``Indian Tribe'' is 
used in the singular form, but it is expected that multiple Indian 
Tribes may meet the criteria under this part for disposition or 
repatriation of the same human remains or cultural items. Any Indian 
Tribe with cultural affiliation may submit a claim for disposition or a 
request for repatriation. Two or more Indian Tribes may agree to joint 
disposition or joint repatriation of human remains or cultural items. 
Claims or requests for joint disposition or joint repatriation should 
be considered a single claim or request and not competing claims or 
requests.
    40. Comment: We received three comments on the definition of 
``inventory.'' Of that total, two comments suggested changes to the 
definition while one comment supported it as proposed. The supportive 
comment felt the revision was an excellent clarification and would 
streamline the inventory and overcome a barrier to repatriation. One 
comment adamantly opposed revision of the existing regulatory 
definition, specifically the removal of an ``item-by-item description'' 
requirement. One comment asked if the definition meant that (1) an 
inventory is not complete unless it is informed by consultation and (2) 
an initial itemized list could not be submitted to National NAGPRA if 
consultation had not occurred.
    DOI Response: We decline to make changes to the definition. Our 
intent is to clarify and simplify what an inventory must include both 
in the definition and in the Sec.  10.10. We are aware that the 
existing regulatory definition and related text have been a barrier to 
expeditious repatriation. On the other hand, we know that a lack of 
transparency and accuracy in inventories is also a barrier to 
repatriation.
    The Act defines an inventory as ``a simple itemized list that 
summarizes the information called for by this section'' (25 U.S.C. 
3003(e)). The information called for in an inventory is information to 
identify (1) ``each Native American human remains or associated 
funerary objects and the circumstances surrounding its acquisition'' 
(25 U.S.C. 3003(d)(2)(A)); and (2) ``the geographical and cultural 
affiliation of such item[s]'' (25 U.S.C. 3003(a)). An inventory only 
pertains to human remains and associated funerary objects (25 U.S.C. 
3003(a)). The inventory is also defined by what is not an inventory; 
namely, a summary, which is ``in lieu of an object-by-object 
inventory'' (25 U.S.C. 3004(b)(1)(A)) and pertains to ``unassociated 
funerary objects, sacred objects, or objects of cultural patrimony'' 
(25 U.S.C. 3004(a)).
    The existing regulations provide a short definition for an 
inventory: ``the item-by-item description of human remains and 
associated funerary

[[Page 86476]]

objects,'' but also provide a more detailed list of what an inventory 
must include in Sec.  10.9. As noted in the 1995 Final Rule, the 
difference between a summary and an inventory ``reflects not only their 
subject matter, but also their detail (brief overview vs. item-by-item 
list), and place within the process. Summaries represent an initial 
exchange of information prior to consultation while inventories are 
documents completed in consultation with Indian [T]ribe officials and 
representing a decision by the museum official or Federal agency 
official about the cultural affiliation of human remains and associated 
funerary objects'' (60 FR 62140).
    We are keenly aware of the preference of many, if not most, Indian 
Tribes and NHOs to have all human remains and associated funerary 
objects identified in order to repatriate them together. In reviewing 
the comments, the goal of both the supporting comment and the opposed 
comment is the same: allow lineal descendants, Indian Tribes, and NHOs 
to dictate the level of documentation or collections review required 
for an inventory. We agree, and changes to Sec.  10.1(d) Duty of care 
are specifically meant to achieve this goal. The final regulations 
require a museum or Federal agency to obtain free, prior, and informed 
consent prior to any exhibition of, access to, or research on human 
remains or cultural items.
    In response to the questions asked, an inventory is not complete 
until a museum or Federal agency initiates consultation with lineal 
descendants, Indian Tribes, and NHOs and consults with any consulting 
party that wishes to do so. Only completed inventories that contain the 
names of consulting parties or those invited to consult should be 
submitted to the National NAGPRA Program. If there is no response to 
the invitation to consult, the museum or Federal agency must still 
complete or update the inventory by the required deadlines.
    41. Comment: We received eight comments on the definition of 
``lineal descendant.'' Of that total, four comments suggested changes 
to the definition while four comments supported it as proposed. One 
comment stated common-law system of descent is not clear and the 
regulations should revert to the existing language. One comment 
requested a grammatical change and one comment asked what ``known 
individual'' means. One comment requested clarification if a museum or 
Federal agency must confirm the identity of a lineal descendant with an 
Indian Tribe with cultural affiliation or if the presence of a lineal 
descendant meant consultation with an Indian Tribe was not required.
    DOI Response: The existing regulations refer to the ``common law 
system of descendance'' and ``known Native American individual'' in the 
definition for lineal descendant. The regulatory text adds ``This 
standard requires that the earlier person be identified as an 
individual whose descendants can be traced.'' The common law system of 
descent means the customary practice of tracing ancestry to a person's 
parents, grandparents, great-grandparents, and so on. It does not 
indicate any kind of precedent is set by previous repatriations. There 
is a requirement for the deceased individual to be known, but that does 
not mean a named individual is the only way a person could be known. 
Rather, it indicates that the deceased individual must be identified in 
some way to trace ancestry between that individual and the living 
individual. We have removed the limiting gendered language from the 
definition as requested by one comment.
    Both the existing regulations and this final rule require museums 
and Federal agencies to initiate consultation with both lineal 
descendants and Indian Tribes or NHOs with potential cultural 
affiliation and to provide the names of all identified consulting 
parties. The existing regulations require a museum or Federal agency 
convey information to both a lineal descendant, if known, and to the 
Indian Tribe or NHO with cultural affiliation, when the inventory 
results in a determination that the human remains are of an 
identifiable individual. In the proposed regulations and this final 
rule, this requirement is a part of the information shared and 
requested during the consultation process. We cannot require a museum 
or Federal agency to verify the identity of a lineal descendant with an 
Indian Tribe or NHO. The statute gives lineal descendants priority over 
Indian Tribes or NHOs. Establishing a system in which verification of 
lineal descendants is through Indian [T]ribes or NHOs could be 
detrimental to the rights of lineal descendants, particularly those 
that are not members of an Indian [T]ribe or NHO. Given the diversity 
of ways in which a lineal descendant may be traced, we cannot require 
certain types of documentation or evidence needed to establish lineal 
descent. Museums and Federal agencies must determine if a request from 
a lineal descendant provides sufficient information and respond to the 
request accordingly.
    Throughout these final regulations, the term ``lineal descendant'' 
is used in the singular form, but it is expected that multiple lineal 
descendants may meet the criteria under this part for disposition or 
repatriation of the same human remains, funerary objects, or sacred 
objects. Any lineal descendant may submit a claim for disposition or a 
request for repatriation for human remains, funerary objects, or sacred 
objects. Two or more lineal descendants may agree to joint disposition 
or joint repatriation of human remains, funerary objects, or sacred 
objects. Claims or requests for joint disposition or joint repatriation 
should be considered a single claim or request and not competing claims 
or requests.
    42. Comment: We received one comment suggesting a review of the 
involvement of non-profits in museum funding and a change to the 
definition of ``museum'' that would replace ``institution of higher 
learning'' with ``all educational institutions.''
    DOI Response: The requested review is outside of the scope of this 
regulatory action. We have not made the requested change because this 
part of the definition comes directly from the Act, which is already 
sufficiently inclusive of all educational institutions that have 
possession or control of human remains or cultural items and receive 
Federal funds.
    43. Comment: We received four comments suggesting changes to the 
definition of ``Native American.'' Two comments expressed concern over 
the inclusion in this definition of Indian groups without Federal 
recognition. One comment requested we require consultation with Indian 
Tribes or NHOs prior to any determination that human remains or 
cultural items are Native American. One comment expressed concern that, 
as written, this definition might exclude cross-border indigenous 
peoples or cultures who are indigenous to the United States but also to 
Canada, Mexico, or Russia.
    DOI Response: We do not intend to include Indian groups without 
Federal recognition in the definition of Tribe (as noted elsewhere in 
the definition of Indian Tribe). In determining whether human remains 
or cultural items are Native American, we cannot require consultation 
prior to compiling a summary of cultural items or an itemized list of 
human remains and associated funerary objects under Subpart C, but we 
can and do require consultation prior to any determination of cultural 
affiliation or decision on a request for repatriation. When compiling a 
summary of cultural items or an itemized list of human remains and 
associated funerary objects, a museum or Federal agency should

[[Page 86477]]

include any potential Native American human remains or cultural items 
to allow for further consultation.
    The Act limits the definition of Native American to the United 
States, and we cannot remove that geographical descriptor. We believe 
the added definitions for ``people'' and ``culture'' includes those who 
are indigenous to locations near present day geographical borders. Any 
pre-contact Tribe, people, or culture would be included in this 
definition. Native Hawaiians are included in this definition as a 
``people,'' to clarify an ambiguity left by Congress.
    44. Comment: We received 12 comments on the definition of ``Native 
American traditional knowledge.'' Of that total, six comments suggested 
changes to the definition while six comments supported it. Two comments 
opposed the definition, and both requested it be revised or removed 
because it was unclear and complex, and one comment felt it would lead 
to poor decision-making or other pitfalls. One of these comments was 
concerned that this definition, along with the required deference, 
would give equal or greater weight to this type of information than to 
scientific and historical information and, when identifying cultural 
items, Native American traditional knowledge might be used as the only 
type of information instead of scientific or historical evidence. One 
comment was neutral and asked how the term changed the current cultural 
affiliation process. Three comments supported the definition as 
proposed but suggested changes to strengthen it. One comment requested 
we add language to the variety of information listed while another 
comment requested we include a reference to Sec.  10.3. One comment 
provided an extensive discussion and specific changes to the definition 
to include Indian Tribes, expert opinion, and confidentiality.
    DOI Response: We disagree that the definition is unclear, vague, or 
overly broad or that this definition is novel or unique to these 
regulations. The concept of ``Native American traditional knowledge'' 
has been used broadly among Federal agencies in the context of land 
management and the use of natural or cultural resources, although the 
specific terms used might vary. More recently, the White House Council 
on Environmental Quality and the Office of Science and Technology 
Policy released government-wide guidance and an implementation 
memorandum for Federal agencies on recognizing and including Indigenous 
knowledge in Federal research, policy, and decision making (https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/, 
accessed 12/1/2023). Most certainly, this is not a new concept to 
lineal descendants, Indian Tribes, or NHOs and any difficulty 
understanding this definition could be resolved through adequate 
consultation. We believe this term will lead to more informed decision-
making and help to avoid the lengthy and sometimes costly delays in 
disposition or repatriation. Under the Act and these regulations, all 
information available is equally relevant to determining cultural 
affiliation, and our intent in defining this type of information is to 
ensure that Native American traditional knowledge is considered 
alongside scientific and historical information. In response to the 
question asked, this is not different than decision-making for cultural 
affiliation under the existing regulations or the Act itself. Although 
it may not have been identified as such, Congress intended for Native 
American traditional knowledge to be considered when determining 
cultural affiliation or identifying cultural items. The definitions of 
funerary objects, sacred objects, and objects of cultural patrimony all 
rely on information that may only be available to or shared by lineal 
descendants, Indian Tribes, or NHOs. Consultation, which is required 
throughout the Act prior to any determination, is how an Indian Tribe 
or NHO shares the information needed to identify a cultural item. In 
cases where there is no other information, Native American traditional 
knowledge alone may identify a cultural item.
    In response to the other comments, we have added linguistics to the 
variety of named information, but stress that this list is not 
exhaustive. We have added a final sentence to reiterate the statement 
in Sec.  10.3 that Native American traditional knowledge is expert 
opinion. We have added Indian Tribes, the Native Hawaiian Community, 
and confidentiality to the definition, although in slightly different 
places than was suggested.
    45. Comment: We received 11 comments suggesting changes to the 
definition of ``Native Hawaiian organization.'' Most of the comments 
requested revisions to paragraph (3)(i) identifying some NHOs. One 
comment expressed concern that changes to this definition would result 
in a broad range of NHOs who meet the criteria and impact the Native 
Hawaiian objects that are subject to the regulations.
    DOI Response: The definition reflects the language in the Act, 
which is binding unless stricken, modified, or contravened by other 
Federal law. The definition in the Act may be modified if it is no 
longer relevant when certain referenced terms, conditions, or entities 
cease to exist. The Act includes the Office of Hawaiian Affairs as a 
``Native Hawaiian organization,'' and the definition in these 
regulations remains unchanged. Other concerns about NHOs are addressed 
by the definition as well as the prioritization of cultural affiliation 
under Sec.  10.3. The omission of Hui Malama I Na Kupuna O 
Hawai[revaps]i Nei from the definition of a ``Native Hawaiian 
organization'' is due to the group's dissolution rather than any 
judgment as to its or any successors' status as NHOs. The incorporation 
of ``Native Hawaiian'' into the definition of a ``Native Hawaiian 
organization,'' and the use of the term ``indigenous people'' rather 
than ``aboriginal people,'' clarifies what constitutes an NHO and their 
relevance to these regulations (2022 Proposed Rule, 87 FR 63213).
    This definition and these regulations are consistent with the 
government-to-sovereign relationship between the United States 
government and the Native Hawaiian Community. If the Native Hawaiian 
Community decides to change its relationship with the United States 
government to that of a government-to-government relationship, the 
Department may review and update the current policy and procedures.
    Throughout these final regulations, the term ``Native Hawaiian 
organization'' is used in the singular form, but it is expected that 
multiple NHOs may meet the criteria under this part for disposition or 
repatriation of the same human remains or cultural items. Any NHO with 
cultural affiliation may submit a claim for disposition or a request 
for repatriation. Two or more NHOs may agree to joint disposition or 
joint repatriation of human remains or cultural items. Claims or 
requests for joint disposition or joint repatriation should be 
considered a single claim or request and not competing claims or 
requests.
    46. Comment: We received six comments suggesting changes to the 
definition of ``object of cultural patrimony.'' One comment requested 
we remove from the definition the provision that the object must have 
been considered inalienable by the group at the time the object was 
separated from the group as it seems unnecessary. One comment 
questioned the use of ``Native American group'' in the definition. One 
comment suggested changing ``according to'' to be ``as determined by'' 
to further strengthen the deference to lineal descendants, Indian 
Tribes, and

[[Page 86478]]

NHOs on identification of objects of cultural patrimony. One comment 
requested an expansion of this definition to include intellectual 
property like songs, recordings, and photos as well as digital files. 
Another comment asked if this definition included documents and photos 
and, if not, then how the regulations support the return of such 
objects. One comment objected to the definition as over-broad, a 
reversal of Congressional intent, and contrary to explicit statements 
in the Congressional record at the time of the Act's passage.
    DOI Response: We do not have the discretion to revise the 
definition as suggested by these first two comments as both are a part 
of the definition in the Act. The term ``group'' or ``sub-group'' used 
in this definition and elsewhere in these regulations should be 
understood to have a standard, dictionary definition: ``a number of 
individuals assembled together or having some unifying relationship'' 
(https://www.merriam-webster.com/dictionary/group, accessed 12/1/2023). 
We cannot expand the definition to include intellectual property, 
digital files, other documents, or records as that would be 
inconsistent with the Act. We note that requesting documents and 
records (which could include recordings, photos, or digital files) is 
already provided for in Sec. Sec.  10.9(c)(4) and 10.10(c)(4). Under 
the Act and these regulations, lineal descendants, Indian Tribes, and 
NHOs have a right to request records, catalogues, relevant studies, or 
other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), 
and museums and Federal agencies are required to share that information 
(25 U.S.C. 3005(d)). As required by the Act, additional information is 
only provided upon request of a lineal descendant, Indian Tribe, or 
NHO, and we cannot require documents and records be provided by 
including these in the definition of objects of cultural patrimony. We 
advise lineal descendants, Indian Tribes, and NHOs to make their 
requests as broad as possible to ensure all information about objects 
of cultural patrimony, including digital data, is provided.
    Regarding the request to strengthen the definition, we are unable 
to change ``according to'' to ``as determined by'' as it would be 
inconsistent with the Act. Museums and Federal agencies are responsible 
for making determinations under the Act and these regulations, but must 
do so after consulting with lineal descendants, Indian Tribes, and 
NHOs. We have changed the order of the sentence to reflect the 
importance of Native American traditional knowledge (which includes 
customs and traditions) in this definition.
    We disagree that the definition as proposed is over-broad, a 
reversal of Congressional intent, or contrary to explicit statements in 
the Congressional record. We agree with the concerned comment that when 
NAGPRA was passed, Congress made clear that not all objects could be 
deemed ``sacred'' or ``cultural patrimony.'' The definition of object 
of cultural patrimony in these regulations is consistent with the Act 
and the legislative history. An object of cultural patrimony must not 
only be an object owned by the collective whole, but must be of ongoing 
historical, traditional, or cultural importance, as indicated by the 
Senate (S. Rpt. 101-473, at 5).
    Deference to Native American traditional knowledge is necessary to 
ensure the rights of lineal descendants, Indian Tribes, and NHOs the 
Act recognizes. The addition of ``according to Native American 
traditional knowledge'' in this definition is to ensure meaningful 
consideration of this information during consultation.
    We believe this addition to the various definitions of cultural 
items will lead to more informed decision-making and help to avoid the 
lengthy and costly delays in disposition or repatriation. In crafting 
the definitions of cultural items, Congress clearly intended that the 
definitions ``will vary according to the [T]ribe, village, or Native 
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is 
required throughout the Act prior to any determination, is how an 
Indian Tribe or NHO shares the information needed to identify a 
cultural item.
    47. Comment: We received two comments suggesting changes to the 
definition of `` `ohana.'' Both comments requested a revision of the 
definition to reflect that an `ohana may be comprised of lineal 
descendants.
    DOI Response: We appreciate the suggested change and acknowledge 
the limitations of the proposed definition. We have revised the 
definition accordingly.
    48. Comment: We received one comment suggesting changes to the 
definition of person to include ``spiritual entity personhood'' and 
clarification that this is different from ``appropriate official.''
    DOI Response: While the word ``person'' is used in a few 
definitions and instances, the definition is intended to ensure the 
requirements under Sec.  10.5 Discovery are completed and to give clear 
meaning to the phrase in the Act and these regulations: ``Any person 
who knows or has reason to know. . . .'' Certain actions are required 
by any individual, partnership, corporation, trust, institution, 
association, or any other private entity, or any representative, 
official, employee, agent, department, or instrumentality of the United 
States Government or of any Indian Tribe or NHO, or of any State or 
subdivision of a State when a discovery of human remains or cultural 
items on Federal or Tribal lands occurs. These actions are separate 
from the required actions of an ``appropriate official'' for that same 
discovery. It is possible that a person who makes a discovery on 
Federal or Tribal land may also be the representative authorized by a 
delegation of authority within an Indian Tribe, NHO, Federal agency, or 
Department of Hawaiian Home Lands (DHHL) to be responsible for human 
remains or cultural items on Federal or Tribal lands. In those 
instances, the same individual may be performing the required actions 
of the person and the appropriate official. Considering the use of this 
definition, we decline to include ``spiritual entity personhood.''
    49. Comment: We received 44 comments on the definition of 
``possession or control.'' Of that total, 40 comments suggested changes 
to the definition while four comments supported it. A total of 17 
comments expressed concerns with museum and Federal agency compliance. 
Six comments supported using a single definition for the term 
possession or control while five comments proposed splitting the 
definition into two definitions. Five comments proposed replacing the 
definition of custody with the concept of possession. A total of 13 
comments recommended expanding the definition to include museums that 
only have an obligation to care for human remains or cultural items, 
for example, a museum that received a loan of human remains or cultural 
items from another museum. One comment recommended replacing the phrase 
``a sufficient interest in an object or item to independently direct, 
manage, oversee, or restrict the use of the object or item'' with ``an 
interest in human remains or cultural items, such that the museum or 
Federal agency has been providing care, direction, management, 
oversight, or restrictions regarding the use of the human remains or 
cultural item.'' Two comments recommended replacing the phrase 
``sufficient interest'' with ``legal responsibility'' or ``legal 
authority.'' One comment requested that we clarify the meaning of 
sufficient interest to address confusion over whether a museum with 
mere custody by a loan, lease, license, or bailment, has possession or 
control.

[[Page 86479]]

One comment was concerned that the definition as written would permit 
museums that have received loans of human remains or cultural items 
from other museums to make determinations regarding repatriations of 
the loaning museum's collection. Six comments were concerned with 
museums making unilateral determinations regarding possession or 
control of human remains or cultural items. Nine comments expressed 
concerns that museums and Federal agencies use the existing definitions 
as a loophole to avoid compliance with the Act. One comment expressed 
concern that the proposed regulations no longer include a statement 
that ``Federal agencies must ensure that these requirements are met for 
all collections from their lands or generated by their actions whether 
the collections are held by the Federal agency or by a non-Federal 
institution.''
    DOI Response: We have not made changes to this definition, other 
than to replace physical custody with physical location to avoid any 
confusion. We received one more comment in support of the use of a 
single definition than we did recommending that the definition be split 
in two. Congress used these two words as a single term throughout the 
Act, except for ``right of possession.'' And, given the overwhelming 
support for the single definition during consultation in 2021, we have 
not made any other changes to this definition from the proposed rule. 
Further, we did not change the terms ``sufficient interest'' or 
``independently direct'' which are threshold determinations for museums 
and Federal agencies to make and changing these phrases as suggested 
would presume application of the Act before that determination has been 
made. Whether a museum or Federal agency has a sufficient interest in 
human remains or cultural items to establish possession or control is a 
legal determination that must be made on a case-by-case basis. However, 
when a museum with custody of human remains or cultural items cannot 
identify any person, institution, State or local government agency, or 
Federal agency with possession or control, the museum should presume it 
has possession or control of the human remains or cultural items for 
purposes of repatriation under the Act and these regulations. When a 
Federal agency cannot determine if human remains or cultural items came 
into its possession or control before or after November 16, 1990, or 
cannot identify the type of land the human remains or cultural items 
were removed from, the Federal agency should presume it has possession 
or control of the human remains or cultural items for purposes of 
repatriation under the Act and these regulations. This determination is 
a jurisdictional requirement for application of the Act and these 
regulations to the human remains or cultural items that may be subject 
to repatriation by the appropriate museum or Federal agency.
    While we acknowledge the continued interest in expanding the scope 
of the definition to include entities that merely have custody, we 
cannot make the requested change. In some cases, expanding the scope of 
the definition would make multiple entities concurrently responsible 
for fulfilling the inventory, summary, and repatriation process. Such 
an interpretation is inconsistent with the framework and legislative 
history of the Act. Congress provided no indication that such an 
expansive interpretation was its intent, and various features of the 
Act, including civil penalties, right of possession, and museum 
obligations, presume that a single museum or Federal agency would be 
responsible for compliance with the inventory, summary, and 
repatriation provisions. The phrase ``possession or control'' as used 
in the Act connotes a singular interest in human remains or cultural 
items. Since 1993, these regulations have defined the two elements of 
the phrase only to differentiate between physical location of the human 
remains or cultural items (1993 Proposed Rule, 58 FR 31127). In the 
Act, having possession or control means a museum or Federal agency has 
an interest in human remains or cultural items, or, in other words, it 
may make determinations about human remains or cultural items without 
having to request permission from some other entity or person. This 
interest is present regardless of the physical location of the human 
remains or cultural items. For a similar example, a person has the same 
interest in property that is in the person's home as in property that 
same person keeps in an offsite storage unit. The person can make 
determinations about the property in the storage unit without having to 
request permission from the storage facility. Regardless of the 
physical location of the property, the person's interest in the 
property is the same whether it is in their home or in the custody of 
the storage facility.
    Several comments expressed concerns that collections loaned to 
other institutions would fall outside the scope of the Act and these 
regulations. We reiterate that this is not the case. Even where a 
collection is loaned to another institution, the loaning entity is 
still required to comply with all the requirements of the Act and these 
regulations. Under these regulations, if the entity that holds the 
loaned collection meets the definition of a museum, it would also have 
to comply with certain requirements for the loaned collection and any 
other human remains or cultural items in its custody, including a duty 
of care and reporting obligations. We acknowledge that the underlying 
intent of this request is to ensure repatriation of all human remains 
or cultural items subject to the Act and that it is related to the 
concerns expressed regarding compliance by museums and Federal 
agencies. We have made other revisions to address these issues by 
requiring museums and Federal agencies to share information and 
increase efforts to complete inventories, summaries, and repatriation 
of human remains and cultural items, even when they are in the custody 
of other entities.
    50. Comment: We received 16 comments on the definition of 
``receives Federal funds.'' Of that total, 15 comments suggested 
changes to the definition while one comment supported it. Four comments 
recommended revising the phrase ``institution or agency of a State or 
local government'' to ``institution or State or local government 
agency.'' Two comments considered the definition to be overbroad or an 
overreach of Federal authority. One comment expressed constitutional 
concerns with the impacts of this definition on private property. One 
comment suggested making the definition of receives Federal funds apply 
to museums that only received funds prior to November 16, 1990. Four 
comments sought clarification on whether funds received via specific 
Federal programs constitute Federal funds under the Act and these 
regulations.
    DOI Response: We have made the requested change to ensure 
consistency between the definitions of museum and receives Federal 
funds. We do not consider this definition to be overly broad or an 
overreach of Federal authority. The regulations reflect statutory 
intent as well as a robust area of law surrounding the receipt of 
Federal funds. We do not consider this definition to unconstitutionally 
interfere with private property rights. The Act itself restricts 
activities that would violate the Fifth Amendment's protection of 
property rights, though such situations are rare. We do believe that 
applying this definition to the receipt of Federal funds prior to the 
passage of the Act raises constitutional concerns. Generally, the Fifth

[[Page 86480]]

Amendment requires us to disfavor retroactive interpretation of Federal 
statutes, unless expressly provided for by Congress. Congress did not 
provide such an express instruction here. Regarding the nature of funds 
received through specific Federal programs, a case-by-case 
determination as to the nature of such funds is outside the scope of 
this regulatory action. We recommend seeking technical assistance from 
the National NAGPRA Program on specific Federal programs.
    51. Comment: We received 27 comments on the definitions of 
``disposition'' or ``repatriation.'' Of that total, 11 comments 
requested we add physical transfer to the definition. Similarly, two 
comments requested we add ``the desired outcome'' has occurred, as 
confirmed by the lineal descendant, Indian Tribe, or NHO. The comments 
noted ``[s]uch an outcome can include, but is not limited to, transfer 
of possession, reburial, traditional use, loan agreements, etc.'' One 
comment recommended including ``and completes the physical transfer'' 
at the end of the definitions. Four comments requested changes to 
``control or ownership'' in the definitions. Alternatives suggested are 
``has the right to repatriate human remains or cultural items'' or 
``has right of possession'' or ``has possession or control'' of the 
human remains or cultural items. Four comments requested we replace 
``control or ownership'' with ``now has control as a result of 
disposition or repatriation.'' One comment suggested adding 
``relinquishes control'' and include legal transfer in the definition. 
Three comments requested we define ``disposition statement'' and 
``repatriation statement.'' One comment questioned why disposition is 
defined and used if repatriation encompasses all transfers.
    DOI Response: We have not made the requested change to include 
physical transfer in the definitions of disposition or repatriation and 
have responded in more detail in Comment 67. We have accepted, in part, 
the suggested change to ``repatriation'' and use ``relinquish 
possession or control.'' We have retained ``ownership or control'' in 
the definition of disposition, as it is used in the Act, and ensured 
throughout that the order of the words in that phrase are consistently 
applied.
    There is no definition in the Act for either disposition or 
repatriation. The existing regulations use the single term 
``disposition'' to mean ``transfer of control'' which does not 
necessarily equate to physical transfer in any, or all, of the 
situations where the term applies. This definition was added in 2007 to 
clarify the different procedures in the regulations that effectuate the 
same result: transfer of control over human remains or cultural items 
by a museum or Federal agency under the regulations (2007 Final Rule, 
75 FR 58585 and 58588). The existing definition does not clarify if 
``transfer of control'' means legal transfer of control or physical 
transfer of control or both. In practice and as we advise, legal 
transfer of control often occurs prior to physical transfer of control, 
as physical transfer often requires extensive planning for 
transportation, scheduling, and funding.
    We sought to clarify this in the draft revisions for consultation 
in 2021 where we provided two separate terms: ``disposition'' and 
``repatriation'' and neither term included physical transfer. We 
received significant feedback objecting to the implication that museums 
and Federal agencies have a legal interest in human remains or cultural 
items which is conveyed or transferred by disposition or repatriation, 
as the Act does not recognize museums or Federal agencies have a lawful 
interest other than ``right of possession.'' We revised the definitions 
of ``disposition'' and ``repatriation'' to remove any implication of a 
legal interest being transferred.
    These regulations provide definitions for ``disposition'' and 
``repatriation,'' and we do not believe it is necessary to also define 
the related statement because these statements are fully explained in 
the regulatory text.
    52. Comment: We received 11 comments suggesting changes to the 
definition of ``right of possession.'' One comment objected to the 
concept of a right of possession as to any human remains, funerary 
objects, or objects of cultural patrimony. Two comments objected to the 
inclusion of funerary objects, particularly unassociated funerary 
objects, in the definition. One comment objected to the inclusion of 
objects of cultural patrimony in the definition. Six comments 
recommended removing the term possession or control from the definition 
and adding language found in the explanation of the proposed 
regulations. One comment recommended describing right of possession as 
possession or control, ownership, or holding legal title. One comment 
noted that determinations of right of possession must incorporate 
deference to Native American traditional knowledge. One comment asked 
for clarification on how fully free, prior, and informed consent is 
proven.
    DOI Response: We cannot make the requested changes. The definition 
is drawn directly from the Act itself, which provides for a right of 
possession and applies it in some manner to human remains, funerary 
objects, sacred objects, and objects of cultural patrimony. Moreover, 
we cannot delete or alter the express meaning provided by Congress.
    We have not removed the term possession or control because doing so 
could cause confusion that might prevent cultural items to which a 
museum or Federal agency asserts a right of possession from appearing 
on summaries. Even where a museum or Federal agency asserts a right of 
possession, it must still comply with the requirements of the Act and 
these regulations for cultural items which are in its possession or 
control. We have not made ownership or legal title a requirement 
because doing so would be circular and presume the result that an 
analysis of right of possession seeks to determine. As this definition 
intentionally hews closely to the Act, we have not added any clarifying 
language from the proposed regulations. Instead, we reiterate here that 
a right of possession does not include, for example, consent given 
under duress or because of bribery, blackmail, fraud, 
misrepresentation, or duplicity on the part of the recipient. Voluntary 
consent may be shown by evidence that consent was fully free, prior, 
and informed, though those elements are not listed in the definition 
itself. The type and extent of such evidence will vary from case to 
case.
    While we agree that determinations of right of possession must 
consider Native American traditional knowledge, we have not added that 
requirement to the definition. In other places, we have emphasized the 
need for deference to Native American traditional knowledge to ensure 
the rights of lineal descendants, Indian Tribes, and NHOs the Act 
recognizes. The addition of ``according to Native American traditional 
knowledge'' in other definitions is to ensure meaningful consideration 
of this information during consultation. Consultation, which is 
required throughout the Act prior to any determination, is how an 
Indian Tribe or NHO shares the information needed to identify a 
cultural item.
    53. Comment: We received 11 comments requesting changes to the 
definition of ``sacred object.'' Two comments requested the addition of 
family spiritual practices to accommodate a broader definition of 
traditional Native American religions. One comment requested we replace 
``according to'' with ``as determined by'' to strengthen the 
definition. Three comments objected to the definition as

[[Page 86481]]

it adhered too closely to the definition in the Act and the existing 
regulations and is too limiting by requiring the object be needed, the 
adherents be present-day, or the practice be for observance or renewal. 
One comment asked why the definition has been revised at all from the 
existing regulations and requested it be reverted to the definition in 
the Act. One comment objected to the definition as over-broad, a 
reversal of Congressional intent, and contrary to explicit statements 
in the Congressional record at the time of the Act's passage.
    One extensive comment stated that the proposed regulations 
impermissibly broaden the definition, contravenes Congressional intent, 
and could create a conflict with the Archaeological Resources 
Protection Act (ARPA). According to the comment, the proposed 
definition, coupled with explanatory language in the proposed 
regulations, means that if a lineal descendant, Indian Tribe, or NHO 
wants an object, or a category of objects, then that object or object 
category is, by definition, a sacred object. By contrast, Congress 
stated that a sacred object is an object that was devoted to a 
traditional religious ceremony or ritual when possessed by a Native 
American and must be used in the present-day in a Native American 
religious ceremony. Furthermore, according to the comment, the 
impermissible broadening of the term to include items that Congress did 
not intend to be considered sacred objects could conflict with ARPA 
because most Native American items removed from Federal lands are 
archeological; non-NAGPRA archeological resources removed from Federal 
lands under ARPA must be curated consisted with Federal curation 
regulations; and those curation regulations do not allow transfer or 
reinterment of those archeological resources.
    DOI Response: We do not believe this definition should include a 
separate category of ``spiritual practice'' because the language in the 
Act of ``traditional Native American religion'' is broad enough to 
encompass the examples in the comment. We are unable to change 
``according to'' to ``as determined by'' as it would be inconsistent 
with the Act. Museums and Federal agencies are responsible for making 
determinations under the Act and these regulations, but must do so 
after consulting with lineal descendants, Indian Tribes, and NHOs. We 
have changed the order of the sentence to reflect the importance of 
Native American traditional knowledge (which includes customs and 
traditions) in this definition. We are unable to broaden the definition 
as requested by some comments as those phrases (needed and present-day) 
are the required elements of the definition in the Act. ``Observance or 
renewal'' were incorporated into the definitions in the 1993 Proposed 
Rule to incorporate language from the House and Senate Committee 
reports relating to the Act (58 FR 31122 and 58 FR 31126; 1995 Final 
Rule, 60 FR 62138). We have revised the definition in the existing 
regulations to clarify the definition by removing the examples and 
simplifying the sentence structure while retaining the required 
elements of the definition from the Act and the legislative history.
    We disagree that the definition as proposed is over-broad, a 
reversal of Congressional intent, contrary to explicit statements in 
the Congressional record, or in conflict with ARPA. We disagree that 
under the definition, any object, or category of objects, that is 
imbued with sacredness by a lineal descendant, Indian Tribe, or NHO, 
without anything more, would satisfy the definition. All the elements 
explicitly stated in the definition must be satisfied for an object to 
be identified as a sacred object. The elements of the definition 
require that an object be:
     A specific ceremonial object,
     Needed by a traditional religious leader,
     For present-day adherents to practice traditional Native 
American religion.
    We also disagree that an object to be interred cannot be a sacred 
object. A specific object may be deemed to be a sacred object if, based 
on Native American traditional knowledge, in the past, the object was 
ceremonially interred as a traditional Native American religious 
practice, the object was subsequently disinterred, and today, it is 
needed by a traditional Native American religious leader to renew the 
ceremonial interment of the specific object by present-day adherents.
    We agree with the comment that when NAGPRA was passed, Congress 
made clear that not all objects could be deemed ``sacred'' or 
``cultural patrimony.'' However, this comment reinforces the need for 
deference to Native American traditional knowledge to ensure the rights 
of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The 
addition of ``according to Native American traditional knowledge'' in 
this definition is to ensure meaningful consideration of this 
information during consultation.
    We believe this addition to the various definitions of cultural 
items will lead to more informed decision-making and help to avoid the 
lengthy and costly delays in disposition or repatriation. In crafting 
the definitions of cultural items, Congress clearly intended that the 
definitions ``will vary according to the [T]ribe, village, or Native 
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is 
required throughout the Act prior to any determination, is how an 
Indian Tribe or NHO shares the information needed to identify a 
cultural item. As we noted in the 1995 Final Rule, ``[i]dentification 
of specific sacred objects or objects of cultural patrimony must be 
done in consultation with Indian [T]ribe representatives, [NHOs,] and 
traditional religious leaders since few, if any, museums or Federal 
agencies have the necessary personnel to make such identifications'' 
(60 FR 62148).
    54. Comment: We received one comment suggesting changes to the 
definition of ``summary'' to include associated funerary objects.
    DOI Response: We cannot add associated funerary objects to a 
summary as that would be inconsistent with the Act. An inventory 
pertains to human remains and associated funerary objects (25 U.S.C. 
3003(a)), while a summary pertains to ``unassociated funerary objects, 
sacred objects, or objects of cultural patrimony'' (25 U.S.C. 3004(a)).
    55. Comment: We received five comments suggesting changes to the 
definition of ``traditional religious leader.'' All five comments 
requested broadening the definition so as not to limit it to 
individuals who are responsible or who hold a leadership role. A 
broader definition will allow Indian Tribes or NHOs to identify 
traditional religious leaders. One comment requested we update the 
words used in the term itself, as they are unnecessary, condescending, 
and outdated.
    DOI Response: As noted in the comments, this definition is not in 
the Act but the term is used in the Act in the definition of sacred 
object, the consultation requirements for inventories and summaries, 
and the composition of the Review Committee. In the proposed 
regulations, we intended to place the authority for identifying a 
traditional religious leader in the hands of an Indian Tribe or NHO. We 
understand the term may be offensive but given its use in the Act we 
cannot change the term itself. We can, and have, modified the 
definition to ensure a lineal descendant, as well as an Indian Tribe or 
NHO, can identify any individual that the lineal descendant, Indian 
Tribe, or NHO feels is the appropriate individual to serve in this

[[Page 86482]]

role. This addition of lineal descendant aligns with statements made by 
the Department in the 1995 Final Rule regarding the role of ``a member 
of an Indian Tribe'' in the existing definition of a traditional 
religious leader (see 60 FR 62138, 60 FR 62151, and 60 FR 62155).
    56. Comment: We received seven comments suggesting changes to the 
definition of ``Tribal lands.'' Some of the comments objected to the 
deletion in the proposed regulations of a sentence concerning 
application of the Fifth Amendment to the Constitution to private land, 
reasoning that the Department was proposing to exclude private land 
within the exterior boundaries of a reservation from the application of 
the Act and these regulations. Another comment was concerned that the 
definition does not include Tribal trust lands outside reservation 
boundaries. Other comments suggested the addition of an amendment to 
the regulatory definition, incorporating our clarification in the 
preamble to the proposed regulations that, under Supreme Court 
precedent, the boundaries of Tribal trust land constituted an informal 
reservation.
    DOI Response: The Act defines ``Tribal land'' as ``(1) All lands 
that are within the exterior boundaries of any Indian reservation; (2) 
All lands that are dependent Indian communities; and (3) All lands 
administered by the Department of Hawaiian Home Lands (DHHL) under the 
Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 108) and Section 
4 of the Act to Provide for the Admission of the State of 
Hawai[revaps]i into the Union (73 Stat. 4), including `available lands' 
and `Hawaiian home lands' '' (25 U.S.C. 3001(15)). We decline to add 
Tribal trust land to the common statutory definition in the regulations 
because of the possibility of unforeseen consequences for Tribal 
jurisdiction. We do, however, agree with the comments that the plain 
language of the definition includes private land within the exterior 
boundaries of the reservation (McGirt v. Oklahoma, 140 S. Ct. 659 
(2019)). We also agree that Tribal trust land outside the exterior 
boundaries of a formal reservation would, under the proposed 
regulations and these regulations, be considered an ``informal 
reservation,'' still qualifying as Tribal land for purposes of NAGPRA 
(Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of 
Oklahoma, 498 U.S. 505, 511 (1991)).
    57. Comment: We received three comments requesting clarification to 
the definition of ``United States.'' All three comments wanted to 
understand how the Act and the regulations apply in the U.S. 
territories.
    DOI Response: The Act and these regulations only apply to the 50 
states and the District of Columbia. Unlike other statutes referenced 
by one of the comments, the Act does not provide a definition of the 
United States that includes its territories and possessions. Any change 
to this limitation would require Congressional action.

D. Section 10.3 Cultural and Geographical Affiliation

    58. Comment: We received 27 comments on Sec.  10.3, generally. Of 
that total, most comments generally supported the elimination of the 
term ``culturally unidentifiable.'' A few comments specifically 
objected to the removal of ``culturally unidentifiable'' and the use of 
``Native American traditional knowledge'' and ``geographical 
affiliation'' because of concerns that this would expand the scope of 
what must be repatriated. Three comments requested more direct 
participation by Indian Tribes and NHOs in determining cultural and 
geographical affiliation and one comment requested that the Secretary 
determine cultural and geographical affiliation.
    DOI Response: These regulations do not use the term ``culturally 
unidentifiable.'' Because Congress anticipated that not all human 
remains could be determined to have cultural affiliation, Congress 
required that the Review Committee develop specific actions for the 
disposition of any human remains with no cultural affiliation and 
thereby ensured that all Native American human remains would be subject 
to the Act. For more on the development of these regulations, see 2007 
Proposed Rule (72 FR 58582) and 2010 Final Rule (75 FR 12378). The 
inclusion of Native American traditional knowledge as a type of 
information that can identify cultural affiliation is consistent with 
Congressional intent and ensures the stated purpose of these 
regulations for deference to lineal descendants, Indian Tribes, and 
NHOs in determinations of cultural affiliation. Other revisions to this 
section, based on specific comments, are explained below.
    In response to the noted objections, we disagree with their limited 
characterization of the scope of what must be repatriated. To forego 
the use of geographical information and Native American traditional 
knowledge to limit the number of human remains or cultural items that 
may be subject to repatriation is inconsistent with the Act, which only 
provides three exceptions to the requirement for expeditious 
repatriation (see 25 U.S.C. 3005).
    59. Comment: We received 11 comments generally on the paragraph in 
the proposed regulations under Sec.  10.3 on Information for cultural 
affiliation (in the final regulations, this is renumbered Sec.  10.3(a) 
and retitled Step 1: Collect information available.). Most comments 
supported the changes to the types of information, and a few comments 
requested additional changes to types of information.
    DOI Response: We cannot make the requested changes to prioritize 
the types of information or assign them relative values (1995 Final 
Rule, 60 FR 62156). We have repeated the exact types of information 
used for cultural affiliation as provided by Congress in alphabetical 
order and added Native American traditional knowledge to call out this 
newly defined type of expert opinion.
    60. Comment: We received 23 comments on the paragraph in the 
proposed regulations under Sec.  10.3 on Cultural affiliation (in the 
final regulations, this is incorporated into the introductory paragraph 
of Sec.  10.3). The comments objected to the use of ``preponderance of 
the evidence'' rather than ``reasonable'' in this paragraph. Most of 
these comments referenced the language of the Act, specifically the 
difference between ``reasonably'' and ``reasonable belief'' at 25 
U.S.C. 3001(2), 3002(a)(2)(C), 3003(d)(2)(C), on the one hand, and 
``preponderance of the evidence'' at 25 U.S.C. 3001(3)(B), 
3002(a)(2)(C)(2), 3005(a)(4). One comment asked what ``reasonable'' 
means.
    DOI Response: We have replaced ``a preponderance of the evidence'' 
with ``reasonable.'' As stated in the proposed regulations, the 
Department reiterates that ``a preponderance of the evidence'' is a 
similar standard to a ``reasonableness'' requirement and both standards 
require a ``more likely than not'' assessment (87 FR 63216). However, 
we agree with the comments that these terms have different connotations 
and that ``preponderance of the evidence'' has been misused and 
misapplied in determining cultural affiliation. We agree with the 
comments that the Act envisioned a simple and collaborative procedure 
to determine cultural affiliation through consultation with Indian 
Tribes and NHOs. Only when a museum or Federal agency was unable to 
determine cultural affiliation would an Indian Tribe or NHO need to 
demonstrate cultural affiliation through a preponderance of the 
evidence. As this section of the regulations describes the initial 
procedure for determining cultural affiliation, we have revised it to

[[Page 86483]]

only reflect the requirement to reasonably determine cultural 
affiliation. In response to one comment, ``reasonable'' means both the 
procedure to make a determination and the determination itself are ``in 
accordance with reason,'' ``not extreme or excessive,'' and ``moderate, 
fair'' (https://www.merriam-webster.com/dictionary/reasonable, accessed 
12/1/2023).
    61. Comment: We received 41 comments on the paragraph in the 
proposed regulations under Sec.  10.3 titled Geographical affiliation 
(in the final regulations, this is removed). Of that total, two 
comments objected to broadening affiliation to include geography alone. 
One comment appreciated the more inclusive term but was concerned about 
making connections only based on geography. One comment requested that 
archaeological and historical knowledge, especially of disruptions of 
indigenous territories, be included as key pieces of evidence for 
establishing geographical affiliation. Six comments supported the 
paragraph as proposed.
    A total of 33 comments requested the paragraph be removed in its 
entirety, although these comments were supportive of clarifying that 
cultural affiliation could be based on geography alone. Some comments 
were concerned that geographical affiliation would leave out Tribal 
knowledge and oral history. One comment was concerned that as proposed, 
``geographical affiliation'' would disenfranchise Indian Tribes under 
certain circumstances and provides fewer options than are currently 
available by restricting evidence of geographical affiliation. Most of 
the comments expressly requested that geographical affiliation be 
incorporated into cultural affiliation. As proposed, the comments 
expressed concern that geographical affiliation would not simplify 
repatriation but bring new complications and loopholes to the process. 
The comments requested the final regulations should develop an 
efficient and less burdensome procedure and provide that, in the 
absence of other evidence, cultural affiliation need only include one 
type of information that reasonably points to a shared relationship 
between an Indian Tribe and an identifiable earlier group.
    DOI Response: We have removed the paragraph proposed at Sec.  10.3 
titled Geographical affiliation. We have made related changes to other 
paragraphs in Sec.  10.3 and renamed the entire section. We have 
revised the text in the final regulations to reflect a step-by-step 
procedure for determining cultural affiliation. We have required in the 
step-by-step processes for disposition under Sec.  10.7 or repatriation 
under Sec. Sec.  10.9 and 10.10 that when cultural affiliation is not 
determined, the museum or Federal agency must briefly describe the 
information considered under Sec.  10.3(a) and the criteria identified 
under Sec.  10.3(b) to explain how the determination was made. We have 
made clear in the definition of cultural affiliation, this section, and 
the step-by-step processes for disposition or repatriation that 
cultural affiliation must be identified either clearly by the 
information available or reasonably by the geographic origin or 
acquisition history of the human remains or cultural items.
    The intent of these revisions is to realign the geographic 
analysis, applied previously to culturally unidentifiable human remains 
in the existing regulations, as part of the cultural affiliation 
process. The same methods, analyses, sources, and evidence may inform 
cultural affiliation determinations based on geographical information 
as have been used in the past and as discussed in the proposed rule. We 
agree with the voluminous comments that described museum and Federal 
agency practices as overly expansive in designating human remains and 
associated funerary objects as culturally unidentifiable. We believe in 
most cases, sufficient information on geographic origin and acquisition 
history exists and can be used to either clearly or reasonably identify 
Indian Tribes or NHOs with cultural affiliation.
    62. Comment: We received four comments supporting the paragraph in 
the proposed regulations under Sec.  10.3 titled Multiple affiliations 
(in the final regulations, this is renumbered Sec.  10.3(d) and 
retitled Joint disposition or repatriation). Many other comments 
suggested changing the title of the paragraph to Joint disposition or 
repatriation.
    DOI Response: We have accepted and adopted the suggested change in 
the title of this paragraph.
    63. Comment: We received 19 comments suggesting changes to the 
paragraph in the proposed regulations under Sec.  10.3 titled Closest 
affiliation (in the final regulations, this is renumbered Sec.  10.3(e) 
and retitle Competing claims or requests). One comment objected to 
museums and Federal agencies making determinations on the closest 
affiliation. One comment objected to the priority order for NHOs as it 
was too complex and may result in a family or small organization having 
a priority over the Office of Native Hawaiian Affairs. Two comments 
asked if the enumerated list reflected a priority and if two Indian 
Tribes or NHOs might both be in a single category. One comment 
requested guidance on how closest affiliation would be determined if 
one Tribe's claim is based on geographic information and another 
Tribe's claim is based on cultural practices. One comment requested it 
be clear that museums and Federal agencies must determine the Indian 
Tribe with the closest cultural affiliation and continually notify that 
Indian Tribe, regardless of who might make a claim or a request. 
Several comments requested the regulations be revised to bring all the 
priority orders together into one provision and provided specific 
redline changes to the proposed text.
    DOI Response: We cannot change who is responsible for making 
determinations on the closest cultural affiliation when, and only when, 
there are competing claims or requests. This is required by the Act at 
25 U.S.C. 3002(a) and 3005(e). Museums and Federal agencies are 
responsible for making determinations under the Act and these 
regulations, but must do so after consulting with lineal descendants, 
Indian Tribes, and NHOs. Based on consultation with the Native Hawaiian 
Community, it was our intention to give priority to a family or small 
organization over the Office of Native Hawaiian Affairs when, and only 
when, there are competing claims or requests. The enumerated lists are 
intended to identify a priority order, and it is possible that two 
Indian Tribes or NHOs might have the same priority. The priority order 
distinguishes between different kinds of cultural affiliation and 
places affiliation based on geographic information alone below other 
kinds of cultural affiliation. There is no obligation for a museum or 
Federal agency to determine the Indian Tribe or NHO with the closest 
cultural affiliation unless and until there are competing claims or 
requests. All Indian Tribes or NHOs with cultural affiliation have an 
opportunity to make claims or requests prior to a disposition or 
repatriation statement.
    To avoid repetition and to clarify when closest cultural 
affiliation must be determined, we have combined paragraph (c)(2) in 
Sec.  10.3 in the proposed regulations titled Competing claims or 
requests with paragraph (d) titled Closest affiliation to create a new 
paragraph Sec.  10.3(e) Competing claims or requests. In conjunction 
with the changes to Sec.  10.3 described above, we have added the 
standard of ``preponderance of the evidence'' to this paragraph on 
completing claims or requests. We cannot accept the suggestion to bring 
the priority orders

[[Page 86484]]

together in this paragraph because the priority order established in 
the Act for Federal or Tribal lands (25 U.S.C. 3002) is broader than 
the priority order for the ``closest cultural affiliation'' identified 
here. Where appropriate, we have referred to this paragraph in 
Sec. Sec.  10.7, 10.9, and 10.10.

