[Federal Register Volume 69, Number 202 (Wednesday, October 20, 2004)]
[Proposed Rules]
[Pages 61613-61615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23179]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AC84


Native American Graves Protection and Repatriation Act 
Regulations--Future Applicability

AGENCY: Department of the Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule and request for comments relates to one 
section of regulations implementing the Native American Graves 
Protection and Repatriation Act of 1990 (``the Act''). This section 
outlines procedures for the future applicability of the Act to museums 
and Federal agencies. Publication of this section is intended to 
solicit comments from Indian tribes, Native Hawaiian organizations, 
museums, Federal agencies, and members of the public prior to its 
publication in final form.

DATES: Written comments will be accepted until January 18, 2005.

ADDRESSES: Comments (2 copies) should be addressed to: Dr. Sherry Hutt, 
Manager, National NAGPRA Program, National Park Service, RIN 1024-AC84, 
1849 C Street NW., (2253), Washington, DC 20240-0001, or hand deliver 
comments to 1201 Eye Street NW., Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Dr. Sherry Hutt, Manager, National 
NAGPRA Program, National Park Service, 1849 C Street NW., (2253), 
Washington, DC 20240-0001. Telephone: (202) 354-2209. Fax: (202) 371-
5197.

SUPPLEMENTARY INFORMATION: On November 16, 1990, President George Bush 
signed into law the Native American Graves Protection and Repatriation 
Act (25 U.S.C. 3001 et seq.), hereafter referred to as the Act. The Act 
addresses the rights of lineal descendants, Indian Tribes and Native 
Hawaiian organizations to certain Native American human remains, 
funerary objects, sacred objects and objects of cultural patrimony with 
which they are affiliated. Section 13 of the Act requires the Secretary 
of the Interior to promulgate regulations to carry out provisions of 
the Act.
    Regulations implementing the Act were published as final in the 
Federal Register on December 4, 1995. 60 FR 62, 158 (Dec. 4, 1995), 
codified as 43 CFR part 10. Five sections were reserved in the final 
regulations with the intention that they would be published in the 
future. This proposed rule for Sec.  10.13 develops procedures 
regarding the future applicability of the Act to museums and Federal 
agencies.
    This rule proposes to clarify the applicability of the Act to 
museums and Federal agencies following the statutory deadlines for 
completion of summaries and inventories. The Act requires museums and 
Federal agencies, as defined by the Act, to provide summaries of their 
collections to any Indian tribe or Native Hawaiian organization that 
is, or is likely to be, culturally affiliated with the collection by 
November 16, 1993. The Act also requires museums and Federal agencies 
to prepare, in consultation with culturally affiliated Indian tribes 
and Native Hawaiian organizations, inventories of human remains and 
associated funerary objects by November 16, 1995. The Act also requires 
museums and Federal agencies to submit notices for publication in the 
Federal Register prior to repatriation. Four types of situations are 
anticipated where a museum or Federal agency may fall under the 
jurisdiction of the Act after the statutory deadlines: (1) The museum 
or Federal agency receives new collections; (2) a previously 
unrecognized Indian group is recognized as an Indian tribe; (3) an 
institution in possession or control of Native American human remains, 
funerary objects, sacred objects or objects of cultural patrimony 
receives Federal funds for the first time; and (4) the museum or 
Federal agency revises a decision previously published in the Federal 
Register. In each case the proposed rule establishes deadlines for the 
required summaries, inventories, or notices.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule to the address noted at the 
beginning of this rulemaking. The NPS will review all comments and 
consider making changes to the rule based upon analysis of the 
comments.
    Copies of this proposed rule may be obtained by submitting a 
request to the Manager, National NAGPRA Program, National Park Service, 
at the address noted at the beginning of this rulemaking. Commentors 
wishing the National Park Service to acknowledge receipt of their 
comments must submit with those comments a self-addressed, stamped 
postcard on which the following statement is made:

[[Page 61614]]

``Comments to RIN 1024-AC84.'' The postcard will be date stamped and 
returned to the commentor.

Drafting Information

    This final rule was prepared by Dr. C. Timothy McKeown (National 
NAGPRA Program) and Dr. Francis P. McManamon (Archeology and 
Ethnography Program), in consultation with the Native American Graves 
Protection and Repatriation Review Committee as directed by section 8 
(c)(7) of the Act.

Compliance With Laws, Executive Orders, and Departmental Policy

Regulatory Planning and Review (Executive Order 12866)

    This rule has not been reviewed by the Office of Management and 
Budget under Executive Order 12866.
    1. This rule will not have an effect of $100 million or more on the 
economy. It will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities.
    2. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    3. This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs, or the rights or obligations of 
their recipients.
    4. This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document 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.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not: (1) 
Have an annual effect on the economy of $100 million or more; (2) cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, local or tribal government agencies, or 
geographic regions; or (3) have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments, or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. Museums are only required to repatriate human remains, 
funerary objects, sacred objects, or objects of cultural patrimony for 
which they can not prove right of possession [25 U.S.C. 3005(c)].

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. A Federalism Assessment is not required.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3(a) and 
3(b) of the order.

Paperwork Reduction