E. Subparts B and C

    64. Comment: We received 53 comments on the regulatory steps for 
consultation (Initiate consultation and Consult with requesting 
parties) in Sec. Sec.  10.4, 10.9, and 10.10. Three comments supported 
the requirement for museums and Federal agencies to initiate 
consultation in these paragraphs. The largest number of comments (15) 
requested we remove the requirement for consulting parties to submit a 
written request to consult. In addition, 11 comments requested that the 
invitation to consult include a clear statement that sensitive 
information will not be requested, but if shared, the consultation 
record will be protected from disclosure ``to any person for any 
reason.'' Five comments requested changes to the two terms ``consulting 
parties'' and ``requesting parties'' while one comment requested adding 
to the list of ``consulting parties.'' Five comments requested 
deference to Indian Tribes or NHOs on the timelines for consultation 
and one comment requested deference to documentation submitted by 
Indian Tribes or NHOs during consultation. Four comments requested 
changes to ensure consultation is not cutoff with publication of a 
notice. Three comments questioned the use of good-faith effort in these 
paragraphs. Two comments questioned how consultation can proceed where 
consensus cannot be reached. Two comments recommended adding an upfront 
fee payment for initiating consultation, like the Federal 
Communications Commission. One comment stated that consultation is not 
streamlined or simplified in these regulations.
    DOI Response: We have removed the requirement for a consulting 
party to submit a written request to consult and, consequently, the 
cutoff for requests to consult before publication of a notice. 
Correspondingly, we have removed the requirement for a response to the 
request to consult within 10 days. As noted in the proposed rule, the 
written request to consult was a necessary precursor to require a 
museum or Federal agency to respond by a certain date. While a written 
request to consult is no longer a requirement, we would recommend a 
consulting party submit a written request to consult to ensure there is 
a clear record in case the museum or Federal agency does not respond.
    As noted in Comment 5, we cannot dictate how a museum or Federal 
agency requests or records sensitive information it receives during 
consultation. We can, and have, specifically limited the information 
needed to comply with these regulations, and we encourage lineal 
descendants, Indian Tribes, and NHOs to request that museums and 
Federal agencies ensure that information of a particularly sensitive 
nature is not made available to the public, pursuant to otherwise 
applicable law. Since 1995, the Department has recommended that museum 
or Federal officials ensure that sensitive information does not become 
part of the public record by not collecting, or writing down, such 
information in the first place (1995 Final Rule, 60 FR 62154). We 
recommend that in a response to an invitation to consult, lineal 
descendants, Indian Tribes, and NHOs stipulate their requirements for 
protecting sensitive information shared during consultation, such as 
prohibiting any audio or video recording of consultation, requiring use 
of a specific note-taker or transcriptionist, or conducting 
consultation in a separate facility with limited attendance.
    We have made clarifying edits to the paragraphs in Sec. Sec.  10.4, 
10.9, and 10.10, including the requested change from ``requesting 
parties'' to ``consulting parties'' throughout. We note that consulting 
parties are those with potential cultural affiliation, but this should 
not impact the role of removed and aboriginal land Indian Tribes as 
consulting parties. Based on geographical information, removed and 
aboriginal land Indian Tribes are those with potential cultural 
affiliation. We have not added a requirement for payment of an upfront 
fee in the initiation of consultation. We recommend that in a response 
to an invitation to consult, lineal descendants, Indian Tribes, and 
NHOs stipulate their requirements for conducting consultation, 
including any required financial support.
    In response to other comments, we have made changes to the 
paragraphs in Sec. Sec.  10.4, 10.9, and 10.10 to correspond to changes 
in the definition of consultation which directly addresses comments on 
deference, good-faith, and reaching consensus. We have changed 
recommendations to preferences on the timeline and method for 
consultation, but we cannot require deference in this instance because 
the timeline may be dictated by other requirements in the regulatory 
processes.
    65. Comment: We received 20 comments on the regulatory steps for 
submitting a notice for publication and for receiving and considering a 
claim for disposition or a request for repatriation in Sec. Sec.  10.7, 
10.9, and 10.10. Four comments supported the timeline for the National 
NAGPRA Program to approve or return a notice submission but requested 
that a timeline be added requiring museums, Federal agencies, or DHHL 
to submit a revised notice. Five comments requested clarification on 
the statements in Sec. Sec.  10.7 and 10.10 that any claim or request 
received no later than 30 days after publication of a notice must be 
considered, noting that the preceding sentence in both sections seemed 
contradictory since any claim or request must be received before a 
disposition or repatriation statement is sent. One comment requested 
grammatical edits to clarify the criteria for a claim for disposition 
or request for repatriation. Seven comments in one submission 
repeatedly objected to the 30-day timeframe for lineal descendants, 
Indian Tribes, or NHOs to submit claims or requests following a notice 
publication in Sec. Sec.  10.7, 10.9, and 10.10. On the other hand, one 
comment stated submission of claims or requests should be limited to 
the 30 days after publication notice and requests received after that 
date should not be considered. One comment disagreed with the 
provisions for claims or requests to be received before publication of 
a notice while another comment felt these provisions would ensure more 
flexibility for lineal descendants, Indian Tribes, and NHOs.
    DOI Response: We do not intend to impose deadlines on lineal 
descendants, Indian Tribes, or NHOs to submit claims for disposition or 
requests for repatriation. Under these regulations, a notice is 
required to identify the date (30 days from the date of publication) 
after which a disposition or repatriation statement may be sent to a 
claimant or a requestor. We intended to clarify in these provisions 
that any claim or request submitted during that 30-day period must be 
considered since a disposition or repatriation statement may be sent 
immediately after that date. With the disposition or repatriation 
statement, the museum or Federal agency divests itself of any interest 
in the human remains or cultural items and cannot accept or consider a 
request from any other party.
    Therefore, while there is no timeline for lineal descendants, 
Indian Tribes, and NHOs to act, a failure to do so before a disposition 
or repatriation

[[Page 86485]]

statement is sent is an irrevocable waiver of any right to make a claim 
or a request (see Sec.  10.1(g) and Comment 20). For example, once a 
notice of any kind publishes in the Federal Register, there is a 30-day 
period for any party to make a claim for disposition or a request for 
repatriation. On day 31, if a disposition or repatriation statement is 
sent to a claimant or requestor, any additional claims or requests will 
not be considered.
    We have added a timeline (14 days or two weeks) for a museum or 
Federal agency to resubmit a notice that is returned to them under 
Sec. Sec.  10.7, 10.9, or 10.10. We have adjusted the timeline (from 15 
days to 21 days) for the National NAGPRA Program to accept or return a 
notice. This change is related to the change in Sec.  10.1(f) from 
business days to calendar days and does not change the overall timeline 
(3 weeks). We have removed the sentence stating that any claim or 
request received no later than 30 days after publication of a notice 
must be considered. While accurate, we understand the confusion this 
sentence causes, especially considering the objections to the 30-day 
deadline. We have made grammatical changes to the criteria to ensure 
clarity.
    We have not made changes to the date of a claim or request received 
before publication of a notice (same date the notice was published). We 
agree that this provides flexibility for lineal descendants, Indian 
Tribes, and NHOs. In addition, we feel this provides the opportunity 
for lineal descendants, Indian Tribes, and NHOs to dictate the 
timeline, as much as they can, after publication of a notice of any 
kind. For example, in a claim for disposition or a request for 
repatriation, the lineal descendant, Indian Tribe, or NHO could request 
that the disposition or repatriation statement be sent on day 31 after 
publication of any kind. If any competing claims or requests are 
received during the 30-day period, this request could not be 
accommodated. If no competing claims or requests are received, nothing 
in these regulations would prevent the disposition or repatriation 
statement from being sent on day 31. In addition to competing claims or 
requests, other factors outside of these regulations, such as legal 
review of the statement or deaccession policies, may require additional 
time before sending the disposition or repatriation statement.
    If no competing claims or requests are received, 31 days is the 
minimum amount of time between any kind of notice publication and 
sending a disposition or repatriation statement. Under Sec. Sec.  10.7 
and 10.10, the maximum amount of time between notice publication and 
sending a disposition or repatriation statement depends on when a claim 
for disposition or request for repatriation is received. No later than 
90 days after responding to a claim for disposition or a request for 
repatriation, a disposition or repatriation statement must be sent.
    66. Comment: We received 22 comments on the regulatory steps for 
disposition or repatriation under Sec. Sec.  10.7, 10.9, or 10.10. Of 
that total, 13 comments requested that the regulations require 
documentation or notification of physical transfer after a disposition 
or repatriation statement is sent. Four comments made a similar request 
for documentation of the discretionary physical transfer or reinterment 
of human remains or cultural items under Sec. Sec.  10.7 or 10.10 
specifically so, in the future, Indian Tribes or NHOs with cultural 
affiliation would be able to request the return of those human remains 
or cultural items. Three comments requested disposition or repatriation 
statements be published in the Federal Register specifically to further 
support the reviewability of disposition or repatriation statements by 
Federal agencies. On the other hand, one comment requested a ``paper 
transfer'' procedure be developed or explained for Indian Tribes or 
NHOs who do not have access to a curation facility or other means to 
physically and honorably receive human remains or cultural items. One 
comment requested clarification as to what kinds of agreements might be 
entered into after a disposition or repatriation statement is sent. An 
additional 14 comments made a similar request to include physical 
transfer in the definitions of ``disposition'' or ``repatriation'' (see 
Comment 51).
    DOI Response: We have not made the requested changes related to 
physical transfers or reinterments for several reasons. We have made 
changes to the definition of repatriation and to what is required after 
a disposition or repatriation statement is sent.
    First, there is a need to balance the requests for additional 
documentation and notification with the protection of sensitive 
information. Any document submitted to the National NAGPRA Program is 
generally subject to release under the Freedom of Information Act. 
Requiring documentation of physical transfers or reinterments to be 
submitted to the National NAGPRA Program or published in the Federal 
Register comes with added risks of disclosure of sensitive information. 
As we advise museums and Federal agencies, the best way to prevent 
sensitive information from being released is to not write it down in 
the first place.
    Second, as discussed in the response to comments on the definitions 
in Comment 51, it is difficult for these regulations to require 
physical transfer either as a part of or after the regulatory processes 
for disposition or repatriation. The term physical transfer is used in 
these regulations to provide for an action that, as desired by a Tribe 
or NHO, may occur, but is not required to occur, after sending a 
disposition or repatriation statement. While we only received one 
comment indicating this, we know that many lineal descendants, Indian 
Tribes, and NHOs prefer to not complete physical transfer immediately 
or at all. Therefore, as in the proposed regulations, we have retained 
a separation between the disposition or repatriation statements and 
physical transfer, and we have not attached any requirements for 
reporting on physical transfer in these regulations. Documentation of 
physical transfer is required but is not sent to the National NAGPRA 
Program or published in the Federal Register.
    Third, the Act does not provide for or require the involvement of 
the Secretary in the physical transfer or in any other procedure after 
publication of a notice. The proposed regulations provided, and these 
regulations retain, a new requirement for the Secretary to receive 
copies of disposition or repatriation statements. This new requirement 
is based on the 2010 Government Accountability Office report on the 
implementation of the Act, and the Department will retain these 
documents with the other compliance documents in the disposition or 
repatriation processes. However, we do not believe the Department 
should collect any additional documentation on the physical transfers 
or publish these disposition or repatriation statements. We affirm our 
response to consultation in 2021 that publication in the Federal 
Register would be costly, inefficient, and of little relative value. 
The purpose of publishing a notice under the Act and these regulations 
is to allow additional parties to come forward. Disposition or 
repatriation statements are the final step in regulatory processes and 
recognize the rights of a lineal descendant, Indian Tribe, or NHO in 
the human remains or cultural items. These statements cannot be 
challenged or revoked. Publication of those statements might lead to 
confusion about which type of publication is appealable. Although not 
incorporated into the regulatory text, the National NAGPRA Program will 
record information on disposition or repatriation statements it 
receives from

[[Page 86486]]

both museums and Federal agencies and will provide that information in 
its databases or upon request.
    The Act provides very little instruction for this significant and 
important part of the processes. The section of the Act titled 
``Repatriation'' (25 U.S.C. 3005) focuses on the circumstances under 
which human remains or cultural items must be ``expeditiously 
returned'' after a request from a lineal descendant, Indian Tribe, or 
NHO. The Act requires that the return of human remains or cultural 
items be ``in consultation with the requesting lineal descendant or 
[T]ribe or organization to determine the place and manner of delivery 
of such items'' (25 U.S.C. 3005(a)(3)). Congressional reports state 
that after a notice, a museum or Federal agency must ``make 
arrangements to return such items if the appropriate [T]ribe made a 
request'' (H. Rpt. 101-877, at 11) and must allow for ``mutually 
acceptable alternative[s] to repatriation'' (S. Rpt. 101-473, at 8).
    The existing regulations refer to ``transfer custody'' of human 
remains or cultural items from Federal land. For holdings or 
collections of human remains or cultural items with cultural 
affiliation, only ``repatriation'' is used, as in consultation must 
occur on the place and manner of the repatriation and the content and 
recipients of all repatriations must be permanently documented. Under 
the 2010 regulations, ``transfer control'' is used repeatedly to 
describe the process for culturally unidentifiable human remains.
    We sought to clarify this in the draft revisions for consultation 
in 2021 where we provided two separate terms: ``disposition'' and 
``repatriation'' and neither term included physical transfer. Transfer 
and physical transfer were used elsewhere after disposition or 
repatriation statements. In 2021, we did not receive any related 
comments on physical transfer. In the proposed regulations, we did not 
address the separation of disposition or repatriation from physical 
transfer and retained the procedures for physical transfer that, as 
desired by a Tribe or NHO, may occur, but are not required to occur, 
after disposition or repatriation (2022 Proposed Rule, 87 FR 63246, 87 
FR 63250, and 87 FR 63255).
    We appreciate and understand the significance of physical transfer 
or other desired outcomes for lineal descendants, Indian Tribes, and 
NHOs after museums and Federal agencies complete the regulatory 
processes by sending a disposition or repatriation statement. We do not 
intend these regulations to indicate that completion of the regulatory 
processes is the end goal for lineal descendants, Indian Tribes, NHOs, 
museums, or Federal agencies. We know that for many lineal descendants, 
Indian Tribes, and NHOs, this work is not finished until their 
ancestors and other relatives are home or at rest. For many museums and 
Federal agencies, this work is not finished until the holding or 
collection is in the hands of its rightful caretakers.
    However, we also know that the desired outcome of the disposition 
or repatriation processes vary greatly among lineal descendants, Indian 
Tribes, and NHOs. If or when physical transfer occurs depends on many 
factors, including spiritual, cultural, or religious observances, which 
cannot and should not be dictated by a regulatory process. It is, 
therefore, difficult for these regulations to require physical transfer 
either as a part of or after the regulatory processes. In response to 
the request for clarification on agreements after disposition or 
repatriation, any kind of agreement could occur after a disposition or 
repatriation statement is sent. We provided this language from the Act 
to ensure it was clear that once a lineal descendant, Indian Tribe, or 
NHO holds all rights and interests in the human remains or cultural 
items, what comes next is not in any way dictated by these regulations. 
We have removed ``the care or custody'' to ensure there is no implied 
limitation on such an agreement. Examples of agreements after 
disposition or repatriation include curation agreements, agreements to 
reinter human remains or cultural items, or agreements to analyze human 
remains or cultural items. The terms of the agreement, however, are at 
the discretion of the lineal descendant, Indian Tribe, or NHO.
    67. Comment: We received 20 comments on the regulatory steps for or 
after disposition or repatriation statements in Sec. Sec.  10.7, 10.9, 
and 10.10. Two comments related to the requirements for consultation on 
the care, custody, and physical transfer of human remains or cultural 
items. One comment requested that we add that museums or Federal 
agencies cannot dictate care, custody, or physical transfer before or 
after a disposition or repatriation statement is sent. One comment 
recommended based on experience that consultation on care, custody, or 
physical transfer only occur after a disposition or repatriation 
statement is sent. One comment requested that the regulations require 
museums and Federal agencies to pay for care and physical transfer of 
human remains or cultural items. The other comments suggested the 
following language changes:
     Replace physical ``transfer'' with physical 
``repatriation;''
     Replace ``requestors'' with ``claimants;''
     Replace ``most appropriate claimant/requestor'' with 
``closest cultural affiliation claimants'' and cite to Sec.  10.3 of 
this part;
     Replace disposition or repatriation ``statements'' with 
``documents;''
     Replace ``care, custody'' with ``the appropriate duty of 
care, custody;'' and
     Replace ``delivery'' with ``escort'' to be sensitive to 
the nature of human remains and cultural items.
    DOI Response: We have made the requested changes to require a 
museum or Federal agency to consult with a requestor on custody and 
physical transfer after a disposition or repatriation statement is 
sent. Nothing under the Act or these regulations allow a museum or 
Federal agency to dictate any action after a disposition or 
repatriation statement is sent. Regardless of the disposition or 
repatriation statement, a museum or Federal agency is obligated to 
exercise a duty of care for human remains or cultural items in its 
custody or in its possession or control under Sec.  10.1(d) and to 
defer to lineal descendants, Indian Tribes, and NHOs. We cannot require 
museums or Federal agencies pay for care or physical transfer.
    We have not changed ``physical transfer'' for reasons explained in 
Comment 66 on the intentional difference between disposition or 
repatriation and physical transfer. We have not changed ``requestor'' 
to ``claimants.'' We have intentionally used the terms ``claim'' and 
``claimant'' to refer to the disposition process in Subpart B and 
``request'' and ``requestor'' to refer to the repatriation process in 
Subpart C. We cannot make the requested change from ``most appropriate 
claimant/requestor'' because while the Indian Tribe or NHO with the 
closest cultural affiliation under Sec.  10.3 is one possible most 
appropriate claimant/requestor, competing claims for disposition or 
repatriation might involve lineal descendants or other Indian Tribes 
with a priority for disposition. We have not changed statements to 
documents. Statements are used in limited instances in these 
regulations and indicate a specific kind of document. Document is used 
more broadly.
    We have removed ``care'' in any use outside of the duty of care. We 
have revised the documentation of physical transfer to not require any 
specific information. While physical transfer

[[Page 86487]]

must be documented, it is up to the lineal descendant, Indian Tribe, or 
NHO to dictate what the documentation should contain to ensure 
protection of sensitive information.

F. Section 10.4 General

    68. Comment: We received seven comments requesting changes to 
Subpart B-Protection of human remains or cultural items on Federal or 
Tribal lands. Six of these comments requested that the regulations 
acknowledge the application of the Act to human remains or cultural 
items removed from Federal or Tribal lands that are subject to the 
disposition and trafficking provisions of the Act. The comments request 
a procedure by which Indian Tribes can report human remains and 
cultural items obtained in violation of the Act and send a clear signal 
to third parties that it is a crime to sell human remains or cultural 
items under NAGPRA and other statutes, such as the Archaeological 
Resources Protection Act (ARPA). The comments specifically request that 
references to human remains and cultural items ``on'' Federal or Tribal 
lands be expanded to human remains or cultural items ``located on or 
removed from'' such lands. One comment requested stronger requirements 
in the regulations to protect Tribal cultural heritage and sacred sites 
from theft or damage on Federal lands.
    DOI Response: We cannot add the requested procedures to these 
regulations. We agree that the criminal provisions of the Act (18 
U.S.C. 1170(a) and (b)) apply to human remains or cultural items as 
defined in the Act and these regulations. The Secretary and the 
Department do not have jurisdiction for implementing those provisions 
of the Act and cannot add them to these regulations. Any human remains 
or cultural items located on or removed from Federal or Tribal lands 
after November 16, 1990, are subject to these regulations under Subpart 
B. If human remains or cultural items are obtained illegally from 
Federal or Tribal lands, the processes described in these regulations 
do not apply until the human remains or cultural items are recovered by 
Federal law enforcement agents and any criminal procedures have 
concluded. The title of Subpart B highlights the procedures in 
Sec. Sec.  10.4, 10.5, and 10.6 that provide protection to human 
remains or cultural items that are located on Federal or Tribal land. 
The disposition procedures in Sec.  10.7 apply to any human remains or 
cultural items that are removed from Federal or Tribal land. We do not 
believe changing ``on'' to ``located on or removed from'' will have any 
impact on the application of these regulations. We are unable to add 
any requirements to these regulations that exceed the requirements 
provided in the Act for protection of human remains or cultural items 
on Federal or Tribal land.
    69. Comment: We received 15 comments on Sec.  10.4, generally. Of 
that total, 14 comments suggested changes to the section while one 
comment supported it as proposed. Ten comments requested a separate and 
simplified procedure for boarding school cemeteries on Federal lands, 
such as (1) consult, (2) develop a plan of action, and (3) disinter, 
with no requirement for an ARPA permit. One comment objected to the 
revisions and found the text confusing and unclear. One comment stated 
that these regulations should not require actions by Indian Tribes on 
Tribal lands. One comment suggested removing this section entirely and 
relying on the provisions of the National Historic Preservation Act 
(NHPA) because ``[t]here is no need for a plan of action independent of 
that already stipulated for historic preservation requirements in the 
NHPA'' (see NPS-2022-0004-0116). One comment requested a procedure for 
Indian Tribes to make requests for a plan of action or comprehensive 
agreement, to report non-compliance of Federal agencies, and to file 
suit under the Administrative Procedures Act.
    DOI Response: We cannot make the requested change for boarding 
school cemeteries. As stated in the proposed regulations, the Act does 
not require a Federal agency to engage in an excavation of possible 
burial sites (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n. 4 (D.D.C. 
2010)). However, the excavation provisions of the Act and these 
regulations apply to the human remains and cultural items disinterred 
from cemeteries on Federal or Tribal lands (2022 Proposed Rule, 87 FR 
63205). The suggested simplified procedure is already provided for in 
these regulations. Any Indian Tribe or NHO may request the excavation 
of a burial site on Federal lands and, if the Federal agency agrees, a 
plan of action, including consultation with lineal descendants, Indian 
Tribes, or NHOs, is required. These regulations cannot require that a 
Federal agency agree to excavate a burial site nor can we unilaterally 
state an ARPA permit is not required for excavations at boarding school 
cemeteries. However, we believe these regulations provide a streamlined 
procedure for excavations of boarding school cemeteries through 
consultation and a plan of action, and the Department encourages any 
Federal agency that manages boarding schools and cemeteries on Federal 
lands to consult with lineal descendants, Indian Tribes, and NHOs on 
identification, disinterment, and repatriation of Native American 
children. The Department stands ready to assist Federal agencies, 
Indian Tribes, and NHOs to the fullest extent of its authority.
    We have made changes to the first paragraph in this section to 
clarify the responsibilities under this section and this Subpart. We 
cannot remove the requirement for Indian Tribes to take actions on 
Tribal lands as these actions are required by the Act itself. We cannot 
delete this section and rely on provisions in the NHPA because the 
scope of the Act and these regulations can be greater than the NHPA 
requirements. However, we encourage Federal agencies to consider 
coordinating requirements under these regulations with any other 
required consultation and planning efforts for their planned activities 
on Federal lands. Nothing in these regulations would prevent an Indian 
Tribe from requesting a plan of action or comprehensive agreement from 
a Federal agency, and these regulations require a plan of action for 
any discovery or excavation on Federal lands. Federal agencies are 
required to comply with these regulations for any human remains or 
cultural items on Federal lands. Federal law provides ways to allege 
that a Federal agency has failed to comply with the requirements of the 
Act or the regulations (or any other Federal law or regulations). The 
most broadly applicable way to allege that a Federal agency has failed 
to comply is to send an allegation to the head of the appropriate 
Federal agency or to the Federal agency's Office of the Inspector 
General. If the alleged failure to comply is a final agency action (see 
Sec.  10.1(i)), the failure to comply could also be the subject of a 
lawsuit under the Administrative Procedure Act (5 U.S.C. 704).
    70. Comment: We received eight comments on Sec.  10.4(a) requiring 
designation of an appropriate official. One comment supported the 
change, noting that it would increase transparency. One comment 
suggested designation of appropriate officials be reported to the 
Manager, National NAGPRA Program. Two comments requested a training 
requirement be added for Federal agency employees. Four comments 
questioned whether the Bureau of Indian Affairs (BIA) should designate 
the appropriate official for Tribal lands in Alaska and the continental 
United States rather than an Indian Tribe. Two of these comments

[[Page 86488]]

stated that because the BIA is currently responsible for discovery, 
excavation, and disposition on Tribal lands in Alaska and the 
continental United States, this change would require the BIA to notify 
all private landowners within the exterior boundaries of reservations 
that authority on those lands has changed from the BIA to the relevant 
Indian Tribe. The other two comments strongly objected to this change 
and requested that ``. . . NAGPRA and its implementing regulations 
designate BIA as the exclusive regulatory authority over the discovery, 
excavation, and disposition of Native American cultural items within 
the exterior boundaries of any Indian reservation. Only after this 
necessary step is taken should transfer of that jurisdiction to the 
Tribes be contemplated'' (see NPS-2022-0004-0151).
    DOI Response: We decline to make the requested changes. Each Indian 
Tribe, Federal agency, or DHHL may designate appropriate officials in 
any way that best suits its organizational structure. For some Federal 
agencies, like the National Park Service, the appropriate officials may 
be the Superintendent of each park unit. The National NAGPRA Program 
cannot and should not track or record those designations. Each Federal 
agency is also responsible for ensuring the appropriate official 
receives the necessary training.
    We disagree that the Act, the existing regulations, or the other 
cited regulations designate that the BIA is responsible for discovery, 
excavation, and disposition on Tribal lands in Alaska and the 
continental United States. In the Act, Congress specifically required 
that a person discovering human remains and cultural items notify ``the 
Secretary of the Department, or head of any other agency or 
instrumentality of the United States, having primary management 
authority with respect to Federal lands and the appropriate Indian 
[T]ribe or Native Hawaiian organization with respect to [T]ribal 
lands'' 25 U.S.C. 3002(d)(1) (emphasis added). Nowhere does the Act 
mention the Bureau of Indian Affairs. We agree that Indian Tribes have 
discretion under the existing regulations in responding to a discovery 
on Tribal lands and that, also under the existing regulations, the BIA 
is responsible for issuing an ARPA permit on private lands that are 
also Tribal lands. Neither the existing regulations nor the Secretary 
assign the BIA responsibility for consultation, obtaining consent, or 
disposition of human remains or cultural items on Tribal lands. As the 
proposed regulations stated, the clarification of the appropriate 
official for Tribal lands is to improve consistency with the Act by 
requiring certain actions by Indian Tribes, NHOs, and DHHL on Tribal 
lands. We note that other comments discussed below were supportive of 
Indian Tribes managing and making decisions regarding discoveries or 
excavations on their Tribal lands under Sec. Sec.  10.5 and 10.6 of 
this part (see NPS-2022-0004-0119, as one example).
    Furthermore, the BIA does not have a record or list of private 
landowners within the exterior boundaries of a reservation, and the 
Federal Government has no obligation, besides those instituted by 
Congress in the Administrative Procedure Act, to inform the public of 
changes in laws or regulations.
    71. Comment: We received 27 comments on Sec.  10.4(b) Plan of 
action. Of that total, 21 comments suggested changes to the paragraph 
while six comments supported it as proposed. Four comments requested a 
statement that plans of action and comprehensive agreements are not 
required on Tribal lands. Seven comments suggested changes to the 
likelihood of a discovery or excavation to include deference to Indian 
Tribes or NHOs. One comment requested that a plan of action be required 
before a discovery occurs. Several comments requested specific changes 
to requirements of a plan of action in paragraph (b)(3) of this 
section. One comment requested clarification on how a plan of action 
accommodates immediate reburial of human remains or cultural items. One 
comment objected to leaving or relocating human remains or cultural 
items without adequate protection or security. Two comments requested 
leaving or relocating human remains or cultural items be required in 
all cases. One comment requested archaeological recording and analysis 
be added back into the plan of action. One comment requested adding 
identification of human remains or cultural items to the plan of 
action. Three comments requested Indian Tribes and NHOs be required to 
sign the plan of action.
    DOI Response: We have clarified that when a Federal agency or DHHL 
is responsible for a discovery or excavation on Federal or Tribal 
lands, a plan of action is required. A plan of action is not required 
for a discovery or excavation on Tribal lands when the Indian Tribe or 
NHO has responsibility. We hope this clarifies that when an Indian 
Tribe delegates its responsibility for a discovery or excavation on 
Tribal lands to the BIA or another Federal agency, the BIA or Federal 
agency must approve and sign a plan of action. In Hawai[revaps]i, DHHL 
must approve and sign a plan of action on Tribal lands unless a NHO 
agrees to be responsible for discoveries or excavations on the Tribal 
lands of an NHO. In that case, a plan of action is not required on 
Tribal lands of an NHO.
    We have added the phrase ``in consultation with Indian Tribes and 
Native Hawaiian organizations'' to the likelihood of a discovery or 
excavation for a planned activity. We cannot strengthen this 
requirement further because Federal agencies and DHHL may have certain 
obligations under land management authorities to allow planned 
activities even when an Indian Tribe or NHO objects. However, Federal 
agencies and DHHL also have consultation responsibilities for land 
management activities that should inform when a planned activity is 
likely to result in a discovery or excavation subject to these 
regulations. We cannot require a general plan of action be developed by 
all Federal agencies and DHHL in case of discovery, but we agree with 
the comment that a plan of action is a useful tool to ensure efficiency 
and effectiveness in responding to a discovery. We believe that the 
requirement for a plan of action after a discovery will encourage 
Federal agencies and DHHL to develop these plans.
    The comments requesting changes to the content of a plan of action 
demonstrate the diversity of opinions on protecting and caring for 
human remains or cultural items on Federal or Tribal lands. Because of 
this diversity of opinion, we have not made the requested changes to 
the minimum requirements for a plan of action to ensure flexibility. 
The requirements for a plan of action must be broad and allow for 
modification to specific circumstances and preferences of consulting 
parties. These are minimum requirements for a plan of action and any 
consulting party can request additional elements be added to a plan of 
action during consultation. For example, a plan of action might 
indicate that the consulting parties prefer protection of human remains 
or cultural items in situ or by relocating them in a nearby location. 
Alternately, a plan of action might require the immediate removal of 
human remains or cultural items to a secure, protected facility. In 
other cases, a plan of action might instruct the appropriate official 
to take no action upon the discovery of human remains or cultural items 
to allow for natural exposure or erosion.

[[Page 86489]]

    We cannot require a plan of action be signed by Indian Tribes or 
NHOs, but an Indian Tribe or NHO can request to sign a plan of action. 
The appropriate official must approve and sign the plan of action by 
the deadlines required under Sec. Sec.  10.5 and 10.6 and identify 
disposition by the deadlines required under Sec.  10.7 with or without 
receiving a response to the invitation to consult. These regulations do 
not and cannot require a lineal descendant, Indian Tribe, or NHO to 
respond to the invitation to consult.
    72. Comment: We received 14 comments on Sec.  10.4(c) Comprehensive 
agreement. Two comments supported the paragraph as proposed while 12 
comments suggested changes to it. Most of the comments requested more 
detail or additional requirements be added to this paragraph. Some 
comments requested a requirement for comprehensive agreements to be 
renewed on a regular basis. A few comments requested Tribal policy 
should be substituted for a comprehensive agreement if applicable. One 
comment asked if Indian Tribes could execute comprehensive agreements 
with other Indian Tribes. One comment stated comprehensive agreements 
should not be promoted by these regulations because a well-crafted plan 
of action works better than a comprehensive agreement.
    DOI Response: The diversity of opinion on what a comprehensive 
agreement should contain is precisely why we decline to make any 
changes to this paragraph. The comprehensive agreement, like the plan 
of action, is necessarily broad and includes only the minimum 
requirements. As the comprehensive agreement is at the discretion of 
the parties involved, these regulations should not dictate the content 
or nature of the agreement. Comprehensive agreements should contain 
whatever terms or requirements the parties wish it to contain beyond 
the minimum requirements of a plan of action.

G. Section 10.5 Discovery

    73. Comment: We received three comments on Sec.  10.5 Discovery, 
generally. One comment supported the section as proposed and two 
comments requested clarification on identifying if discovered human 
remains or cultural items are Native American.
    DOI Response: We have not made any changes. Consistent with the 
Act, this section applies only in the case where a person knows or has 
reason to know that the human remains are Native American. Whether a 
person knows or has reason to know that the human remains are Native 
American is case sensitive. We note that even where a person does not 
know or have reason to know that the human remains are Native American, 
other laws addressing the discovery of human remains likely will apply, 
particularly for forensic purposes. In such cases, the appropriate 
official would identify whether the human remains are Native American 
and, if Native American, would notify the appropriate Indian Tribes or 
NHOs of the discovery. As noted in the 1995 Final Rule the drafter 
considered any requirement for requiring the complete professional 
identification of inadvertently discovered human remains, funerary 
objects, sacred objects, or objects of cultural patrimony prior to 
notification of the responsible Federal or Indian Tribe officials to be 
``officials inconsistent with the statutory language and the 
legislative history. (60 FR 62143)
    74. Comment: We received six comments on Table 1 to Sec.  10.5(a): 
Report a discovery on Federal or Tribal lands. Three comments requested 
changes to the last row of the table related to certain Federal lands 
in Alaska and seem to reference earlier drafts of these regulations 
rather than the proposed regulations. One comment requested that Indian 
Tribes be identified as the appropriate official for Federal, State, 
county, or private lands near Tribal lands.
    DOI Response: We cannot make the requested change to make Indian 
Tribes the appropriate official for Federal lands, but we note that any 
Indian Tribe with potential cultural affiliation is the additional 
point of contact on Federal lands. This subpart only applies to 
discoveries on Federal or Tribal lands. Discoveries on State, county, 
or private lands are subject to the laws of the State or county.
    We previously revised Table 1 to Sec.  10.5(a) based on similar 
input we received during consultation in 2021. We used the exact 
language from the Act to describe the additional point of contact for 
Federal lands in Alaska selected but not yet conveyed under the Alaska 
Native Claims Settlement Act (ANCSA). For all other Federal lands in 
Alaska, the Indian Tribe with potential cultural affiliation should be 
notified and an Alaska Native Corporation organized under ANCSA is only 
notified when the Federal land has been selected but not yet conveyed. 
Based on the comments, we have removed ``or group'' from the table as 
that term is functionally obsolete following the recognition of Indian 
Tribes in Alaska.
    75. Comment: We received four comments in one submission stated 
that the proposed regulations impermissibly require private parties to 
notify an ambiguous ``additional point of contact'' of a discovery of 
Native American human remains or cultural items on Federal lands. The 
additional point of contact is ``any Indian Tribe or Native Hawaiian 
organization with potential cultural affiliation to the human remains 
or cultural items, if known.'' According to the comment, the Act is 
unambiguous that notification of a discovery on Federal lands is 
limited to the Federal land managing agency.
    DOI Response: We have not made a change. During consultation in 
2021, we received comments requesting the addition of Indian Tribes and 
NHOs as additional points of contact for reporting a discovery on 
Federal lands. We disagree with the comment that this provision is 
impermissible and ambiguous. While the Act is the primary authority for 
the issuance of regulations implementing and interpreting the Act's 
provisions, Congress authorized the Secretary to make such regulations 
for carrying into effect the various provisions of any act relating to 
Indian affairs (25 U.S.C. 9). As the Act is Indian law (Yankton Sioux 
Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 
1056 (D.S.D. 2000)), the Secretary may promulgate this provision under 
the broad authority to supervise and manage Indian affairs given by 
Congress (United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 
1986)). The additional point of contact language is not ambiguous. Not 
only does this notification requirement only apply to a discoverer who 
knows of an Indian Tribe or NHO with potential cultural affiliation, 
but the reporting requirement also only applies to a discoverer who 
knows, or has reason to know, that Native American human remains or 
cultural items have been discovered. Whether a person knows or has 
reason to know that the human remains or cultural items are subject to 
these regulations is case sensitive. In cases involving a planned 
activity on Federal lands, a person performing the activity will have 
reason to know that discovered human remains or cultural items are 
subject to these regulations and most likely also will know of an 
Indian Tribe or NHO with potential cultural affiliation based on the 
required plan of action.
    76. Comment: We received five comments on Sec.  10.5(a) Report any 
discovery. Of that total, three comments suggested changes to the 
paragraph while two comments supported it. Two comments requested 
requiring telephone notification while one

[[Page 86490]]

comment asked if an email qualifies as written documentation of the 
discovery.
    DOI Response: We have added a requirement for in-person or 
telephone notification to the first sentence requiring immediate 
reporting of the discovery. Written documentation of the discovery is 
required to attach the rest of the timelines in this section. As 
explained elsewhere and in Sec.  10.1(e) of this part, written 
documents may be sent by email, with proof of receipt, or by other 
methods of delivery.
    77. Comment: We received nine comments suggesting changes to Sec.  
10.5(b) Cease any nearby activity. Most of these comments requested 
changes to align this paragraph with the preceding paragraph and not 
impose any unintentional limits on the kind of activity that must be 
ceased upon a discovery.
    DOI Response: We have revised this paragraph to follow and refer to 
the preceding paragraph. We have removed the introductory sentence, 
which is already included in Sec.  10.4 of this part, so as not to 
unintentionally limit the kinds of activities that must be ceased upon 
a discovery. As suggested by one comment, we have added that the 
written documentation of the discovery also include any potential 
threats to the discovery.
    78. Comment: We received nine comments on Sec.  10.5(c) Respond to 
a discovery. Of that total, six comments requested changes to text in 
earlier drafts of these regulations rather than to the proposed 
regulations. Two comments requested strengthening the requirement to 
report the discovery to additional points of contact to initiate 
consultation. One comment requested an explanation of what is required 
under this paragraph on Tribal lands.
    DOI Response: We already addressed the concerns expressed by six 
comments in the proposed regulations. The proposed regulations require 
the appropriate official to respond to a discovery no later than three 
days after receiving written documentation. The appropriate official is 
required to report the discovery to any additional point of contact, 
which would be any Indian Tribe or NHO with potential cultural 
affiliation. The proposed regulations require the Federal agency or 
DHHL prepare and approve a plan of action, which includes consultation, 
for any discovery. We agree with the two comments that requested a 
stronger requirement in the paragraph to initiate consultation. We have 
made changes to paragraph (c)(1)(iii).
    To clarify what this paragraph requires on Tribal land, we provide 
the following example: A film production company has permission from an 
Indian Tribe to film on lands within the exterior boundaries of the 
Indian Tribe's reservation. The written permission from the Indian 
Tribe requires the production company to immediately report any 
discovery of human remains or cultural items to the Director of Tribal 
Cultural Affairs and the Director of the regional BIA office by 
telephone and in writing by email. During filming, a member of the 
production company finds objects eroding from a hillside that may be 
human remains or cultural items. The production company reports the 
discovery by telephone and email to the Indian Tribe and the BIA, stops 
all activity around the discovery, secures and protects the objects by 
covering them, and confirms that no activity will resume in the area 
until a written certification is issued by the Indian Tribe. No later 
than three days after receiving the email from the production company, 
the Director of Tribal Cultural Affairs must make a reasonable effort 
to secure and protect the objects, verify that any activity in the area 
has stopped, and notify the Director of the regional BIA office. The 
Director of Tribal Cultural Affairs must send a written certification 
to the film production company no later than 30 days after receiving 
the email from the production company and provide the date (no later 
than 30 days after the date of the written certification) on which the 
film production may resume in the area around the discovery. If an 
excavation is required, the Director of Tribal Cultural Affairs must 
follow the requirements under Sec.  10.6(a). If the objects are human 
remains or cultural items and they are removed from the hillside, the 
Director of Tribal Cultural Affairs must follow the requirements for 
disposition under Sec.  10.7. If both the BIA and the Indian Tribe 
consent in writing, the BIA could take responsibility for any of the 
actions described above related to the discovery, excavation, or 
disposition.
    79. Comment: We received five comments requesting clarification of 
the provisions found in Sec. Sec.  10.5, 10.6, and 10.7 for a NHO to 
accept responsibility for discoveries, excavations, and dispositions on 
Tribal lands of an NHO.
    DOI Response: To clarify, ``Tribal lands of an NHO'' does not 
include lands under a Hawaiian homestead lease, but rather lands that 
the Hawaiian Homes Commission has determined an NHO is qualified to 
steward under a lease or license pursuant to the Hawaiian Homes 
Commission Act. Although Congress affords such opportunity in the Act, 
an NHO need not accept responsibility for discoveries, excavations, or 
dispositions if it believes it is not qualified. As noted in the 
proposed rule, ``[a]ccepting or declining responsibility is an exercise 
of sovereignty,'' and ``the Department seeks to be respectful of the 
sovereignty of the Native Hawaiian Community and their right to self-
determination'' (NPS-2022-0004-0004, pages 17 and 30). The regulations 
do not prescribe how the Hawaiian Homes Commission implements this 
provision, recognizing its authorities and responsibilities. The term 
``Tribal lands of an NHO'' reflects the language of ``Tribal lands'' 
used in the Act. The Department acknowledges that the United States' 
government-to-sovereign relationship with the Native Hawaiian Community 
is different from its government-to-government relationship with Indian 
Tribes and these provisions reflect those relationships.
    80. Comment: We received three comments on Sec.  10.5(d) Approve 
and sign a plan of action. One comment supported the timeline while two 
comments requested that the appropriate official should seek consensus 
or agreement, not just merely engage in consultation with, Indian 
Tribes and NHOs.
    DOI Response: We appreciate the support for this timeline 
considering other comments addressed below. Regarding consultation, we 
note that under these regulations, consultation is defined and includes 
striving for consensus, agreement, or mutually agreeable alternatives. 
This is required for consultation under this paragraph and any other 
place it is used in these regulations.
    81. Comment: We received 14 comments on Sec.  10.5(e) Certify that 
an activity may resume requesting that we extend the timeline for 
resumption of activities or provide more flexibility for the 
appropriate official to extend the timeline. Some of these comments 
believe the Act does not require the appropriate official to provide 
any date on which activity may resume, and, instead, only sets a 30-day 
floor to stop an activity after a discovery occurs. These comments also 
requested clarifying edits be made to this paragraph. Several comments 
on paragraph (c) discussed above requested a copy of the written 
certification be sent to consulting parties. One comment stated that 
evaluating the need for and authorization of an excavation of human 
remains or cultural items must be done in consultation with Indian 
Tribes or NHOs.
    DOI Response: We specifically requested input on this paragraph in 
the proposed rule, and we appreciate the responsive comments. However, 
we

[[Page 86491]]

cannot make the requested change to extend the timeline or build in 
additional flexibility, as discussed in full in the next comment and 
response. We can and have made the clarifying edits to this paragraph 
and added a requirement to send a copy of the certification to the 
additional points of contact. We note that consultation is required on 
a plan of action under paragraph (d) of this section, which includes 
the preference of consulting parties for leaving or relocating human 
remains or cultural items rather than excavating. A plan of action also 
requires a timeline and method for evaluating the potential need for an 
excavation, and we have removed the redundant language in paragraph 
(e)(3) of this section.
    82. Comment: We received eight extensive comments from one 
submission on Sec.  10.5(e) Certify when an activity may resume 
objecting to the additional time provided in the proposed regulations. 
According to the comment, the Act unambiguously states that the 
required certification from the appropriate official to the person 
responsible for the activity is solely to acknowledge that the 
responsible official has received written notification of the 
discovery, and that after 30 days, the activity may resume. The comment 
cites to Senate Report 101-473 (September 26, 1990) for the proposition 
that Congress intended the stop-work period to last only 30 days 
(``After notice has been received the party must cease the activity and 
make all reasonable efforts to protect the remains or objects before 
resuming the activity. The activity may resume 30 days after notice has 
been received. . . Under this section, Indian [T]ribes or native [sic] 
Hawaiian organizations would be afforded 30 days in which to make a 
determination as to the appropriate disposition for these human remains 
or objects.''). The comment also states that expanding the stop-work 
period by allowing additional time for the appropriate official to 
certify receipt of the notification would significantly interrupt and 
impair activities on Federal lands, and thereby contravene 
Congressional intent, as expressed in Senate Report 101-473 (``The 
Committee does not intend this section to act as a bar to the 
development of Federal or [T]ribal lands on which human remains or 
objects are found. Nor does the Committee intend this section to 
significantly interrupt or impair development activities on Federal or 
[T]ribal lands.''). Additionally, the comment states that it would be 
arbitrary and unreasonable for the responsible official to take up to 
35 days to certify that written notice of the discovery from the 
responsible person had been received. Certification is a ministerial 
task that takes little time to complete, and the existing regulations 
provide for a maximum of three working days for doing so. Consequently, 
the comment requests that the Department continue to require the 
appropriate official certify receipt within three working days of 
receiving notification of a discovery.
    DOI Response: The Department believes the provision to build in 
additional days, if needed, after a discovery is permissible. In the 
final regulations, we have revised this time to a standard 30 days for 
clarity. The Act does not provide a timeframe for the appropriate 
official to certify that written notification of a discovery has been 
received, nor does the Act address the action to be taken by the 
appropriate official in responding to the discovery itself. Based on 
other comments about this timeframe, we find there is some ambiguity in 
the Act. While the Act is the primary authority for the issuance of 
regulations implementing and interpreting the Act's provisions, 
Congress authorized the Secretary to make such regulations for carrying 
into effect the various provisions of any act relating to Indian 
affairs (25 U.S.C. 9). As NAGPRA is Indian law (Yankton Sioux Tribe v. 
United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 
(D.S.D. 2000)), the Secretary may promulgate this provision under the 
broad authority to supervise and manage Indian affairs given by 
Congress (United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 
1986)). Ambiguities in statutes passed for the benefit of Indians are 
to be construed to the benefit of the Indians (Bryan v. Itasca County, 
426 U.S. 373 (1976)). Therefore, we have provided in these regulations 
a maximum of 60 days after written documentation of a discovery before 
an activity could resume. This timeframe provides 30 days for the 
appropriate official for a Federal agency or DHHL to evaluate the 
circumstances of the discovery and, in consultation with Indian Tribes 
and NHOs, prepare, approve, and sign a plan of action. We have provided 
that no later than 30 days after receiving documentation of the 
discovery, the appropriate official for an Indian Tribe, NHO, Federal 
agency, or DHHL must certify that written notification of the discovery 
has been received and that a lawful activity may resume on a certain 
date, but no later than 30 days after the date of the written 
certification. This timeframe allows the appropriate official for a 
Federal agency or DHHL a reasonable amount of time to consult with 
Indian Tribes and NHOs, evaluate the potential need for an excavation, 
and carry out the steps in a plan of action. If the appropriate 
official determines, based on the circumstances, that a shorter 
timeframe is acceptable, the lawful activity could resume in fewer than 
60 days. Moreover, we hope that Federal agencies and DHHL will be 
encouraged to engage in consultation earlier and develop a plan of 
action prior to a discovery to allow for a shorter timeframe.

H. Section 10.6 Excavation

    83. Comment: We received 26 comments suggesting changes to Sec.  
10.6 Excavation. The comments generally disagreed with our analysis of 
the relationship between NAGPRA and ARPA, noting that it is 
inconsistent with the plain language of the Act and would unduly narrow 
the application of the Act and these regulations. Some comments 
suggested that, if we did not change the interpretation, we should add 
a requirement that excavations not on ``ARPA Indian land'' or ``ARPA 
Public land'' must have an equivalent permit from another jurisdiction.
    DOI Response: Our interpretation does not change the application of 
the Act. NAGPRA applies to its fullest extent on Tribal land and 
Federal land, as defined in both the statute and regulations. Rather, 
we have defined which excavations under the Act require a permit issued 
under ARPA and which do not. Specifically, the Act requires that human 
remains or cultural items may only be intentionally excavated or 
removed from Federal or Tribal land if, among other requirements, 
``such items are excavated or removed pursuant to a permit issued under 
[ARPA] which shall be consistent with [NAGPRA].'' 25 U.S.C. 3002(c)(1). 
Since both NAGPRA and ARPA are intended to protect important cultural 
resources, they must be construed together. Further, ``issued under 
ARPA'' is an adjectival phrase modifying ``permit.'' Thus, it is not 
ARPA that ``shall be consistent with NAGPRA,'' but rather the ARPA 
permit that must be consistent with the Act. This is supported by the 
legislative history. The Senate Indian Affairs Committee specifically 
noted that it ``[intended] the notice and permit provisions of this 
section to be fully consistent with the provisions of [ARPA]'' (S. Rpt. 
101-473, at 7). Likewise, the House Committee on Interior and Insular 
Affairs, in discussing the stopping of work for an inadvertent 
discovery, noted, ``[a]lthough a specific time limit was not

[[Page 86492]]

added here, the Committee does intend to protect the remains and 
objects found and does not intend to weaken any provisions of other 
laws, such as [ARPA], regarding similar situations.'' Like the Senate 
Committee, the House Committee also stated, ``[s]ubsection (c) provides 
that items covered by this Act can be excavated from Federal or 
[T]ribal land if proof exists that a permit has been acquired under 
Section 4 of the [ARPA]'' (H. Rpt. 101-877, at 15 and 17). Therefore, 
the provisions of ARPA, including the scope of public and Indian land, 
are not affected by the Act. So, the terms ``ARPA Indian land'' and 
``ARPA public land'' are defined in these regulations just as ``Indian 
land'' and ``public land'' are defined in ARPA, including use of the 
term ``individual Indian,'' which is used in ARPA to denote land that 
is owned by an individual Indian, who may or may not be a ``lineal 
descendant'' as used in the Act and defined in these regulations. The 
protections provided for in both statutes is reflected in these 
regulations by the requirement that ARPA permits are issued for NAGPRA 
excavations just as they are for ARPA excavations, keeping the full 
protections of each statute in place, as Congress intended. We have 
added the requested requirement that excavations on Federal or Tribal 
lands that are not ARPA Indian lands or ARPA Public lands must have an 
equivalent permit from the relevant Indian Tribe, NHO, or State, if 
applicable.
    84. Comment: We received eight comments on Sec.  10.6(a) On Tribal 
lands. Of that total, one comment suggested a change to the paragraph 
while seven comments supported it as proposed.
    DOI Response: We cannot make the requested change to paragraph 
(a)(2) to replace ``consent'' with ``respond.'' Consent in writing from 
both the Indian Tribe and the Federal agency is required before the 
responsibility for an excavation is transferred from the Indian Tribe 
to the Federal agency. This ensures all parties are aware of the 
transfer and the responsibilities.
    85. Comment: We received 11 comments on Sec.  10.6(b) On Federal or 
Tribal lands. Of that total, nine comments suggested changes to the 
paragraph while two comments supported it. The comments requesting 
changes all expressed concern about the role of consultation in the 
preliminary steps by an appropriate official to evaluate the potential 
need for an excavation.
    DOI Response: We have removed the sentence in Sec.  10.6 referring 
to evaluation of the potential need for an excavation. The timeline and 
method for evaluating the potential need for an excavation is a 
required part of a plan of action under Sec.  10.4(b)(3)(vi) of this 
part. The plan of action is required before an excavation is authorized 
and requires consultation with lineal descendants, Indian Tribes, and 
NHOs. We note that consultation on a plan of action also includes the 
preference of consulting parties for leaving or relocating human 
remains or cultural items rather than excavating them. We have made 
other clarifying edits to this paragraph considering comments we 
received on Sec.  10.4(b) under this part. We have retained the 
requirement for the written authorization to describe the steps taken 
to evaluate the potential need for an excavation. We believe this is 
necessary to document how the plan of action was implemented.
    Because an Indian Tribe may delegate its responsibilities for 
excavations on Tribal lands to a Federal agency, we have added a 
requirement for the plan of action to include written consent of the 
appropriate Indian Tribe or NHO. This requirement could be fulfilled by 
the written consent delegating the responsibilities under paragraph 
(a)(2) of Sec.  10.6. On Tribal lands of an NHO, DHHL is required to 
obtain written consent from the appropriate NHO prior to authorizing an 
excavation.

I. Section 10.7 Disposition

    86. Comment: We received nine comments on Sec.  10.7 Disposition, 
generally. Of that total, three comments suggested requirements for 
consultation be added to the introductory paragraph for this section 
while one comment supported the consultation requirements as proposed 
in Sec.  10.7. One comment requested adding the definition of 
disposition to the introduction to this section. Two comments objected 
to the burden this section puts on disposition from boarding school 
cemeteries on Federal lands. One comment found this entire section 
confusing and the timelines too long. One comment objected to the 
appropriate official in this section being anyone other than an Indian 
Tribe or NHO.
    DOI Response: We decline to make the requested change to add 
consultation requirements in the introductory paragraph to Sec.  10.7. 
This paragraph applies to human remains or cultural items removed from 
Federal or Tribal lands and as such must include the requirements for 
the appropriate official for an Indian Tribe on Tribal lands as well as 
for the Federal agency or DHHL. As discussed elsewhere, we received 
comments requesting we provide as much flexibility as possible for 
Indian Tribes who are responsible for complying with this section on 
their Tribal lands. As several of the comments noted, the requirements 
of Sec.  10.7 follow the requirements in Sec. Sec.  10.5 and 10.6 which 
require consultation by Federal agencies or DHHL through a plan of 
action. In addition, as the supporting comment noted, consultation is 
required throughout Sec.  10.7 by Federal agencies or DHHL.
    Disposition is defined in Sec.  10.2 and the definition is used to 
describe what a disposition statement must include in this section. We 
have not repeated the definition here. Regarding disposition from 
boarding school cemeteries on Federal lands, we do not believe this 
will overly complicate the process. It will require, as the existing 
regulations do, that when human remains or cultural items are removed 
from Federal lands, including boarding school cemeteries, a notice must 
be published to identify the Indian Tribe with priority for 
disposition. We believe these regulations provide a streamlined 
procedure for excavations of boarding school cemeteries through 
consultation, a plan of action, and a notice of intended disposition. 
The Department encourages any Federal agency that manages boarding 
schools and cemeteries on Federal lands to consult with lineal 
descendants, Indian Tribes, and NHOs on identification, disinterment, 
and repatriation of Native American children as expeditiously as 
possible. The Department stands ready to assist Federal agencies, 
Indian Tribes, and NHOs to the fullest extent of its authority.
    We appreciate the concern expressed by some comments that as 
written and when read alone, the proposed regulations state that the 
appropriate official must determine disposition without consultation. 
We feel that a simple change from ``determine'' to ``identify'' will 
alleviate this concern. The priority for disposition is established by 
the Act and all that is required under this section is for the lineal 
descendant, Indian Tribe, or NHO with priority for disposition be 
identified and, in some cases, notified. We have also removed the 
reference to unclaimed human remains or cultural items, as discussed in 
Comment 91. We cannot make the requested change to the appropriate 
official in this section.
    87. Comment: We received 19 comments on Sec.  10.7(a) Priority for 
disposition. Of that total, seven comments supported this paragraph 
especially as it relates to boarding school repatriations. One comment 
requested human remains or cultural items should only be removed from

[[Page 86493]]

Federal lands with the permission and partnership of the affected 
Indian Tribe. Five comments suggested changes to the priority order, 
specifically for Tribal lands where the Indian Tribe with cultural 
affiliation is not the Tribal land Indian Tribe. Four comments 
requested a significant, but grammatical, change from ``originated'' to 
``were removed.'' One comment requested disposition should only occur 
if other Indian Tribes or NHOs consent. Other comments requesting 
changes to Sec.  10.3 Determining cultural affiliation required changes 
to this paragraph.
    DOI Response: We reiterate that this paragraph is drawn directly 
from the Act itself and does not represent a change in any way. We 
cannot add a requirement to this section to require permission or 
partnership; see the discussion above on the requirement for a plan of 
action prior to an excavation or after a discovery. We cannot change 
the priority order for Indian Tribes with cultural affiliation and 
Tribal land Indian Tribes. Under the Act, the Indian Tribe from whose 
Tribal lands the human remains or cultural items were removed has 
priority over any other Indian Tribe. Likewise, we cannot change the 
use of aboriginal land in the priority order after cultural 
affiliation. Any changes to the priority order would require 
Congressional action. We do want to note here that a final judgment of 
the Indian Claims Commission or the United States Court of Claims also 
includes a judgment concerning a settlement as long as that judgment or 
settlement either explicitly recognizes certain land as the aboriginal 
land of an Indian Tribe or adopts findings that do so. We have made the 
requested grammatical change to ``originated.''
    88. Comment: We received 11 comments suggesting changes to 
paragraph (b) in the proposed regulations under Sec.  10.7 
Disposition--To a lineal descendant (removed in the final regulations). 
All these comments requested we require notices of intended disposition 
for lineal descendants.
    DOI Response: We appreciate and agree with the need for 
transparency in these regulations. However, we reiterate that neither 
the Act nor the existing regulations require publication of a notice of 
intended disposition for a lineal descendant. On Federal land, a notice 
and a claim are only required when no lineal descendant has been 
ascertained. Considering comments related to disposition on Tribal land 
below, we do not believe we can extend the requirement for publication 
of a notice of intended disposition on Tribal land to the appropriate 
official for an Indian Tribe. Therefore, we have removed this paragraph 
entirely and integrated the procedure for disposition to lineal 
descendants into the two following paragraphs.
    89. Comment: We received 18 comments on paragraph (c) in the 
proposed regulations under Sec.  10.7 Disposition--On Tribal lands (in 
the final regulations, this is renumbered Sec.  10.7(b)). Of that 
total, 10 comments requested we require notices of intended disposition 
on Tribal lands. The other eight comments requested we remove the 
unnecessary burdens placed on Indian Tribes for disposition on Tribal 
lands. Five submissions contained both requests, which seem 
inconsistent with each other.
    DOI Response: We believe that requiring the appropriate official 
for an Indian Tribe or NHO to submit a notice of intended disposition 
for publication in the Federal Register is an unnecessary burden, and 
we decline to make this change. We cannot alleviate the entire burden 
on an Indian Tribe or NHO for the disposition process under this 
paragraph. As noted above, we have removed the requirement for 
disposition statement to be sent to a lineal descendant, yet these 
regulations must provide some procedure for an Indian Tribe or NHO to 
identify if there is a lineal descendant with priority for disposition, 
which is a requirement of the Act. The requirements in these 
regulations remain like those in the proposed regulations. On Tribal 
lands, an Indian Tribe or NHO must identify the lineal descendant, 
Indian Tribe, or NHO with priority for disposition and prepare and 
retain a written disposition statement. The written disposition 
statement is required because of the priority afforded to lineal 
descendants under the Act. When a lineal descendant has not been 
ascertained, an Indian Tribe or NHO must ensure a record is made of the 
disposition in case a lineal descendant wishes to assert a priority 
right later.
    We believe this is the minimum burden these regulations can place 
on Indian Tribes or NHOs for human remains or cultural items removed 
from Tribal lands. We note that an Indian Tribe may delegate its 
responsibilities for disposition under this paragraph. In complex cases 
involving multiple potential lineal descendants or Indian Tribes with 
potential cultural affiliation, an Indian Tribe may prefer to delegate 
its responsibility to the Bureau of Indian Affairs or another Federal 
agency. This will alleviate the Indian Tribe of any additional burden 
and, as a result, require the appropriate official for the Federal 
agency to inform and consult with lineal descendants, Indian Tribe, or 
NHOs; publish a notice of intended disposition in the Federal Register; 
respond to any claims for disposition; resolve any competing claims; 
and send a disposition statement. We note in response to the comments 
on paragraph (a) of this section, while we were unable to change the 
priority order for disposition, this paragraph and the option of 
delegating responsibility to a Federal agency provide opportunity for 
an Indian Tribe to include Indian Tribes with cultural affiliation in 
the disposition from Tribal lands.
    90. Comment: We received 12 comments on paragraph (d) in the 
proposed regulations under Sec.  10.7 Disposition--On Federal lands in 
the United States or on Tribal lands in Hawai`i (in the final 
regulations, this is renumbered Sec.  10.7(c) and retitled On Federal 
or Tribal lands). Five comments in the same submission questioned who 
is responsible for determinations in this paragraph and suggested the 
appropriate official should be a representative of an Indian Tribe or 
NHO in all circumstances. One of these comments stated six months is 
too long after a discovery or excavation to inform consulting parties 
in Step 1. Four comments requested adding criminal actions under NAGPRA 
to the deadline extension in Step 2. Two comments were in favor of 
requiring notices be published in the Federal Register while one 
comment opposed this change.
    DOI Response: We have clarified that this paragraph, as in other 
paragraphs in this subpart, applies when a Federal agency or DHHL has 
responsibility for disposition of human remains or cultural items 
removed from Federal or Tribal lands. We have tried to clarify who 
``the appropriate official'' represents at the beginning of each 
paragraph and with the paragraph headings that identify if the 
paragraph applies ``On Tribal lands'' or ``On Federal or Tribal 
lands.'' Because this paragraph covers a wide variety of circumstances 
under which human remains or cultural items are removed from Federal or 
Tribal lands, a longer timeline is necessary for identifying and 
informing consulting parties. In most cases, however, this can occur 
much faster based on the plan of action. We have added a criminal 
action under NAGPRA to Step 2. We have retained the requirement for 
publication of notices of intended disposition in the Federal Register. 
We believe the revised regulatory text will prevent the current delays 
in notice publication.
    91. Comment: We received 13 comments on paragraph (e) in the 
proposed regulations under Sec.  10.7

[[Page 86494]]

Disposition--Unclaimed human remains or cultural items removed from 
Federal lands in the United States or from Tribal lands in Hawai`i (in 
the final regulations, this is renumbered Sec.  10.7(d) and retitled 
Unclaimed human remains or cultural items removed from Federal or 
Tribal lands). Five comments emphatically and some repeatedly objected 
to the concept of unclaimed human remains or cultural items and stated 
that any human remains or cultural items removed from Federal or Tribal 
lands can be identified and claimed through effective and meaningful 
consultation. Two comments objected to the provision for reinterment 
without Indian Tribes or NHOs making the decision to do so. Two 
comments objected to the inclusion of Indian groups without Federal 
recognition in this paragraph. One comment stated the Federal agency or 
DHHL has an obligation to reach out to Indian Tribes or NHOs before 
human remains or cultural items become unclaimed. Two comments 
requested a list of unclaimed cultural items be published on the 
National NAGPRA Program website. One comment requested a requirement 
for reinterment to be as close as possible to the original site.
    DOI Response: We understand the objections raised by many comments 
to this provision, but we are unable to eliminate this paragraph 
because it is required by the Act (see 25 U.S.C. 3002(b)). Regulations 
concerning this part of the Act were proposed in 2013 and finalized in 
2015 and contained very similar provisions. There may be circumstances 
where human remains or cultural items are removed from Federal or 
Tribal land and one year after publication of a notice of intended 
disposition, no Indian Tribe or NHO has made a claim for disposition. 
In other cases, particularly for Federal lands in the Eastern United 
States, when cultural affiliation cannot be determined and the Federal 
land is not the aboriginal land of an Indian Tribe as defined in Sec.  
10.7(a), the Federal agency may not be able to identify any Indian 
Tribe or NHO with priority for disposition and the human remains or 
cultural items may be unclaimed.
    We believe the clarification and simplification of the disposition 
process for human remains or cultural items on Federal or Tribal lands 
that precedes this paragraph will address many of the concerns raised 
by these comments and that only a small number of human remains or 
cultural items will be unclaimed. To date, a total of 44 individuals 
and 164 funerary objects have been reported as unclaimed. Since 2015, 
the National NAGPRA Program has published a list of unclaimed human 
remains or cultural items from Federal or Tribal lands on its website 
(https://www.nps.gov/subjects/nagpra/unclaimed-cultural-items.htm, 
accessed 12/1/2023).
    We have removed the option to transfer unclaimed human remains or 
cultural items to Indian groups without Federal recognition but we have 
retained the option to transfer to an Indian Tribe or NHO or to 
reinter. At the discretion of the Federal agency or DHHL and after 
following the requirements of this paragraph, unclaimed human remains 
or cultural items removed from Federal or Tribal land may be 
transferred or reinterred. As this is a discretionary action, these 
regulations cannot dictate where reinterment occurs.

J. Subpart C

    92. Comment: We received 46 comments on the overall timelines in 
Subpart C. Of that total, 16 comments supported the timelines as 
proposed. Several of these comments felt the timelines were adequate 
and clearly explained, especially with tables. Four comments supported 
the requirements and timeline for updated inventories specifically. Two 
comments felt the timelines achieved a balance between a sense of 
urgency to repatriate and the practical limitations of the tasks 
involved. Two of these comments felt the timelines were too long and 
found the timelines to be extremely unbalanced and specifically aimed 
at benefitting museums and Federal agencies rather than lineal 
descendants, Indian Tribes, and NHOs. One comment felt the timelines 
provided sufficient opportunity for Indian Tribes and NHOs to submit 
requests for repatriation.
    On the other hand, 30 comments felt the timelines were too short, 
unrealistic, unworkable, and unachievable. Many of these comments from 
individuals and museums believe the timelines do not provide adequate 
time for consultation or relationship building and will result in 
overwhelming Indian Tribes and NHOs with requests to consult. Many of 
the comments from Indian Tribes requested the timelines be based on 
Tribal priorities. Most of the comments from individuals and museums 
felt the timelines underestimate the work required for repatriation. 
One comment stated the changes to the regulations were too complicated 
to be done quickly. One comment stated the timelines were not based in 
the real world and provided an example of one Federal agency that 
needed six months just to acquire a signature on a letter. One comment 
stated the focus of these timelines on notice publication is misplaced 
and ignores the other parts of the process.
    Some of these comments requested more flexible timelines with no 
set deadlines. Two comments predicted the tasks involved are more 
likely to take 20 or 50 years to complete. Suggestions in these 
comments included removing timelines entirely, doubling all the 
timelines provided, or retaining the timelines in the existing 
regulations. Three comments suggested a five-year timeline for updating 
inventories. One comment suggested changing the timelines to only 
require initiation of consultation and remove the subsequent timelines.
    DOI Response: We have extended the deadline for museums and Federal 
agencies to update inventories of human remains and associated funerary 
objects from three years to five years after the effective date of 
these final regulations. We have made other changes to the deadlines in 
these regulations to account for the change from business days to 
calendar days discussed elsewhere. We have changed the deadline for a 
museum or Federal agency to respond to a request for repatriation from 
60 days to 90 days for both human remains and associated funerary 
objects and for cultural items.
    Tables 4 and 5 provide an overview of the general timeframes under 
Subpart C from the longest timeline to the shortest timeline. Table 4 
relates to required reporting on holdings or collections and Table 5 
relates to responding to requests for repatriation.

                          Table 4--Timeframes for Reporting on Holdings or Collections
----------------------------------------------------------------------------------------------------------------
If a museum or Federal agency . .
                .                     . . . it must . . .       . . . no later than . . .            See
----------------------------------------------------------------------------------------------------------------
Has human remains and associated   Update an inventory       5 years.......................  Sec.   10.10(d)(3).
 funerary objects not published     (including
 in a notice.                       consultation).
Receives Federal funds for the     Complete an inventory     5 years.......................  Table 1 to Sec.
 first time and has possession or   (including                                                10.10(d)(2).
 control of human remains and       consultation).
 associated funerary objects.

[[Page 86495]]

 
Receives Federal funds for the     Compile and submit a      3 years.......................  Table 1 to Sec.
 first time and has cultural        summary.                                                  10.9(a)(2).
 items.
Acquires or locates human remains  Initiate consultation     2 years.......................  Table 1 to Sec.
 and associated funerary objects.   and complete an                                           10.10(d)(2).
                                    inventory.
Has custody of a Federal agency    Submit a statement to     1 year........................  Sec.   10.8(c).
 holding or collection (museums     the Federal agency and
 only).                             National NAGPRA.
Has custody of a holding or        Submit a statement to     1 year........................  Sec.   10.8(d).
 collection and cannot identify     National NAGPRA.
 an entity with possession or
 control (museums only).
Acquires or locates cultural       Compile and submit a      6 months......................  Table 1 to Sec.
 items.                             summary.                                                  10.9(a)(2).
Completes or updates an inventory  Submit a notice of        6 months......................  Sec.   10.10(e).
                                    inventory completion.
Receives a statement from a        Respond to the museum     180 days......................  Sec.   10.8(c)(1).
 museum with custody of a Federal   and National NAGPRA.
 agency holding or collection
 (Federal agencies only).
Acquires previously reported       Inform National NAGPRA    30 days.......................  Sec.
 human remains or cultural items.   (and initiate                                             10.9(a)(3)(i);
                                    consultation on human                                     Sec.
                                    remains).                                                 10.10(d)(4)(i).
Compiles a summary...............  Initiate consultation...  30 days.......................  Sec.   10.9(b).
Identifies new consulting parties  Initiate consultation...  30 days.......................  Sec.   10.9(b)(3);
                                                                                              Sec.
                                                                                              10.10(b)(3).
----------------------------------------------------------------------------------------------------------------


                         Table 5--Timeframes for Responding to Requests for Repatriation
----------------------------------------------------------------------------------------------------------------
 If a museum or Federal agency . .
                 .                   . . . it must . . .      . . . no later than . . .              See
----------------------------------------------------------------------------------------------------------------
Receives competing requests for     Send a written         180 days.......................  Sec.   10.9(h)(4);
 repatriation.                       determination.                                          Sec.   10.10(i)(3).
Receives a request for              Respond to the         90 days........................  Sec.   10.9(e); Sec.
 repatriation.                       request.                                                  10.10(g).
Has completed all other steps.....  Send a repatriation    90 days........................  Sec.   10.9(g); Sec.
                                     statement.                                                10.10(h).
Agrees to a request for             Submit a notice of     30 days........................  Sec.   10.9(f).
 repatriation of cultural items.     intended
                                     repatriation.
Receives competing requests for     Inform all requestors  14 days........................  Sec.   10.9(h)(3);
 repatriation.                                                                               Sec.   10.10(i)(2).
Receives a returned notice........  Resubmit a notice....  14 days........................  Sec.   10.9(f)(3);
                                                                                             Sec.   10.10(e)(3).
----------------------------------------------------------------------------------------------------------------

    While we understand the objections to the timelines and the 
concerns about insufficient staffing and funding, the Secretary, the 
Assistant Secretary, and the Department are committed to clearing a 
path to expeditious repatriation as Congress intended. In the 32 years 
since the passage of the Act, we have seen some of the largest 
repatriations occur when a museum or Federal agency changed course to 
invite and defer to the input of lineal descendants, Indian Tribes, and 
NHOs. By requiring that deference throughout these regulations, we hope 
more museums and Federal agencies will change course and complete the 
regulatory requirements for repatriation.
    We must stress that most of the timelines and deadlines under these 
regulations are triggered by a request for repatriation from a lineal 
descendant, Indian Tribe, or NHO. If a museum or Federal agency is 
involved in meaningful and effective consultation with lineal 
descendants, Indian Tribes, and NHOs, pressure to complete repatriation 
within a set timeframe may be significantly alleviated. The one 
exception to the request requirement is the timeline for a museum or 
Federal agency to update an inventory of human remains and associated 
funerary objects. We further stress that an extension of this deadline 
may be requested by any museum that has made a good faith effort to 
update its inventory. We have added to the requirements for an 
extension the written agreement of consulting parties to the request. 
If a museum will need an additional 10 or 20 or even 50 years to 
complete its inventory, it can only do so by first engaging in 
meaningful and effective consultation with lineal descendants, Indian 
Tribes, and NHOs. With these changes to the regulations, we hope to 
provide a clear path to repatriation where lineal descendants, Indian 
Tribes, and NHOs, rather than museums and Federal agencies, can define 
what expeditious repatriation means.
    93. Comment: We received 21 comments on the requirements in Subpart 
C for museums and Federal agencies to identify all holdings or 
collections that may contain human remains or cultural items. Most of 
these comments requested additional language to require museums and 
Federal agencies produce transparent information about the full extent 
of their holdings or collections, whether in their possession or 
control or custody. These comments requested the regulations eliminate 
the loophole that allows museums and Federal agencies to avoid 
disclosing information about their holdings or collections. One comment 
requested a requirement to identify items that may have been 
transferred, stolen, sold, or removed from a holding or collection. One 
comment requested standards and requirements for museums and Federal 
agencies to engage in some level of effort to identify holdings or 
collections subject to the Act and these regulations. One comment 
appreciated the inclusion of lost or unknown holdings or collections in 
this subpart but stated that ``negligence to care for native material 
culture is evident time and time again. The very fact that institutions 
like universities are continuing to discover Native American remains in 
their possession is absolutely unacceptable.'' Several comments 
stressed the importance of consultation in identifying holdings or 
collections and suggested consultation should be initiated when a 
museum or Federal agency has reason to believe that human remains or 
cultural items are present in a holding or collection. One comment 
requested clarification on how museums and Federal agencies can be held 
accountable for conducting a full review of holdings or collections.
    On the other hand, a few comments questioned the Department's 
authority to require a review of all holdings or collections and that 
this subpart must be limited to only those holdings or collections that 
are known to have human remains or cultural items. A few comments 
provided details on how long it takes identify human remains or 
cultural items in a holding or collection. One comment stated it takes 
weeks or months to complete a full review of a holding or collection 
and if done too quickly, human remains and cultural items will be left 
behind. One comment stated it takes 10 hours to review a

[[Page 86496]]

single, standard box to identify the presence of human remains or 
cultural items. An additional six to eight hours is needed to document 
each individual or object in the box, and another 40 hours is needed to 
produce a final report of the boxes from the same site. The comment 
also stated a significant amount of space is needed for this kind of 
review and that can often impair the effort to review a holding or 
collection.
    DOI Response: There is no ambiguity in the Act on the requirement 
for museums and Federal agencies to identify all human remains or 
cultural items in holdings or collections. The Act requires each museum 
or Federal agency that ``has possession or control over holdings or 
collections'' to identify all Native American human remains or cultural 
items. The Act required museums and Federal agencies to identify all 
cultural items within three years and all human remains and associated 
funerary objects within five years. The Act provided an option for 
museums to request an extension to identify human remains and 
associated funerary objects, provided the museum had made a good faith 
effort to do so.
    We agree that the initial step requires producing factual and 
transparent information about the holdings or collections. While 
determining possession or control of a holding or collection is a 
jurisdictional requirement and must be done on a case-by-case basis, 
the Act and these regulations make clear that the evaluation applies to 
all holdings or collections. We agree that when a museum or Federal 
agency has reason to believe human remains or cultural items are 
present in a holding or collection it must provide information to 
lineal descendants, Indian Tribes, and NHOs.
    We agree the Department does not have authority under the Act to 
require a museum or Federal agency review holdings or collections that 
are not subject to the Act. Only holdings or collections, or portions 
of holdings or collections, that may contain human remains or cultural 
items are required to be identified. If a museum or Federal agency 
knows that a certain holding or collection does not contain any human 
remains or cultural items, the holding or collection would not need to 
be included in a summary of cultural items or an itemized list of human 
remains and associated funerary objects. For example, a collection 
excavated from an historic era ranch that does not contain any Native 
American objects or items would not need to be included on a summary.
    We disagree that the Act and these regulations do not already 
require a museum or Federal agency to review all holdings or 
collections in their possession or control. The Act and these 
regulations already impose standards and requirements for museums and 
Federal agencies to make an effort to identify human remains and 
cultural items. The standard is if a holding or collection may contain 
human remains or cultural items. The requirement is to comply with this 
subpart and complete a summary, an inventory, and notices. The 
mechanisms for ensuring accountability for a failure to comply with 
this subpart are civil penalties against museums or legal action 
against Federal agencies. Any museum or Federal agency that fails to 
identify a holding or collection that contains human remains or 
cultural items has failed to comply with the Act and these regulations.
    Several comments provided examples of human remains or cultural 
items that were not identified by museums and Federal agencies. In one 
case, an ``archeological collection'' was excluded from a summary 
because the museum assumed it did not contain any cultural items. 
However, archival information about the person who made the collection 
clearly identifies the collector removed objects from a funerary 
context and those objects are likely unassociated funerary objects. In 
another case, human remains were found during a physical review of a 
collection after the inventory was completed and a notice published.
    Museums and Federal agencies have discretion on which holdings or 
collections they include in a summary or inventory. When a museum or 
Federal agency decides to exclude a holding or collection from a 
summary or inventory, it is deciding that the Act and these regulations 
are not applicable to that holding or collection. If that holding or 
collection contains human remains or cultural items, the museum or 
Federal agency has failed to comply and could be subject to civil 
penalties or other legal action. Museums and Federal agencies also have 
discretion on how to evaluate the contents of a holding or collection. 
A museum or Federal agency can choose to review each box in a holding 
or collection to determine if it contains human remains or cultural 
items, but it must do so within the timeframes required by the Act and 
the regulations. Neither the Act nor the regulations require a physical 
review of a holding or collection to comply with the summary and 
inventory requirements.
    Under the final regulations, consent from lineal descendants, 
Indian Tribes, or NHOs is required prior to allowing any research on 
human remains or cultural items. We have defined ``research'' to mean 
any study, analysis, examination, or other means of acquiring or 
preserving information. ``Research'' includes any activity to generate 
new or additional information beyond the information that is already 
available, for example, osteological analysis of human remains, 
physical inspection or review of collections, examination or 
segregation of comingled material (such as soil or faunal remains), or 
rehousing of collections.
    94. Comment: We received 42 comments on specific steps in the 
repatriation process. Six comments from one submission made repeated 
requests to require unassociated funerary objects be listed in the 
inventory so they can be repatriated with the human remains and 
associated funerary objects. One comment requested testing for 
hazardous substances be required and two comments requested removal of 
hazardous substances must be required at the expense of museums and 
Federal agencies. One comment requested ``acquisition'' be replaced 
with ``accession'' so as not to disrespectfully identify human remains 
as objects. One comment requested additional information on 
documentation, analysis, or exhibition be included in a summary or an 
inventory.
    Six comments suggested changes to the steps for consultation. One 
comment stated identifying consulting parties is a difficult task that 
requires additional time than what is provided. One comment requested 
clarification on who identifies new consulting parties. Two comments 
requested clarification on if the regulations require re-initiation of 
consultations that are ongoing as of the effective date of these 
regulations. One comment requested how to proceed when consulting 
parties do not respond to invitations to consult. One comment requested 
clarification on the timeline for responding to an invitation to 
consult and that Indian Tribes and NHOs must be allowed to move at 
their own pace according to each sovereign's capacity and resources. 
Three comments suggested changes to the kinds of information a 
consulting party can request from a museum or Federal agency, including 
that accession records be specifically included or the limitations on 
the use of the information be removed.
    Nine comments requested changes to the notices and requests for 
repatriation under this subpart. Four comments requested lineal 
descendants not be identified by name, and four comments requested 
amended notices be required when additional pieces of previously 
repatriated human remains or cultural

[[Page 86497]]

items are found. One comment requested additional information on 
documentation, analysis, or exhibition be included in a notice. Two 
comments requested that all Indian Tribes or NHOs with cultural 
affiliation be notified or consent to a request for repatriation. Two 
comments suggested requests for repatriation need not be in writing. 
One comment requested changing the timeline for sending a repatriation 
statement from the variable 30 to 90 days to 60 days.
    Three comments expressed concern about the timelines for competing 
requests and stays of repatriation. Two comments requested changes to 
the deadline for evaluating competing requests to either remove the 
deadline in favor of a deadline agreed upon in consultation or to 
include a timeline for requestors to submit additional information to 
support their requests. Two comments on stays of repatriation asked who 
determines if a court of competent jurisdiction enjoins the 
repatriation. One comment requested decisions made during a stay of 
repatriation must be made in consultation with requesting parties.
    DOI Response: We cannot include unassociated funerary objects in an 
inventory as that would be inconsistent with the Act. We cannot require 
testing for or removal of hazardous substances or who should pay for 
that testing or removal as there is no such requirement in the Act. We 
can and do require information about hazardous substances be shared, 
but only when a museum or Federal agency knows about the presence of 
any potentially hazardous substances. Testing or removal should be a 
part of consultation on human remains or cultural items, specifically 
under the duty of care requirements in Sec.  10.1(d). We do not agree 
that ``accession'' is less disrespectful than ``acquisition'' since 
both are generally applied to property or collections. The use of 
``accession'' could lead to confusion over human remains or cultural 
items that were not formally accessioned into a holding or collection. 
The Act uses the word ``acquisition,'' and we have retained that word 
in these regulations. We have not required additional information on 
documentation, analysis, or exhibition be included in a summary or 
inventory, but that information may be requested by a lineal 
descendant, Indian Tribe, or NHO and discussed during consultation on 
the duty of care for human remains or cultural items.
    We have not made changes to timeline or requirements for initiating 
consultation. Depending on the provenience and provenance of the human 
remains or cultural items, identifying Indian Tribes or NHOs with 
potential cultural affiliation is not complex and a museum or Federal 
agency must make a good faith effort to identify consulting parties 
within the timeframe provided. There are several resources that can 
assist museums and Federal agencies with identifying consulting 
parties, including previously prepared summaries or inventories and 
published notices. Museums and Federal agencies are responsible for 
determining if a new consulting party can be identified. When 
consultation is ongoing as of the effective date of these regulations, 
there is no requirement to re-initiate consultation, provided the 
ongoing consultation included all consulting parties.
    We do not intend to impose timelines on lineal descendants, Indian 
Tribes, or NHOs to respond to an invitation to consult and can engage 
in the repatriation process at their own discretion. However, museums 
and Federal agencies are required to act under Sec.  10.10 within 
certain timelines, and those timelines are required even if there is no 
response from a lineal descendant, Indian Tribe, or NHO to an 
invitation to consult. A museum or Federal agency must initiate 
consultation prior to completing or updating an inventory under Sec.  
10.10, but if there is no response to the invitation to consult, the 
museum or Federal agency must complete or update the inventory by the 
deadlines required under Sec.  10.10(d) and submit a notice of 
inventory completion under Sec.  10.10(e). As the Department noted in 
1995 for the first deadline to complete an inventory if there is no 
response after repeated attempts to contact Tribal officials by 
telephone, fax, and mail, the museum or Federal agency official may be 
required to complete the inventory without consultation to meet the 
regulatory deadline. The Department suggested museum and Federal agency 
officials document attempts to contact Tribal officials to demonstrate 
good faith compliance with these regulations and the Act. (1995 Final 
Rule, 60 FR 62151).
    Although the methods to contact an Indian Tribe or NHO have changed 
since 1995, this advice continues to be applicable. Museums and Federal 
agencies must document attempts to contact lineal descendants, Indian 
Tribes, or NHOs to demonstrate a good-faith effort to consult prior to 
the deadlines in these regulations.
    We have not made changes to the additional information consulting 
parties can request. The language in the regulations is taken directly 
from the Act, including the limitations. The regulations do not prevent 
a consulting party from requesting any other information not explicitly 
identified here. We feel accession records are a type of ``records.'' 
As noted elsewhere, we advise lineal descendants, Indian Tribes, and 
NHOs to make their requests as broad as possible to ensure all 
information about human remains or cultural items is available to them 
when making a request for repatriation.
    We have revised the required content of a notice to simplify the 
regulatory text, and we have included language to allow for the name of 
a lineal descendant to be withheld. In response to the comments on 
amended notices and to coincide with the overall changes in the process 
for repatriation, we have removed the requirement for amending a 
notice. After publication of a notice under this subpart, if additional 
human remains or cultural items are identified that were not previously 
included in a summary, inventory, or notice, the museum or Federal 
agency must begin with Step 1 in each process for the newly identified 
human remains or cultural items to ensure adequate consultation and 
notification occurs. We have not required additional information on 
documentation, analysis, or exhibition be included in the notice and 
feel it is important that these regulations require only the minimum 
amount of information required in a notice to prevent unnecessary 
delays or public disclosure of information. If an Indian Tribe or NHO 
wishes to have additional information included in a notice, it should 
inform the museum or Federal agency during consultation of this 
preference. The proposed regulations included requirements for 
notifying other Indian Tribes or NHOs of a request for repatriation of 
human remains and associated funerary objects. We have added these same 
requirements for requests for repatriation of cultural items; both the 
response to a request and the notice of intended repatriation must be 
sent to the requestor and any other consulting party. We cannot require 
museums and Federal agencies obtain consent from other consulting 
parties to a request for repatriation. Any consulting party may submit 
an additional, competing request for repatriation before a repatriation 
statement is sent. We have not removed the requirement for a request 
for repatriation to be submitted in writing. The existing regulations 
contain this same requirement, and the Act is clear that a request for 
repatriation is a requirement, although it does not specify the request 
be in writing. To require the actions that follow a request

[[Page 86498]]

for repatriation be completed by a certain date, the request for 
repatriation must be in writing. Throughout these regulations, we have 
provided flexibility in the timeline for sending a repatriation 
statement (between 30 and 90 days), and we have retained that timeline.
    In response to several comments, we reiterate that competing 
requests for repatriation must occur before a repatriation statement is 
sent and when a competing request is received, the timeline for a 
repatriation statement changes. If a competing request for repatriation 
is received the day before a repatriation statement is sent, the museum 
or Federal agency must wait to send the repatriation statement and 
evaluate the competing requests in accordance with the procedures and 
deadlines for evaluating competing requests for repatriation. One 
comment remarked that ``[g]iven the busy schedules of Tribes and 
museums, and planning costs associated with repatriation, allowing 
requests a day before a repatriation statement is scheduled to be 
submitted would make decisions and obligations between museums and 
Tribe hollow and a potential point of contention.'' This comment is 
precisely the main reason the regulations require a repatriation 
statement separate from physical transfer. Scheduling and incurring 
costs associated with physical transfer should wait until after a 
repatriation statement is sent, assuring all parties that their 
decisions and obligations can be upheld. In addition, we recommend a 
museum or Federal agency send a repatriation statement as early as 
possible under the regulations to ensure expeditious return. We further 
recommend that in a request for repatriation, the lineal descendant, 
Indian Tribe, or NHO request a repatriation statement be sent as early 
as possible under the regulations. As discussed elsewhere, if no 
competing requests are received, 31 days is the minimum amount of time 
between notice publication and sending a repatriation statement.
    We decline to remove the timeline for evaluating competing 
requests. We believe it is important to require museums and Federal 
agencies to make determinations within a set timeframe, even if that 
determination is that they cannot determine the most appropriate 
requestor. This option allows parties to continue consultation but 
ensures all parties have been informed of the museum or Federal 
agency's decision. We have not added a timeline for submission of 
additional information, but we have included an option for submission 
of additional information in the appropriate paragraphs and in Sec.  
10.3(e) Competing claims or requests. We note that any request for 
repatriation must provide information to meet the criteria and that 
information, along with the record of determining cultural affiliation, 
should be used to determine the most appropriate requestor. Where 
competing requests are between Indian Tribes or NHOs with cultural 
affiliation, the priority order under Sec.  10.3(e) Competing claims or 
requests, as revised, relies on how the cultural affiliation 
determination was made (clearly identified or reasonably identified). 
Any party may seek assistance of a court of competent jurisdiction to 
resolve a conflict under these regulations. Given the variables in how 
a stay of repatriation might be resolved, we cannot require 
consultation after a resolution but we can and do require notification 
and repatriation within set timeframes.
    95. Comment: We received 20 comments requesting that the Department 
create a repository for information related to repatriation under this 
subpart. Some of these comments requested that the repository include 
information on Indian Tribes with cultural affiliation to a 
geographical location. Other comments requested a contact database that 
is updated every six months. Many of these comments requested a digital 
repository with detailed information from inventories, summaries, and 
notices that is accessible only to Indian Tribes and NHOs and is 
protected from public release under the Freedom of Information Act. 
Four comments requested the Department publish a list of the museums 
and Federal agencies with the largest collections of human remains or 
cultural items.
    DOI Response: We decline to add any such requirement to the 
regulations as this is a matter of policy, subject to a wide variety of 
other laws, regulations, and policy for information technology, 
protection of personally identifiable information, and special 
relationships between the United States and Indian Tribes and NHOs. The 
Department, through the National NAGPRA Program, is responsible for 
receiving and maintaining many documents related to repatriation, 
including inventories, summaries, and notices. These documents are not 
exempt from public disclosure, as discussed under Comment 5, and we are 
unable to produce the kind of protected database some of the comments 
requested.
    We do, and have for nearly 20 years, provided information about 
repatriation through the National NAGPRA Program website. After nearly 
33 years, one of the best sources for information about cultural 
affiliation are the over 4,400 notices that have been published in the 
Federal Register. Fully text searchable beginning in 1994, notices can 
easily be searched at https://www.federalregister.gov/ (accessed 12/1/
2023). The National NAGPRA Program has and will continue to improve 
digital maintenance and access to data about repatriation through its 
website. Since 2020, the National NAGPRA Program has provided real-time 
data on inventories, summaries, and notices at https://www.nps.gov/subjects/nagpra/databases.htm (accessed 12/1/2023). In addition to the 
databases, since 2019, the National NAGPRA Program has provided annual 
data in searchable data visualization tools at https://public.tableau.com/app/profile/nationalnagpra (accessed 12/1/2023). We 
are committed to developing useful and innovative tools to share 
available data securely, safely, and publicly.
    96. Comment: We received 35 comments on the provisions for a museum 
or Federal agency to request the Assistant Secretary's written 
concurrence that human remains or cultural items are indispensable for 
completion of a specific scientific study. Most of these comments 
requested the Assistant Secretary consult with Indian Tribes and NHOs 
prior to issuing written concurrence or that the request from the 
museum or Federal agency include written consent from the appropriate 
Indian Tribe or NHO to the study. A few comments requested this section 
be removed entirely and the regulations should prohibit any scientific 
study of human remains or cultural items.
    DOI Response: We cannot remove the provisions for ``scientific 
study'' from these regulations as that would be inconsistent with the 
Act. ``Scientific study'' is used twice in the Act itself:
     First, the Act explicitly and specifically does not 
require new scientific studies on human remains or associated funerary 
objects to complete an inventory or determine cultural affiliation (25 
U.S.C. 3003(b)(2)).
     Second, the Act requires that when a specific scientific 
study of human remains, associated funerary objects, unassociated 
funerary objects, sacred objects, or objects of cultural patrimony will 
result in a major benefit to the United States, a museum or Federal 
agency may postpone repatriation but may not deny the request for 
repatriation (25 U.S.C. 3005(b)).
    The first statutory provision only applies to human remains and 
associated funerary objects (25 U.S.C.

[[Page 86499]]

3003(b)(2)). Similar language does not appear in the Act for 
unassociated funerary objects, sacred objects, and cultural patrimony 
(25 U.S.C. 3004(b)(2)). This is likely due to the difference between a 
summary and an inventory. As noted in the 1995 Final Rule, the 
difference between a summary and an inventory ``reflects not only their 
subject matter, but also their detail (brief overview vs. item-by-item 
list), and place within the process'' (60 FR 62140). Since a summary is 
a brief overview of a holding or collection, there is no need to 
include the first provision for unassociated funerary objects, sacred 
objects, and cultural patrimony.
    The second statutory provision for ``scientific study'' applies to 
all ``Native American cultural items,'' which are defined in the Act as 
human remains, associated funerary objects, unassociated funerary 
objects, sacred objects, and objects of cultural patrimony (25 U.S.C. 
3005(b)). The Act refers to this exception in each of the four 
paragraphs that require expeditious repatriation (25 U.S.C. 3005(a)). 
As any elimination or restriction of 25 U.S.C. 3005(b) would require an 
act of Congress, we cannot remove the provisions that allow for 
``scientific study'' entirely. We understand that ``scientific study'' 
in both Sec. Sec.  10.9 and 10.10 is adverse to Tribal interests and 
may seem to allow or authorize scientific studies. While we cannot 
remove these statutorily required exceptions to expeditious 
repatriation, we can limit the implementation of these exceptions 
through the regulations.
    First, we have made changes to Sec.  10.1(d) Duty of care to 
require museums and Federal agencies obtain consent from lineal 
descendants, Indian Tribes, or NHOs prior to conducting any research on 
human remains or cultural items. In that paragraph, we state 
``research'' equates to the term ``scientific study'' in the Act and 
means any study, analysis, examination, or other means of acquiring or 
preserving information. ``Research'' includes any activity to generate 
new or additional information beyond the information that is already 
available, for example, osteological analysis of human remains, 
physical inspection or review of collections, examination or 
segregation of comingled material (such as soil or faunal remains), or 
rehousing of collections. ``Research'' is not required to identify the 
number of individuals or cultural items, or to determine cultural 
affiliation.
    Second, the proposed regulations provided procedures to administer 
the second statutory provision as a stay of the repatriation timeline 
under Sec. Sec.  10.9 and 10.10. A request to exercise this stay of 
repatriation must be submitted before publication of a notice of 
intended repatriation or a notice of inventory completion. This means 
that for human remains and associated funerary objects, a request must 
be made before the deadline to publish a notice of inventory completion 
(in the final regulations, this is five years and six months after the 
effective date of the final regulations). After the notice is 
published, this exemption cannot be used to delay repatriation. The 
proposed regulations and these final regulations require the Assistant 
Secretary's written concurrence with the request and stipulates the 
specific requirements for such a request, including explaining the 
``major benefit'' and why the human remains or cultural items are 
``indispensable.'' The request must also state that the study has in 
place the requisite funding and a completion schedule and completion 
date.
    Third, we agree with the comments that the request must demonstrate 
consent from lineal descendants, Indian Tribes, or NHOs and that the 
Assistant Secretary must consult with Indian Tribes or NHOs before 
concurring with the request. We have added these requirements to the 
regulations in Sec. Sec.  10.9 and 10.10.

K. Section10.8 General

    97. Comment: We received six comments on Sec.  10.8 General. Four 
comments requested a deadline be imposed for museums and Federal 
agencies to determine possession or control of holdings or collections. 
One comment requested ``authorized representatives'' be replaced with 
``appropriate official.'' One comment requested the regulations 
prohibit museums and Federal agencies from engaging with NAGPRA 
consultants or, if consultants are engaged, they be required to comport 
with the law and the regulations, and any violations be reviewed by the 
National NAGPRA Program.
    DOI Response: We have not made any of the requested changes. 
Museums and Federal agencies have deadlines to determine possession or 
control of holdings or collections under paragraphs (c) and (d) of this 
section and through the timelines requiring repatriation under 
Sec. Sec.  10.9 and 10.10. The term ``appropriate official'' applies 
only to Subpart B and includes Indian Tribes and NHOs. Although this 
paragraph requires an authorized representative be identified, Subpart 
C does not use this term but instead makes the subject of these 
regulations the museum or Federal agency to reinforce who is 
responsible for acting under these regulations. We cannot prohibit or 
require review of NAGPRA consultants in these regulations. A museum or 
Federal agency may identify any authorized representative it chooses 
to, but the museum or Federal agency is responsible for the actions of 
that representative. Any failure to comply with these regulations is a 
failure of the museum or Federal agency who has responsibility under 
this subpart.
    98. Comment: We received two comments on Sec.  10.8(a) Museum 
holding or collections, in addition to those discussed elsewhere. One 
comment requested instructions on reporting newly acquired holdings or 
collection where the museum asserts a right of possession through 
donation or excavation conducted under State law. One comment requested 
clear guidelines for museums to determine possession or control.
    DOI Response: We have not made changes to this paragraph. We 
believe this paragraph provides clear guidelines for museums to 
determine possession or control, including for any new holdings or 
collections or previously lost or unknown holdings or collections. As 
discussed elsewhere, the Act and these regulations define a right of 
possession and apply it in some manner to human remains, funerary 
objects, sacred objects, and objects of cultural patrimony. When a 
museum or Federal agency asserts a right of possession to cultural 
items in its holding or collection, the museum or Federal agency must 
include those cultural items in its summary. When a museum or Federal 
agency can prove it has a right of possession to human remains, it may 
exclude those physical remains from its inventory. We note that when 
human remains and associated funerary objects are excavated from State 
or private land, requirements under State law may not equate to right 
of possession and a museum (including a State or local agency) should 
ensure it can prove it has a right of possession to human remains and 
associated funerary objects independent of such requirements.
    99. Comment: We received eight comments requesting clarification on 
Sec.  10.8(b) Federal agency holding or collection. All the comments 
questioned why a Federal agency must determine when or where a holding 
or collection was acquired.
    DOI Response: We have made clarifying changes to this paragraph. 
For a holding or collection, a Federal agency must determine if the 
human remains or

[[Page 86500]]

cultural items are subject to disposition under Subpart B or 
repatriation under Subpart C. To make this determination, the Federal 
agency must determine when and where the human remains or cultural 
items were removed. If the human remains or cultural items were removed 
from Federal or Tribal land after November 16, 1990, the Federal agency 
must use Subpart B to complete the disposition of those human remains 
or cultural items. If the human remains or cultural items were removed 
from Federal lands on or before November 16, 1990, or after that date 
from an unknown location or from lands that are not Federal or Tribal 
lands, the Federal agency must use Subpart C to complete the 
repatriation of those human remains or cultural items.
    For example, if a museum has custody of a holding or collection 
that was excavated from Federal land in 1991, the Federal agency who 
has responsibility for that Federal land must comply with Subpart B and 
identify the lineal descendant, Indian Tribe, or NHO that has priority 
for disposition of the human remains or cultural items by following the 
requirements of Sec.  10.7. Regardless of how long the human remains or 
cultural items have been in the custody of the museum, the Federal 
agency has responsibilities for ensuring the disposition of those human 
remains or cultural items that were removed from Federal land after 
November 16, 1990.
    A Federal agency cannot apply the summary and inventory 
requirements in Subpart C to any human remains or cultural items that 
were removed from Federal or Tribal land after November 16, 1990. Under 
the Act, those human remains or cultural items are subject to 
disposition under Subpart B.
    100. Comment: We received 18 comments on Sec.  10.8(c) Museums with 
custody of a Federal agency holding or collection. Of the total 
comments, eight comments were supportive, although most referred to 
corresponding comments on the definition of ``custody.'' One supportive 
comment highlighted the presumptive language when a Federal agency 
fails to decide within the set timeline. Four comments requested 
publication of museum statements in the Federal Register or otherwise 
provided to Indian Tribes and NHOs. One comment was supportive but 
concerned that Federal agencies would be unable to respond within the 
timeframe while one comment felt the timeframe was too long and should 
be much shorter. One comment questioned how this would be enforced 
while one comment was concerned this would make Federal agencies 
responsible for holdings or collections they haven't yet taken 
responsibility for. One comment requested the statement be more than a 
statement and align with the requirements for a summary and inventory. 
One comment questioned the Department's authority to require statements 
on non-NAGPRA collections, requested more information on joint 
possession or control, suggested changing possession or control to 
ownership or legal title, and posited Federal agencies must first 
request these statements under 36 CFR 79 rather than through these 
regulations.
    DOI Response: We have not made changes to this paragraph. Elsewhere 
in these regulations, we have addressed the definition of ``custody.'' 
We have not changed the deadline for a museum to issue a statement (one 
year after the effective date of the final regulations) or for a 
Federal agency to respond (six months or 180 calendar days after 
receipt of the museum's statement). Both deadlines are important to 
ensure resolution to this long-standing barrier to repatriation. We 
understand and share the concern expressed by one comment that a 
Federal agency who has not shouldered responsibility for a collection 
to date will be required to take responsibility for it in the future. 
We believe that this requirement will result in increased awareness by 
Federal agencies of their responsibilities for these holdings or 
collections but also in an opportunity to hold Federal agencies 
accountable for those holdings or collections. We have not required 
publication of those statements in the Federal Register, but the 
statements will be added to the records kept by the National NAGPRA 
Program and will be available upon request. We plan to provide 
information on the program website, like what we provide for other 
records.
    The Department has authority for both these regulations and for 36 
CFR part 79 and the Department recognizes the overlapping nature of 
these regulations for Federal agency holdings or collections that 
contain human remains or cultural items. We disagree that the 
Department does not have authority to require statements of holdings or 
collections that contain human remains or cultural items. As discussed 
elsewhere, when a Federal agency holding or collection is known to not 
contain human remains or cultural items, it is not subject to the Act 
or these regulations.
    101. Comment: We received eight comments on Sec.  10.8(d) Museums 
with custody of other holdings or collections. Five comments generally 
supported this requirement but suggested it be broadened to include 
holdings or collections that are under the control of another entity or 
when control cannot be identified, except for those under Federal 
agency control. In addition, these comments requested custody be 
replaced with possession, consistent with comments on those 
definitions. Two comments opposed this requirement and thought the 
deadline was unrealistic. Both comments stated the requirement for a 
museum to identify legal ownership status of its holdings or 
collections was onerous and would require significant resources. One of 
these comments stated the issue was not a lack of information so much 
as it was too much information that required significant time to 
analyze and synthesize to decide. One comment specifically opposed any 
requirement for museums to notify State and local governments of 
holdings or collections, questioned how this would work with State 
repatriation laws, and suggested it could result in legal disputes. The 
comment stated many State and local governments are unaware of NAGPRA 
and do not have funding or staff to comply with these regulations. The 
comment questioned how these regulations would apply to criminal 
investigations and medical examiners who may hold samples of biological 
materials.
    DOI Response: We have not made changes to this paragraph. This 
paragraph requires museums to provide statements describing those 
holdings or collections for which it cannot identify an entity with 
possession or control. Where a museum can identify that a person, 
institution, or State or local government agency has possession or 
control of the holding or collection, no statement is required. We 
encourage a museum with custody of a holding or collection that 
contains human remains or cultural items to notify the entity that has 
possession or control, but we do not require that notification because 
doing so would exceed the Secretary's authority under the Act. The 
entity that has possession or control of the human remains or cultural 
items is responsible for complying with these regulations. We 
understand that many museums do not have clear documentation for 
holdings or collections, and as one comment stated, museums may be 
required to undertake a comprehensive review of the legal ownership 
status to determine if the owner is, indeed, known. This is not only a 
requirement for purposes of these regulations, but is, in general, a 
professional and ethical requirement for museums. A central tenant of 
collections management and

[[Page 86501]]

care is documentation of not only the objects in a holding or 
collection, but of the legal ownership status of those holdings or 
collections. For holdings or collections that contain human remains or 
cultural items, a museum must ensure it can identify the legal 
ownership of the holding or collection or risk a failure to comply with 
these regulations.
    State and local government agencies are included in the definition 
of museum in the Act and these regulations and where such agencies have 
possession or control of human remains or cultural items, regardless of 
their physical location, and those agencies receive Federal funds, they 
must comply with the requirements for repatriation under this subpart. 
Any museum, including State or local government agencies, that fail to 
comply with these requirements are subject to the civil penalty 
provisions.
    As discussed elsewhere, unless local or State authorities obtain 
the full knowledge and consent of the next of kin or the official 
governing body of the appropriate Indian Tribe or NHO, coroners, 
medical examiners, and other local or State agencies should consider 
their requirements under the Act and these regulations for any Native 
American human remains, including biological samples.
    102. Comment: We received six comments on adding a new paragraph to 
Sec.  10.8 related to making grants to Indian Tribes, NHOs, and 
museums. In addition to the statutory language on grants, the comments 
suggested including a limitation on initiation of any new scientific 
study of human remains and associated funerary objects.
    DOI Response: We have not added the requested paragraph. We do not 
see a value in repeating the statutory language regarding grants in 
these regulations. We have addressed the issues of new scientific 
studies under Sec.  10.1(d) Duty of care. The Notice of Funding 
Opportunity for NAGPRA grants provides guidance and limitations on 
potential use of grant funds and is the best place for any additional 
requirements to be added.

L. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred 
Objects, or Objects of Cultural Patrimony

    103. Comment: We received 11 comments generally on Sec.  10.9 
Repatriation of unassociated funerary objects, sacred objects, or 
objects of cultural patrimony. Four comments objected to preparation of 
a summary prior to consultation with lineal descendants, Indian Tribes, 
or NHOs. One of these comments suggested reordering the steps so 
consultation occurs before a summary is developed. Another of these 
comments suggested changing ``Complete a summary'' to ``Draft a 
summary'' to recognize the need for consultation. On the other hand, 
seven comments supported the proposed regulations because it was clear 
that the requirement of a summary as a general description and the 
following step-by-step procedures were sufficient to ensure 
consultation prior to any determinations.
    DOI Response: We have not changed the order of the steps as that 
would be inconsistent with the Act. We have changed ``Complete a 
summary'' to ``Compile a summary.'' We agree with most of these 
comments that the proposed regulations are clear that a summary is a 
general description of a holding or collection and must be followed by 
consultation with lineal descendants, Indian Tribes, and NHOs. As the 
step-by-step procedures make clear, determinations related to specific 
cultural items come after a request for repatriation is received. In 
its response to the request, a museum or Federal agency must determine 
if the request meets the required criteria and, if not, must explain 
why.
    104. Comment: We received nine comments on Sec.  10.9(a) Step 1--
Complete a summary of a holding or collection. Four comments requested 
that summaries should be published in the Federal Register or otherwise 
shared with Indian Tribes and NHOs by the National NAGPRA Program after 
they are submitted. One comment requested the summary be expanded to 
include all Native American objects in a collection. One comment 
requested a better definition of when a summary is complete because 
that will trigger other deadlines. One comment stated that when a 
holding or collection is transferred, the previously prepared summary 
can only be relied on if it was sufficient in the first place. One 
comment requested updated summaries be required in these regulations 
while one comment asked if previously submitted summaries were 
sufficient and did not require updates.
    DOI Response: We have not included a requirement for summaries to 
be published in the Federal Register or otherwise shared by the 
National NAGPRA Program. Museums and Federal agencies must send the 
summary with an invitation to consult to any lineal descendant and any 
Indian Tribe or NHO with potential cultural affiliation no later than 
30 days after submitting the summary to the National NAGPRA Program. 
The National NAGPRA Program retains copies of all summaries it has 
received since 1990 and will provide them upon request. The National 
NAGPRA Program maintains an online database that identifies which 
museums and Federal agencies have submitted summaries and which Indian 
Tribes or NHOs were invited to consult. We cannot require a summary 
include all Native American objects in a holding or collection as this 
would be inconsistent with the Act. These regulations require a summary 
to include the entire holding or collection which may include cultural 
items. We note that only holdings or collections, or portions of 
holdings or collections, that may contain cultural items are required 
to be identified in a summary.
    Table 1 to Sec.  10.9(a)(2) identifies the deadlines for compiling 
a summary after the effective date of these final regulations for 
holdings or collections that are newly acquired, previously lost or 
unknown, or in the possession or control of a museum or Federal agency 
that receives Federal funds for the first time. Prior to the effective 
date of these final regulations, summaries must have been submitted by 
the dates identified in paragraph (a)(3) of this section. When a 
holding or collection is transferred to a museum or Federal agency, the 
museum or Federal agency must inform the National NAGPRA Program by 
submitting the previously compiled summary within 30 days of acquiring 
the holding or collection. The museum or Federal agency must compile 
its own summary by the deadline in Table 1 to ensure that the contents 
of the summary are accurate, include any additional information 
available, and reflect the newly acquired holding or collection.
    Six months is the deadline in the existing regulations for 
submitting a summary for a newly acquired or previously lost or unknown 
holding or collection and has been since 2007 (see Future Applicability 
Final Rule, RIN 1024-AC84 (72 FR 13184, March 21, 2007). Anytime a 
museum or Federal agency becomes aware of a holding or collection that 
may contain cultural items and that has not been submitted in a 
summary, it must treat the holding or collection as a previously lost 
or unknown collection and compile a summary within six months of 
becoming aware of the holding or collection. As discussed in other 
responses, a museum or Federal agency is responsible for complying with 
the requirements of this subpart for all holdings or collections in its 
possession or control that may contain human remains or cultural items.
    Updated summaries are not required by the existing regulations or 
by these

[[Page 86502]]

final regulations. As discussed above, there are requirements for a 
summary to be submitted for newly acquired or previously lost or 
unknown holdings or collections. Similarly, when a new consulting party 
is identified, either based on new information or a newly federally 
recognized Indian Tribe, a museum or Federal agency must send an 
invitation to consult to the new consulting parties. Because a summary 
is a general description of a holding or collection, it does not 
require updates provided the initial summary adequately described the 
holding or collection. While many museums have submitted updated 
summaries under the existing regulations, these are better identified 
as new summaries covering new or previously unreported collections. 
More detailed information about specific cultural items in a holding or 
collection is more appropriate for consultation and a notice of 
intended repatriation and does not require an updated summary.
    105. Comment: We received nine comments on Sec.  10.9(d) Step 4--
Receive and consider a request for repatriation. Seven comments noted 
that geographical affiliation, as used in the proposed regulations, was 
not one of the criteria for a request for repatriation. Two comments 
related to the third criterion for information to support a finding 
that the museum or Federal agency does not have right of possession. 
One comment felt this would require significant resources for Indian 
Tribes and NHOs while the other comment suggested stating that if an 
object meets the definition of one of the cultural items, the 
definition alone is sufficient to meet the criteria.
    DOI Response: Under the Act, there are three criteria for the 
repatriation of an unassociated funerary object, sacred object, and 
object of cultural patrimony: the establishment, as appropriate, of 
lineal descent or cultural affiliation; the establishment of the 
identity of the object as a cultural item; and the presentation of 
evidence which, if standing alone before the introduction of evidence 
to the contrary, could support a finding that the museum or Federal 
agency did not have a right of possession to the cultural item (25 
U.S.C. 3005(a)(2) and (c)). Concerning this last criterion, the lineal 
descendant, Indian Tribe, or NHO making the request for repatriation is 
not required to do additional research on the object and can likely use 
the information provided by the museum or Federal agency about the 
object to satisfy all three criteria.
    For example, a museum has information that a pipe was acquired and 
accessioned in 1985 from an individual donor, a doctor, who originally 
received the pipe in 1965 as a gift. During consultation, a traditional 
religious leader identified the pipe as a sacred object needed by 
present-day pipe carriers for a traditional pipe ceremony. By speaking 
with elders, the traditional religious leader learned that in 1954, the 
U.S. Government terminated the Indian Tribe of the last Native American 
to own the pipe. Termination resulted in the Tribe's land base being 
sold, relocation of the Tribe's people to multiple urban areas 
throughout the U.S., and the forced suspension of the traditional 
religious practice associated with the pipe. The Native American owner 
relocated to the metropolitan area of the museum in 1957 and was 
unemployed from 1963 until the end of his life in 1966. The terminated 
Indian Tribe and the Indian Tribe who identified the traditional 
religious leader have a relationship of shared group identity through 
their origin stories, inter-marriage, and pipe ceremonies. The 
historical context surrounding the acquisition of the sacred object by 
the museum would be evidence to support a finding that, while the 
Native American owner had the authority to alienate the pipe, this 
transaction was not made voluntarily or fully freely. Consequently, in 
making its request for repatriation of this sacred object, the Indian 
Tribe could state (1) the pipe is a sacred object, (2) the Indian Tribe 
has cultural affiliation to the pipe based on historical information, 
kinship, and expert opinion, and (3) the historical information 
surrounding the acquisition of the sacred object shows that the museum 
does not have a right of possession to the sacred object.
    106. Comment: We received seven comments on Sec.  10.9(e) Step 5--
Respond to a request for repatriation. One comment stated that any 
request from a federally recognized Indian Tribe satisfies the criteria 
for repatriation and no other criteria should be required. Four 
comments believe the option for a museum or Federal agency to assert a 
right of possession was either impossible, a loophole, absurd, or 
intentionally obtuse. One comment stated a museum or Federal agency 
must show right of possession by a preponderance of the evidence. One 
comment stated that no museum or Federal agency could have possession 
or control of an object of cultural patrimony based on the definition 
of such an object.
    DOI Response: The criteria identified in paragraph (d) of this 
section are drawn from the Act itself at 25 U.S.C. 3005(a)(2)--
requiring identification of the specific type of cultural item and 
cultural affiliation to the requestor and 25 U.S.C. 3005(c)--requiring 
information regarding right of possession. Right of possession is not 
intended to be a loophole or intentionally obtuse, but it is a standard 
that must be applied to requests for repatriation. The legal language 
of the Act ``presents evidence which, if standing alone before the 
introduction of evidence to the contrary, would support a finding that 
the Federal agency or museum did not have the right of possession'' has 
been interpreted here to fit within the steps of receiving and 
responding to a request for repatriation. As discussed in the previous 
response, a request must include information to support a finding that 
the museum or Federal agency does not have right of possession to the 
unassociated funerary object, sacred object, or object of cultural 
patrimony.
    In response to the information in the request for repatriation, a 
museum or Federal agency has an opportunity to ``overcome such 
inference and prove that it has a right of possession to the objects.'' 
The standard applied to right of possession is distinct from and in 
some ways harder to satisfy than preponderance of the evidence. A 
museum or Federal agency must prove it has a right of possession to 
refuse to repatriate a cultural item.
    A museum or Federal agency may have possession or control of an 
object of cultural patrimony, as those terms are defined in the Act and 
these regulations. It is unlikely that a museum or Federal agency will 
have a right of possession to an object of cultural patrimony, given 
the definition of that term. Nevertheless, each request for 
repatriation of an object of cultural patrimony must be evaluated based 
on the information available.
    107. Comment: We received one comment on Sec.  10.9(h) Evaluating 
competing requests for repatriation, objecting to the priority order 
that includes lineal descendants as it differs from the priority order 
in the Act at 25 U.S.C. 3002(a).
    DOI Response: We cannot make the requested change to remove lineal 
descendants from the priority order for unassociated funerary objects 
or sacred objects. The referenced priority order applies to human 
remains or cultural items removed from Federal or Tribal lands under 
Subpart B of these regulations. For holdings or collections under 
Subpart C of these regulations, the Act provides for lineal descendants 
to request sacred objects under 25 U.S.C. 3005(a)(5). By definition, an 
object of cultural patrimony cannot be connected to a lineal 
descendant. By

[[Page 86503]]

definition, an unassociated funerary object could be connected to a 
lineal descendant, provided that the related human remains are those of 
a known individual whose ancestry can be traced. The circumstances 
under which a lineal descendant can be identified for unassociated 
funerary objects is limited, but where possible, those lineal 
descendants have priority when there are competing requests.
    For example, in 1880, funerary objects were removed from the marked 
grave site of a known individual shortly after the individual's death 
and burial. The human remains were not removed. In 1940, the family of 
the person who removed the funerary objects from the grave site donated 
the objects to a local historical society. Accession records and 
exhibit labels at the historical society identify the individual who 
was buried with the funerary objects by name. A lineal descendant who 
can trace ancestry to the known individual requests repatriation of the 
unassociated funerary objects. After the notice of intended 
repatriation is published in the Federal Register, the Indian Tribe 
with cultural affiliation also requests repatriation of the funerary 
objects. Using this paragraph, the historical society determines the 
lineal descendant is the most appropriate requestor.

M. Section 10.10 Repatriation of Human Remains or Associated Funerary 
Objects

    108. Comment: We received six comments on Sec.  10.10(a) Step 1--
Compile an itemized list of any human remains and associated funerary 
objects. Two comments supported this paragraph as proposed. Two 
comments requested additional language to require the inclusion of 
human remains and associated funerary objects that are identified in 
documentation that cannot be located or are known to have been 
destroyed. Two comments requested that this paragraph require 
consultation prior to any analysis and allow Indian Tribes and NHOs to 
dictate the level of documentation or analysis required to complete the 
itemized list.
    DOI Response: We have not made the requested changes. Based on the 
information available, a museum or Federal agency must determine if 
human remains or cultural items that are destroyed, deaccessioned, 
lost, or in any other way removed are under its possession or control 
and therefore subject to these regulations. As discussed elsewhere, a 
museum or Federal agency must ensure the itemized list is comprehensive 
and covers any holding or collection that may contain human remains and 
associated funerary objects. We note that an itemized list may be 
prepared using only documentation identifying human remains and 
associated funerary objects and there is no requirement to physically 
locate the human remains and associated funerary objects.
    We have not added the requested requirement for consultation to 
this paragraph but have, nevertheless, provided that lineal 
descendants, Indian Tribes, and NHOs must consent to any analysis of 
human remains and associated funerary objects. As provided in this 
paragraph, museums and Federal agencies must identify the number of 
individuals in a reasonable manner based on the information available. 
No additional study or analysis is required to identify the number of 
individuals. If human remains are present in a holding or collection, 
the number of individuals is at least one. We have made changes to 
Sec.  10.1(d) Duty of care to require museums and Federal agencies 
obtain consent from lineal descendants, Indian Tribes, or NHOs prior to 
conducting any research on human remains or cultural items. 
``Research'' includes any activity to generate new or additional 
information beyond the information that is already available, for 
example, osteological analysis of human remains, physical inspection or 
review of collections, examination or segregation of comingled material 
(such as soil or faunal remains), or rehousing of collections. 
``Research'' is not required to identify the number of individuals or 
cultural items, or to determine cultural affiliation.
    109. Comment: We received three comments on Sec.  10.10(b) Step 2--
Initiate consultation. All three comments requested guidance on how to 
identify consulting parties for human remains and associated funerary 
objects with no known geographical location or a broad geographical 
location such as ``Southwestern.'' One of these comments recommended 
that human remains with no geographical location information should be 
assumed to be from a geographical location near the museum or Federal 
agency. ``For human remains believed to be Native American such as 
those with no provenance, it makes sense to establish a presumption for 
return and reburial rather than indefinite curation of these ancestral 
human remains.'' The comment stated broad consultation with all Indian 
Tribes and NHOs ``. . . is an inefficient manner of handling 
disposition of Native American human remains with no provenance'' (NPS-
2022-0004-0166). Another comment agreed stating ``[s]ending 
consultation letters to all 574 Tribes and engaging in consultation 
with respondents would be extremely burdensome for the museum or 
Federal agency and could impede other repatriation efforts'' (NPS-2022-
0004-0125).
    On the other hand, one comment stated Indian Tribes and NHOs prefer 
for museums and Federal agencies to consult broadly with all 347 Indian 
Tribes in the contiguous 48 States, 227 Indian Tribes in Alaska, and 
all Native Hawaiian organizations. The comment stated ``[w]hile only 
approximately 4% of individuals have no geographic location 
information, they deserve to be treated with equal respect.'' The 
comment asked for clarification because ``inconsistent guidance is 
provided by the Review Committee, which encourages broad consultation, 
and the National NAGPRA Program, which encourages making arrangements 
with the Tribe or Tribes whose aboriginal homeland includes the 
location of the museum'' (NPS-2022-0004-0135).
    DOI Response: We have not made changes to this paragraph. We want 
to stress that broad consultation with all 574 Indian Tribes and all 
NHOs is not a requirement of either the existing regulations or the 
final regulations. We disagree that the Review Committee and the 
National NAGPRA Program have provided inconsistent guidance. Both the 
Review Committee and the National NAGPRA Program support consultation 
that leads to expeditious repatriation. Both the Review Committee and 
the National NAGPRA Program advise that broad consultation helps 
alleviate the potential for competing requests or disagreements. Under 
the existing regulations and these final regulations, a museum or 
Federal agency is responsible for identifying consulting parties and 
initiating consultation based on the information available. Museums and 
Federal agencies can choose to consult broadly, even if doing so is 
burdensome and less efficient.
    Under these final regulations, there is a specific timeframe for 
museums and Federal agencies to consult on human remains and associated 
funerary objects. Yet, it is still up to a museum or Federal agency to 
identify lineal descendants and Indian Tribes and NHOs with potential 
cultural affiliation and invite them to consult. For example, based 
only on acquisition history and the current location of the museum, a 
museum could decide its preference is to only invite Indian Tribes who 
currently reside in the county and State where the museum is located. 
Alternately, a museum could decide to invite all Indian Tribes who 
previously occupied the State where the museum is

[[Page 86504]]

located to participate in consultation. Or a museum could decide to 
invite all Indian Tribes who reside in the wider geographic region 
(northeast or southwest, for example) or all 574 Indian Tribes and all 
NHOs to participate in consultation. Provided the museum is acting in 
good faith, any of these options are sufficient, but a museum or 
Federal agency should keep in mind the deadline for completing or 
updating an inventory and publishing a notice of inventory completion.
    110. Comment: We received four comments on Sec.  10.10(d) Step 4--
Complete an inventory of human remains and associated funerary objects 
that expressed concern about the determinations that are required in an 
inventory under paragraph (d)(1)(iii) of this section.
    DOI Response: We have revised the list of determinations in an 
inventory under paragraph (d)(1)(iii) to correspond to the changes in 
Sec.  10.3 Determining cultural affiliation. For each entry in an 
itemized list, the inventory must include a determination identifying 
one of the following:
    1. A known lineal descendant (whose name may be withheld);
    2. The Indian Tribe or Native Hawaiian organization with cultural 
affiliation that is clearly identified by the information available;
    3. The Indian Tribe or Native Hawaiian organization with cultural 
affiliation that is reasonably identified by the geographical location 
or acquisition history; or
    4. No lineal descendant or any Indian Tribe or Native Hawaiian 
organization with cultural affiliation can be clearly or reasonably 
identified.
    The two options for identifying cultural affiliation come directly 
from the Act, which we have also used in defining cultural affiliation 
and in Sec.  10.3 Determining cultural affiliation. In the Act, 
cultural affiliation of human remains may be (1) clearly identified or 
(2) not clearly identified but determined by a reasonable belief given 
the ``circumstances surrounding acquisition'' (25 U.S.C. 3003(d)(2)(B) 
and (C)). Throughout this section of the Act, there is reference to an 
inventory identifying ``geographical and cultural affiliation,'' 
``geographical origin,'' ``basic facts surrounding acquisition and 
accession,'' ``[T]ribal origin,'' and ``totality of circumstances 
surrounding acquisition of the remains or objects'' (25 U.S.C. 3003). 
The existing regulations require an inventory to include accession and 
catalogue entries and information related to the acquisition of each 
object, including: the name of the person from whom the object was 
obtained, if known; the date of acquisition; the place each object was 
acquired; and the means of acquisition.
    The proposed regulations revised this into two separate and 
simplified requirements under Sec.  10.10(a): (1) the county and State 
where the human remains and associated funerary objects were removed 
and (2) the acquisition history (provenance) of the human remains and 
associated funerary objects. In these final regulations, the 
requirements under Sec.  10.10(a) are (1) the geographical location 
(provenience) by county or State where the human remains and associated 
funerary objects were removed; and (2) the acquisition history 
(provenance) of the human remains and associated funerary objects. 
``Acquisition'' is not defined in the Act or these regulations and 
should be understood to have a standard, dictionary definition of ``to 
get as one's own; to come into possession or control of.'' To elaborate 
and clarify what information the Act requires, we have separated the 
concept of acquisition into two separate parts: ``provenience'' and 
``provenance'' which both mean ``origin, source.'' Provenance also 
means ``the history of ownership of a valued object or work of art or 
literature'' (https://www.merriam-webster.com/dictionary/acquire, 
https://www.merriam-webster.com/dictionary/provenience, and https://www.merriam-webster.com/dictionary/provenance, accessed 12/1/2023).
    Therefore, under Sec.  10.10(a) and (d), a museum or Federal agency 
must identify both the geographical location (provenience) from which 
the human remains and associated funerary objects were removed, but 
also the acquisition history (provenance) of the human remains and 
associated funerary objects. Even in the small number of cases where 
geographical location (provenience) of human remains and associated 
funerary objects is unknown, all human remains and associated funerary 
objects (as well as other cultural items) will have some kind of 
acquisition history or provenance. Even when the only information about 
human remains and associated funerary objects is that they were ``found 
in collections'' of a museum, that information is sufficient to 
identify the Indian Tribes or NHOs with potential cultural affiliation 
for consultation based solely on the location of or general collection 
practices of the museum.
    111. Comment: We received nine other comments on Sec.  10.10(d) 
Step 4--Complete an inventory of human remains and associated funerary 
objects. One comment objected to the requirement for updating an 
inventory under paragraph (d)(4) of this section as work formerly 
deemed ``complete'' will now be ``incomplete'' and this undermines the 
goal of improving implementation and compliance with the Act. One 
comment requested changes to require the Assistant Secretary to monitor 
the work of museums who requested an extension. Seven comments 
requested clarification of the requirements when a holding or 
collection is transferred.
    DOI Response: We disagree that the requirement to update an 
inventory undermines the goal of improving implementation and 
compliance with the Act and these regulations. Just as they were 
required to do in 1990, museums and Federal agencies must initiate 
consultation, consult on human remains and associated funerary objects, 
and make determinations about cultural affiliation. In updating an 
inventory, the museums or Federal agencies already have a significant 
amount of information available in the previously prepared and 
submitted inventories. No additional research or analysis is required 
by these regulations. To fulfill this requirement, a museum could send 
its original inventory from 1995 along with the other required 
information to initiate consultation. In response, a consulting party 
might identify those human remains and associated funerary objects that 
it wishes to consult on and assert it has cultural affiliation to the 
human remains and associated funerary objects.
    The Assistant Secretary will decide on any request for an extension 
to the inventory deadlines and will publish a list of all museums who 
request an extension in the Federal Register. This will provide both 
the Assistant Secretary and the public with information needed to 
monitor the progress of museums who have not completed the inventory 
requirements by the deadline.
    We have clarified how a museum or Federal agency may rely on a 
previously completed or updated inventory after a transfer. The museum 
or Federal agency must still complete the inventory by the required 
deadline but only after initiating consultation. The criminal 
provisions of NAGPRA (18 U.S.C. 1170) clearly prohibit the sale, 
purchase, use for profit, or transportation for sale or profit of 
Native American human remains. Any museum or Federal agency that 
acquires possession or control of human remains must ensure they are 
not violating those provisions in any transfer of human remains.
    112. Comment: We received five comments on the requirement to 
repatriate associated funerary objects

[[Page 86505]]

with all human remains, regardless of cultural affiliation. Two of 
these comments objected to the requirement. One comment stated the 
Department made a gross oversimplification of the issues raised in a 
taking of property in adding this requirement and that ``[i]t is a 
blanket grab for objects not previously deemed covered under NAGPRA'' 
(NPS-2022-0004-0188). Another objecting comment believes this change to 
the existing regulations ``. . . is being made without a formal review 
of its Fifth Amendment takings implications under Executive Order 
12630'' and will ``create an opportunity for lawsuits to overturn these 
rules--especially now that `Chevron deference' has been significantly 
weakened. Experience has shown that such litigation is detrimental to 
the relationships that have been built between museums and Native 
groups over the past 30 years'' (NPS-2022-0004-0172). On the other 
hand, three comments supported this requirement, although one comment 
expressed concern over the legal review of this change.
    DOI Response: We have not made any change to the requirement for 
associated funerary objects to be repatriated with human remains. We 
have conducted a thorough, formal review of this requirement and these 
regulations. Information and analysis related to that review can be 
found in the 2022 Proposed Rule (87 FR 63226).
    113. Comment: We received one comment on Sec.  10.10(f) Step 6--
Receive and consider a request for repatriation. The comment stated 
that any request from an Indian Tribe satisfies the criteria for 
repatriation and no other criteria should be required.
    DOI Response: In this section for human remains and associated 
funerary objects, the only criteria for a request for repatriation is 
that the lineal descendant, Indian Tribe, or NHO is identified in the 
notice of inventory completion. The lineal descendant, Indian Tribe, or 
NHO that is identified in a notice of inventory completion is 
determined in the inventory under Sec.  10.10(d)(1) of this section and 
as discussed in detail in Comment 110. The procedures in this paragraph 
are necessary to set up an opportunity for additional requests for 
repatriation to be made.
    This paragraph provides an option for a requestor that is not 
identified in a notice of inventory completion. The requestor must 
show, by a preponderance of the evidence, that the requestor is a 
lineal descendant or an Indian Tribe or NHO with cultural affiliation. 
A museum or Federal agency may determine in an inventory and a notice 
of inventory completion that for certain human remains and associated 
funerary objects there is no lineal descendant or any Indian Tribe or 
NHO with cultural affiliation. This paragraph provides that any lineal 
descendant, Indian Tribe, or NHO can make a request for repatriation of 
those human remains or cultural items. The museum or Federal agency 
must respond in writing to the request within 90 days.
    114. Comment: We received 17 comments on Sec.  10.10(k) Transfer or 
reinter human remains and associated funerary objects. Of that total, 
two comments supported this paragraph as proposed. Two comments 
requested we remove the option for reinternment as museums and Federal 
agencies should not be authorized to reinter human remains or cultural 
items. Two comments missed or misunderstood this paragraph and 
expressed concern that by removing the options under the existing 
regulations for culturally unidentifiable human remains, these 
regulations would eradicate a way forward for transfer of human remains 
without cultural affiliation or that have a relationship of shared 
group identity to Indian groups without Federal recognition. The Review 
Committee objected to the option in this paragraph for transfer of 
human remains to Indian groups without Federal recognition and 
requested a thorough legal review of this option. The Review Committee 
and others requested this paragraph include a requirement for the 
Review Committee and the Secretary to review agreements for transfer or 
reinterment prior to publication of a notice of intended transfer or 
reinterment. The Review Committee and one other comment also requested 
that any notice for reinterment include the specific law allowing for 
reinterment. Four comments requested that the regulations specifically 
protect information about any reinterment under this section or under 
Sec.  10.7 from disclosure or dissemination and that reinterment be as 
close as possible to the location where the human remains and 
associated funerary objects were removed.
    DOI Response: We have revised this paragraph to apply only to human 
remains and associated funerary objects with no lineal descendant or no 
Indian Tribe or NHO with cultural affiliation. We believe the 
clarification and simplification of the cultural affiliation and 
repatriation processes for human remains and associated funerary 
objects that precedes this paragraph will address many of the concerns 
raised by these comments and that this paragraph will apply only to a 
small number of human remains and associated funerary objects.
    We reiterate that cultural affiliation as defined in the Act only 
applies to an NHO or an Indian Tribe, which means a federally 
recognized Indian Tribe. An Indian group without Federal recognition 
may have a shared group identity to an earlier group, but such an 
Indian group cannot have a cultural affiliation as defined under the 
Act or these regulations. As noted elsewhere, Indian groups without 
Federal recognition, including State recognized tribes, are not 
completely excluded from the repatriation processes. As is the current 
practice, Indian groups without Federal recognition can work with 
federally recognized Indian Tribes as part of a joint request for 
repatriation.
    We have removed the option to transfer unclaimed human remains or 
cultural items to Indian groups without Federal recognition. This 
change is in response to the strong objections we received from 
federally recognized Indian Tribes and discussed in Comment 3. This 
change also emphasizes and recognizes that the Act reflects the unique 
relationship between the Federal government and Indian Tribes and NHOs 
(25 U.S.C. 3010). This change is also based on experience over the last 
13 years with repatriation involving Indian groups without Federal 
recognition.
    We have retained the option to transfer to an Indian Tribe or NHO 
or to reinter. At the discretion of the museum or Federal agency and 
after following the requirements of this paragraph, human remains and 
associated funerary objects may be transferred or reinterred. In Texas, 
for example, conflicts between federally recognized Indian Tribes and 
Indian groups without Federal recognition have resulted in a preference 
for reinterment rather than for transfer. In California, State law 
provides for more involvement of State recognized groups in 
repatriation and in many cases Indian Tribes have worked jointly with 
Indian groups without Federal recognition to complete repatriations and 
reburials. This paragraph provides for any Indian Tribe or NHO to 
request and receive physical transfer of human remains and associated 
funerary objects that have no cultural affiliation. We hope that this 
will allow for even more collaboration between federally recognized 
Indian Tribes and Indian groups without Federal recognition to achieve 
repose for these human remains and associated funerary objects.
    As reinterment is a discretionary action, these regulations cannot 
dictate where reinterment occurs. The

[[Page 86506]]

regulations do not require identification of the reinterment location 
and do require sensitive information be protected from disclosure. 
After a thorough legal and policy review of this paragraph, we have 
determined neither the Review Committee nor the Secretary must review 
agreements between the parties prior to publication of a notice of 
intended transfer or reinterment.

N. Section 10.11 Civil Penalties

    115. Comment: We received 30 comments on Sec.  10.11 Civil 
penalties. Of that total, 12 comments supported the section as 
proposed. Nine comments requested the regulations add procedures for 
investigating a Federal agency's failure to comply with the 
requirements of the Act. Three comments objected to the revisions to 
this section and requested we reinstate or identify more limited 
categories for failure to comply. One comment stated that as proposed, 
the regulations ensure all museums will fail to comply with the 
requirements of the Act. Three comments requested clarification if 
certain actions, like releasing sensitive information, would be a 
failure to comply. One comment requested clarification if museums with 
custody of a Federal holding or collection are subject to civil 
penalties. One comment provided specific suggestions for this section 
to include (1) a fixed timeline, (2) a transparent procedure for 
investigations, (3) involvement of an aggrieved party, and (4) options 
for aggrieved parties to appeal a final decision.
    DOI Response: We cannot expand this section to include Federal 
agencies. As noted in the regulations, Federal agencies are not subject 
to the civil penalty provisions of the Act and any change would be 
inconsistent with the Act. It is not appropriate for this section to 
reference or include other Federal laws. The most broadly applicable 
way to allege that a Federal agency has failed to comply with the Act 
or these regulations is to send an allegation to the head of the 
appropriate Federal agency or to the Federal agency's Office of the 
Inspector General.
    We have not revised the broad options for a failure to comply. All 
the requirements in Subpart C of these regulations can be the subject 
of a civil penalty. We have provided clear timelines for museums, after 
the effective date of these final regulations, to ensure they are in 
compliance with all these requirements. Museums should carefully 
consider these timelines when exercising the discretion they have on 
how to complete the required tasks. For example, as discussed 
elsewhere, a museum has discretion in how it compiles an itemized list 
of human remains and associated funerary objects. Whether a specific 
action, like failing to protect sensitive information, constitutes a 
failure to comply will depend on the specific circumstances. A museum 
that has custody of a Federal agency holding or collection is 
responsible for sending the required statement under Sec.  10.8(c) and 
a failure to do so could constitute a failure to comply under this 
section. As discussed in the following responses, this section provides 
timelines and transparency whenever possible. However, we note that 
given the nature of investigations and civil penalties, not all tasks 
can be made public.
    We have made edits to this section and the definitions to identify 
the Assistant Secretary as the individual with delegated authority 
under this section. We have made additional updates related to the 
address for the Department's Office of Hearings and Appeals.
    116. Comment: We received 30 comments on Sec.  10.11(a) File an 
allegation. Most of these comments (25) requested we remove the 
requirement for an allegation to include the full name, mailing 
address, telephone number, and (if available) email address of the 
person alleging the failure to comply. A few of these comments also 
requested we reduce the requirements for an allegation to identify and 
enumerate violations in an allegation or to identify and enumerate the 
aggrieved parties. One comment requested that allegations be sent to 
the Department's Office of the Inspector General, rather than the 
Manager, National NAGPRA Program. Two comments requested the 
regulations include a procedure for the Department to inspect or 
investigate museums proactively, rather than depending on allegations. 
Two comments requested a procedure for Indian Tribes to report when a 
request to a museum is denied or ignored.
    DOI Response: We cannot provide for anonymous allegations in these 
regulations. To ensure the Assistant Secretary can gather necessary 
information on an allegation, we require that a person alleging the 
failure to comply identify themselves and provide a method for us to 
contact them. However, that does not preclude any individual from 
submitting an anonymous tip regarding a failure to comply. While not an 
allegation, an anonymous tip could provide information for the 
Assistant Secretary to investigate and determine if a failure to comply 
has occurred. We have revised the requirement to only include contact 
information (telephone or email) in an allegation. We have revised the 
requirements to enumerate violations, but we cannot revise the 
requirement to identify violations. The allegation must contain some 
information to determine if an investigation is warranted. Again, we 
note that any individual could submit a tip regarding a failure to 
comply where the individual has no information to identify a violation.
    An allegation may be submitted by an Indian Tribe or NHO when a 
museum denies or ignores a request, depending on the circumstances. 
Under these regulations, a museum must respond to a request for 
repatriation, and, if a museum determines the request does not meet the 
required criteria, it must provide a detailed explanation and provide 
an opportunity for the requestor to submit additional information. If a 
response to a request for repatriation is not sent by the deadline 
required or if it does provide detailed information, the Indian Tribe 
or NHO could allege a failure to comply.
    Under the Act, the Secretary has discretion for assessing a civil 
penalty pursuant to the procedures established in these regulations. 
The Secretary has delegated responsibility for receiving allegations of 
failure to comply to the Manager, National NAGPRA Program, but the 
Secretary has delegated responsibility for assessing a civil penalty to 
the Assistant Secretary. While these regulations do not require the 
Assistant Secretary inspect or investigate museums proactively, the 
Assistant Secretary may assess a civil penalty to any museum that fails 
to comply.
    117. Comment: We received 12 comments on Sec.  10.11(b) Respond to 
an allegation. Seven comments supported this paragraph as proposed, 
specifically the timeline for the Assistant Secretary to respond to an 
allegation. Four comments requested the regulations clarify what action 
the Assistant Secretary must take in 90 days. One comment stated that a 
civil penalty must always be the appropriate remedy to a failure to 
comply.
    DOI Response: We have made edits to clarify that no later than 90 
days after receiving an allegation, the Assistant Secretary must 
determine if the allegation meets the requirements and must respond to 
the person making the allegation. After that, the Assistant Secretary 
may conduct any investigation that is necessary. We cannot place time 
constraints on the investigation, but we have ensured that the 
Assistant Secretary will decide on all allegations that meet the 
requirements for an allegation. The Assistant Secretary has

[[Page 86507]]

reserved the option to determine that a failure to comply is 
substantiated, but a penalty is not an appropriate remedy.
    118. Comment: We received nine comments on Sec.  10.11(c) Calculate 
the penalty amount. Four comments requested an increase in the base 
penalty amount while two comments requested penalties be calculated on 
a per day, per violation basis. One comment requested that since no 
monetary value can be placed on cultural items, the regulations should 
use civil penalties primarily to facilitate repatriation. One comment 
requested the regulations not reference the commercial value of human 
remains or cultural items. One comment requested the regulations make a 
connection between the options for increasing or decreasing a penalty 
amount so that the increasing factors can be used to justify denying 
any of the decreasing factors.
    DOI Response: We have not increased the base penalty amount or 
changed the calculation to per day and per violation. We believe the 
regulations provide sufficient means for the Assistant Secretary to 
calculate a penalty based on the number of separate violations and the 
factors for increasing the base amount. Coupled with the broadening of 
this section to include any failure to comply, we believe civil 
penalties will be an effective tool to facilitate repatriation. We 
cannot remove commercial value because that language is in the Act 
itself and must be a part of these regulations.
    119. Comment: We received four comments on Sec.  10.11(d) Notify a 
museum of a failure to comply that requested aggrieved parties be 
notified as well. We received two comments on Sec.  10.11(e) Respond to 
a notice of failure to comply that requested aggrieved parties be 
included in any informal discussion of the failure to comply.
    DOI Response: We have included a requirement for any lineal 
descendant, Indian Tribe, or NHO named in a notice of failure to comply 
to receive a copy of the notice. If an aggrieved party is identified in 
an allegation or through the investigation of an allegation, that party 
would be named in the notice of failure to comply and receive a copy of 
the notice. We cannot require aggrieved parties be included in informal 
discussions regarding the notice of failure to comply. Prior to 
assessing a civil penalty, the Assistant Secretary may request 
information from any party and must consider that information in 
assessing the civil penalty. After receiving a copy of a notice of 
failure to comply, any aggrieved party may provide information to the 
Assistant Secretary related to the failure to comply, especially if it 
will inform the penalty assessment.
    120. Comment: We received two comments related to Sec.  10.11(h) 
Respond to an assessment and four comments on Sec.  10.11(n) Additional 
remedies. Two comments requested clarification on where money collected 
under a civil penalty goes. Four comments requested the Department use 
other civil penalties authorized under law beyond this section.
    DOI Response: Any payments for civil penalties are by certified 
check made payable to the U.S. Treasurer and the funds go to the 
general account of the U.S. Treasury. The Department reserves the right 
to pursue other available legal or administrative remedies in the final 
paragraph of this section.

O. Section 10.12 Review Committee

    121. Comment: We received 16 comments on Sec.  10.12 Review 
Committee. Seven comments requested that the monitoring 
responsibilities of the Review Committee be added to this section. Four 
comments requested we expand this section to include other 
responsibilities or at least caveat the final paragraph to indicate it 
is not the only action the Review Committee can take. Three comments 
requested the duty to report to Congress be added to this section. One 
comment requested the responsibilities for compiling an inventory for 
certain human remains and recommending specific actions be added to 
this section, although the comment was clear the term ``culturally 
unidentifiable'' should not be used. One comment suggested the Review 
Committee take on regional cases, like the Review Committee's finding 
for Moundville, to assist both Indian Tribes and NHOs and museums and 
Federal agencies to determine cultural affiliation and publish those 
decisions.
    DOI Response: We do not see a reason to simply add the language of 
the Act to these regulations. The enumerated responsibilities in the 
Act are still required regardless of their inclusion in the 
regulations. However, we do agree with many of the comments that 
providing additional procedures in these regulations for the Review 
Committee may further the goals of disposition or repatriation. 
Although some comments provided suggestions for adding language, we 
decline to add any additional procedures at this time. We commit to 
working with the Review Committee to develop additional paragraphs for 
this section of the regulations. Any additions will require additional 
consultation with Indian Tribes and NHOs as well as public comment.
    122. Comment: We received four comments on Sec.  10.12(a) 
Recommendations requesting that we revise 90 days to 30 days. We 
received four comments discussed above that supported the 90-day 
timeframe.
    DOI Response: We decline to make this change. Under the Federal 
Advisory Committee Act, meeting minutes must be certified 90 days after 
a public meeting. Using this same time frame for publication of related 
notices will ensure that the meeting minutes that support the 
recommendations or findings are also available.
    123. Comment: We received four comments on Sec.  10.12(b) 
Nominations. Two comments related to the requirement that two 
traditional Indian religious leaders be nominated, at the exclusion of 
a traditional Native Hawaiian religious leader. One comment suggested 
that the seventh member be appointed from a list developed by only the 
three members nominated by Indian Tribes, NHOs, and traditional 
religious leaders. One comment requested clarification on the 
limitations of national museum or scientific organizations.
    DOI Response: We cannot make the changes requested to either the 
first or last category of nominations as doing so would be inconsistent 
with the Act. When Congress expressly identified traditional Indian 
religious leaders as being eligible to serve in two of the three 
specified slots, it excluded traditional Native Hawaiian religious 
leaders. The Act also specifies that the Secretary choose the seventh 
member from a list developed and consented to by all the other members. 
The Act did not provide any requirements beyond ``national museum 
organizations and scientific organizations.'' The additional 
information on these organizations was added in response to the 
Government Accountability Office report in 2010. ``Lesser geographic 
scope'' refers to a scope that is less than national. Similarly, the 
membership of the organization cannot be limited to one region of the 
United States.
    124. Comment: We received three comments on Sec.  10.12(c) Findings 
of fact or disputes on repatriation. One comment supported the 
paragraph as proposed. One comment requested grammatical changes. One 
comment requested we add scientists as affected parties under this 
paragraph.
    DOI Response: We decline to make any of the requested changes. The 
Act specifically limits the parties who may seek facilitation of 
disputes to lineal descendants, Indian Tribes, NHOs, museums, and 
Federal agencies. For findings of fact, the request must be

[[Page 86508]]

from an affected party and relate to the identity, cultural 
affiliation, or return of human remains or cultural items. We do not 
find that scientists alone are affected parties in either circumstance.

III. Response to Public Engagement and Request for Comments

A. Public Engagement

    Between October 18, 2022, and January 31, 2023, the Department 
conducted consultation sessions with Indian Tribes and the Native 
Hawaiian Community. The Department conducted additional consultation 
sessions, upon request, with Indian Tribes or the Native Hawaiian 
Community to ensure sufficient opportunity to engage and comment in 
advance of this final rule and to respond to the previous requests 
received for additional consultation sessions. During consultation, the 
Department requested feedback from Indian Tribes and NHOs on how to 
further allow Indian Tribes and NHOs flexibility and discretion 
regarding the regulatory requirements and the new responsibilities 
under Subpart B and the deadlines under Subpart C.
    We received several comments related to these specific requests and 
have responded to them directly elsewhere in this document (see 
Comments 4, 30, 64, 65, 80, 85, 92, 94, 105, and 111). Other comments 
from Indian Tribes provided additional input on these specific 
requests, and we have incorporated any suggestions, to the extent 
possible, to provide Indian Tribes and NHOs with flexibility and 
discretion in these regulatory requirements. One comment provided 
specific and direct feedback related to these specific requests, and we 
are providing a summary of that comment and a direct response here as 
an illustrative example.
    In the comment, the Indian Tribe expressed concerns about the 
timelines for updating inventories, specifically, and the potential for 
the burden of consultation to be placed on Indian Tribes. The Indian 
Tribe requested that the regulations provide options for Indian Tribes 
to determine if or when they wished to consult and to delay 
consultation as needed. The Indian Tribe felt that some of the 
regulatory procedures were streamlined and simplified but did not feel 
that consultation was any more efficient than the existing regulations. 
The Indian Tribe believed the proposed regulations stressed 
consultation and repatriation requests at the end of the inventory, 
rather than at the beginning, and requested that the regulations be 
revised to stress the requirement for consultation at the beginning of 
the process. The Indian Tribe also asked to extend the deadline for the 
updated inventory and that the regulations make clear that a request 
for an extension of the deadline is an option. The Indian Tribe stated, 
``At issue is not the regulatory process, but the fact that the 
majority of museums do not know what they have in their collections. 
Any attempts to project a budget or timeframe for resources needed tend 
to be woefully inadequate. Museums also seem unwilling to review their 
collection boxes physically or lack the expertise to review 
osteological material'' (NPS-2022-0004-0185). The Indian Tribe provided 
an example of a recent consultation that resulted in the identification 
of an additional 19 sites and 500 funerary objects during a cursory 
review. The Indian Tribe expressed a concern echoed in many comments 
from all constituents that the new deadlines would result in ancestors 
being left behind and a general lack of due diligence on the part of 
museums and Federal agencies.
    As discussed elsewhere in this document, we do not intend to impose 
requirements on lineal descendants, Indian Tribes, or NHOs to respond 
to invitations to consult or to submit requests for repatriation. Those 
are actions that lineal descendants, Indian Tribes, and NHOs may choose 
to take, but are not required. However, museums and Federal agencies 
are required to act within certain timelines, and those timelines are 
required even if there is no response from a lineal descendant, Indian 
Tribe, or NHO to an invitation to consult. In Sec.  10.10, a museum or 
Federal agency must initiate consultation prior to completing or 
updating an inventory, but if there is no response to the invitation to 
consult, the museum or Federal agency must complete or update the 
inventory by the deadlines required under Sec.  10.10(d) and submit a 
notice of inventory completion under Sec.  10.10(e). We stress that an 
extension of this deadline may be requested by any museum that has made 
a good faith effort to update its inventory. We have added to the 
requirements for an extension the written agreement of consulting 
parties to the request. If a museum will need additional time to 
complete its inventory, it can only do so by first engaging in 
meaningful and effective consultation with lineal descendants, Indian 
Tribes, and NHOs. With these changes to the regulations, we hope to 
provide a clear path to repatriation where lineal descendants, Indian 
Tribes, and NHOs, rather than museums or Federal agencies, define what 
``expeditious'' repatriation means.
    Regarding due diligence and the potential for human remains or 
cultural items to be left behind, we note that the Act and these 
regulations impose standards and requirements for museums and Federal 
agencies to make an effort to identify human remains and cultural 
items. Any museum or Federal agency that fails to identify a holding or 
collection that contains human remains or cultural items has failed to 
comply with the Act and these regulations. It is therefore advantageous 
for a museum or Federal agency to be broadly inclusive of collections, 
especially those that might contain human remains.
    The Department proactively engaged with a subset of affected 
entities, including Indian Tribes, NHOs, museums, and Federal agencies, 
to understand if the regulatory revisions could impact these entities' 
capacity and resources. The Department requested feedback from Indian 
Tribes, NHOs, museums, and Federal agencies on how to ensure the step-
by-step process for repatriation is streamlined and simplified by the 
regulatory revisions under Subpart C. In preparing the proposed 
regulations, the Department was not aware of any capacity and resource 
limitations that would prevent these entities from completing the new 
requirement to update inventories, submit requests to consult, engage 
in consultation, and publish notices following the effective date of a 
final rule.
    As discussed elsewhere in this document, but especially in Comment 
4, we received substantial and specific feedback on the impact to 
capacity and resources under these regulations. We have addressed many 
of these comments in the revised Cost-Benefit and Regulatory 
Flexibility Threshold Analyses for the final regulations. We have 
incorporated any suggestions, to the extent possible, to ensure the 
step-by-step process for repatriation is streamlined and simplified 
under Subpart C. The same submission from an Indian Tribe provided 
specific and direct feedback related to this specific request as well, 
and we are providing a summary of that comment and a direct response 
here as an illustrative example.
    The Indian Tribe stated its staff would be overwhelmed by requests 
to consult and requested that the regulations make clear that, after 
receiving an invitation to consult from a museum or Federal agency, 
Indian Tribes should be allowed to move at their own pace according to 
each sovereign's capacity and resources. The Indian Tribe stated that 
it currently consults or has consulted with 347

[[Page 86509]]

entities on NAGPRA collections, and every year that number increases. 
The Indian Tribe explained that, depending on size, scope, and context 
of the collection, some consultations require mere hours while others 
require years of sustained work. The Indian Tribe believes there is no 
way to truly calculate the costs or to accurately forecast if there 
will be sufficient opportunity to submit requests and engage in 
meaningful consultation. The Indian Tribe explained that, based on 
experience, review of collections is often necessary as museums fail to 
accurately identify funerary objects and other cultural items. The 
Indian Tribe requested that the regulations allow flexibility, to be 
guided by considerations and consultations with Indian Tribes.
    Throughout these regulations, we require museums and Federal 
agencies to defer to the Native American traditional knowledge of 
lineal descendants, Indian Tribes, and NHOs. We have required museums 
and Federal agencies to not only consult but also obtain consent prior 
to allowing exhibition of, access to, or research on Native American 
human remains or cultural items. We have reiterated the requirements of 
the Act for museums and Federal agencies to rely on the information 
available (previous inventories, catalog cards, accession records, 
etc.) to identify consulting parties, conduct consultation, determine 
cultural affiliation, update the inventory, and submit a notice of 
inventory completion. Any museum or Federal agency that fails to 
identify a holding or collection that contains human remains or 
cultural items has failed to comply with the Act and these regulations. 
It is therefore advantageous for a museum or Federal agency to be 
broadly inclusive of collections, especially those that might contain 
funerary objects or other cultural items.

B. Requests for Comments

    In addition to the public engagement and outreach discussed above, 
the Department solicited comment from the public on the entirety of the 
proposed rule. The Department received comments from the public on the 
cost-benefit and regulatory flexibility analyses, including the 
conclusions about the expected costs of complying with the rule. In 
particular, the Department requested responses to the following 
questions about the proposed regulations (labeled a through g):
    a. For each regulatory requirement, does the estimated time per 
response seem reasonable? If not, what range of time per response would 
be more reasonable for a specific regulatory requirement?
    As noted elsewhere in this document, we received several comments 
that provided input or alternative estimates for specific tasks. Two 
comments stated the rate used to calculate costs should be increased to 
$100 to $120 per hour. A few comments provided estimated costs to 
Indian Tribes and NHOs of $17.2 million per year. This estimate was 
developed using grant awards from 2011 to 2021 to estimate the average 
cost for a notice of inventory completion ($14,416 per notice). After 
calculating an estimated cost for museums and Federal agencies to 
comply with the regulations, the estimate calculated the costs for 
Indian Tribes and NHOs by applying the percentage of funding awarded in 
grants from 2011-2021 to museums (58%) and Indian Tribes or NHOs (42%) 
to estimate a total burden for the regulations at $91.4 million over 30 
months or $36.6 million per year (NPS-2022-004-0174).
    One museum provided a variety of estimates based on current project 
budgets which ranged from $200,000 to $500,000 per project per year for 
one museum. The comment estimated the burden for the single museum at 
19,000 hours per year ($1.273 million per year per museum assuming an 
hourly rate of $67/hour). When applied to all 407 museums that will be 
required to update inventories under these regulations, that amounts to 
the highest estimate of $518.1 million per year for museums alone, 
although the comment noted that not all museums will require the same 
number of hours (NPS-2022-004-0125).
    One individual detailed the hours involved in one part of a two-
part project over 15 months. While a total estimated cost was not 
provided, elsewhere the comment suggested at minimum $100 to $120 an 
hour should be used in dollar estimates. Using the lower hourly figure 
and the rough number of hours provided, the estimate for the first 
phase of the project is $123,000 over 15 months or $98,400 per year. 
When applied to all 407 museums that will be required to update 
inventories under these regulations, it equals an estimated $40 million 
per year for museums. The comment noted that these estimates do not 
include the hours involved in preparation of the original inventory of 
human remains and associated funerary objects completed in the early 
1990s (NPS-2022-004-0135).
    Each of these estimates uses a different method to estimate the 
costs for repatriation of human remains and associated funerary 
objects, but we do not feel they accurately estimate the costs of 
compliance with either the existing regulations or this regulatory 
action. We believe that any estimate based on current practice or past 
grant awards is inherently flawed and does not account for the specific 
objective of this regulatory action to simplify and improve the 
systematic processes within specific timeframes. We agree that our 
estimates do not reflect the actual amount of time some museums and 
Federal agencies currently spend on compliance with these regulations. 
We strongly disagree, however, that our estimates do not reflect what 
is required by these regulations. In the 33 years since the passage of 
the Act, each museum or Federal agency has approached the requirements 
of these regulations in different ways, and, as a result, there is a 
wide variation in how much time and money is spent to comply with these 
regulations. As one of the goals for this regulatory action is to 
improve efficiency and consistency in meeting these requirements, this 
will necessarily mean a difference between the estimated costs and 
current practices.
    b. For Subpart B, is the estimated number of annual discoveries on 
Federal or Tribal lands reasonable? We used the average number of 
notices on Federal lands over the last three years, but we have no data 
on the number of discoveries on Tribal lands to inform this estimate.
    Our initial estimate relied on an average of 11 notices of intended 
disposition submitted by Federal agencies in the three years (FY2019 = 
13, FY2020 = 9, and FY2021 = 10). In the most recent year, seven 
notices were submitted (FY2022). We received input from Federal 
agencies that the estimate is low, likely because of underreporting. 
Federal agencies provided higher estimates for the number of annual 
discoveries and the time per response which are incorporated into the 
revised Cost-Benefit and Regulatory Flexibility Threshold Analyses for 
the final regulations. The number of discoveries and excavations on 
Tribal lands remains unknown.
    For example, in estimating the number of responses to a discovery 
on Federal lands, we relied on input from Federal agencies and 
increased the estimated number from 11 responses to 60 responses each 
year. One Federal agency with a large land area reported an average of 
20 discoveries per year, leaving most stabilized in place and not 
excavated or removed, and thus not listed in notices of intended 
disposition. Another Federal agency with a smaller land area reported 
an average of 5 discoveries per year. This change to the number of 
responses for one regulatory

[[Page 86510]]

requirement impact others that build off this number. For example, we 
estimate that the number of Federal agencies conducting consultation is 
50% of the discoveries on Federal lands.
    Federal agencies also provided estimates on the time per response 
for each regulatory requirement. For responding to a discovery, they 
estimated it spanned from 8 hours to 40 hours. Given that a response is 
required within 3 days, we feel the maximum amount of time may not 
exceed 30 hours (one person for 8 hours for 3 days plus one person for 
6 hours total). We estimate the time per response ranges from 10 hours 
to 30 hours, depending on the size and complexity of the discovery, for 
a median of 20 hours. As Table 6 below shows, changes to both the 
number of responses and to the time per response resulted in a 
significant increase to our estimated costs under Subpart B.

                                Table 6--Changes to Estimated Costs in Subpart B
----------------------------------------------------------------------------------------------------------------
                                                             Number of
                        Estimate                             responses         Annual hours       Annual costs
----------------------------------------------------------------------------------------------------------------
2022 Proposed Regulations *............................                 65              465.5            $29,738
2023 Final Regulations *...............................                318            6,599.5            473,568
                                                        --------------------------------------------------------
    Change.............................................               +253             +6,134           +443,830
----------------------------------------------------------------------------------------------------------------
* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed
  information on each regulatory requirement and the method for creating this estimate.

    c. For Subpart C, is the estimated number of museums and Federal 
agencies required to update inventory data under the proposed 
regulations reasonable? We assume fewer inventory records will require 
less time to update. We assume museums previously prepared and 
submitted inventories in accordance with the existing regulations and 
an update to that inventory requires less time than submission of a new 
inventory. We estimate the time per response will range from less than 
one hour to 100 hours, depending on the size and complexity of the 
update, for a median of 50.25 hours.
    As discussed elsewhere in this document, we received several 
comments on our estimated costs in Subpart C. One of these comments 
noted that a previously prepared inventory did not reduce the necessary 
time, as previous inventories are generally ``woefully inadequate.'' 
Two comments stated that the estimates should not rely on responses 
from the last three years to estimate costs due to the pandemic. We 
received consistent feedback that the estimate is low and does not 
reflect real costs. Some comments provided alternative estimates on the 
time per response which we incorporated into our estimate or explained 
why we were unable to incorporate the suggestion. Despite the concerns 
that the pandemic has resulted in fewer submissions, the available 
information does not support this, and in fact, we have had more 
submissions in the last two years than in any previous year. Our 
estimate relies on the average number of submissions by museums and 
Federal agencies over the last four or five years or calculates an 
estimate based on those submissions (NPS, National NAGPRA Program 
Annual Reports, https://www.nps.gov/subjects/nagpra/reports.htm, 
accessed 12/1/2023).
    Specifically for the number of museums and Federal agencies 
required to update an inventory, we estimate 407 museums and 122 
Federal agencies will be required to update inventories within five 
years after promulgation of a final rule. The final regulatory action 
will allow for inventory updates to be combined by geographic location 
or other defining features. We have revised the estimated number of 
updated inventories based on comments.
    As the size of collections vary greatly, we analyzed previously 
reported inventory data to estimate the number of updated inventories 
as both a high estimate (by inventory records) and a low estimate (by 
geographic location). We calculated a high estimate using the number of 
inventory records, according to the original inventory submission and 
previous updates, and for every 10 inventory records, we estimate one 
updated inventory will be required. We calculated a low estimate using 
the number of unique geographical States from which the human remains 
were removed, according to the original inventory submission and 
previous updates, and for each State represented, we estimated one 
updated inventory will be required. We calculated a median value for 
each estimate and divided the total number of updated inventories by 
five years for an estimated number of annually updated inventories in 
each estimate.
    While we modified our estimate for the number of updated 
inventories between the baseline conditions and the final regulatory 
action, we did not change the time required for each response. Federal 
agencies provided estimates on the time per response that spanned from 
50 hours to 218 hours, but some of those estimates included time for 
preparing a notice which is calculated separately. In response to 
comments, we increased the estimated time per response to range from 5 
hours to 200 hours, depending on the size and complexity of the update, 
for a median of 102.5 hours. As Table 7 below shows, this resulted in a 
smaller change to the baseline costs estimate in the number of 
responses, but much larger changes in the number of hours and costs.

                                Table 7--Changes to Estimated Costs in Subpart C
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                            Estimate                                 responses     Annual hours    Annual costs
----------------------------------------------------------------------------------------------------------------
2022 Baseline: Proposed Regulations *...........................           1,218       36,750.25      $2,361,014
2023 Baseline: Final Regulations *..............................           1,232       73,475.50       4,916,458
    Change......................................................             +14      +36,725.25      +2,555,444
----------------------------------------------------------------------------------------------------------------
* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed
  information on each regulatory requirement and the method for creating this estimate.


[[Page 86511]]

    In other cases, we relied on other available data to calculate an 
estimated number of responses. In estimating the responses to a request 
for repatriation, we relied on the number of notices as the two 
requirements have a direct connection. We estimate requests for 
repatriation are 80% of the total number of notices of inventory 
completion (which precede a request) and 100% of the notice of intended 
repatriation (which follow a request). Depending on the regulatory 
framework (baseline conditions under the existing regulations or under 
the final regulatory action), the same calculation applies but results 
in a different number of estimated responses.
    In the final regulatory action, museums and Federal agencies have 
specific options for responding to a request and responses should be 
based on information available in previously prepared summaries, 
inventories, and notices. Federal agencies provided estimates on the 
time per response that spanned from 8 hours to 25 hours. One comment 
requested the timeframe for responding to a request for repatriation be 
increased to a minimum of one year. We disagree with this suggestion 
and have not adopted it. Throughout the final regulatory action, a 
response to a request for repatriation is required within 90 days of 
receiving the request, or at maximum, 480 hours for one full time 
employee (12 weeks x 40 hours per week). We find this maximum estimate 
to be an extreme circumstance for an action based only on available 
information and with set options for a response. We estimate the time 
per response will range from 4 hours to 150 hours, depending on the 
complexity of the request, for a median of 77 hours. Table 8 shows the 
change in our estimate from the 2022 Proposed Rule to the final 
regulations.

                                Table 8--Changes to Estimated Costs in Subpart C
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                            Estimate                                 responses     Annual hours    Annual costs
----------------------------------------------------------------------------------------------------------------
2022 Regulatory Action years 1-3: Proposed Regulations *........           2,962       46,262.25      $2,971,955
2023 Regulatory Action years 1-5: Final Regulations *...........           3,086      172,360.50      11,536,684
    Change......................................................            +124     +126,098.25      +8,564,729
----------------------------------------------------------------------------------------------------------------
* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed
  information on each regulatory requirement and the method for creating this estimate.

    d. For Subpart C, many museums and Federal agencies update 
inventories at their own discretion, going beyond what is required by 
the Act and the existing regulations, which only requires use of 
``information possessed by such museum or Federal agency'' (25 U.S.C. 
3003(a)). Given the potential expense of more extensive studies not 
required by the Act or the revised regulations, how should the 
Department account for these costs in this rulemaking? We also request 
public data about the potential costs of updating inventories under the 
revised regulations.
    We did not receive specific comments on how to account for costs 
that go beyond what is required by the Act. A few comments stated they 
did not understand this question as museums and Federal agencies only 
do the minimum required by the Act and these regulations. As discussed 
elsewhere in this document, we received several estimates on the costs 
of updating inventories, but these estimates were, with two exceptions, 
not based on actual expenses incurred.
    The Society for American Archaeology (SAA) estimated annual costs 
to museums and Federal agencies of $250 million for repatriation of 
human remains and funerary objects. This estimate is based on the 
current museum completion rate of 21%, the amount of funding awarded 
through grants ($50 million since 1994), and a multiplying factor of 
10, representing additional funds provided by museums, Federal 
agencies, and Indian Tribes outside of grant funds (https://documents.saa.org/container/docs/default-source/doc-governmentaffairs/final_scia_testimony_02162022.pdf?sfvrsn=63d7c331_2, accessed 12/1/
2023).
    One museum estimated annual costs to museums and Federal agencies 
of more than $117 million for repatriation of human remains and 
funerary objects. This estimate is based on the costs incurred by the 
museum over the past 20 years to repatriate 3,490 items multiplied by 
the total number of human remains and associated funerary objects 
currently pending repatriation (Field Museum of Natural History (FMNH) 
Background062722 available at https://www.reginfo.gov/public/do/viewEO12866Meeting?viewRule=true&rin=1024-AE19&meetingId=139323&acronym=1024-DOI/NPS, accessed 12/1/2023).
    One comment from an individual estimated annual costs to museums 
and Federal agencies of nearly $20 million for repatriation of human 
remains and funerary objects. This estimate is based on a detailed 
analysis of grants awarded to museums since 2011 and the resulting 
number of notices published by those museums. The estimate then applies 
an average cost per notice to the number of human remains pending 
notification under the existing regulations. The shorter timeframe in 
this estimate (30 months) is based on the proposed regulatory action 
requiring notice publication within two years and six months after 
promulgation of final regulations (https://www.regulations.gov/comment/NPS-2022-0004-0174, accessed 12/1/2023). Given the enormous variation 
in these estimates and past estimates related to these regulations, we 
have continued to employ the method used in the initial estimate but 
revised the number of responses and time per response based on 
comments. We believe we have accounted for all actions that are 
required under the existing regulations to calculate the baseline 
conditions and under these final regulations to estimate the future 
costs. Table 9 shows a summary of other annual estimates for 
inventories.

             Table 9--Other Annual Estimates for Inventories
------------------------------------------------------------------------
  Estimated
    costs                              Reference
------------------------------------------------------------------------
    $524,380  2010 Final Rule (75 FR 12402).
   2,971,955  2022 Proposed Rule Analysis (see NPS-2022-0004-0002).
   5,300,000  1993 Proposed Rule (58 FR 31124).
   6,000,000  1990 H. Rpt. 101-877, at 22.
  11,536,684  2023 Final Rule Analysis.
  19,400,000  NPS-2022-0004-0174.
  25,000,000  NPS-2022-0004-0131.
  40,048,800  NPS-2022-0004-0135.
 117,000,000  NPS-2022-0004-0136.
 250,000,000  SAA (cited above).
 518,111,000  NPS-2022-0004-0125.
------------------------------------------------------------------------

    e. For Subpart C, is the estimated number of museums required to 
report on Federal holdings or collections reasonable? We estimate the 
number of museums required to submit statements is 5% of all museums 
that previously

[[Page 86512]]

submitted information under the existing regulations.
    We only received specific input from Federal agencies on this 
estimate. A few stated the estimate was too low or unreasonable but did 
not offer any alternative estimates or related data. One Federal agency 
stated it has more than 150 non-federal repositories. Another Federal 
agency stated only 10% of the 170 identified non-federal repositories 
have submitted inventory and summary information. Another Federal 
agency stated only a small percentage of the 175 non-federal 
repositories have been reviewed and the estimate doesn't anticipate 
identification of new non-federal repositories. One Federal agency 
stated it knows of only 13 non-federal repositories with unresolved 
collections and that the 5% estimate seemed reasonable. Another Federal 
agency stated it believes there are 24 non-federal repositories holding 
its collections.
    We estimate the number of museums (n=140) required to submit 
statements is 10% of all museums (n=1,388, rounded up) that previously 
submitted information under the existing regulations. A statement is a 
simple written document describing a holding or collection. These 
statements are required no later than one year after the effective date 
of the final rule, but we have annualized the cost over five years for 
purposes of this estimate so as not to compound the costs in 
calculating the total costs over five years.
    We estimated the time per response for both museums to generate the 
statement and Federal agencies to respond to statements. We note that 
some comments estimated museums would need multiple staff members 
working full-time for the entire year to complete these statements. We 
disagree with this estimate and have not adopted it. We estimate the 
time per response for museums will range from 10 hours to 500 hours, 
depending on the size and complexity of a collection, for a median of 
255 hours. Federal agencies provided estimates on the time per response 
that spanned from 8 hours to 30 hours. We estimate the time per 
response will range from 8 hours to 30 hours, depending on the size and 
complexity of a collection, for a median of 19 hours. Table 10 shows 
the estimated costs for statements of Federal agency holdings or 
collections to both museums and Federal agencies.

          Table 10--Changes to Estimated Costs for Statements of Federal Agency Holdings or Collections
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                            Estimate                                 responses     Annual hours    Annual costs
----------------------------------------------------------------------------------------------------------------
2022 Regulatory Action: Proposed Regulations *..................             140             735         $47,232
    Museums.....................................................              70           367.5          23,616
    Federal agencies............................................              70           367.5          23,616
2023 Regulatory Action: Final Regulations *.....................             280          38,360       5,570,504
    Museums.....................................................             140          35,700       2,392,257
    Federal agencies............................................             140           2,660         178,247
Change..........................................................            +140         +37,625      +5,523,272
----------------------------------------------------------------------------------------------------------------
* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed
  information on each regulatory requirement and the method for creating this estimate.

    f. Is the estimated number of competing claims for disposition or 
competing requests for repatriation reasonable?
    We received specific input from Federal agencies on this estimate, 
and most stated it seemed reasonable or that they did not have 
experience or data related to it. One Federal agency believed the 
estimate is too low given the changes to the regulations, especially as 
it relates to Tribal land of an NHO where they anticipate an increase 
in competing claims or requests to occur. One Federal agency estimated 
that 20% of discoveries result in competing claims on Federal lands. On 
Federal lands, Federal agencies provided estimates on the time per 
response that spanned from 25 hours to 40 hours. Federal agencies 
provided estimates on the time per response that spanned from 25 hours 
to 80 hours. One comment from a museum stated evaluating competing 
requests and resolving stays of repatriation required significantly 
more time, estimating between 100 and 1,000 hours, especially when 
considering the involvement of legal departments, executives, and board 
members in those tasks.
    When a competing claim or request is received, the timeline for a 
disposition or repatriation statement changes, but we believe it is 
important to require museums and Federal agencies to decide on 
competing claims or requests within a set timeframe (six months or 180 
calendar days after informing the claimants or requestors of the 
competing claims or requests). Under Subpart C, one option for a museum 
or Federal agency is to determine a most appropriate requestor cannot 
be determined. This option would allow parties to continue consultation 
but ensure all parties have been informed of the museum or Federal 
agency's decision in a timely manner or to seek assistance of a court 
of competent jurisdiction to resolve a conflict under these 
regulations. The information needed to evaluate competing requests is 
submitted by requestors and evaluated against the criteria in the 
regulations. Where competing requests are between Indian Tribes or NHOs 
with cultural affiliation, the priority order under Sec.  10.3(e), as 
revised, relies on how the cultural affiliation determination was made 
(clearly identified or reasonably identified). We intended for these 
final regulations to provide adequate guidance and procedures for 
museums and Federal agencies to follow in determining the most 
appropriate requestor, and as a result, lessen the burden and expense 
of those determinations. We estimate the time per response ranges from 
25 hours to 100 hours, depending on the size and complexity of the 
competing claims, for a median of 62.5 hours.
    Under Subpart B, the information needed to evaluate competing 
claims is submitted by claimants and evaluated against the priority of 
custody. However, Federal agencies must identify the most appropriate 
claimant or claimants. While this is not a new requirement, we do 
expect, as one Federal agency stated, the added procedures in these 
final regulations for resolving competing claims on Federal lands will 
likely increase the time per response from baseline conditions. Given 
that competing claims follow notification and consultation, we estimate 
the time per response ranges 40 hours to 500 hours for a median of 270 
hours.
    g. Using data on implementation since 2012, we estimate it will 
take an

[[Page 86513]]

additional 26 years to complete consultation and notification for all 
117,000 Native American human remains currently pending in the existing 
regulatory framework. Is this 26-year time horizon reasonable? Will the 
proposed regulatory requirements result in a change in consultation 
activities per year, and if so, how should the Department account for 
the change in costs to Indian Tribes or NHOs for engaging in 
consultation?
    We did not receive specific feedback on the estimate under the 
existing regulatory framework. We did receive many comments on the 
timelines under Subpart C in general (see Comment 92 and 93). Most 
comments felt the two-year timeline in the proposed regulations was too 
short, unrealistic, unworkable, and unachievable. Two comments 
predicted it would take 20 or 50 years to complete consultation and 
notification for all Native American human remains. Most comments on 
the timelines expressed concerns about insufficient staffing and 
funding to complete the work of repatriation.
    As discussed elsewhere in this document, we have changed the 
deadline for museums and Federal agencies to update inventories of 
human remains and associated funerary objects to five years after the 
effective date of these final regulations. We have also revised our 
estimate for the timeline under the existing regulations. In Fiscal 
Year 2022, the largest number of human remains in the history of the 
Act and these regulations completed the regulatory process. As of 
August 2023, we expect Fiscal Year 2023 to surpass the previous year. 
We therefore adjusted our estimate in the Cost-Benefit and Regulatory 
Flexibility Threshold Analyses for these final regulations. Using data 
on implementation since 2012, the Department estimates it will take an 
additional 20 years to complete consultation and notification for all 
approximately 108,000 Native American human remains currently pending 
in the existing regulatory framework. Over the last 11 years, the 
average number of human remains completing the existing regulatory 
process for repatriation per year is 5,460 individual sets of Native 
American human remains (NPS, National NAGPRA Program Annual Reports, 
https://www.nps.gov/subjects/nagpra/reports.htm, accessed 12/1/2023). 
As Table 11 shows, the number of human remains completing the existing 
regulatory process varies from year to year, depending on the decision-
making of museums and Federal agencies on repatriation.

                 Table 11--Native American Human Remains
------------------------------------------------------------------------
                                       Total published
             Fiscal year                  in notices      Annual change
------------------------------------------------------------------------
2012................................             43,525            3,220
2013................................             45,975            2,450
2014................................             48,588            2,613
2015................................             51,558            2,970
2016................................             56,336            4,778
2017................................             63,885            7,549
2018................................             67,077            3,192
2019................................             79,093           12,016
2020................................             83,076            3,983
2021................................             84,677            1,601
2022................................            100,370           15,693
------------------------------------------------------------------------

    Regarding the costs for lineal descendants, Indian Tribes, and NHOs 
to participate in consultation, we have added an estimate to the Cost-
Benefit and Regulatory Flexibility Threshold Analyses for these final 
regulations. In the existing regulations, consultation is required 
throughout the regulatory processes in both Subpart B and C for any 
decision-making action by a Federal agency or museum. However, the 
existing regulations do not require any Indian Tribe or NHO to 
participate in such consultation. Choosing to participate in 
consultation is an act of sovereignty and these regulations, either 
existing or revised, do not require any Indian Tribe or NHO to consult. 
Our initial estimates did not include the costs to lineal descendants, 
Indian Tribes, or NHOs to participate in consultation as the variables 
of this estimate are too great and dependent on many factors. For 
example, one Tribal official stated publicly that under the existing 
regulations, consultation can require one email exchange or, in the 
most extreme case, eight years of regular consultation meetings. As 
discussed elsewhere in this section, a comment from an Indian Tribe 
stated consultations can require mere hours while some require years of 
sustained work. In addition to the varying time required to consult 
with museums and Federal agencies, the costs for Indian Tribes and NHOs 
to consult internally with religious leaders or to develop their own 
procedure and protocol for conducting consultation cannot and should 
not be estimated by the Federal government. In preparing our initial 
and revised estimate, we reviewed other regulations for any estimate on 
the costs to Indian Tribes or NHOs to engage in consultation but were 
unable to find a relevant example. Our estimate is based on a 1:1 
relationship between the number of participants and the number of 
museums and Federal agencies conducting consultation. We know this is 
an underestimate and that consultation requires participation by more 
than one lineal descendant, Indian Tribe, or NHO. However, we have no 
way to estimate this number. While we have provided an estimate on the 
costs to participate in consultation, we maintain we do not have 
sufficient information to adequately quantify these costs to lineal 
descendants, Indian Tribes, or NHOs.

C. Use of Received Feedback

    The Department used all received feedback to inform this final rule 
and made changes to this final rule based on received feedback.

IV. Compliance With Other Laws, Executive Orders and Department Policy

A. Regulatory Planning and Review (Executive Orders 12866 and 13563 and 
14094)

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs (OIRA) 
in OMB will review all significant regulatory actions. OIRA has 
determined that this rule is a significant regulatory action.
    Executive Order 14094 amends Executive Order 12866 and reaffirms 
the

[[Page 86514]]

principles of Executive Order 12866 and Executive Order 13563 and 
states that regulatory analysis should facilitate agency efforts to 
develop regulations that serve the public interest, advance statutory 
objectives, and be consistent with Executive Order 12866, Executive 
Order 13563, and the Presidential Memorandum of January 20, 2021 
(Modernizing Regulatory Review). Regulatory analysis, as practicable 
and appropriate, shall recognize distributive impacts and equity, to 
the extent permitted by law.
    Executive Order 13563 reaffirms the principles of Executive 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. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

B. Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government (Executive Order 13985)

    This final rule is expected to advance racial equity in agency 
actions and programs, in accordance with the Executive Order 13985.

C. Regulatory Flexibility Act

    This rule will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). This certification is based on the cost-
benefit and regulatory flexibility analyses found in the report 
entitled ``Benefit-Cost and Regulatory Flexibility Threshold Analyses: 
Native American Graves Protection and Repatriation Act Regulations'' 
that may be viewed online at https://www.regulations.gov.
    The analyses conclude that this final regulatory action will likely 
generate benefits for museums, Federal agencies, Indian Tribes, and 
NHOs that are greater than the temporary increase in reporting costs 
for museums. For all entities, the NPS anticipates a temporary increase 
of $6.948 million in annual costs for the first five years under the 
final regulatory action compared to baseline conditions. Starting year 
six, NPS anticipates a $2.978 million benefit in reduced annual costs 
compared to baseline conditions. This final regulatory action would 
produce a net benefit when reduced annual costs exceed the total 
increase in costs from the first five years. We estimate that this 
would occur after 17 years (for undiscounted costs and benefits), 21 
years (for 3% discounting), or 47 years (for 7% discounting). Across 
the horizon of 50 years, the net savings in costs of the final 
regulatory action totals $99.3 million (for undiscounted costs and 
benefits), $31.2 million (for 3% discounting), or $0.4 million (for 7% 
discounting). Therefore, the results of this cost-benefit analysis 
indicate that positive net benefits will be generated by implementing 
the final regulatory action. Given that, NPS concludes that the 
benefits associated with the final regulatory action justify the 
associated costs. Further, this final regulatory action is not expected 
to have an annual economic effect of $100 million.
    Most of the state, local, and private museums required to report 
under NAGPRA are large not-for-profit enterprises, part of a university 
or college, or state or local government entities. The Small Business 
Administration size standard for museums is $34 million in average 
annual receipts (see https://www.sba.gov/document/support-table-size-standards, accessed 12/1/2023). However, using available information, 
NPS analyzed the 1,388 museums reporting under NAGPRA and determined 
that 419 are classified as state entities, 382 as local government 
entities, and 587 as private museums. Of the private museums, 141 are 
classified as universities or colleges, 18 as large urban museums, 42 
as large historical societies, 247 as not-for profit museums or 
organizations that are large or dominant in the field, and the 
remaining 139 entities would be considered small museums, historical 
societies, or nature parks. We received 1 comment on the proposed rule 
from a small entity which was generally supportive of the changes.
    Based on this analysis, we estimate that the average annual cost 
per small entity is $2,191 under baseline conditions, $5,844 under the 
final action in years one through five, and $916 beginning in year six. 
For each small entity, this is an increase in years one through five of 
$3,653 per year and a decrease beginning in year six of $1,275 per year 
compared to baseline conditions. The impact on these small entities 
aligns with their normal duties of collections management. In an effort 
to reduce respondent burden, we provide templates and technical 
assistance to direct inquiries by phone and email. We assist many small 
entities directly with drafting and completing the notice requirements, 
which generally fall outside the scope of normal collections management 
duties. The increase in costs associated with the new requirements is 
temporary and will not exist after the small entities complete the 
required inventory updates which is expected to happen within five 
years of implementation.
    We assume the majority of small entities impacted by this rule also 
have a small number of employees. According to the available data 
summarized in Table 12 below, smaller firms also have smaller payroll 
costs. Even in the most extreme scenario (establishments with less than 
5 employees) the annual costs of compliance during the first five years 
of the final regulatory action would be no more than 10% the average 
entities payroll costs.

                         Table 12--Museums NAICS 712110: Employment Sizes and Payroll *
----------------------------------------------------------------------------------------------------------------
                                                                                                   Mean payroll
                                                                 Number of      Annual payroll         per
                      Employment size                         establishments     ($1,000) \**\    establishment
                                                                                                     ($1,000)
----------------------------------------------------------------------------------------------------------------
All establishments.........................................             5,297        $3,346,074             $632
Less than 5 employees......................................             3,188           194,629               61
5 to 9 employees...........................................               910           197,668              217
10 to 19 employees.........................................               551           294,715              535
20 to 49 employees.........................................               372           507,049            1,363
50 to 99 employees.........................................               141           468,509            3,323
100 to 249 employees.......................................               102           772,161            7,570

[[Page 86515]]

 
250 to 499 employees.......................................                27           506,069           18,743
500 to 999 employees.......................................                 5           257,054           51,411
----------------------------------------------------------------------------------------------------------------
* 2021 Economic Census Business Survey, https://data.census.gov/table/CBP2021.CB2100CBP?q=712110:%20Museums,
  accessed 12/1/2023.
** Sales data are not available by employment size.

    The U.S. Census Bureau has a Quarterly Services Survey that reports 
on revenues for NAICS 712 ``Museums, historical sites, and similar 
institutions.'' For 2022, total revenue (Q1-Q4) was $21,468 million. 
Dividing this by 7,062 (the total number of employer firms in the 3-
digit NAICS code 712), the mean annual revenue per firm is $3 million. 
While we recognize there may be a wide range of revenues at the 
individual firm level, this data suggest that for the average firm in 
this category, compliance costs will be small when compared to annual 
revenue. We do not have data that would allow a more rigorous analysis.

D. Congressional Review Act (CRA)

    This rule does not meet the criteria set forth in 5 U.S.C. 804(2), 
the CRA. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more;
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

E. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. 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.

F. Takings (Executive Order 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

G. 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.

H. 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.

I. Consultation With Indian Tribes (Executive Order 13175 and 
Department Policy)

    The Department 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. We have evaluated this rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have identified direct Tribal implications. 
Accordingly, we have developed this final rule after consulting with 
federally recognized Indian Tribes. In addition, we developed this 
final rule in consultation with the Native American Graves Protection 
and Repatriation Review Committee, which includes members nominated by 
Indian Tribes.
    From March to July of 2011, the Department consulted with Indian 
Tribes and the Review Committee, as well as others, on full revisions 
to the regulations implementing the Act. In April 2012 (77 FR 12378), 
the Department published a proposed rule to revise the regulations for 
accuracy and consistency based on some of those comments. Additional 
comments on that proposed rule requested changes that went beyond the 
scope of accuracy and consistency.
    Since 2012, the Department has heard repeatedly from Indian Tribes, 
NHOs, museums, and Federal agencies on the implementation of the Act 
through the regulations. From 2012 to 2019 at 21 meetings of the Review 
Committee, public commenters have highlighted concerns with the 
regulations or challenges in implementing its procedures. The Review 
Committee has heard frequently that the regulations themselves pose 
barriers to successful and expedient repatriation.
    As a result of previous consultation, public comment, and input 
from the Review Committee, the Department developed a draft text of 
regulatory revisions and on July 8, 2021, invited Indian Tribes to 
consult on the draft text. Along with the draft text, the Department 
provided a summary of the 2011 consultation with Indian Tribes and how 
the draft text was responsive to that input. The Department hosted 
virtual consultation sessions with Indian Tribes on August 9, 13, and 
16, 2021. In addition, the Department accepted written input until 
September 30, 2021. In total, we received 71 individual comment 
letters, which when combined with oral comments from consultation 
sessions, yielded over 700 specific comments on sections of the draft 
text. The Department reviewed each comment provided during consultation 
and in writing and, wherever possible, adjusted the proposed 
regulations to address them. In a separate document available in the 
docket for the proposed rule, the Department provided a summary of each 
comment and specific detailed responses.
    During the comment period on the proposed rule, the Department 
scheduled Review Committee meetings, Tribal consultation sessions, 
Native Hawaiian consultation sessions, and public listening sessions. 
Review Committee meetings were held virtually on January 5 and 10, 
2023, from 2 p.m. to 6 p.m. ET. Tribal consultation sessions were held 
virtually on

[[Page 86516]]

December 15, 2022, from 3 p.m. to 5 p.m. EST, and December 19, 2022, 
from 1 p.m. to 4 p.m. EST, and in person on January 12, 2023, from 10 
a.m. to 1 p.m. MST in Phoenix, Arizona. Native Hawaiian consultation 
sessions were held virtually on January 9, 2023, from 9 a.m. to 11 a.m. 
HST and on January 10, 2023, from 6 p.m. to 8 p.m. HST.
    At all sessions, the Department provided a short overview of the 
proposed regulation, highlighted the major changes, and provided an 
opportunity for questions. The Department provided additional resources 
related to the proposed regulations on the National NAGPRA Program 
website. Review Committee meetings, Tribal Consultation sessions, and 
Native Hawaiian Consultation sessions were recorded and transcribed to 
ensure a record of all comments were available to the Department in 
preparing the final rule. All of the oral comments received during the 
meetings and consultation sessions were repeated in the written 
comments submitted by the Review Committee and Indian Tribes and are 
summarized in this document.

J. Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)

1. Overview
    The Paperwork Reduction Act (PRA) provides that an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
``collection of information,'' unless it displays a currently valid OMB 
control number. Collections of information include any request or 
requirement that persons obtain, maintain, retain, or report 
information to an agency, or disclose information to a third party or 
to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)). These final 
regulations contain existing and new information collection 
requirements that are subject to review by OMB under the PRA. OMB 
previously reviewed and approved information collection related to 43 
CFR part 10 and assigned the following OMB control number 1024-0144 
(expires 4/30/2025).
    The information collection activities in these final regulations 
are described below along with estimates of the annual burdens. These 
activities, along with annual burden estimates, do not include 
activities that are considered usual and customary industry practices. 
Included in the burden estimates are the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing each 
component of the proposed information collection requirements.
    The Department of the Interior requests comment on any aspect of 
this information collection, including:
    a. Whether the collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility;
    b. The accuracy of the estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    c. Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    d. How the agency might minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of response.
2. Summary of Information Collection Requirements
    Title of Collection: Native American Graves Protection and 
Repatriation Regulations.
    OMB Control Number: 1024-0144.
    Form Number: None.
    Type of Review: Revision of a currently approved collection.
    Respondents/Affected Public: Any person, any affected party, lineal 
descendants, Indian Tribes, Native Hawaiian organizations, and State 
and local governments, universities, and museums, that receive Federal 
funds and have possession or control of Native American human remains 
and cultural items.
    Respondent's Obligation: Mandatory, voluntary, and required to 
obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Number of Annual Responses: 3,008.
    Estimated Completion Time per Response: Varies from 1 hour to 270 
hours depending on respondent and/or activity.
    Total Estimated Number of Annual Burden Hours: 161,195.
    Total Estimated Annual Non Hour Burden Cost: None.

----------------------------------------------------------------------------------------------------------------
                                                 Information
                    Subpart                      collections                      Respondents
----------------------------------------------------------------------------------------------------------------
Subpart A--General............................             0  None.
Subpart B--Protection of Human Remains or                  1  Any person
 Cultural Items on Federal or Tribal Lands.                6  Indian Tribes or NHOs.
Subpart C--Repatriation of Human Remains or                1  Any person.
 Cultural Items by Museums or Federal Agencies.            2  Lineal descendants.
                                                           2  Indian Tribes/NHOs.
                                                          14  Museums.
Subpart D--Review Committee...................             1  Any affected party.
----------------------------------------------------------------------------------------------------------------

    Subpart A--General does not contain any information collection 
requirements subject to the PRA. References to written documents in 
this Subpart refer to the specific information collection requirements 
in the three subparts below.
    Subpart B--Protection of Human Remains or Cultural Items on Federal 
or Tribal Lands contains seven information collection requirements 
subject to the PRA. On Federal or Tribal lands, any person who knows or 
has reason to know of the discovery of human remains or cultural items 
must provide specified information to third parties. On Federal lands, 
an Indian Tribe or NHO may participate in consultation or submit a 
claim for disposition by disclosing specified information to third 
parties. On Tribal lands, an Indian Tribe or NHO must maintain 
specified records related to discoveries, excavations, and 
dispositions.
    Subpart C--Repatriation of Human Remains or Cultural Items by 
Museums or Federal Agencies contains 19 information collection 
requirements subject to the PRA. State and local governments, 
universities, and museums that receive Federal funds and have 
possession or control of Native American human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must submit 
information to the Federal government, maintain specified records, and 
disclose specified information to third parties. Lineal descendants, 
Indian Tribes, or

[[Page 86517]]

NHOs may participate in consultation and submit a request for 
repatriation by disclosing specified information to third parties. Any 
person alleging a failure to comply may voluntarily submit information 
to the Federal government. Museums may respond to a civil penalty 
action by submitting information to the Federal government.
    Subpart D--Review Committee contains one information collection 
requirements subject to the PRA. Any affected party may voluntarily 
submit information to the Federal government.

 
------------------------------------------------------------------------
     Information collection requirement           Final regulations
------------------------------------------------------------------------
          New information collection requirements in Subpart B
------------------------------------------------------------------------
Participate in consultation................  Sec.   10.4(b)(2).
Report a discovery on Federal or Tribal      Sec.   10.5(a)-(b).
 lands.
Respond to a discovery.....................  Sec.   10.5(c)(1) and Sec.
                                               10.5(e).
Consent to an excavation...................  Sec.   10.6(a).
Submit a claim for disposition.............  Sec.   10.7(c)(3).
Delegate or accept responsibility on Tribal  Sec.   10.5(c); Sec.
 land.                                        10.6(a); Sec.   10.7(b).
Complete a disposition statement...........  Sec.   10.7(b).
------------------------------------------------------------------------
  Currently approved information collections requirements in Subpart C
------------------------------------------------------------------------
New Summary/Inventory......................  Sec.   10.9(a) and Sec.
                                              10.10(d).
Updated Inventory Data.....................  Sec.   10.10(d).
Notices for publication in the Federal       Sec.   10.9(f) and Sec.
 Register.                                    10.10(e).
Updated Summary Data.......................  Removed.
Notify Tribes and Request Information......  Removed.
Response to requests for information.......  Removed.
------------------------------------------------------------------------
          New information collection requirements in Subpart C
------------------------------------------------------------------------
Conduct consultation.......................  Sec.   10.9(c) and Sec.
                                              10.10(c)
Participate in consultation................  Sec.   10.9(c) and Sec.
                                              10.10(c).
Submit a request for repatriation..........  Sec.   10.9(d) and Sec.
                                              10.10(f).
Document physical transfer.................  Sec.   10.9(g) and Sec.
                                              10.10(h).
File an allegation of failure to comply....  Sec.   10.11(a).
Respond to a civil penalty action..........  Sec.   10.11(e), (h), (i),
                                              and (k).
Submit statements describing holdings or     Sec.   10.8(c)-(d).
 collection.
Make a record of consultation..............  Sec.   10.9(c)(3) and Sec.
                                               10.10(c)(3).
Respond to a request for repatriation......  Sec.   10.9(e) and Sec.
                                              10.10(g).
Send a repatriation statement..............  Sec.   10.9(g) and Sec.
                                              10.10(h).
Evaluate competing requests and resolve      Sec.   10.9(h)-(i); Sec.
 stays of repatriation.                       10.10(i)-(j).
Transfer or reinter human remains and        Sec.   10.10(k).
 associated funerary objects.
------------------------------------------------------------------------
          New information collection requirements in Subpart D
------------------------------------------------------------------------
Request assistance of the Review Committee.  Sec.   10.12(c).
------------------------------------------------------------------------

3. Information That Is Not an Information Collection Subject to the PRA
    Lineal descendants, Indian Tribes, and Native Hawaiian 
organizations may take certain actions that are not information 
collections subject to the PRA. Requesting to consult is an 
acknowledgement that entails no burden other than that necessary to 
identify the respondent, the date, the respondent's address, and the 
nature of the consultation.
    Federal agencies and the Department of Hawaiian Home Lands (DHHL) 
must take certain actions that are not information collections subject 
to the PRA. The Hawaiian Homes Commission Act, 1920 (HHCA), 42 Stat. 
108, is a cooperative federalism statute, a compound of interdependent 
Federal and State law that establishes a Federal law framework but also 
provides for implementation through State law (see 81 FR 29777 and 
29787, May 13, 2016, 43 CFR 47 and 48, Land Exchange Procedures and 
Procedures to Amend the Hawaiian Homes Commission Act, 1920). These 
written documents are required by employees of the Federal government 
or DHHL when acting within the scope of their employment.
    Indian Tribes, Native Hawaiian organizations, traditional religious 
leaders, national museum organizations, and national scientific 
organizations may take certain actions that are not information 
collections subject to the PRA. These actions are generally solicited 
through a notice in the Federal Register, impact fewer than ten 
persons, and occur less often than annually.
4. Burden Estimates
    The Department has identified 27 information collections in the 
final regulations. In total, we estimate that we will receive, 
annually, 3,008 responses totaling 161,195 annual hour burden. We 
estimate the annual dollar value is $10,786,570 (rounded). We estimate 
the frequency of response for each of the information collections is 
once per year, but the number of respondents may not be the same as the 
number of responses, depending on the type of information collected. In 
our estimate, we have only used the number of responses to simplify our 
estimate and remain consistent across the types of information 
collected. For some information collections, the time per response 
varies widely because of differences in activity, size, and complexity.

[[Page 86518]]

5. Written Comments or Additional Information
    Written comments and suggestions on the information collection 
requirements should be submitted by the date specified above in DATES 
to https://www.reginfo.gov/public/do/PRAMain. Find this information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the NPS Information Collection Clearance Officer 
(ADIR-ICCO), 13461 Sunrise Valley Drive, (MS-242) Reston, VA 20191 
(mail); or [email protected] (email). Please include OMB Control 
Number 1024-0144 in the subject line of your comments.
    To request additional information about this ICR, contact Melanie 
O'Brien, Manager, National NAGPRA Program by email at 
melanie_o'[email protected], or by telephone at (202) 354-2204. Individuals 
in the United States who are deaf, deafblind, hard of hearing, or have 
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States. 
You may also view the ICR at https://www.reginfo.gov/public/do/PRAMain.

K. National Environmental Policy Act (NEPA)

    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.

L. Effects on the Energy Supply (Executive Order 13211)

    This rulemaking is not a significant energy action under the 
definition in Executive Order 13211; the rule is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, and the rule has not otherwise been designated by the 
Administrator of OIRA as a significant energy action. A Statement of 
Energy Effects in not required.

Drafting Information

    This final rule was prepared by staff of the National NAGPRA 
Program, National Park Service; Office of Regulations and Special Park 
Uses, National Park Service; Office of Native Hawaiian Relations; 
Office of Regulatory Affairs & Collaborative Action, Office of the 
Assistant Secretary--Indian Affairs; Office of the Assistant Secretary 
for Fish and Wildlife and Parks; and Office of the Solicitor, Division 
of Parks and Wildlife and Division of Indian Affairs, Department of the 
Interior. This final rule was prepared in consultation with the Native 
American Graves Protection and Repatriation Review Committee under the 
Act (25 U.S.C. 3006(c)(7)).

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Alaska, Cemeteries, 
Citizenship and naturalization, Colleges and universities, Hawaiian 
Natives, Historic preservation, Human remains, Indians, Indians--
claims, Indians--law, Indians--lands, Museums, Penalties, Public lands, 
Reporting and recordkeeping requirements, Treaties.

0
In consideration of the foregoing, the Department of the Interior 
revises 43 CFR part 10 to read as follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

Sec.
Subpart A--General
10.1 Introduction.
10.2 Definitions for this part.
10.3 Determining cultural affiliation.
Subpart B--Protection of Human Remains or Cultural Items on Federal or 
Tribal Lands
10.4 General.
10.5 Discovery.
10.6 Excavation.
10.7 Disposition.
Subpart C--Repatriation of Human Remains or Cultural Items By Museums 
or Federal Agencies
10.8 General.
10.9 Repatriation of unassociated funerary objects, sacred objects, 
or objects of cultural patrimony.
10.10 Repatriation of human remains or associated funerary objects.
10.11 Civil penalties.
Subpart D--Review Committee
10.12 Review Committee.

    Authority:  25 U.S.C. 3001 et seq. and 25 U.S.C. 9.

Subpart A--General


Sec.  10.1   Introduction.

    (a) Purpose. The Native American Graves Protection and Repatriation 
Act (Act) of November 16, 1990, recognizes the rights of lineal 
descendants, Indian Tribes, and Native Hawaiian organizations in Native 
American human remains, funerary objects, sacred objects, and objects 
of cultural patrimony.
    (1) The Act and these regulations provide systematic processes to:
    (i) Protect Native American human remains, funerary objects, sacred 
objects, and objects of cultural patrimony; and
    (ii) Restore Native American human remains, funerary objects, 
sacred objects, and objects of cultural patrimony to lineal 
descendants, Indian Tribes, and Native Hawaiian organizations.
    (2) The Act and these regulations require consultation with lineal 
descendants, Indian Tribes, and Native Hawaiian organizations.
    (3) Consistent with the Act, these regulations require deference to 
the Native American traditional knowledge of lineal descendants, Indian 
Tribes, and Native Hawaiian organizations.
    (b) Applicability. These regulations pertain to Native American 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony.
    (1) These regulations require certain actions by:
    (i) Any institution or State or local government agency (including 
any institution of higher learning) within the United States that 
receives Federal funds and has possession or control of a holding or 
collection;
    (ii) Any Federal agency that has possession or control of a holding 
or collection or that has responsibilities on Federal or Tribal lands;
    (iii) Indian Tribes on Tribal lands in Alaska and the continental 
United States; and
    (iv) The State of Hawai`i Department of Hawaiian Home Lands (DHHL) 
on Tribal lands in Hawai`i.
    (2) Lineal descendants, Indian Tribes, and Native Hawaiian 
organization may, but are not required to, consult, submit claims for 
disposition, or submit requests for repatriation.
    (c) Accountability. These regulations are applicable to and binding 
on all museums, Federal agencies, and DHHL for implementing the 
systematic processes for disposition and

[[Page 86519]]

repatriation of human remains or cultural items under this part.
    (d) Duty of care. These regulations require a museum, Federal 
agency, or DHHL to care for, safeguard, and preserve any human remains 
or cultural items in its custody or in its possession or control. A 
museum, Federal agency, or DHHL must:
    (1) Consult with lineal descendants, Indian Tribes, or Native 
Hawaiian organizations on the appropriate storage, treatment, or 
handling of human remains or cultural items;
    (2) Make a reasonable and good-faith effort to incorporate and 
accommodate the Native American traditional knowledge of lineal 
descendants, Indian Tribes, or Native Hawaiian organizations in the 
storage, treatment, or handling of human remains or cultural items; and
    (3) Obtain free, prior, and informed consent from lineal 
descendants, Indian Tribes, or Native Hawaiian organizations prior to 
allowing any exhibition of, access to, or research on human remains or 
cultural items. Research includes, but is not limited to, any study, 
analysis, examination, or other means of acquiring or preserving 
information about human remains or cultural items. Research of any kind 
on human remains or cultural items is not required by the Act or these 
regulations.
    (e) Delivery of written documents. These regulations require 
written documents to be sent, such as requests for repatriation, claims 
for disposition, invitations to consult, or notices for publication.
    (1) Written documents must be sent by one of the following:
    (i) Email, with proof of receipt,
    (ii) Personal delivery with proof of delivery date,
    (iii) Private delivery service with proof of date sent, or
    (iv) Certified mail.
    (2) Communication to the Manager, National NAGPRA Program, must be 
sent electronically to [email protected]. If electronic submission is 
not possible, physical delivery may be sent to 1849 C Street NW, Mail 
Stop 7360, Washington, DC 20240. If either of these addresses change, a 
notice with the new address must be published in the Federal Register 
no later than 7 days after the change.
    (f) Deadlines. These regulations require certain actions be taken 
by a specific date. Unless stated otherwise in these regulations:
    (1) Days mean calendar days. If a deadline falls on a Saturday, 
Sunday, or Federal holiday, the action is deemed timely if taken no 
later than the next calendar day that is not a Saturday, Sunday, or 
Federal holiday. For purposes of this part, Federal holidays include 
any days during which the Federal government is closed because of a 
Federal holiday, lapse in appropriations, or other reasons.
    (2) Written documents are deemed timely based on the date sent, not 
the date received.
    (3) Parties sending or receiving written documents under these 
regulations must document the date sent or date received, as 
appropriate, when these regulations require those parties to act based 
on the date sent or date received.
    (g) Failure to make a claim or a request. Failure to make a claim 
for disposition or a request for repatriation before disposition, 
repatriation, transfer, or reinterment of human remains or cultural 
items under this part is deemed an irrevocable waiver of any right to 
make a claim or a request for the human remains or cultural items once 
disposition, repatriation, transfer, or reinterment of the human 
remains or cultural items has occurred.
    (h) Judicial jurisdiction. The United States district courts have 
jurisdiction over any action by any person alleging a violation of the 
Act or this part.
    (i) Final agency action. For purposes of the Administrative 
Procedure Act (5 U.S.C. 704), any of the following actions by a Federal 
agency constitutes a final agency action under this part:
    (1) A final determination making the Act or this part inapplicable;
    (2) A final denial of a claim for disposition or a request for 
repatriation; and
    (3) A final disposition or repatriation determination.
    (j) Information collection. The information collection requirements 
contained in this part have been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq. and assigned control number 
1024-0144. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, the collection of information under this part 
unless the Federal agency provides a currently valid OMB control 
number.
    (k) Severability. If a court holds any provisions of the 
regulations in this part or their applicability to any person or 
circumstances invalid, the remainder of the regulations and their 
applicability to other people or circumstances are intended to continue 
to operate to the fullest possible extent.


Sec.  10.2   Definitions for this part.

    Act means the Native American Graves Protection and Repatriation 
Act.
    Ahupua[revaps]a (singular and plural) means a traditional land 
division in Hawai[revaps]i usually extending from the uplands to the 
sea.
    Appropriate official means any representative authorized by a 
delegation of authority within an Indian Tribe, Native Hawaiian 
organization, Federal agency, or Department of Hawaiian Home Lands 
(DHHL) that has responsibility for human remains or cultural items on 
Federal or Tribal lands.
    ARPA means the Archaeological Resources Protection Act of 1979, as 
amended (16 U.S.C. 470aa-mm) and the relevant Federal agency 
regulations implementing that statute.
    ARPA Indian lands means lands of Indian Tribes, or individual 
Indians, which are either held in trust by the United States Government 
or subject to a restriction against alienation imposed by the United 
States Government, except for any subsurface interests in lands not 
owned or controlled by an Indian Tribe or an individual Indian.
    ARPA Public lands means lands owned and administered by the United 
States Government as part of:
    (1) The national park system;
    (2) The national wildlife refuge system;
    (3) The national forest system; and
    (4) All other lands the fee title to which is held by the United 
States Government, other than lands on the Outer Continental Shelf and 
lands which are under the jurisdiction of the Smithsonian Institution.
    Assistant Secretary means the official of the Department of the 
Interior designated by the Secretary of the Interior as responsible for 
exercising the Secretary of the Interior's authority under the Act.
    Consultation or consult means the exchange of information, open 
discussion, and joint deliberations made between all parties in good-
faith and in order to:
    (1) Seek, discuss, and consider the views of all parties;
    (2) Strive for consensus, agreement, or mutually acceptable 
alternatives; and
    (3) Enable meaningful consideration of the Native American 
traditional knowledge of lineal descendants, Indian Tribes, and Native 
Hawaiian organizations.
    Cultural affiliation means there is a reasonable connection between 
human remains or cultural items and an Indian Tribe or Native Hawaiian 
organization based on a relationship of shared group identity. Cultural 
affiliation may be identified clearly by the information available or 
reasonably by the geographical location or acquisition

[[Page 86520]]

history of the human remains or cultural items.
    Cultural items means a funerary object, sacred object, or object of 
cultural patrimony according to the Native American traditional 
knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian 
organization.
    Custody means having an obligation to care for the object or item 
but not a sufficient interest in the object or item to constitute 
possession or control. In general, custody through a loan, lease, 
license, bailment, or other similar arrangement is not a sufficient 
interest to constitute possession or control, which resides with the 
loaning, leasing, licensing, bailing, or otherwise transferring museum 
or Federal agency.
    Discovery means exposing, finding, or removing human remains or 
cultural items whether intentionally or inadvertently on Federal or 
Tribal lands without a written authorization for an excavation under 
Sec.  10.6 of this part.
    Disposition means an appropriate official recognizes a lineal 
descendant, Indian Tribe, or Native Hawaiian organization has ownership 
or control of human remains or cultural items removed from Federal or 
Tribal lands.
    Excavation means intentionally exposing, finding, or removing human 
remains or cultural items on Federal or Tribal lands with a written 
authorization under Sec.  10.6 of this part.
    Federal agency means any department, agency, or instrumentality of 
the United States Government. This term does not include the 
Smithsonian Institution.
    Federal lands means any lands other than Tribal lands that are 
controlled or owned by the United States Government. For purposes of 
this definition, control refers to lands not owned by the United States 
Government, but in which the United States Government has a sufficient 
legal interest to permit it to apply these regulations without 
abrogating a person's existing legal rights. Whether the United States 
Government has a sufficient legal interest to control lands it does not 
own is a legal determination that a Federal agency must make on a case-
by-case basis. Federal lands include:
    (1) Any lands selected by, but not yet conveyed to, an Alaska 
Native Corporation organized under the Alaska Native Claims Settlement 
Act (43 U.S.C. 1601 et seq.);
    (2) Any lands other than Tribal lands that are held by the United 
States Government in trust for an individual Indian or lands owned by 
an individual Indian and subject to a restriction on alienation by the 
United States Government; and
    (3) Any lands subject to a statutory restriction, lease, easement, 
agreement, or similar arrangement containing terms that grant to the 
United States Government indicia of control over those lands.
    Funerary object means any object reasonably believed to have been 
placed intentionally with or near human remains. A funerary object is 
any object connected, either at the time of death or later, to a death 
rite or ceremony of a Native American culture according to the Native 
American traditional knowledge of a lineal descendant, Indian Tribe, or 
Native Hawaiian organization. This term does not include any object 
returned or distributed to living persons according to traditional 
custom after a death rite or ceremony. Funerary objects are either 
associated funerary objects or unassociated funerary objects.
    (1) Associated funerary object means any funerary object related to 
human remains that were removed and the location of the human remains 
is known. Any object made exclusively for burial purposes or to contain 
human remains is always an associated funerary object regardless of the 
physical location or existence of any related human remains.
    (2) Unassociated funerary object means any funerary object that is 
not an associated funerary object and is identified by a preponderance 
of the evidence as one or more of the following:
    (i) Related to human remains but the human remains were not 
removed, or the location of the human remains is unknown,
    (ii) Related to specific individuals or families,
    (iii) Removed from a specific burial site of an individual or 
individuals with cultural affiliation to an Indian Tribe or Native 
Hawaiian organization, or
    (iv) Removed from a specific area where a burial site of an 
individual or individuals with cultural affiliation to an Indian Tribe 
or Native Hawaiian organization is known to have existed, but the 
burial site is no longer extant.
    Holding or collection means an accumulation of one or more objects, 
items, or human remains for any temporary or permanent purpose, 
including:
    (1) Academic interest;
    (2) Accession;
    (3) Catalog;
    (4) Comparison;
    (5) Conservation;
    (6) Education;
    (7) Examination;
    (8) Exhibition;
    (9) Forensic purposes;
    (10) Interpretation;
    (11) Preservation;
    (12) Public benefit;
    (13) Research;
    (14) Scientific interest; or
    (15) Study.
    Human remains means any physical part of the body of a Native 
American individual. This term does not include human remains to which 
a museum or Federal agency can prove it has a right of possession.
    (1) Human remains reasonably believed to be comingled with other 
materials (such as soil or faunal remains) may be treated as human 
remains.
    (2) Human remains incorporated into a funerary object, sacred 
object, or object of cultural patrimony are considered part of the 
cultural items rather than human remains.
    (3) Human remains incorporated into an object or item that is not a 
funerary object, sacred object, or object of cultural patrimony are 
considered human remains.
    Indian Tribe means any Tribe, band, nation, or other organized 
group or community of Indians, including any Alaska Native village (as 
defined in, or established pursuant to, the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for 
the special programs and services provided by the United States 
Government to Indians because of their status as Indians by its 
inclusion on the list of recognized Indian Tribes published by the 
Secretary of the Interior under the Act of November 2, 1994 (25 U.S.C. 
5131).
    Inventory means a simple itemized list of any human remains and 
associated funerary objects in a holding or collection that 
incorporates the results of consultation and makes determinations about 
cultural affiliation.
    Lineal descendant means:
    (1) A living person tracing ancestry, either by means of 
traditional Native American kinship systems, or by the common-law 
system of descent, to a known individual whose human remains, funerary 
objects, or sacred objects are subject to this part; or
    (2) A living person tracing ancestry, either by means of 
traditional Native American kinship systems, or by the common-law 
system of descent, to all the known individuals represented by 
comingled human remains (example: the human remains of two individuals 
have been comingled, and a living person can trace ancestry directly to 
both of the deceased individuals).

[[Page 86521]]

    Manager, National NAGPRA Program, means the official of the 
Department of the Interior designated by the Secretary of the Interior 
as responsible for administration of the Act and this part.
    Museum means any institution or State or local government agency 
(including any institution of higher learning) that has possession or 
control of human remains or cultural items and receives Federal funds. 
The term does not include the Smithsonian Institution.
    Native American means of, or relating to, a Tribe, people, or 
culture that is indigenous to the United States. To be considered 
Native American under this part, human remains or cultural items must 
bear some relationship to a Tribe, people, or culture indigenous to the 
United States.
    (1) A Tribe is an Indian Tribe.
    (2) A people comprise the entire body of persons who constitute a 
community, Tribe, nation, or other group by virtue of a common culture, 
history, religion, language, race, ethnicity, or similar feature. The 
Native Hawaiian Community is a ``people.''
    (3) A culture comprises the characteristic features of everyday 
existence shared by people in a place or time.
    Native American traditional knowledge means knowledge, 
philosophies, beliefs, traditions, skills, and practices that are 
developed, embedded, and often safeguarded by or confidential to 
individual Native Americans, Indian Tribes, or the Native Hawaiian 
Community. Native American traditional knowledge contextualizes 
relationships between and among people, the places they inhabit, and 
the broader world around them, covering a wide variety of information, 
including, but not limited to, cultural, ecological, linguistic, 
religious, scientific, societal, spiritual, and technical knowledge. 
Native American traditional knowledge may be, but is not required to 
be, developed, sustained, and passed through time, often forming part 
of a cultural or spiritual identity. Native American traditional 
knowledge is expert opinion.
    Native Hawaiian organization means any organization that:
    (1) Serves and represents the interests of Native Hawaiians, who 
are descendants of the indigenous people who, before 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawai`i;
    (2) Has as a primary and stated purpose the provision of services 
to Native Hawaiians; and
    (3) Has expertise in Native Hawaiian affairs, and includes but is 
not limited to:
    (i) The Office of Hawaiian Affairs established by the constitution 
of the State of Hawai`I;
    (ii) Native Hawaiian organizations (including `ohana) who are 
registered with the Secretary of the Interior's Office of Native 
Hawaiian Relations; and
    (iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations 
and Homestead Associations as defined under 43 CFR 47.10.
    Object of cultural patrimony means an object that has ongoing 
historical, traditional, or cultural importance central to a Native 
American group, including any constituent sub-group (such as a band, 
clan, lineage, ceremonial society, or other subdivision), according to 
the Native American traditional knowledge of an Indian Tribe or Native 
Hawaiian organization. An object of cultural patrimony may have been 
entrusted to a caretaker, along with the authority to confer that 
responsibility to another caretaker. The object must be reasonably 
identified as being of such importance central to the group that it:
    (1) Cannot or could not be alienated, appropriated, or conveyed by 
any person, including its caretaker, regardless of whether the person 
is a member of the group, and
    (2) Must have been considered inalienable by the group at the time 
the object was separated from the group.
    [revaps]Ohana (singular and plural) means a group of people who are 
not asserting that they are lineal descendants but comprise a Native 
Hawaiian organization whose members have a familial or kinship 
relationship with each other.
    Person means:
    (1) An individual, partnership, corporation, trust, institution, 
association, or any other private entity; or
    (2) Any representative, official, employee, agent, department, or 
instrumentality of the United States Government or of any Indian Tribe 
or Native Hawaiian organization, or of any State or subdivision of a 
State.
    Possession or control means having a sufficient interest in an 
object or item to independently direct, manage, oversee, or restrict 
the use of the object or item. A museum or Federal agency may have 
possession or control regardless of the physical location of the object 
or item. In general, custody through a loan, lease, license, bailment, 
or other similar arrangement is not a sufficient interest to constitute 
possession or control, which resides with the loaning, leasing, 
licensing, bailing, or otherwise transferring museum or Federal agency.
    Receives Federal funds means an institution or State or local 
government agency (including an institution of higher learning) 
directly or indirectly receives Federal financial assistance after 
November 16, 1990, including any grant; cooperative agreement; loan; 
contract; use of Federal facilities, property, or services; or other 
arrangement involving the transfer of anything of value for a public 
purpose authorized by a law of the United States Government. This term 
includes Federal financial assistance provided for any purpose that is 
received by a larger entity of which the institution or agency is a 
part. For example, if an institution or agency is a part of a State or 
local government or a private university, and the State or local 
government or private university receives Federal financial assistance 
for any purpose, then the institution or agency receives Federal funds 
for the purpose of these regulations. This term does not include 
procurement of property or services by and for the direct benefit or 
use of the United States Government or Federal payments that are 
compensatory.
    Repatriation means a museum or Federal agency relinquishes 
possession or control of human remains or cultural items in a holding 
or collection to a lineal descendant, Indian Tribe, or Native Hawaiian 
organization.
    Review Committee means the advisory committee established under the 
Act.
    Right of possession means possession or control obtained with the 
voluntary consent of a person or group that had authority of 
alienation. Right of possession is given through the original 
acquisition of:
    (1) An unassociated funerary object, a sacred object, or an object 
of cultural patrimony from an Indian Tribe or Native Hawaiian 
organization with the voluntary consent of a person or group with 
authority to alienate the object; or
    (2) Human remains or associated funerary objects which were 
exhumed, removed, or otherwise obtained with full knowledge and consent 
of the next of kin or, when no next of kin is ascertainable, the 
official governing body of the appropriate Indian Tribe or Native 
Hawaiian organization.
    Sacred object means a specific ceremonial object needed by a 
traditional religious leader for present-day adherents to practice 
traditional Native American religion, according to the Native American 
traditional knowledge of a lineal descendant, Indian Tribe, or Native 
Hawaiian organization. While many items might be imbued with sacredness 
in a culture, this term is specifically limited to an object needed for 
the observance or

[[Page 86522]]

renewal of a Native American religious ceremony.
    Summary means a written description of a holding or collection that 
may contain an unassociated funerary object, sacred object, or object 
of cultural patrimony.
    Traditional religious leader means a person needed to practice 
traditional Native American religion, according to the Native American 
traditional knowledge of a lineal descendant, Indian Tribe, or Native 
Hawaiian organization.
    Tribal lands means:
    (1) All lands that are within the exterior boundaries of any Indian 
reservation;
    (2) All lands that are dependent Indian communities; and
    (3) All lands administered by the Department of Hawaiian Home Lands 
(DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 
108) and Section 4 of the Act to Provide for the Admission of the State 
of Hawai[revaps]i into the Union (73 Stat. 4), including ``available 
lands'' and ``Hawaiian home lands.''
    Tribal lands of an NHO means Tribal lands in Hawai[revaps]i that 
are under the stewardship of a Native Hawaiian organization through a 
lease or license issued under HHCA section 204(a)(2), second paragraph, 
second proviso, or section 207(c)(1)(B).
    Unclaimed human remains or cultural items means human remains or 
cultural items removed from Federal or Tribal lands whose disposition 
has not occurred under this part.
    United States means the 50 States and the District of Columbia.


Sec.  10.3   Determining cultural affiliation.

    Throughout this part, cultural affiliation ensures that disposition 
or repatriation of human remains or cultural items is based on a 
reasonable connection with an Indian Tribe or Native Hawaiian 
organization. Cultural affiliation must be determined by the 
information available, including information provided by an Indian 
Tribe or Native Hawaiian organization. Cultural affiliation does not 
require exhaustive studies, additional research, or continuity through 
time. Cultural affiliation is not precluded solely because of 
reasonable gaps in the information available.
    (a) Step 1: Collect information available. A museum, Federal 
agency, or DHHL must collect information it holds about human remains 
or cultural items, including, but not limited to, records, catalogues, 
relevant studies, and other pertinent data. Additional information may 
be provided by an Indian Tribe or Native Hawaiian organization.
    (1) One or more of the following equally relevant types of 
information about human remains or cultural items may be available:
    (i) Anthropological;
    (ii) Archaeological;
    (iii) Biological;
    (iv) Folkloric;
    (v) Geographical;
    (vi) Historical;
    (vii) Kinship;
    (viii) Linguistic;
    (ix) Oral Traditional; or
    (x) Other relevant information or expert opinion, including Native 
American traditional knowledge.
    (2) A lack of any type of information does not preclude a 
determination of cultural affiliation. One type of information may be 
used to determine cultural affiliation when no other relevant 
information is available.
    (b) Step 2: Identify the required criteria. Using the information 
available, including information provided by an Indian Tribe or Native 
Hawaiian organization, a museum, Federal agency, or DHHL must identify 
the three criteria for cultural affiliation.
    (1) Each of the following criteria must be identified in the 
information available:
    (i) One or more earlier groups connected to the human remains or 
cultural items;
    (ii) One or more Indian Tribes or Native Hawaiian organizations; 
and
    (iii) A relationship of shared group identity between the earlier 
group and the Indian Tribe or Native Hawaiian organization that can be 
reasonably traced through time.
    (2) One type of information may be sufficient to reasonably 
identify the required criteria when no other relevant information is 
available. For example, geographical information about human remains or 
cultural items may identify:
    (i) The earlier groups of people connected to a geographical 
location;
    (ii) The Indian Tribe or Native Hawaiian organization connected to 
a geographical location; and
    (iii) A relationship of shared group identity between the two 
traced through time.
    (c) Step 3: Make a determination of cultural affiliation. A museum, 
Federal agency, or DHHL must make a written record of its determination 
of cultural affiliation that briefly describes the information 
available under paragraph (a) of this section and the criteria 
identified under paragraph (b) of this section.
    (1) The determination must be one of the following:
    (i) Cultural affiliation is identified clearly by the information 
available,
    (ii) Cultural affiliation is identified reasonably by the 
geographical location or acquisition history, or
    (iii) Cultural affiliation cannot be clearly or reasonably 
identified.
    (2) Cultural affiliation of human remains or cultural items may be 
with more than one Indian Tribe or Native Hawaiian organization. For 
example, an identifiable earlier group may have a relationship to more 
than one Indian Tribe or Native Hawaiian organization, or two or more 
earlier groups may be connected to human remains or cultural items and 
a relationship may be reasonably traced to two or more Indian Tribes or 
Native Hawaiian organizations that do not themselves have a shared 
group identity. In Hawai`i, two or more Native Hawaiian organizations 
may be part of the same Native Hawaiian Community, but may have 
distinct beliefs, protocols, and other cultural practices passed down 
through different familial, cultural, and geographical lineages.
    (d) Joint disposition or repatriation. When a museum, Federal 
agency, or DHHL determines cultural affiliation of human remains or 
cultural items with two or more Indian Tribes or Native Hawaiian 
organizations, any Indian Tribe or Native Hawaiian organization with 
cultural affiliation may submit a claim for disposition or a request 
for repatriation. Any Indian Tribe or Native Hawaiian organization with 
cultural affiliation may agree to joint disposition or joint 
repatriation of the human remains or cultural items. Claims or requests 
for joint disposition or joint repatriation of human remains or 
cultural items are considered a single claim or request and not 
competing claims or requests. A single claim or request may be on 
behalf of multiple Indian Tribes or Native Hawaiian organizations. 
Disposition or repatriation statements required under this part must 
identify all joint claimants or requestors.
    (e) Competing claims or requests. When there are competing claims 
for disposition or competing requests for repatriation of human remains 
or cultural items, a museum, Federal agency, or DHHL must determine the 
Indian Tribe or Native Hawaiian organization with the closest cultural 
affiliation. In support of a competing claim or request, each claimant 
or requestor may provide information to show by a preponderance of the 
evidence that it has a stronger relationship of shared group identity 
to the human remains or cultural items.

[[Page 86523]]

    (1) The Indian Tribe with the closest cultural affiliation, in the 
following order, is:
    (i) The Indian Tribe whose cultural affiliation is clearly 
identified by the information available.
    (ii) The Indian Tribe whose cultural affiliation is reasonably 
identified by the geographical location and acquisition history of the 
human remains or cultural items.
    (iii) The Indian Tribe whose cultural affiliation is reasonably 
identified by only the geographical location of the human remains or 
cultural items.
    (iv) The Indian Tribe whose cultural affiliation is reasonably 
identified by only the acquisition history of the human remains or 
cultural items.
    (2) The Native Hawaiian organization with the closest cultural 
affiliation, in the following order, is:
    (i) The [revaps]ohana that can trace an unbroken connection of 
named individuals to one or more of the human remains or cultural 
items, but not necessarily to all the human remains or cultural items 
from a specific site.
    (ii) The [revaps]ohana that can trace a relationship to the 
ahupua`a where the human remains or cultural items were removed and a 
direct kinship to one or more of the human remains or cultural items, 
but not necessarily an unbroken connection of named individuals.
    (iii) The Native Hawaiian organization with cultural affiliation 
only to the earlier occupants of the ahupua`a where the human remains 
or cultural items were removed, and not to the earlier occupants of any 
other ahupua`a.
    (iv) The Native Hawaiian organization with cultural affiliation to 
either:
    (A) The earlier occupants of the ahupua`a where the human remains 
or cultural items were removed, as well as to the earlier occupants of 
other ahupua`a on the same island, but not to the earlier occupants of 
all ahupua`a on that island, or to the earlier occupants of any other 
island of the Hawaiian archipelago; or
    (B) The earlier occupants of another island who accessed the 
ahupua`a where the human remains or cultural items were removed for 
traditional or customary practices and were buried there.
    (v) The Native Hawaiian organization with cultural affiliation to 
the earlier occupants of all ahupua`a on the island where the human 
remains or cultural items were removed, but not to the earlier 
occupants of any other island of the Hawaiian archipelago.
    (vi) The Native Hawaiian organization with cultural affiliation to 
the earlier occupants of more than one island in the Hawaiian 
archipelago that has been in continuous existence from a date prior to 
1893.
    (vii) Any other Native Hawaiian organization with cultural 
affiliation.

Subpart B--Protection of Human Remains or Cultural Items on Federal 
or Tribal Lands


Sec.  10.4   General.

    Each Indian Tribe, Native Hawaiian organization, Federal agency, 
and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) that 
has responsibility for Federal or Tribal lands must comply with the 
requirements of this subpart. Any permit, license, lease, right-of-way, 
or other authorization issued for an activity on Federal or Tribal 
lands must include a requirement to report any discovery of human 
remains or cultural items under Sec.  10.5 of this part. Prior to any 
excavation of human remains or cultural items on Federal or Tribal 
lands, a written authorization is required under Sec.  10.6 of this 
part. When human remains or cultural items are removed from Federal or 
Tribal lands, a disposition statement is required under Sec.  10.7 of 
this part.
    (a) Appropriate official. To ensure compliance with the Act, the 
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL 
that has responsibility for Federal or Tribal lands must designate one 
or more appropriate officials to carry out the requirements of this 
subpart, as shown in table 1 of this paragraph (a).

             Table 1 to Sec.   10.4(a)--Appropriate Official
------------------------------------------------------------------------
 For human remains or cultural items on   the appropriate official is a
                 . . .                     representative for the . . .
------------------------------------------------------------------------
Federal lands in the United States.....  Federal agency with primary
                                          management authority.
Tribal lands in Alaska and the           Indian Tribe.
 continental United States.
Tribal lands in Hawai[revaps]i.........  DHHL.
Tribal lands of an NHO.................  DHHL or a Native Hawaiian
                                          organization that has agreed
                                          in writing to be responsible
                                          for its Tribal lands.
------------------------------------------------------------------------

    (b) Plan of action. When a Federal agency or DHHL has 
responsibility for a discovery or excavation on Federal or Tribal 
lands, a plan of action is required. A plan of action is not required 
when an Indian Tribe or Native Hawaiian organization has responsibility 
for a discovery or excavation on Tribal lands. The Federal agency or 
DHHL must prepare a plan of action before any planned activity that is 
likely to result in a discovery or excavation of human remains or 
cultural items. The likelihood of a discovery or excavation must be 
based on previous studies, discoveries, or excavations in the general 
proximity of the planned activity and in consultation with the lineal 
descendant, Indian Tribe, or Native Hawaiian organization. If not part 
of a planned activity, a plan of action is required after a discovery 
of human remains or cultural items. After consultation with the lineal 
descendant, Indian Tribe, or Native Hawaiian organization, the Federal 
agency or DHHL must approve and sign a plan of action.
    (1) Step 1--Initiate consultation. Before a planned activity or 
after a discovery, the Federal agency or DHHL must identify consulting 
parties and invite the parties to consult.
    (i) Consulting parties are any lineal descendant and any Indian 
Tribe or Native Hawaiian organization with potential cultural 
affiliation.
    (ii) An invitation to consult must be in writing and must include:
    (A) A description of the planned activity or discovery and its 
geographical location by county and State;
    (B) The names of all consulting parties; and
    (C) A proposed timeline and method for consultation.
    (2) Step 2--Consult on the plan of action. The Federal agency or 
DHHL must respond to any consulting party, regardless of whether the 
party has received an invitation to consult. Consultation on the plan 
of action may continue until the Federal agency or DHHL sends a 
disposition statement to a claimant under Sec.  10.7(c)(5) of this 
subpart.
    (i) In response to a consulting party, the Federal agency or DHHL 
must ask for the following information, if not already provided:

[[Page 86524]]

    (A) Preferences on the proposed timeline and method for 
consultation; and
    (B) The name, phone number, email address, or mailing address for 
any authorized representative, traditional religious leader, and known 
lineal descendant who may participate in consultation.
    (ii) Consultation must address the content of the plan of action 
under paragraph (b)(3) of this section.
    (iii) The Federal agency or DHHL must prepare a record of 
consultation that describes the concurrence, disagreement, or 
nonresponse of the consulting parties to the content of the plan of 
action.
    (3) Step 3--Approve and sign the plan of action. Before a planned 
activity or after a discovery, the Federal agency or DHHL must approve 
and sign a plan of action and must provide a copy to all consulting 
parties. At a minimum, the written plan of action must include:
    (i) A description of the planned activity or discovery and its 
geographical location by county and State;
    (ii) A list of all consulting parties under paragraph (b)(1) of 
this section;
    (iii) A record of consultation under paragraph (b)(2) of this 
section;
    (iv) The preference of consulting parties for:
    (A) Stabilizing, securing, and covering human remains or cultural 
items in situ, or
    (B) Protecting, securing, and relocating human remains or cultural 
items, if removed;
    (v) The duty of care under Sec.  10.1(d) for any human remains or 
cultural items; and
    (vi) The timeline and method for:
    (A) Informing all consulting parties of a discovery;
    (B) Evaluating the potential need for an excavation; and
    (C) Completing disposition, to include publication of a notice of 
intended disposition, under Sec.  10.7 of this part.
    (c) Comprehensive agreement. A Federal agency or DHHL may develop a 
written comprehensive agreement for all land managing activities on 
Federal or Tribal lands, or portions thereof, under its responsibility. 
The written comprehensive agreement must:
    (1) Be developed in consultation with the lineal descendant, Indian 
Tribe, or Native Hawaiian organization identified under paragraph 
(b)(1) of this section;
    (2) Include, at minimum, a plan of action under paragraph (b)(3) of 
this section;
    (3) Be consented to by a majority of consulting parties under 
paragraph (b)(2) of this section. Evidence of consent means the 
authorized representative's signature on the agreement or by official 
correspondence to the Federal agency or DHHL; and
    (4) Be signed by the Federal agency or DHHL.
    (d) Federal agency coordination with other laws. To manage 
compliance with the Act, a Federal agency may coordinate its 
responsibility under this subpart with its responsibilities under other 
relevant Federal laws. Compliance with this subpart does not relieve a 
Federal agency of the responsibility for compliance with the National 
Historic Preservation Act (54 U.S.C. 306108, commonly known as Section 
106) or the Archeological and Historic Preservation Act (54 U.S.C. 
312501-312508).


Sec.  10.5   Discovery.

    When a discovery of human remains or cultural items on Federal or 
Tribal lands occurs, any person who knows or has reason to know of the 
discovery must inform the appropriate official for the Indian Tribe, 
Native Hawaiian organization, Federal agency, or DHHL and the 
additional point of contact. The appropriate official must respond to a 
discovery and, if applicable, certify when an activity may resume.
    (a) Report any discovery. Any person who knows or has reason to 
know of a discovery of human remains or cultural items on Federal or 
Tribal lands must:
    (1) Immediately report the discovery in person or by telephone to 
the appropriate official and any additional point of contact shown in 
table 1 of this paragraph (a).

  Table 1 to Sec.   10.5(a)(1)--Report a Discovery on Federal or Tribal
                                  Lands
------------------------------------------------------------------------
                                 the appropriate
 Where the discovery is on .     official is the     and the additional
             . .               representative for    point of contact is
                                    the . . .             the . . .
------------------------------------------------------------------------
Federal lands in the United   Federal agency with   Any Indian Tribe or
 States *.                     primary management    Native Hawaiian
                               authority.            organization with
                                                     potential cultural
                                                     affiliation, if
                                                     known.
Tribal lands in Alaska and    Indian Tribe........  Bureau of Indian
 the continental United                              Affairs or the
 States.                                             Federal agency with
                                                     primary management
                                                     authority, if any.
Tribal lands in               DHHL................  Any Native Hawaiian
 Hawai[revaps]i.                                     organization with
                                                     potential cultural
                                                     affiliation, if
                                                     known.
* Federal lands in Alaska     Bureau of Land        Alaska Native
 selected but not yet          Management or         Corporation
 conveyed under the Alaska     Federal agency with   organized under
 Native Claims Settlement      primary management    ANCSA.
 Act (ANCSA, 43 U.S.C. 1601).  authority.
------------------------------------------------------------------------

    (2) Make a reasonable effort to secure and protect the human 
remains or cultural items, including, as appropriate, stabilizing or 
covering the human remains or cultural items; and
    (3) No later than 24 hours after the discovery, send written 
documentation of the discovery to the appropriate official and the 
additional point of contact shown in Table 1 to paragraph (a)(1) of 
this section stating:
    (i) The geographical location by county and State;
    (ii) The contents of the discovery; and
    (iii) The steps taken to secure and protect the human remains or 
cultural items.
    (b) Cease any nearby activity. If a discovery is related to an 
activity (including but not limited to construction, mining, logging, 
or agriculture), the person responsible for the activity must:
    (1) Immediately stop any activity that could threaten the 
discovery;
    (2) Report the discovery according to paragraph (a) of this 
section; and
    (3) In the written documentation of the discovery required under 
paragraph (a)(3) of this section include:
    (i) The related activity and any potential threats to the 
discovery; and
    (ii) Confirmation that all activity around the discovery has 
stopped and must not resume until the date in a written certification 
issued under paragraph (e) of this section.
    (c) Respond to a discovery. No later than three days after 
receiving written documentation of a discovery, the appropriate 
official must respond to a

[[Page 86525]]

discovery. The appropriate official must comply with the requirements 
of this section immediately upon learning of the discovery even if the 
discovery has not been properly reported.
    (1) The appropriate official must make a reasonable effort to:
    (i) Secure and protect the human remains or cultural items;
    (ii) Verify that any activity around the discovery has stopped; and
    (iii) Notify the additional point of contact shown in table 1 to 
paragraph (a)(1) of this section.
    (2) On Tribal lands in Alaska and the continental United States, 
the Indian Tribe may delegate its responsibility for the discovery to 
the Bureau of Indian Affairs or the Federal agency with primary 
management authority. If both the Federal agency and the Indian Tribe 
consent in writing, the Bureau of Indian Affairs or the Federal agency 
with primary management authority is responsible for completing the 
requirements in paragraphs (d) and (e) of this section.
    (3) On Tribal lands of an NHO, the Native Hawaiian organization may 
agree in writing to be responsible for discoveries on its Tribal lands 
and then must respond to any discovery under this paragraph. If the 
Native Hawaiian organization has not agreed in writing to be 
responsible for discoveries, DHHL is responsible for completing the 
requirements in paragraph (d) and (e) of this section for any 
discoveries on those Tribal lands of an NHO.
    (d) Approve and sign a plan of action. When a Federal agency or 
DHHL has responsibility for a discovery on Federal or Tribal lands, a 
plan of action is required. A plan of action is not required when an 
Indian Tribe or Native Hawaiian organization has responsibility for a 
discovery on Tribal lands. The Federal agency or DHHL must carry out 
the plan of action for any human remains or cultural items that are 
removed.
    (1) No later than 30 days after receiving written documentation of 
a discovery, the Federal agency or DHHL, in consultation with the 
lineal descendant, Indian Tribe, or Native Hawaiian organization, must 
approve and sign a plan of action under Sec.  10.4(b).
    (2) This requirement does not apply if, before receiving written 
documentation of the discovery, the Federal agency or DHHL signed:
    (i) A plan of action under Sec.  10.4(b); or
    (ii) A comprehensive agreement under Sec.  10.4(c).
    (e) Certify when an activity may resume. No later than 30 days 
after receiving written documentation of a discovery, the appropriate 
official must send a written certification if the discovery is related 
to an activity (including but not limited to construction, mining, 
logging, or agriculture). Written certification must be sent to the 
person responsible for the activity and the additional point of contact 
shown in table 1 to paragraph (a)(1) of this section. The written 
certification must provide:
    (1) A copy of the signed plan of action or comprehensive agreement 
with redaction of any confidential or sensitive information;
    (2) Instructions for protecting, securing, stabilizing, or covering 
the human remains or cultural items, if appropriate; and
    (3) The date (no later than 30 days after the date of the written 
certification) on which lawful activity may resume around the 
discovery.


Sec.  10.6   Excavation.

    When an excavation of human remains or cultural items on Federal or 
Tribal lands is needed, the appropriate official must comply with this 
section when authorizing the excavation. A permit under Section 4 of 
ARPA (16 U.S.C. 470cc) is required when the excavation is on Federal or 
Tribal lands that are also ARPA Indian lands or ARPA Public lands, and 
there is no applicable permit exception or exemption under the ARPA 
uniform regulations at 18 CFR part 1312, 32 CFR part 229, 36 CFR part 
296, or 43 CFR part 7. When the excavation is on Federal or Tribal 
lands that are not ARPA Indian lands or ARPA Public lands, an 
equivalent permit from the relevant jurisdiction is required, if 
applicable.
    (a) On Tribal lands. Before an excavation of human remains or 
cultural items may occur, the Indian Tribe or Native Hawaiian 
organization must consent in writing by providing a written 
authorization for the excavation.
    (1) At minimum, the written authorization must document:
    (i) The reasonable steps taken to evaluate the potential need for 
an excavation of human remains or cultural items; and
    (ii) Any permit that the Indian Tribe or Native Hawaiian 
organization legally requires.
    (2) On Tribal lands in Alaska and the continental United States, 
the Indian Tribe may delegate its responsibility for authorizing the 
excavation to the Bureau of Indian Affairs or the Federal agency with 
primary management authority. If both the Federal agency and the Indian 
Tribe consent in writing, the Bureau of Indian Affairs or the Federal 
agency with primary management authority is responsible for completing 
the requirements in paragraph (b) of this section.
    (3) On Tribal lands of an NHO, the Native Hawaiian organization may 
agree in writing to be responsible for excavations on its Tribal lands 
and then must provide written authorizations under this paragraph. If 
the Native Hawaiian organization has not agreed in writing to be 
responsible for excavations, DHHL is responsible for completing the 
requirements in paragraph (b) of this section for any excavations on 
those Tribal lands of an NHO.
    (b) On Federal or Tribal lands. When a Federal agency or DHHL has 
responsibility for an excavation on Federal or Tribal lands, a plan of 
action and a written authorization are required. When an Indian Tribe 
or Native Hawaiian organization has responsibility for an excavation on 
Tribal lands, no plan of action is required and the Indian Tribe or 
Native Hawaiian organization must comply with paragraph (a) of this 
section.
    (1) Approve and sign a plan of action. Prior to authorizing an 
excavation, the Federal agency or DHHL, in consultation with the lineal 
descendant, Indian Tribe, or Native Hawaiian organization, must approve 
and sign a plan of action under Sec.  10.4(b). The Federal agency or 
DHHL must carry out the plan of action for any human remains or 
cultural items that are excavated and removed.
    (i) This requirement does not apply if, prior to authorizing the 
excavation, the Federal agency or DHHL signed:
    (A) A plan of action under Sec.  10.4(b); or
    (B) A comprehensive agreement under Sec.  10.4(c).
    (ii) For an excavation on Tribal lands, the plan of action must 
include written consent to the excavation by the appropriate Indian 
Tribe or Native Hawaiian organization.
    (2) Authorize an excavation. At minimum, the written authorization 
must include:
    (i) A copy of the signed plan of action or comprehensive agreement 
with redaction of any confidential or sensitive information,
    (ii) The reasonable steps taken to evaluate the potential need for 
an excavation of human remains or cultural items, and
    (iii) Any permit that the Federal agency or DHHL legally requires.


Sec.  10.7   Disposition.

    When human remains or cultural items are removed from Federal or

[[Page 86526]]

Tribal lands, as soon as possible (but no later than one year) after 
the discovery or excavation of the human remains or cultural items, the 
appropriate official must identify the lineal descendant, Indian Tribe, 
or Native Hawaiian organization that has priority for disposition of 
human remains or cultural items using this section.
    (a) Priority for disposition. The disposition of human remains or 
cultural items removed from Federal or Tribal lands must be in the 
following priority order:
    (1) The known lineal descendant, if any, for human remains or 
associated funerary objects;
    (2) The Indian Tribe or Native Hawaiian organization from whose 
Tribal lands the human remains or cultural items were removed;
    (3) The Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(e) of this part;
    (4) On Federal land that is recognized by a final judgment of the 
Indian Claims Commission or the United States Court of Claims as the 
aboriginal land of some Indian Tribe, the Indian Tribe with the 
strongest relationship to the human remains or cultural items, which 
is:
    (i) The Indian Tribe recognized as aboriginally occupying the 
geographical location where the human remains or cultural items were 
removed; or
    (ii) A different Indian Tribe who shows by a preponderance of the 
evidence a stronger relationship to the human remains or cultural 
items; or
    (5) Any Indian Tribe or Native Hawaiian organization that requests 
transfer of the human remains or cultural items as unclaimed under 
paragraph (d) of this section.
    (b) On Tribal lands. The Indian Tribe or Native Hawaiian 
organization from whose Tribal lands the human remains or cultural 
items were removed must identify the lineal descendant, Indian Tribe, 
or Native Hawaiian organization with priority for disposition under 
paragraph (a) of this section.
    (1) The Indian Tribe or Native Hawaiian organization must complete 
and retain a written disposition statement to recognize:
    (i) A lineal descendant (whose name may be withheld) has ownership 
or control of the human remains or associated funerary objects removed 
from Tribal lands; or
    (ii) A lineal descendant could not be ascertained, and the Indian 
Tribe or Native Hawaiian organization has ownership or control of the 
human remains or cultural items removed from Tribal lands.
    (2) On Tribal lands in Alaska and the continental United States, 
the Indian Tribe may delegate its responsibility for disposition of 
human remains or cultural items to the Bureau of Indian Affairs or the 
Federal agency with primary management authority. If both the Federal 
agency and the Indian Tribe consent in writing, the Bureau of Indian 
Affairs or the Federal agency with primary management authority is 
responsible for completing the requirements in paragraph (c) of this 
section.
    (3) On Tribal lands of an NHO, the Native Hawaiian organization may 
agree in writing to be responsible for disposition of human remains or 
cultural items from its Tribal lands and then must provide written 
disposition statements under this paragraph. If the Native Hawaiian 
organization has not agreed in writing to be responsible for 
dispositions, DHHL is responsible for completing the requirements in 
paragraph (c) of this section for any dispositions from those Tribal 
lands of an NHO.
    (4) After completing a disposition statement, nothing in the Act or 
this part:
    (i) Limits the authority of an Indian Tribe or Native Hawaiian 
organization to enter into any agreement with the lineal descendant or 
another Indian Tribe or Native Hawaiian organization concerning the 
human remains or cultural items;
    (ii) Limits any procedural or substantive right which may otherwise 
be secured to the lineal descendant, Indian Tribe, or Native Hawaiian 
organization; or
    (iii) Prevents the governing body of an Indian Tribe or Native 
Hawaiian organization from expressly relinquishing its ownership or 
control of human remains, funerary objects, or sacred objects.
    (c) On Federal or Tribal lands. When a Federal agency or DHHL has 
responsibility for disposition of human remains or cultural items from 
Federal or Tribal lands, the Federal agency or DHHL must inform and 
notify the lineal descendant, Indian Tribe, or Native Hawaiian 
organization with priority for disposition under paragraph (a) of this 
section.
    (1) Step 1--Inform consulting parties. As soon as possible but no 
later than six months after removal of human remains or cultural items 
from Federal or Tribal lands, the Federal agency or DHHL must send a 
written document informing all consulting parties listed in the plan of 
action under Sec.  10.4(b)(3) of this part. Consultation on disposition 
of human remains or cultural items may continue until the Federal 
agency or DHHL sends a disposition statement to a claimant under 
paragraph (c)(5) of this section.
    (i) The written document must include:
    (A) A description of the human remains or cultural items, including 
the date and geographical location by county and State of removal; and
    (B) The lineal descendant (whose name may be withheld), Indian 
Tribe, or Native Hawaiian organization identified as having priority 
for disposition of the human remains or cultural items.
    (ii) For human remains or cultural items removed from Federal or 
Tribal lands whose disposition is not complete prior to January 12, 
2024, the Federal agency or DHHL must:
    (A) Identify the lineal descendant, Indian Tribe, or Native 
Hawaiian organization with priority for disposition under paragraph (a) 
of this section; and
    (B) No later than July 12, 2024, send a written document under 
paragraph (c)(1)(i) of this section.
    (iii) If the Federal agency or DHHL cannot identify any lineal 
descendant, Indian Tribe, or Native Hawaiian organization with priority 
for disposition of human remains or cultural items, the Federal agency 
or DHHL must report the human remains or cultural items as unclaimed 
under paragraph (d) of this section.
    (2) Step 2--Submit a notice of intended disposition. No earlier 
than 30 days and no later than six months after informing consulting 
parties, the Federal agency or DHHL must submit a notice of intended 
disposition. If the human remains or cultural items are evidence in an 
ongoing civil or criminal action under ARPA or a criminal action under 
NAGPRA, the deadline for the notice is extended until the conclusion of 
the ARPA or NAGPRA case.
    (i) A notice of intended disposition must be sent to any consulting 
parties and to the Manager, National NAGPRA Program, for publication in 
the Federal Register.
    (ii) A notice of intended disposition must conform to the mandatory 
format of the Federal Register and include:
    (A) An abstract of the information in the written document under 
paragraph (c)(1)(i) of this section;
    (B) The name, phone number, email address, and mailing address of 
the appropriate official for the Federal agency or DHHL who is 
responsible for receiving claims for disposition;
    (C) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the Federal agency or DHHL may 
send a disposition statement to a claimant; and

[[Page 86527]]

    (D) The date (to be calculated by the Federal Register one year 
from the date of publication) on which the human remains or cultural 
items become unclaimed human remains or cultural items if no claim for 
disposition is received from a lineal descendant, Indian Tribe, or 
Native Hawaiian organization.
    (iii) No later than 21 days after receiving a notice of intended 
disposition, the Manager, National NAGPRA Program, must:
    (A) Approve for publication in the Federal Register any submission 
that conforms to the requirements under paragraph (c)(2)(ii) of this 
section; or
    (B) Return to the Federal agency or DHHL any submission that does 
not conform to the requirements under paragraph (c)(2)(ii) of this 
section. No later than 14 days after the submission is returned, the 
Federal agency or DHHL must resubmit the notice of intended 
disposition.
    (3) Step 3--Receive and consider a claim for disposition. After 
publication of a notice of intended disposition in the Federal 
Register, any lineal descendant, Indian Tribe, or Native Hawaiian 
organization may submit to the appropriate official for the Federal 
agency or DHHL a written claim for disposition of human remains or 
cultural items.
    (i) A claim for disposition of human remains or cultural items must 
be received by the Federal agency or DHHL before a disposition 
statement for the human remains or cultural items is sent to a claimant 
under paragraph (c)(5) of this section or the transfer or reinterment 
of the human remains or cultural items under paragraph (d)(4) of this 
section. A claim for disposition received by the Federal agency or DHHL 
before the publication of the notice of intended disposition is dated 
the same date the notice was published.
    (ii) Claims from two or more lineal descendants, Indian Tribes, or 
Native Hawaiian organizations who agree to joint disposition of the 
human remains or cultural items are considered a single claim and not 
competing claims.
    (iii) A claim for disposition must satisfy one of the following 
criteria:
    (A) The claimant is identified in the notice of intended 
disposition with priority for disposition; or
    (B) The claimant is not identified in the notice of intended 
disposition, but the claim for disposition shows that the claimant is a 
lineal descendant, Indian Tribe, or Native Hawaiian organization with 
priority for disposition under paragraph (a) of this section.
    (iv) One year after publishing a notice of intended disposition 
under paragraph (c)(2) of this section, if no lineal descendant, Indian 
Tribe, or Native Hawaiian organization has submitted a claim for 
disposition, the Federal agency or DHHL must report the human remains 
or cultural items as unclaimed under paragraph (d) of this section.
    (4) Step 4--Respond to a claim for disposition. No earlier than 30 
days after publication of a notice of intended disposition but no later 
than 90 days after receiving a claim for disposition, the Federal 
agency or DHHL must send a written response to the claimant with a copy 
to any other party identified in the notice of intended disposition 
with priority for disposition.
    (i) In the written response, the Federal agency or DHHL must state 
one of the following:
    (A) The claim meets the criteria under paragraph (c)(3) of this 
section. The Federal agency or DHHL must send a disposition statement 
to the claimant under paragraph (c)(5) of this section, unless the 
Federal agency or DHHL receives additional, competing claims for 
disposition of human remains or cultural items.
    (B) The claim does not meet the criteria under paragraph (c)(3) of 
this section. The Federal agency or DHHL must provide a detailed 
explanation why the claim does not meet the criteria and an opportunity 
for the claimant to provide additional information to meet the 
criteria.
    (C) The Federal agency or DHHL has received competing claims for 
disposition of the human remains or cultural items that meet the 
criteria and must determine the most appropriate claimant using the 
procedures and deadlines under paragraph (c)(4)(ii) of this section.
    (ii) At any time before sending a disposition statement for human 
remains or cultural items under paragraph (c)(5) of this section, the 
Federal agency or DHHL may receive additional, competing claims for 
disposition of the human remains or cultural items that meet the 
criteria under paragraph (c)(3) of this section. The Federal agency or 
DHHL must determine the most appropriate claimant using the priority 
for disposition under paragraph (a) of this section and the following 
procedures and deadlines:
    (A) No later than 14 days after receiving a competing claim, the 
Federal agency or DHHL must send a written letter to each claimant 
identifying all claimants and the date each claim was received. In 
response, the claimants may provide additional information to show by a 
preponderance of the evidence that the claimant has a stronger 
relationship to the human remains or cultural items.
    (B) No later than 180 days after informing the claimants of 
competing claims, the Federal agency or DHHL must send a written 
determination to each claimant identifying the most appropriate 
claimant(s).
    (C) No earlier than 30 days but no later than 90 days after sending 
a determination of the most appropriate claimant(s), the Federal agency 
or DHHL must send a disposition statement to the most appropriate 
claimant(s) under paragraph (c)(5) of this section.
    (5) Step 5--Disposition of the human remains or cultural items. No 
later than 90 days after responding to a claim for disposition that 
meets the criteria, the Federal agency or DHHL must send a written 
disposition statement to the claimant(s) and a copy to the Manager, 
National NAGPRA Program. A disposition statement must recognize the 
claimant(s) has ownership or control of the human remains or cultural 
items. In the case of joint claims for disposition, a disposition 
statement must identify and be sent to all claimants.
    (i) After sending a disposition statement, the Federal agency or 
DHHL must:
    (A) Consult with the claimant(s) on custody and physical transfer;
    (B) Document any physical transfer; and
    (C) Protect sensitive information, as identified by the 
claimant(s), from disclosure to the general public to the extent 
consistent with applicable law.
    (ii) After a disposition statement is sent, nothing in the Act or 
this part:
    (A) Limits the authority of the Federal agency or DHHL to enter 
into any agreement with the lineal descendant, Indian Tribe, or Native 
Hawaiian organization concerning the human remains or cultural items;
    (B) Limits any procedural or substantive right which may otherwise 
be secured to the lineal descendant, Indian Tribe, or Native Hawaiian 
organization; or
    (C) Prevents the governing body of an Indian Tribe or Native 
Hawaiian organization from expressly relinquishing its ownership or 
control of human remains, funerary objects, or sacred objects.
    (d) Unclaimed human remains or cultural items removed from Federal 
or Tribal lands. When a Federal agency or DHHL has custody of unclaimed 
human remains or cultural items, the Federal agency or DHHL must report 
the human remains or cultural items.
    (1) Step 1--Submit a list of unclaimed human remains or cultural 
items. No

[[Page 86528]]

later than January 13, 2025, the Federal agency or DHHL must submit to 
the Manager, National NAGPRA Program, a list of any unclaimed human 
remains or cultural items in its custody. The Federal agency or DHHL 
must submit updates to its list of unclaimed human remains or cultural 
items by December 31 each year.
    (i) Human remains or cultural items are unclaimed when:
    (A) One year after publishing a notice of intended disposition 
under paragraph (c)(2) of this section, no lineal descendant, Indian 
Tribe, or Native Hawaiian organization submits a written claim for 
disposition; or
    (B) One year after discovery or excavation of the human remains or 
cultural items, the Federal agency or DHHL did not identify any lineal 
descendant, Indian Tribe, or Native Hawaiian organization with priority 
for disposition under paragraph (a) of this section.
    (ii) A list of unclaimed human remains or cultural items must 
include:
    (A) A description of the human remains or cultural items, including 
the date and geographical location by county and State of removal;
    (B) The names of all consulting parties;
    (C) If unclaimed under paragraph (d)(1)(i)(A) of this section, the 
name of each Indian Tribe or Native Hawaiian organization with priority 
for disposition under paragraph (a) of this section; and
    (D) If unclaimed under paragraph (d)(1)(i)(B) of this section, the 
information considered under Sec.  10.3(a) of this part and the 
criteria identified under Sec.  10.3(b) of this part to explain why no 
Indian Tribe or Native Hawaiian organization with cultural affiliation 
could be identified.
    (2) Step 2--Agree to transfer or decide to reinter human remains or 
cultural items. At the discretion of the Federal agency or DHHL, a 
Federal agency or DHHL may:
    (i) Agree in writing to transfer unclaimed human remains or 
cultural items to an Indian Tribe or Native Hawaiian organization;
    (ii) Decide in writing to reinter unclaimed human remains or 
cultural items according to applicable laws and policies; or
    (iii) At any time before transferring or reinterring human remains 
or cultural items under paragraph (d)(4) of this section, the Federal 
agency or DHHL may receive a claim for disposition of the human remains 
or cultural items and must evaluate whether the claim meets the 
criteria under paragraph (c)(3) of this section. Any agreement to 
transfer or decision to reinter the human remains or cultural items 
under this paragraph is stayed until the claim for disposition is 
resolved under paragraph (c) of this section.
    (A) If the claim meets the criteria under paragraph (c)(3) of this 
section and a notice of intended disposition was published under 
paragraph (c)(2) of this section, the Federal agency or DHHL must 
respond in writing under paragraph (c)(4) and proceed with disposition 
under (c)(5) of this section.
    (B) If the claim meets the criteria under paragraph (c)(3) of this 
section but no notice of intended disposition was published, the 
Federal agency or DHHL must submit a notice of intended disposition 
under paragraph (c)(2), respond in writing under paragraph (c)(4), and 
proceed with disposition under (c)(5) of this section.
    (C) If the claim does not meet the criteria under paragraph (c)(3) 
of this section, the Federal agency or DHHL must respond in writing 
under paragraph (c)(4) and may proceed with transfer or reinterment 
under paragraph (d)(3) of this section.
    (3) Step 3--Submit a notice of proposed transfer or reinterment. No 
later than 30 days after agreeing to transfer or deciding to reinter 
the human remains or cultural items, the Federal agency or DHHL must 
submit a notice of proposed transfer or reinterment.
    (i) A notice of proposed transfer or reinterment must be sent to 
any consulting parties and to the Manager, National NAGPRA Program, for 
publication in the Federal Register.
    (ii) A notice of proposed transfer or reinterment must conform to 
the mandatory format of the Federal Register and include:
    (A) An abstract of the information in the list of unclaimed human 
remains or cultural items under paragraph (d)(1)(ii) of this section;
    (B) The Indian Tribe or Native Hawaiian organization requesting 
transfer of the human remains or cultural items or a statement that the 
Federal agency or DHHL agrees to reinter the human remains or cultural 
items;
    (C) The name, phone number, email address, and mailing address of 
the appropriate official for the Federal agency or DHHL who is 
responsible for receiving claims for disposition; and
    (D) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the Federal agency or DHHL may 
proceed with the transfer or reinterment of the human remains or 
cultural items.
    (iii) No later than 21 days after receiving a notice of proposed 
transfer or reinterment, the Manager, National NAGPRA Program, must:
    (A) Approve for publication in the Federal Register any submission 
that conforms to the requirements under paragraph (d)(3)(ii) of this 
section; or
    (B) Return to the Federal agency or DHHL any submission that does 
not conform to the requirements under paragraph (d)(3)(ii) of this 
section. No later than 14 days after the submission is returned, the 
Federal agency or DHHL must resubmit the notice of proposed transfer or 
reinterment.
    (4) Step 4--Transfer or reinter the human remains or cultural 
items. No earlier than 30 days and no later than 90 days after 
publication of a notice of proposed transfer or reinterment, the 
Federal agency or DHHL must transfer or reinter the human remains or 
cultural items and send a written statement to the Manager, National 
NAGPRA Program, that the transfer or reinterment is complete.
    (i) After transferring or reinterring, the Federal agency or DHHL 
must:
    (A) Document the transfer or reinterment of the human remains or 
cultural items, and
    (B) Protect sensitive information about the human remains or 
cultural items from disclosure to the general public to the extent 
consistent with applicable law.
    (ii) After transfer or reinterment occurs, nothing in the Act or 
this part:
    (A) Limits the authority of the Federal agency or DHHL to enter 
into any agreement with the requestor concerning the human remains or 
cultural items;
    (B) Limits any procedural or substantive right which may otherwise 
be secured to the lineal descendant, Indian Tribe, or Native Hawaiian 
organization; or
    (C) Prevents the governing body of an Indian Tribe or Native 
Hawaiian organization from expressly relinquishing its ownership or 
control of human remains, funerary objects, or sacred objects.

Subpart C--Repatriation of Human Remains or Cultural Items by 
Museums or Federal Agencies


Sec.  10.8   General.

    Each museum and Federal agency that has possession or control of a 
holding or collection that may contain human remains, funerary objects, 
sacred objects, or objects of cultural patrimony must comply with the 
requirements of this subpart, regardless of the physical location of 
the holding or collection.

[[Page 86529]]

Each museum and Federal agency must identify one or more authorized 
representatives who are responsible for carrying out the requirements 
of this subpart.
    (a) Museum holding or collection. A museum must comply with this 
subpart for any holding or collection under its possession or control 
that may contain human remains or cultural items, including a new 
holding or collection or a previously lost or previously unknown 
holding or collection.
    (1) A museum must determine whether it has sufficient interest in a 
holding or collection to constitute possession or control on a case-by-
case basis given the relevant information about the holding or 
collection.
    (i) A museum may have custody of a holding or collection but not 
possession or control. In general, custody of a holding or collection 
through a loan, lease, license, bailment, or other similar arrangement 
is not sufficient interest to constitute possession or control, which 
resides with the loaning, leasing, licensing, bailing, or otherwise 
transferring museum or Federal agency.
    (ii) If a museum has custody of a holding or collection, the museum 
may be required to report the holding or collection under paragraphs 
(c) or (d) of this section.
    (2) Any museum that sends a repatriation statement for human 
remains or cultural items or that transfers or reinters human remains 
or associated funerary objects in good faith under this subpart shall 
not be liable for claims by an aggrieved party or for claims of breach 
of fiduciary duty, public trust, or violations of State law that are 
inconsistent with the provisions of the Act or this part.
    (b) Federal agency holding or collection. A Federal agency must 
comply with this subpart for any holding or collection in its 
possession or control that may contain human remains or cultural items, 
including a previously lost or previously unknown holding or 
collection.
    (1) A Federal agency must determine, given the relevant 
information, if a holding or collection:
    (i) Was in its possession or control on or before November 16, 
1990; or
    (ii) Came into its possession or control after November 16, 1990, 
and was removed from:
    (A) An unknown location; or
    (B) Lands that are neither Federal nor Tribal lands as defined in 
this part.
    (2) A Federal agency may have custody of a holding or collection 
that was removed from Federal or Tribal lands after November 16, 1990, 
and must comply with Sec.  10.7(c) of this part.
    (c) Museums with custody of a Federal agency holding or collection. 
No later than January 13, 2025, each museum that has custody of a 
Federal agency holding or collection that may contain Native American 
human remains or cultural items must submit a statement describing that 
holding or collection to the authorized representatives of the Federal 
agency most likely to have possession or control and to the Manager, 
National NAGPRA Program.
    (1) No later than 180 days following receipt of a museum's 
statement, the Federal agency must respond to the museum and the 
Manager, National NAGPRA Program, with a written acknowledgement of one 
of the following:
    (i) The Federal agency has possession or control of the holding or 
collection;
    (ii) The Federal agency does not have possession or control of the 
holding or collection; or
    (iii) The Federal agency and the museum agree that they have joint 
possession or control of the holding or collection.
    (2) Failure to issue such a determination by the deadline 
constitutes acknowledgement that the Federal agency has possession or 
control. The Federal agency is responsible for the requirements of this 
subpart for any holdings or collections under its possession or 
control, regardless of the physical location of the holdings or 
collection.
    (d) Museums with custody of other holdings or collections. No later 
than January 13, 2025, each museum that has custody of a holding or 
collection that may contain Native American human remains or cultural 
items and for which it cannot identify any person, institution, State 
or local government agency, or Federal agency with possession or 
control of the holding or collection, must submit a statement 
describing that holding or collection to the Manager, National NAGPRA 
Program.
    (e) Contesting actions on repatriation. An affected party under 
Sec.  10.12(c)(1)(ii) who wishes to contest actions made by museums or 
Federal agencies under this subpart is encouraged to do so through 
informal negotiations to achieve a fair resolution of the matter. 
Informal negotiations may include requesting the assistance of the 
Manager, National NAGPRA Program, or the Review Committee under Sec.  
10.12.


Sec.  10.9   Repatriation of unassociated funerary objects, sacred 
objects, or objects of cultural patrimony.

    Each museum and Federal agency that has possession or control of a 
holding or collection that may contain an unassociated funerary object, 
sacred object, or object of cultural patrimony must follow the steps in 
this section. The purpose of this section is to provide general 
information about a holding or collection to lineal descendants, Indian 
Tribes, and Native Hawaiian organizations to facilitate repatriation.
    (a) Step 1--Compile a summary of a holding or collection. Based on 
the information available, a museum or Federal agency must compile a 
summary describing any holding or collection that may contain 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony. Depending on the scope of the holding or collection, a 
museum or Federal agency may organize its summary into sections based 
on geographical area, accession or catalog name or number, or other 
defining attributes. A museum or Federal agency must ensure the summary 
is comprehensive and covers any holding or collection relevant to this 
section.
    (1) A summary must include:
    (i) The estimated number and a general description of the holding 
or collection, including any potential cultural items;
    (ii) The geographical location (provenience) by county or State 
where the potential cultural items;
    (iii) The acquisition history (provenance) of the potential 
cultural items;
    (iv) Other information relevant for identifying:
    (A) A lineal descendant or an Indian Tribe or Native Hawaiian 
organization with cultural affiliation, and
    (B) Any object as an unassociated funerary object, sacred object, 
or object of cultural patrimony; and
    (v) The presence of any potentially hazardous substances used to 
treat any of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony, if known.
    (2) After January 12, 2024, a museum or Federal agency must submit 
a summary to the Manager, National NAGPRA Program, by the deadline in 
Table 1 of this paragraph (a)(2).

[[Page 86530]]



     Table 1 to Sec.   10.9(a)(2)--Deadlines for Compiling a Summary
------------------------------------------------------------------------
                                             . . . a summary must be
  If a museum or Federal agency . . .            submitted . . .
------------------------------------------------------------------------
acquires possession or control of        6 months after acquiring
 unassociated funerary objects, sacred    possession or control of the
 objects, or objects of cultural          unassociated funerary objects,
 patrimony.                               sacred objects, or objects of
                                          cultural patrimony.
locates previously lost or unknown       6 months after locating the
 unassociated funerary objects, sacred    unassociated funerary objects,
 objects, or objects of cultural          sacred objects, or objects of
 patrimony.                               cultural patrimony.
receives Federal funds for the first     3 years after receiving Federal
 time after January 12, 2024, and has     funds for the first time after
 possession or control of unassociated    January 12, 2024.
 funerary objects, sacred objects, or
 objects of cultural patrimony.
------------------------------------------------------------------------

    (3) After January 12, 2024, when a holding or collection previously 
included in a summary is transferred to a museum or Federal agency, the 
museum or Federal agency acquiring possession or control of the holding 
or collection may rely on the previously compiled summary.
    (i) No later than 30 days after acquiring the holding or 
collection, the museum or Federal agency must send the previously 
compiled summary to the Manager, National NAGPRA Program.
    (ii) No later than the deadline in Table 1 to paragraph (a)(2) of 
this section, the museum or Federal agency must compile a summary under 
paragraph (a)(1) of this section based on the previously compiled 
summary and additional information available. The museum or Federal 
agency must submit the summary to the Manager, National NAGPRA Program, 
and must initiate consultation under paragraph (b) of this section.
    (4) Prior to January 12, 2024, a museum or Federal agency must have 
submitted a summary to the Manager, National NAGPRA Program:
    (i) By November 16, 1993, for unassociated funerary objects, sacred 
objects, or objects of cultural patrimony subject to the Act;
    (ii) By October 20, 2007, for unassociated funerary objects, sacred 
objects, or objects of cultural patrimony acquired or located after 
November 16, 1993;
    (iii) By April 20, 2010, for unassociated funerary objects, sacred 
objects, or objects of cultural patrimony in the possession or control 
of a museum that received Federal funds for the first time after 
November 16, 1993;
    (iv) After October 20, 2007, six months after acquiring or locating 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony; or
    (v) After April 20, 2010, three years after receiving Federal funds 
for the first time.
    (b) Step 2--Initiate consultation. No later than 30 days after 
compiling a summary, a museum or Federal agency must identify 
consulting parties based on information available and invite the 
parties to consult.
    (1) Consulting parties are any lineal descendant and any Indian 
Tribe or Native Hawaiian organization with potential cultural 
affiliation.
    (2) An invitation to consult must be in writing and must include:
    (i) The summary described in paragraph (a)(1) of this section;
    (ii) The names of all consulting parties; and
    (iii) A proposed method for consultation.
    (3) When a museum or Federal agency identifies a new consulting 
party under paragraph (b)(1) of this section, the museum or Federal 
agency must invite the party to consult. An invitation to consult under 
paragraph (b)(2) of this section must be sent:
    (i) No later than 30 days after identifying a new consulting party 
based on new information; or
    (ii) No later than six months after the addition of a Tribal entity 
to the list of federally recognized Indian Tribes published in the 
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 
5131).
    (c) Step 3--Consult on cultural items. A museum or Federal agency 
must respond to any consulting party, regardless of whether the party 
has received an invitation to consult. Consultation on an unassociated 
funerary object, sacred object, or object of cultural patrimony may 
continue until the museum or Federal agency sends a repatriation 
statement for that object to a requestor under paragraph (g) of this 
section.
    (1) In response to a consulting party, a museum or Federal agency 
must ask for the following information, if not already provided:
    (i) Preferences on the proposed timeline and method for 
consultation; and
    (ii) The name, phone number, email address, or mailing address for 
any authorized representative, traditional religious leader, and known 
lineal descendant who may participate in consultation.
    (2) Consultation must address identification of:
    (i) Lineal descendants;
    (ii) Indian Tribes or Native Hawaiian organizations with cultural 
affiliation;
    (iii) The types of objects that might be unassociated funerary 
objects, sacred objects, or objects of cultural patrimony; and
    (iv) The duty of care under Sec.  10.1(d) for unassociated funerary 
objects, sacred objects, or objects of cultural patrimony.
    (3) The museum or Federal agency must prepare a record of 
consultation that describes the concurrence, disagreement, or 
nonresponse of the consulting parties to the identifications in 
paragraph (c)(2) of this section.
    (4) At any time before a museum or Federal agency sends a 
repatriation statement for an unassociated funerary object, sacred 
object, or object of cultural patrimony to a requestor under paragraph 
(g) of this section, the museum or Federal agency may receive a request 
from a consulting party for access to records, catalogues, relevant 
studies, or other pertinent data related to the holding or collection. 
A museum or Federal agency must provide access to the additional 
information in a reasonable manner and for the limited purpose of 
determining cultural affiliation, including the geographical location 
or acquisition history, of the unassociated funerary object, sacred 
object, or object of cultural patrimony.
    (d) Step 4--Receive and consider a request for repatriation. After 
a summary is compiled, any lineal descendant, Indian Tribe, or Native 
Hawaiian organization may submit to the museum or Federal agency a 
written request for repatriation of an unassociated funerary object, 
sacred object, or object of cultural patrimony.
    (1) A request for repatriation of an unassociated funerary object, 
sacred object, or object of cultural patrimony must be received by the 
museum or Federal agency before the museum or Federal agency sends a 
repatriation statement for that unassociated funerary object, sacred 
object, or object of cultural patrimony to a requestor under paragraph 
(g) of this section. A request for repatriation received by the museum 
or Federal agency before the deadline

[[Page 86531]]

for compiling a summary in table 1 to paragraph (a)(2) of this section 
is dated the same date as the deadline for compiling the summary.
    (2) Requests from two or more lineal descendants, Indian Tribes, or 
Native Hawaiian organizations who agree to joint repatriation of the 
unassociated funerary object, sacred object, or object of cultural 
patrimony are considered a single request and not competing requests.
    (3) A request for repatriation must satisfy the following criteria:
    (i) Each unassociated funerary object, sacred object, or object of 
cultural patrimony being requested meets the definition of an 
unassociated funerary object, a sacred object, or an object of cultural 
patrimony;
    (ii) The request is from a lineal descendant or an Indian Tribe or 
Native Hawaiian organization with cultural affiliation; and
    (iii) The request includes information to support a finding that 
the museum or Federal agency does not have right of possession to the 
unassociated funerary object, sacred object, or object of cultural 
patrimony.
    (e) Step 5--Respond to a request for repatriation. No later than 90 
days after receiving a request for repatriation, a museum or Federal 
agency must send a written response to the requestor with a copy to any 
other consulting party. Using the information available, including 
relevant records, catalogs, existing studies, and the results of 
consultation, a museum or Federal agency must determine if the request 
for repatriation satisfies the criteria under paragraph (d) of this 
section. In the written response, the museum or Federal agency must 
state one of the following:
    (1) The request meets the criteria under paragraph (d) of this 
section. The museum or Federal agency must submit a notice of intended 
repatriation under paragraph (f) of this section.
    (2) The request does not meet the criteria under paragraph (d) of 
this section. The museum or Federal agency must provide a detailed 
explanation why the request does not meet the criteria and an 
opportunity for the requestor to provide additional information to meet 
the criteria.
    (3) The request meets the criteria under paragraph (d)(3)(i) and 
(ii) of this section, but the museum or Federal agency asserts a right 
of possession to the unassociated funerary object, sacred object, or 
object of cultural patrimony and refuses repatriation of the requested 
object to the requestor. The museum or Federal agency must provide 
information to prove that the museum or Federal agency has a right of 
possession to the unassociated funerary object, sacred object, or 
object of cultural patrimony.
    (4) The museum or Federal agency has received competing requests 
for repatriation of the unassociated funerary object, sacred object, or 
object of cultural patrimony that meet the criteria and must determine 
the most appropriate requestor using the procedures and deadlines under 
paragraph (h) of this section.
    (f) Step 6--Submit a notice of intended repatriation. No later than 
30 days after responding to a request for repatriation that meets the 
criteria, a museum or Federal agency must submit a notice of intended 
repatriation. The museum or Federal agency may include in a single 
notice any unassociated funerary objects, sacred objects, or objects of 
cultural patrimony with the same requestor.
    (1) A notice of intended repatriation must be sent to all 
requestors, any consulting parties, and to the Manager, National NAGPRA 
Program, for publication in the Federal Register.
    (2) A notice of intended repatriation must conform to the mandatory 
format of the Federal Register and include:
    (i) An abstract of the information compiled under paragraph (a) of 
this section;
    (ii) The total number and brief description of the unassociated 
funerary objects, sacred objects, or objects of cultural patrimony 
(counted separately or by lot);
    (iii) The lineal descendant (whose name may be withheld), Indian 
Tribe, or Native Hawaiian organization requesting repatriation of the 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony;
    (iv) The name, phone number, email address, and mailing address for 
the authorized representative of the museum or Federal agency who is 
responsible for receiving requests for repatriation; and
    (v) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the museum or Federal agency may 
send a repatriation statement to the requestor.
    (3) No later than 21 days after receiving a notice of intended 
repatriation, the Manager, National NAGPRA Program, must:
    (i) Approve for publication in the Federal Register any submission 
that conforms to the requirements under paragraph (f)(2) of this 
section; or
    (ii) Return to the museum or Federal agency any submission that 
does not conform to the requirements under paragraph (f)(2) of this 
section. No later than 14 days after the submission is returned, the 
museum or Federal agency must resubmit the notice of intended 
repatriation.
    (5) At any time before sending a repatriation statement for an 
unassociated funerary object, sacred object, or object of cultural 
patrimony under paragraph (g) of this section, the museum or Federal 
agency may receive additional, competing requests for repatriation of 
that object that meet the criteria under paragraph (d) of this section. 
The museum or Federal agency must determine the most appropriate 
requestor using the procedures and deadlines under paragraph (h) of 
this section.
    (g) Step 7--Repatriation of the unassociated funerary object, 
sacred object, or object of cultural patrimony. No earlier than 30 days 
and no later than 90 days after publication of a notice of intended 
repatriation, a museum or Federal agency must send a written 
repatriation statement to the requestor and a copy to the Manager, 
National NAGPRA Program. In a repatriation statement, a museum or 
Federal agency must relinquish possession or control of the 
unassociated funerary object, sacred object, or object of cultural 
patrimony to the lineal descendant, Indian Tribe, or Native Hawaiian 
organization. In the case of joint requests for repatriation, a 
repatriation statement must identify and be sent to all requestors.
    (1) After sending a repatriation statement, the museum or Federal 
agency must:
    (i) Consult with the requestor on custody and physical transfer;
    (ii) Document any physical transfer; and
    (iii) Protect sensitive information, as identified by the 
requestor, from disclosure to the general public to the extent 
consistent with applicable law.
    (2) After a repatriation statement is sent, nothing in the Act or 
this part limits the authority of the museum or Federal agency to enter 
into any agreement with the requestor concerning the unassociated 
funerary object, sacred object, or object of cultural patrimony.
    (h) Evaluating competing requests for repatriation. At any time 
before sending a repatriation statement for an unassociated funerary 
object, sacred object, or object of cultural patrimony under paragraph 
(g) of this section, a museum or Federal agency may receive additional, 
competing requests for repatriation of that object that meet the 
criteria under paragraph (d) of this section. The museum or Federal 
agency

[[Page 86532]]

must determine the most appropriate requestor using this paragraph.
    (1) For an unassociated funerary object or sacred object, in the 
following priority order, the most appropriate requestor is:
    (i) The lineal descendant, if any; or
    (ii) The Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(e) of this part.
    (2) For an object of cultural patrimony, the most appropriate 
requestor is the Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(e) of this part.
    (3) No later than 14 days after receiving a competing request, a 
museum or Federal agency must send a written letter to each requestor 
identifying all requestors and the date each request was received. In 
response, the requestors may provide additional information to show by 
a preponderance of the evidence that the requestor has a stronger 
relationship of shared group identity to the cultural items.
    (4) No later than 180 days after informing the requestors of 
competing requests, a museum or Federal agency must send a written 
determination to each requestor and the Manager, National NAGPRA 
Program. The determination must be one of the following:
    (i) The most appropriate requestor has been determined and the 
competing requests were received before the publication of a notice of 
intended repatriation. The museum or Federal agency must:
    (A) Identify the most appropriate requestor and explain how the 
determination was made;
    (B) Submit a notice of intended repatriation in accordance with 
paragraph (f) of this section no later than 30 days after sending the 
determination; and
    (C) No earlier than 30 days and no later than 90 days after 
publication of the notice of intended repatriation, the museum or 
Federal agency must send a repatriation statement to the most 
appropriate requestor under paragraph (g) of this section;
    (ii) The most appropriate requestor has been determined and a 
notice of intended repatriation was previously published. The museum or 
Federal agency must:
    (A) Identify the most appropriate requestor and explain how the 
determination was made; and
    (B) No earlier than 30 days and no later than 90 days after sending 
a determination of the most appropriate requestor, the museum or 
Federal agency must send a repatriation statement to the most 
appropriate requestor under paragraph (g) of this section; or
    (iii) The most appropriate requestor cannot be determined, and 
repatriation is stayed under paragraph (i)(2) of this section. The 
museum or Federal agency must briefly describe the information 
considered and explain how the determination was made.
    (i) Stay of repatriation. Repatriation under paragraph (g) of this 
section is stayed if:
    (1) A court of competent jurisdiction has enjoined the 
repatriation. When there is a final resolution of the legal case or 
controversy in favor of a requestor, the museum or Federal agency must:
    (i) No later than 14 days after a resolution, send a written 
statement of the resolution to each requestor and the Manager, National 
NAGPRA Program;
    (ii) No earlier than 30 days and no later than 90 days after 
sending the written statement, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (g) of this 
section, unless a court of competent jurisdiction directs otherwise.
    (2) The museum or Federal agency has received competing requests 
for repatriation and, after complying with paragraph (h) of this 
section, cannot determine the most appropriate requestor. When a most 
appropriate requestor is determined by an agreement between the 
parties, binding arbitration, or means of resolution other than through 
a court of competent jurisdiction, the museum or Federal agency must:
    (i) No later than 14 days after a resolution, send a written 
determination to each requestor and the Manager, National NAGPRA 
Program;
    (ii) No earlier than 30 days and no later than 90 days after 
sending the determination, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (g) of this 
section.
    (3) Before the publication of a notice of intended repatriation 
under paragraph (f) of this section, the museum or Federal agency has 
both requested and received the Assistant Secretary's written 
concurrence that the unassociated funerary object, sacred object, or 
object of cultural patrimony is indispensable for completion of a 
specific scientific study, the outcome of which is of major benefit to 
the people of the United States.
    (i) To request the Assistant Secretary's concurrence, the museum or 
Federal agency must send to the Manager, National NAGPRA Program, a 
written request of no more than 10 double-spaced pages. The written 
request must:
    (A) Be on the letterhead of the requesting museum or Federal agency 
and be signed by an authorized representative;
    (B) Describe the specific scientific study, the date on which the 
study commenced, and how the study is of major benefit to the people of 
the United States;
    (C) Explain why retention of the unassociated funerary object, 
sacred object, or object of cultural patrimony is indispensable for 
completion of the study;
    (D) Describe the steps required to complete the study, including 
any destructive analysis, and provide a completion schedule and 
completion date;
    (E) Provide the position titles of the persons responsible for each 
step in the schedule;
    (F) Affirm that the study has in place the requisite funding; and
    (G) Provide written documentation showing free, prior, and informed 
consent from lineal descendants, Indian Tribes, or Native Hawaiian 
organizations to the study.
    (ii) In response to the request, the Assistant Secretary must:
    (A) Consult with lineal descendants, Indian Tribes, or Native 
Hawaiian organizations that consented to the study;
    (B) Send a written determination of concurrence or denial to the 
museum or Federal agency with a copy to the consulting parties; and
    (C) If the Assistant Secretary concurs, specify in the written 
determination the date by which the scientific study must be completed.
    (iii) No later than 30 days after the completion date in the 
Assistant Secretary's determination, the museum or Federal agency must 
submit a notice of intended repatriation in accordance with paragraph 
(f) of this section.
    (iv) No earlier than 30 days and no later than 90 days after 
publication of the notice of intended repatriation, the museum or 
Federal agency must send a repatriation statement to the requestor 
under paragraph (g) of this section.


Sec.  10.10   Repatriation of human remains or associated funerary 
objects.

    Each museum and Federal agency that has possession or control of a 
holding or collection that may contain human remains or associated 
funerary objects must follow the steps in this section. The purpose of 
this section is to provide notice of determinations, following 
consultation, about human remains or

[[Page 86533]]

associated funerary objects to lineal descendants, Indian Tribes, and 
Native Hawaiian organizations to facilitate repatriation.
    (a) Step 1--Compile an itemized list of any human remains and 
associated funerary objects. Based on information available, a museum 
or Federal agency must compile a simple itemized list of any human 
remains and associated funerary objects in a holding or collection. 
Depending on the scope of the holding or collection, a museum or 
Federal agency may organize its itemized list into sections based on 
geographical area, accession or catalog name or number, or other 
defining attributes. A museum or Federal agency must ensure the 
itemized list is comprehensive and covers all holdings or collections 
relevant to this section. The simple itemized list must include:
    (1) The number of individuals identified in a reasonable manner 
based on the information available. No additional study or analysis is 
required to identify the number of individuals. If human remains are in 
a holding or collection, the number of individuals is at least one;
    (2) The number of associated funerary objects and types of objects 
(counted separately or by lot);
    (3) The geographical location (provenience) by county or State 
where the human remains or associated funerary objects were removed;
    (4) The acquisition history (provenance) of the human remains or 
associated funerary objects;
    (5) Other information available for identifying a lineal descendant 
or an Indian Tribe or Native Hawaiian organization with cultural 
affiliation; and
    (6) The presence of any potentially hazardous substances used to 
treat any of the human remains or associated funerary objects, if 
known.
    (b) Step 2--Initiate consultation. As soon as possible after 
compiling an itemized list, a museum or Federal agency must identify 
consulting parties based on information available and invite the 
parties to consult.
    (1) Consulting parties are any lineal descendant and any Indian 
Tribe or Native Hawaiian organization with potential cultural 
affiliation.
    (2) An invitation to consult must be in writing and must include:
    (i) The itemized list described in paragraph (a) of this section;
    (ii) The names of all consulting parties; and
    (iii) A proposed timeline and method for consultation.
    (3) When a museum or Federal agency identifies a new consulting 
party under paragraph (b)(1) of this section, the museum or Federal 
agency must invite the party to consult. An invitation to consult under 
paragraph (b)(2) of this section must be sent:
    (i) No later than 30 days after identifying a new consulting party 
based on new information; or
    (ii) No later than two years after the addition of a Tribal entity 
to the list of federally recognized Indian Tribes published in the 
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 
5131).
    (c) Step 3--Consult on human remains or associated funerary 
objects. A museum or Federal agency must respond to any consulting 
party, regardless of whether the party has received an invitation to 
consult. Consultation on human remains or associated funerary objects 
may continue until the museum or Federal agency sends a repatriation 
statement for those human remains or associated funerary objects to a 
requestor under paragraph (h) of this section.
    (1) In the response to a consulting party, a museum or Federal 
agency must ask for the following information, if not already provided:
    (i) Preferences on the proposed timeline and method for 
consultation; and
    (ii) The name, phone number, email address, or mailing address for 
any authorized representative, traditional religious leader, and known 
lineal descendant who may participate in consultation.
    (2) Consultation must address identification of:
    (i) Lineal descendants;
    (ii) Indian Tribes or Native Hawaiian organizations with cultural 
affiliation;
    (iii) The types of objects that might be associated funerary 
objects, including any objects that were made exclusively for burial 
purposes or to contain human remains; and
    (iv) The duty of care under Sec.  10.1(d) for human remains or 
associated funerary objects.
    (3) The museum or Federal agency must prepare a record of 
consultation that describes the concurrence, disagreement, or 
nonresponse of the consulting parties to the identifications in 
paragraph (c)(2) of this section.
    (4) At any time before the museum or Federal agency sends a 
repatriation statement for human remains or associated funerary objects 
to a requestor under paragraph (h) of this section, a museum or Federal 
agency may receive a request from a consulting party for access to 
records, catalogues, relevant studies, or other pertinent data related 
to those human remains or associated funerary objects. A museum or 
Federal agency must provide access to the additional information in a 
reasonable manner and for the limited purpose of determining cultural 
affiliation, including the geographical location or acquisition 
history, of the human remains or associated funerary objects.
    (d) Step 4--Complete an inventory of human remains or associated 
funerary objects. Based on information available and the results of 
consultation, a museum or Federal agency must submit to all consulting 
parties and the Manager, National NAGPRA Program, an inventory of any 
human remains and associated funerary objects in the holding or 
collection.
    (1) An inventory must include:
    (i) The names of all consulting parties and dates of consultation;
    (ii) The information, updated as appropriate, from the itemized 
list compiled under paragraph (a) of this section;
    (iii) For each entry in the itemized list, a determination 
identifying one of the following:
    (A) A known lineal descendant (whose name may be withheld);
    (B) The Indian Tribe or Native Hawaiian organization with cultural 
affiliation that is clearly identified by the information available 
about the human remains or associated funerary objects;
    (C) The Indian Tribe or Native Hawaiian organization with cultural 
affiliation that is reasonably identified by the geographical location 
or acquisition history of the human remains or associated funerary 
objects; or
    (D) No lineal descendant or any Indian Tribe or Native Hawaiian 
organization with cultural affiliation can be clearly or reasonably 
identified. The inventory must briefly describe the information 
considered under Sec.  10.3(a) of this part and the criteria identified 
under Sec.  10.3(b) of this part to explain how the determination was 
made.
    (2) After January 12, 2024, a museum or Federal agency must submit 
an inventory to all consulting parties and the Manager, National NAGPRA 
Program, by the deadline in table 1 of the paragraph (d)(2).

[[Page 86534]]



  Table 1 to Sec.   10.10(d)(2)--Deadlines for Completing an Inventory
------------------------------------------------------------------------
                                          an inventory must be submitted
  If a museum or Federal agency . . .                 . . .
------------------------------------------------------------------------
acquires possession or control of human  2 years after acquiring
 remains or associated funerary objects.  possession or control of human
                                          remains or associated funerary
                                          objects.
locates previously lost or unknown       2 years after locating the
 human remains or associated funerary     human remains or associated
 objects.                                 funerary objects.
receives Federal funds for the first     5 years after receiving Federal
 time after January 12, 2024, and has     funds for the first time after
 possession or control of human remains   January 12, 2024.
 or associated funerary objects.
------------------------------------------------------------------------

    (3) No later than January 10, 2029, for any human remains or 
associated funerary objects listed in an inventory but not published in 
a notice of inventory completion prior to January 12, 2024, a museum or 
Federal agency must:
    (i) Initiate consultation as described under paragraph (b) of this 
section;
    (ii) Consult with consulting parties as described under paragraph 
(c) of this section;
    (iii) Update its inventory under paragraph (d)(1) of this section 
and ensure the inventory is comprehensive and covers all holdings or 
collections relevant to this section; and
    (iv) Submit an updated inventory to all consulting parties and the 
Manager, National NAGPRA Program.
    (4) After January 12, 2024, when a holding or collection previously 
included in an inventory is transferred to a museum or Federal Agency, 
subject to the limitations in 18 U.S.C. 1170(a), the museum or Federal 
agency acquiring possession or control of the holding or collection may 
rely on the previously completed or updated inventory.
    (i) No later than 30 days after acquiring the holding or 
collection, the museum or Federal agency must send the previously 
completed or updated inventory to initiate consultation under paragraph 
(b) of this section and notify the Manager, National NAGPRA Program.
    (ii) No later than the deadline in Table 1 to paragraph (d)(2) of 
this section, the museum or Federal agency must complete an inventory 
under paragraphs (d)(1) and (d)(2) of this section based on the 
previously completed or updated inventory, additional information 
available, and the results of consultation.
    (5) Any museum may request an extension to complete or update its 
inventory if it has made a good faith effort but is unable to do so by 
the appropriate deadline. A request for an extension must be submitted 
to the Manager, National NAGPRA Program, before the appropriate 
deadline. The Manager, National NAGPRA Program must publish in the 
Federal Register a list of any museum who request an extension and the 
Assistant Secretary's determination on the request. A request for an 
extension must include:
    (i) Information showing the initiation of consultation;
    (ii) The names of all consulting parties and consent to the 
extension request from a majority of consulting parties, evidenced by a 
signed agreement or official correspondence to the museum;
    (iii) The estimated number of human remains and associated funerary 
objects in the holding or collection; and
    (iv) A written plan for completing or updating the inventory, which 
includes, at minimum:
    (A) The specific steps required to complete or update the 
inventory;
    (B) A schedule for completing each step and estimated inventory 
completion or update date;
    (C) Position titles of the persons responsible for each step in the 
schedule; and
    (D) A proposal to obtain any requisite funding needed to complete 
or update the inventory.
    (6) Prior to January 12, 2024, a museum or Federal agency must have 
submitted an inventory to all consulting parties and the Manager, 
National NAGPRA Program:
    (i) By November 16, 1995, for human remains or associated funerary 
objects subject to the Act;
    (ii) By April 20, 2009, for human remains or associated funerary 
objects acquired or located after November 16, 1995;
    (iii) By April 20, 2012, for human remains or associated funerary 
objects in the possession or control of a museum that received Federal 
funds for the first time after November 16, 1995;
    (iv) After April 20, 2009, two years after acquiring or locating 
the human remains or associated funerary objects; or
    (v) After April 20, 2012, five years after receiving Federal funds 
for the first time after April 20, 2012.
    (e) Step 5--Submit a notice of inventory completion. No later than 
six months after completing or updating an inventory under paragraph 
(d) of this section, a museum or Federal agency must submit a notice of 
inventory completion for all human remains or associated funerary 
objects in the inventory. The museum or Federal agency may include in a 
single notice any human remains or associated funerary objects having 
the same determination under paragraph (d)(1)(iii) of this section.
    (1) A notice of inventory completion must be sent to any consulting 
parties and to the Manager, National NAGPRA Program, for publication in 
the Federal Register.
    (2) A notice of inventory completion must conform to the mandatory 
format of the Federal Register and include the following for all human 
remains or associated funerary objects in the notice:
    (i) An abstract of the information compiled under paragraph 
(d)(1)(ii) of this section;
    (ii) The determination under paragraph (d)(1)(iii) of this section;
    (iii) The total number of individuals and associated funerary 
objects (counted separately or by lot);
    (iv) The name, phone number, email address, and mailing address for 
the authorized representative of the museum or Federal agency who is 
responsible for receiving requests for repatriation; and
    (v) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the museum or Federal agency may 
send a repatriation statement to a requestor.
    (3) No later than 21 days after receiving a notice of inventory 
completion, the Manager, National NAGPRA Program, must:
    (i) Approve for publication in the Federal Register any submission 
that conforms to the requirements under paragraph (e)(2) of this 
section; or
    (ii) Return to the museum or Federal agency any submission that 
does not conform to the requirements under paragraph (e)(2) of this 
section. No later than 14 days after the submission is returned, the 
museum or Federal agency must resubmit the notice of inventory 
completion.

[[Page 86535]]

    (f) Step 6--Receive and consider a request for repatriation. After 
publication of a notice of inventory completion in the Federal 
Register, any lineal descendant, Indian Tribe, or Native Hawaiian 
organization may submit to the museum or Federal agency a written 
request for repatriation of human remains or associated funerary 
objects.
    (1) A request for repatriation of human remains or associated 
funerary objects must be received by the museum or Federal agency 
before the museum or Federal agency sends a repatriation statement for 
those human remains or associated funerary objects under paragraph (h) 
of this section. A request for repatriation received by the museum or 
Federal agency before the publication of the notice of inventory 
completion is dated the same date the notice was published.
    (2) Requests from two or more lineal descendants, Indian Tribes, or 
Native Hawaiian organizations who agree to joint repatriation of the 
human remains or associated funerary objects are considered a single 
request and not competing requests.
    (3) A request for repatriation must satisfy one of the following 
criteria:
    (i) The requestor is identified in the notice of inventory 
completion, or
    (ii) The requestor is not identified in the notice of inventory 
completion, and the request shows, by a preponderance of the evidence, 
that the requestor is a lineal descendant or an Indian Tribe or Native 
Hawaiian organization with cultural affiliation.
    (g) Step 7--Respond to a request for repatriation. No earlier than 
30 days after publication of a notice of inventory completion but no 
later than 90 days after receiving a request for repatriation, a museum 
or Federal agency must send a written response to the requestor with a 
copy to any other party identified in the notice of inventory 
completion. Using the information available, including relevant 
records, catalogs, existing studies, and the results of consultation, a 
museum or Federal agency must determine if the request satisfies the 
criteria under paragraph (f) of this section.
    (1) In the written response, the museum or Federal agency must 
state one of the following:
    (i) The request meets the criteria under paragraph (f) of this 
section. The museum or Federal agency must send a repatriation 
statement to the requestor under paragraph (h) of this section, unless 
the museum or Federal agency receives additional, competing requests 
for repatriation.
    (ii) The request does not meet the criteria under paragraph (f) of 
this section. The museum or Federal agency must provide a detailed 
explanation why the request does not meet the criteria, and an 
opportunity for the requestor to provide additional information to meet 
the criteria.
    (iii) The museum or Federal agency has received competing requests 
for repatriation that meet the criteria and must determine the most 
appropriate requestor using the procedures and deadlines under 
paragraph (i) of this section.
    (2) At any time before sending a repatriation statement for human 
remains or associated funerary objects under paragraph (h) of this 
section, the museum or Federal agency may receive additional, competing 
requests for repatriation of those human remains or associated funerary 
objects that meet the criteria under paragraph (f) of this section. The 
museum or Federal agency must determine the most appropriate requestor 
using the procedures and deadlines under paragraph (i) of this section.
    (h) Step 8--Repatriation of the human remains or associated 
funerary objects. No later than 90 days after responding to a request 
for repatriation that meets the criteria, a museum or Federal agency 
must send a written repatriation statement to the requestor and a copy 
to the Manager, National NAGPRA Program. In a repatriation statement, a 
museum or Federal agency must relinquish possession or control of the 
human remains or associated funerary objects to a lineal descendant, 
Indian Tribe, or Native Hawaiian organization. In the case of joint 
requests for repatriation, a repatriation statement must identify and 
be sent to all requestors.
    (1) After sending a repatriation statement, the museum or Federal 
agency must:
    (i) Consult with the requestor on custody and physical transfer,
    (ii) Document any physical transfer, and
    (iii) Protect sensitive information, as identified by the 
requestor, from disclosure to the general public to the extent 
consistent with applicable law.
    (2) After a repatriation statement is sent, nothing in the Act or 
this part limits the authority of the museum or Federal agency to enter 
into any agreement with the requestor concerning the human remains or 
associated funerary objects.
    (i) Evaluating competing requests for repatriation. At any time 
before sending a repatriation statement for human remains or associated 
funerary objects under paragraph (h) of this section, a museum or 
Federal agency may receive additional, competing requests for 
repatriation of those human remains or associated funerary objects that 
meets the criteria under paragraph (f) of this section. The museum or 
Federal agency must determine the most appropriate requestor using this 
paragraph.
    (1) In the following priority order, the most appropriate requestor 
is:
    (i) The known lineal descendant, if any; or
    (ii) The Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(e) of this part.
    (2) No later than 14 days after receiving a competing request, a 
museum or Federal agency must send a written letter to each requestor 
identifying all requestors and the date each request for repatriation 
was received. In response, requestors may provide additional 
information to show by a preponderance of the evidence that the 
requestor has a stronger relationship of shared group identity to the 
human remains or associated funerary objects.
    (3) No later than 180 days after informing the requestors of 
competing requests, a museum or Federal agency must send a written 
determination to each requestor and the Manager, National NAGPRA 
Program. The determination must be one of the following:
    (i) The most appropriate requestor has been determined. The museum 
or Federal agency must:
    (A) Identify the most appropriate requestor and explain how the 
determination was made;
    (B) No earlier than 30 days and no later than 90 days after sending 
a determination of the most appropriate requestor, the museum or 
Federal agency must send a repatriation statement to the most 
appropriate requestor under paragraph (h) of this section.
    (ii) The most appropriate requestor cannot be determined, and 
repatriation is stayed under paragraph (j)(2) of this section. The 
museum or Federal agency must briefly describe the information 
considered and explain how the determination was made.
    (j) Stay of repatriation. Repatriation under paragraph (h) of this 
section is stayed if:
    (1) A court of competent jurisdiction has enjoined the 
repatriation. When there is a final resolution of the legal case or 
controversy in favor of a requestor, the museum or Federal agency must:
    (i) No later than 14 days after a resolution, send a written 
statement of

[[Page 86536]]

the resolution to each requestor and the Manager, National NAGPRA 
Program;
    (ii) No earlier than 30 days and no later than 90 days after 
sending the written statement, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (h) of this 
section, unless a court of competent jurisdiction directs otherwise.
    (2) The museum or Federal agency has received competing requests 
for repatriation and, after complying with paragraph (i) of this 
section, cannot determine the most appropriate requestor. When a most 
appropriate requestor is determined by an agreement between the 
parties, binding arbitration, or means of resolution other than through 
a court of competent jurisdiction, the museum or Federal agency must:
    (i) No later than 14 days after a resolution, send a written 
determination to each requestor and the Manager, National NAGPRA 
Program;
    (ii) No earlier than 30 days and no later than 90 days after 
sending the determination, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (h) of this 
section.
    (3) Before the publication of a notice of inventory completion 
under paragraph (e) of this section, the museum or Federal agency has 
both requested and received the Assistant Secretary's written 
concurrence that the human remains or associated funerary objects are 
indispensable for completion of a specific scientific study, the 
outcome of which is of major benefit to the people of the United 
States.
    (i) To request the Assistant Secretary's concurrence, the museum or 
Federal agency must send to the Manager, National NAGPRA Program, a 
written request of no more than 10 double-spaced pages. The written 
request must:
    (A) Be on the letterhead of the requesting museum or Federal agency 
and be signed by an authorized representative;
    (B) Describe the specific scientific study, the date on which the 
study commenced, and how the study is of major benefit to the people of 
the United States;
    (C) Explain why retention of the human remains or associated 
funerary objects is indispensable for completion of the study;
    (D) Describe the steps required to complete the study, including 
any destructive analysis, and provide a completion schedule and 
completion date;
    (E) Provide the position titles of the persons responsible for each 
step in the schedule;
    (F) Affirm that the study has in place the requisite funding; and
    (G) Provide written documentation showing free, prior, and informed 
consent from lineal descendants, Indian Tribes, or Native Hawaiian 
organizations to the study.
    (ii) In response to the request, the Assistant Secretary must:
    (A) Consult with lineal descendants, Indian Tribes, or Native 
Hawaiian organizations that consented to the study;
    (B) Send a written determination of concurrence or denial to the 
museum or Federal agency with a copy to the consulting parties; and
    (C) If the Assistant Secretary concurs, specify in the written 
determination the date by which the scientific study must be completed.
    (iii) No later than 30 days after the completion date in the 
Assistant Secretary's concurrence, the museum or Federal agency must 
submit a notice of inventory completion in accordance with paragraph 
(e) of this section.
    (iv) No earlier than 30 days after publication of the notice of 
inventory completion and no later than 90 days after responding to a 
request for repatriation, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (h) of this 
section.
    (k) Transfer or reinter human remains or associated funerary 
objects. For human remains or associated funerary objects with no 
lineal descendant or no Indian Tribe or Native Hawaiian organization 
with cultural affiliation, a museum or Federal agency, at its 
discretion, may agree to transfer or decide to reinter the human 
remains or associated funerary objects. The museum or Federal agency 
must ensure it has initiated consultation under paragraph (b) of this 
section before taking any of the following steps.
    (1) Step 1--Agree to transfer or decide to reinter. A museum or 
Federal agency may:
    (i) Agree in writing to transfer the human remains or associated 
funerary objects to an Indian Tribe or Native Hawaiian organization;
    (ii) Decide in writing to reinter the human remains or associated 
funerary objects according to applicable laws and policies; or
    (iii) Receive a request for repatriation of the human remains or 
associated funerary objects at any time before transfer or reinterment 
and must evaluate whether the request meets the criteria under 
paragraph (f) of this section.
    (A) If the request for repatriation meets the criteria under 
paragraph (f) of this section, the museum or Federal agency must 
respond in writing under paragraph (g) of this section and proceed with 
repatriation under paragraph (h) of this section.
    (B) If the request does not meet the criteria under paragraph (f) 
of this section, the museum or Federal agency must respond in writing 
under paragraph (g) of this section and may proceed with transfer or 
reinterment after publication of a notice.
    (2) Step 2--Submit a notice of proposed transfer or reinterment. No 
later than 30 days after agreeing to transfer or deciding to reinter 
the human remains or associated funerary objects, the museum or Federal 
agency must submit a notice of proposed transfer or reinterment.
    (i) A notice of proposed transfer or reinterment must be sent to 
all consulting parties and to the Manager, National NAGPRA Program, for 
publication in the Federal Register.
    (ii) A notice of proposed transfer or reinterment must conform to 
the mandatory format of the Federal Register and include:
    (A) An abstract of the information compiled under paragraph 
(d)(1)(ii) of this section;
    (B) The total number of individuals and associated funerary objects 
(counted separately or by lot);
    (C) The determination under paragraph (d)(1)(iii)(D) of this 
section that no lineal descendant or any Indian Tribe or Native 
Hawaiian organization with cultural affiliation can be clearly or 
reasonably identified. The notice must briefly describe the information 
considered and explain how the determination was made.
    (D) The names of all consulting parties identified under paragraph 
(b) of this section;
    (E) The Indian Tribe or Native Hawaiian organization requesting the 
human remains or associated funerary objects or a statement that the 
museum or Federal agency agrees to reinter the human remains or 
associated funerary objects;
    (F) The name, phone number, email address, and mailing address for 
the authorized representative of the museum or Federal agency who is 
responsible for receiving requests for repatriation; and
    (G) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the museum or Federal agency may 
proceed with the

[[Page 86537]]

transfer or reinterment of the human remains or associated funerary 
objects.
    (iii) No later than 21 days after receiving a notice of proposed 
transfer or reinterment, the Manager, National NAGPRA Program, must:
    (A) Approve for publication in the Federal Register any submission 
that conforms to the requirements under paragraph (k)(2)(ii) of this 
section; or
    (B) Return to the museum or Federal agency any submission that does 
not conform to the requirements under paragraph (k)(2)(ii) of this 
section. No later than 14 days after the submission is returned, the 
museum or Federal agency must resubmit the notice of proposed transfer 
or reinterment.
    (3) Step 3--Transfer or reinter the human remains or associated 
funerary objects. No earlier than 30 days and no later than 90 days 
after publication of a notice of proposed transfer or reinterment, the 
museum or Federal agency must transfer or reinter the human remains or 
associated funerary objects and send a written statement to the 
Manager, National NAGPRA Program, that the transfer or reinterment is 
complete.
    (i) After transferring or reinterring, the museum or Federal agency 
must:
    (A) Document the transfer or reinterment of the human remains or 
associated funerary objects, and
    (B) Protect sensitive information from disclosure to the general 
public to the extent consistent with applicable law.
    (ii) After transfer or reinterment occurs, nothing in the Act or 
this part limits the authority of the museum or Federal agency to enter 
into any agreement with the requestor concerning the human remains or 
associated funerary objects.


Sec.  10.11  Civil penalties.

    Any museum that fails to comply with the requirements of the Act or 
this subpart may be assessed a civil penalty by the Assistant 
Secretary. This section does not apply to Federal agencies, but a 
Federal agency's failure to comply with the requirements of the Act or 
this part may be subject to other remedies under Federal law. Each 
instance of failure to comply constitutes a separate violation. The 
Assistant Secretary must serve the museum with a written notice of 
failure to comply under paragraph (d) of this section or a notice of 
assessment under paragraph (g) of this section by personal delivery 
with proof of delivery date, certified mail with return receipt, or 
private delivery service with proof of delivery date.
    (a) File an allegation. Any person may file an allegation of 
failure to comply by sending a written allegation to the Manager, 
National NAGPRA Program. Each allegation:
    (1) Must include the name and contact information (either a mailing 
address, telephone number, or email address) of the person alleging the 
failure to comply;
    (2) Must identify the specific provision or provisions of the Act 
or this subpart that the museum is alleged to have violated;
    (3) May enumerate the separate violations alleged, including facts 
to support the number of separate violations. The number of separate 
violations is determined by establishing relevant factors such as:
    (i) The number of lineal descendants, Indian Tribes, or Native 
Hawaiian organizations determined to be aggrieved by the failure to 
comply; or
    (ii) The number of individuals or the number of funerary objects, 
sacred objects, or objects of cultural patrimony involved in the 
failure to comply;
    (4) May include information showing that the museum has possession 
or control of human remains or cultural items involved in the alleged 
failure to comply; and
    (5) May include information showing that the museum receives 
Federal funds.
    (b) Respond to an allegation. No later than 90 days after receiving 
an allegation, the Assistant Secretary must determine if the allegation 
meets the requirements of paragraph (a) of this section and respond to 
the person alleging the failure to comply.
    (1) The Assistant Secretary may request any additional relevant 
information from the person making the allegation, the museum, or other 
parties. The Assistant Secretary may conduct any investigation that is 
necessary to determine whether an alleged failure to comply is 
substantiated. The Assistant Secretary may also investigate appropriate 
factors for justifying an increase or reduction to any penalty amount 
that may be calculated.
    (2) If the allegation meets the requirements of paragraph (a) of 
this section, the Assistant Secretary, after reviewing all relevant 
information, must determine one of the following for each alleged 
failure to comply:
    (i) The alleged failure to comply is substantiated, the number of 
separate violations is identified, and a civil penalty is an 
appropriate remedy. The Assistant Secretary must calculate the proposed 
penalty amount under paragraph (c) of this section and notify the 
museum under paragraph (d) of this section;
    (ii) The alleged failure to comply is substantiated, the number of 
separate violations is identified, but a civil penalty is not an 
appropriate remedy. The Assistant Secretary must notify the museum 
under paragraph (d) of this section; or
    (iii) The alleged failure to comply is unsubstantiated. The 
Assistant Secretary must send a written determination to the person 
making the allegation and to the museum.
    (c) Calculate the penalty amount. If the Assistant Secretary 
determines under paragraph (b)(2)(i) of this section that a civil 
penalty is an appropriate remedy for a substantiated failure to comply, 
the Assistant Secretary must calculate the amount of the penalty in 
accordance with this paragraph. The penalty for each separate violation 
must be calculated as follows:
    (1) The base penalty amount is $7,475, subject to annual 
adjustments based on inflation under the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74).
    (2) The base penalty amount may be increased after considering:
    (i) The ceremonial or cultural value of the human remains or 
cultural items involved, as identified by any aggrieved lineal 
descendant, Indian Tribe, or Native Hawaiian organization;
    (ii) The archaeological, historical, or commercial value of the 
human remains or cultural items involved;
    (iii) The economic and non-economic damages suffered by any 
aggrieved lineal descendant, Indian Tribe, or Native Hawaiian 
organization, including expenditures by the aggrieved party to compel 
the museum to comply with the Act or this subpart;
    (iv) The number of prior violations by the museum that have 
occurred; or
    (v) Any other appropriate factor justifying an increase.
    (3) The base penalty amount may be reduced if:
    (i) The museum comes into compliance;
    (ii) The museum agrees to mitigate the violation in the form of an 
actual or an in-kind payment to an aggrieved lineal descendant, Indian 
Tribe, or Native Hawaiian organization;
    (iii) The penalty constitutes excessive punishment under the 
circumstances;
    (iv) The museum is unable to pay the full penalty and the museum 
has not previously been found to have failed to comply with the Act or 
this subpart. The museum has the burden of proving it is unable to pay 
by providing verifiable, complete, and accurate financial information 
to the Assistant Secretary. The Assistant Secretary may request that 
the museum provide such financial information that is adequate and 
relevant to evaluate the museum's

[[Page 86538]]

financial condition, including the value of the museum's cash and 
liquid assets; ability to borrow; net worth; liabilities; income tax 
returns; past, present, and future income; prior and anticipated 
profits; expected cash flow; and the museum's ability to pay in 
installments over time. If the museum does not submit the requested 
financial information, the museum is presumed to have the ability to 
pay the civil penalty; or
    (v) Any other appropriate factor justifies a reduction.
    (d) Notify a museum of a failure to comply. If the Assistant 
Secretary determines under paragraph (b)(2)(i) or (b)(2)(ii) of this 
section that an alleged failure to comply is substantiated, the 
Assistant Secretary must serve the museum with a written notice of 
failure to comply and send a copy of the notice to each person alleging 
the failure to comply and any lineal descendant, Indian Tribe, or 
Native Hawaiian organization named in the notice of failure to comply. 
The notice of failure to comply must:
    (1) Provide a concise statement of the facts believed to show a 
failure to comply;
    (2) Specifically reference the provisions of the Act and this 
subpart with which the museum has failed to comply;
    (3) Include the proposed penalty amount calculated under paragraph 
(c) of this section;
    (4) Include, where appropriate, any initial proposal to reduce or 
increase the penalty amount or an explanation of the determination that 
a penalty is not an appropriate remedy;
    (5) Identify the options for responding to the notice of failure to 
comply under paragraph (e) of this section; and
    (6) Inform the museum that the Assistant Secretary may assess a 
daily penalty amount under paragraph (m)(1) of this section if the 
failure to comply continues after the date the final administrative 
decision of the Assistant Secretary takes effect.
    (e) Respond to a notice of failure to comply. No later than 45 days 
after receiving a notice of failure to comply, a museum may file a 
written response to the notice of failure to comply or take no action 
and await service of a notice of assessment under paragraph (g) of this 
section. A response which is not timely filed must not be considered. 
Any written response must be signed by an authorized representative of 
the museum and must be sent to the Assistant Secretary. In the written 
response, a museum may:
    (1) Seek an informal discussion of the failure to comply;
    (2) Request either or both of the following forms of relief, with a 
full explanation of the legal or factual basis for the requested 
relief:
    (i) That the Assistant Secretary reconsider the determination of a 
failure to comply, or
    (ii) That the Assistant Secretary reduce the proposed penalty 
amount; or
    (3) Accept the determination of a failure to comply and agree in 
writing, which constitutes an agreement between the Assistant Secretary 
and the museum, that the museum must:
    (i) Pay the proposed penalty amount, if any;
    (ii) Complete the mitigation required to reduce the penalty, if 
offered in the notice; and
    (iii) Waive any right to receive notice of assessment under 
paragraph (g) of this section and to request a hearing under paragraph 
(i) of this section.
    (f) Assess the civil penalty. After serving a notice of failure to 
comply, the Assistant Secretary may assess a civil penalty and must 
consider all available, relevant information related to the failure to 
comply, including information timely provided by the museum during any 
informal discussion or request for relief, furnished by another party, 
or produced upon the Assistant Secretary's request.
    (1) The assessment of a civil penalty is made after the latter of:
    (i) The 45-day period for a response has expired and the museum has 
taken no action;
    (ii) Conclusion of informal discussion, if any;
    (iii) Review and consideration of a petition for relief, if any; or
    (iv) Failure to meet the terms of an agreement established under 
paragraph (e)(3) of this section.
    (2) If a petition for relief or informal discussion warrants a 
conclusion that no failure to comply has occurred, the Assistant 
Secretary must send written notification to the museum revoking the 
notice of failure to comply. No penalty is assessed.
    (g) Notify the museum of an assessment. If the Assistant Secretary 
determines to assess a civil penalty, the Assistant Secretary must 
serve the museum with a notice of assessment. Unless the museum seeks 
further administrative remedies under this section, the notice of 
assessment is the final administrative decision of the Assistant 
Secretary. The notice of assessment must:
    (1) Specifically reference the provisions of the Act or this 
subpart with which the museum has not complied;
    (2) Include the final amount of any penalty calculated under 
paragraph (c) of this section and the basis for determining the penalty 
amount;
    (3) Include, where appropriate, any increase or reduction to the 
penalty amount or an explanation of the determination that a penalty is 
not an appropriate remedy;
    (4) Include the daily penalty amount that the Assistant Secretary 
may assess under paragraph (m)(1) of this section if the failure to 
comply continues after the date the final administrative decision of 
the Assistant Secretary takes effect. The daily penalty amount for each 
continuing violation shall not exceed $1,496 per day, subject to annual 
adjustments based on inflation under the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74);
    (5) Identify the options for responding to the notice of assessment 
under paragraph (h) of this section; and
    (6) Notify the museum that it has the right to seek judicial review 
of the final administrative decision of the Assistant Secretary only if 
it has exhausted all administrative remedies under this section, as set 
forth in paragraph (l) of this section.
    (h) Respond to an assessment. No later than 45 days after receiving 
a notice of assessment, a museum must do one of the following:
    (1) Accept the assessment and pay the penalty amount by means of a 
certified check made payable to the U.S. Treasurer, Washington, DC, 
sent to the Assistant Secretary. By paying the penalty amount, the 
museum waives the right to request a hearing under paragraph (i) of 
this section.
    (2) File a written request for a hearing under paragraph (i) of 
this section to contest the failure to comply, the penalty assessment, 
or both. If the museum does not file a written request for a hearing in 
45 days, the museum waives the right to request a hearing under 
paragraph (i) of this section.
    (i) Request a hearing. The museum may file a written request for a 
hearing with the Departmental Cases Hearings Division (DCHD), Office of 
Hearings and Appeals (OHA), U.S. Department of the Interior, at the 
mailing address specified in the OHA Standing Orders on Contact 
Information, or by electronic means under the terms specified in the 
OHA Standing Orders on Electronic Transmission. A copy of the request 
must be served on the Solicitor of the Department of the Interior at 
the address specified in the OHA Standing Orders on Contact 
Information. The Standing Orders are available on the Department of the 
Interior OHA's website at https://www.doi.gov/oha. The request for 
hearing and any document filed

[[Page 86539]]

thereafter with the DCHD under paragraphs (i) or (j) of this section 
are subject to the rules that govern the method and effective date of 
filing and service under the subparts applicable to DCHD in 43 CFR part 
4. The request for a hearing must:
    (1) Include a copy of the notice of failure to comply and the 
notice of assessment;
    (2) State the relief sought by the museum; and
    (3) Include the basis for challenging the facts used to determine 
the failure to comply or the penalty assessment.
    (j) Hearings. Upon receiving a request for a hearing, DCHD must 
assign an administrative law judge to the case and promptly give notice 
of the assignment to the parties. Thereafter, each filing must be 
addressed to the administrative law judge and a copy served on each 
opposing party or its counsel.
    (1) To the extent they are not inconsistent with this section, the 
rules in the subparts applicable to DCHD in 43 CFR part 4 apply to the 
hearing process.
    (2) Subject to the provisions of 43 CFR 1.3, a museum may appear by 
authorized representative or by counsel and may participate fully in 
the proceedings. If the museum does not appear and the administrative 
law judge determines that this absence is without good cause, the 
administrative law judge may, at his or her discretion, determine that 
the museum has waived the right to a hearing and consents to the making 
of a decision on the record.
    (3) The Department of the Interior counsel is designated by the 
Office of the Solicitor of the Department of the Interior. No later 
than 20 days after receipt of its copy of the written request for 
hearing, Departmental counsel must file with the DCHD an entry of 
appearance on behalf of the Assistant Secretary and the following:
    (i) Any written communications between the Assistant Secretary and 
the museum during any informal discussions under paragraph (e)(1) of 
this section;
    (ii) Any petition for relief submitted under paragraph (e)(2); and
    (iii) Any other information considered by the Assistant Secretary 
in reaching the decision being challenged.
    (4) After Departmental counsel files an entry of appearance with 
DCHD, the museum must serve each document filed with the administrative 
law judge on Departmental counsel.
    (5) In a hearing on the penalty assessment, the amount of the 
penalty assessment must be determined in accordance with paragraph 
(c)(2) of this section and may not be limited to the amount originally 
assessed or by any previous reduction, increase, or offer of 
mitigation.
    (6) The administrative law judge has all powers necessary to 
conduct a fair, orderly, expeditious, and impartial hearing process, 
and to render a decision, under 5 U.S.C. 554-557 and 25 U.S.C. 3007.
    (7) The administrative law judge must render a written decision. 
The decision must set forth the findings of fact and conclusions of 
law, and the reasons and basis for them.
    (8) The administrative law judge's decision takes effect as the 
final administrative decision of the Assistant Secretary 31 days from 
the date of the decision unless the museum files a notice of appeal as 
described in paragraph (k) of this section.
    (k) Appealing the administrative law judge's decision. Any party 
who is adversely affected by the decision of the administrative law 
judge may appeal the decision by filing a written notice of appeal no 
later than 30 days after the date of the decision. The notice of appeal 
must be filed with the Interior Board of Indian Appeals (IBIA), Office 
of Hearings and Appeals (OHA), U.S. Department of the Interior, at the 
mailing address specified in the OHA Standing Orders on Contact 
Information, or by electronic means under the terms specified in the 
OHA Standing Orders on Electronic Transmission. The Standing Orders are 
available on the Department of the Interior OHA's website at https://www.doi.gov/oha. The notice of appeal must be accompanied by proof of 
service on the administrative law judge and the opposing party. The 
notice of appeal and any document filed thereafter with the IBIA are 
subject to the rules that govern the method and effective date of 
filing under 43 CFR 4.310.
    (1) To the extent they are not inconsistent with this section, the 
provisions of 43 CFR part 4, subpart D, apply to the appeal process. 
The appeal board's decision must be in writing and takes effect as the 
final penalty assessment and the final administrative decision of the 
Assistant Secretary on the date that the appeal board's decision is 
rendered, unless otherwise specified in the appeal board's decision.
    (2) OHA decisions in proceedings instituted under this section are 
posted on OHA's website.
    (l) Exhaustion of administrative remedies. A museum has the right 
to seek judicial review, under 5 U.S.C. 704, of the final 
administrative decision of the Assistant Secretary only if it has 
exhausted all administrative remedies under this section. No decision, 
which at the time of its rendition is subject to appeal under this 
section, shall be considered final so as to constitute agency action 
subject to judicial review. The decision being appealed shall not be 
effective during the pendency of the appeal.
    (m) Failure to pay penalty or continuing failure to comply. (1) If 
the failure to comply continues after the date the final administrative 
decision of the Assistant Secretary takes effect, as described in 
paragraphs (g), (j)(6), or (k)(1) of this section, or after a date 
identified in an agreement under paragraph (e)(3) of this section, the 
Assistant Secretary may assess an additional daily penalty amount for 
each continuing violation not to exceed $1,496 per day, subject to 
annual adjustments based on inflation under the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74). In 
determining the daily penalty amount, the Assistant Secretary must 
consider the factors in paragraph (c)(2) of this section. This penalty 
starts to accrue on the day after the effective date of the final 
administrative decision of the Assistant Secretary or on the date 
identified in an agreement under paragraph (e)(3) of this section.
    (2) If the museum fails to pay the penalty, the Attorney General of 
the United States may institute a civil action to collect the penalty 
in an appropriate U.S. District Court. In such action, the validity and 
amount of the penalty are not subject to review by the court.
    (n) Additional remedies. The assessment of a penalty under this 
section is not deemed a waiver by the Department of the Interior of the 
right to pursue other available legal or administrative remedies.

Subpart D--Review Committee


Sec.  10.12   Review Committee.

    The Review Committee advises the Secretary of the Interior and 
Congress on matters relating to sections 3003, 3004, and 3005 of the 
Act and other matters as specified in section 3006 of the Act. The 
Review Committee is subject to the Federal Advisory Committee Act 
(FACA, 5 U.S.C. App.).
    (a) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by the Review Committee may be 
admissible as evidence in actions brought by persons alleging a 
violation of the Act. Findings and

[[Page 86540]]

recommendations made by the Review Committee must be published in the 
Federal Register no later than 90 days after making the finding or 
recommendation.
    (b) Nominations. The Review Committee consists of seven members 
appointed by the Secretary of the Interior.
    (1) Three members are appointed from nominations submitted by 
Indian Tribes, Native Hawaiian organizations, and traditional religious 
leaders. At least two of these members must be traditional Indian 
religious leaders. A traditional Indian religious leader is a person 
who an Indian Tribe identifies as serving it in the practice of 
traditional Native American religion.
    (2) Three members are appointed from nominations submitted by 
national museum organizations or national scientific organizations. An 
organization that is created by, is a part of, and is governed in any 
way by a parent national museum or scientific organization must submit 
a nomination through the parent organization. National museum 
organizations and national scientific organizations are organizations 
that:
    (i) Focus on the interests of museums and science disciplines 
throughout the United States, as opposed to a lesser geographical 
scope;
    (ii) Offer membership throughout the United States, although such 
membership need not be exclusive to the United States; and
    (iii) Are organized under the laws of the United States Government.
    (3) One member is appointed from a list of more than one person 
developed and consented to by all other appointed members specified in 
paragraphs (b)(1) and (b)(2) of this section.
    (c) Findings of fact or disputes on repatriation. The Review 
Committee may assist any affected party through consideration of 
findings of fact or disputes related to the inventory, summary, or 
repatriation provisions of the Act. One or more of the affected parties 
may request the assistance of the Review Committee or the Secretary of 
the Interior may direct the Review Committee to consider a finding of 
fact or dispute. Requests for assistance must be made before 
repatriation of the human remains or cultural items has occurred.
    (1) An affected party is either a:
    (i) Museum or Federal agency that has possession or control of the 
human remains or cultural items; or
    (ii) Lineal descendant, or an Indian Tribe or Native Hawaiian 
organization with potential cultural affiliation to the human remains 
or cultural items.
    (2) The Review Committee may make an advisory finding of fact on 
questions related to:
    (i) The identity of an object as human remains or cultural items;
    (ii) The cultural affiliation of human remains or cultural items; 
or
    (iii) The repatriation of human remains or cultural items.
    (3) The Review Committee may make an advisory recommendation on 
disputes between affected parties. To facilitate the resolution of 
disputes, the Review Committee may:
    (i) Consider disputes between an affected party identified in 
paragraph (c)(1)(i) of this section and an affected party identified in 
paragraph (c)(1)(ii) of this section;
    (ii) Not consider disputes among lineal descendants, Indian Tribes, 
and Native Hawaiian organizations;
    (iii) Not consider disputes among museums and Federal agencies;
    (iv) Request information or presentations from any affected party; 
and
    (v) Make advisory recommendations directly to the affected parties 
or to the Secretary of the Interior.

Matthew J. Strickler,
Deputy Assistant Secretary Exercising the Delegated Authority of the 
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-27040 Filed 12-7-23; 4:15 pm]
BILLING CODE 4312-52-P

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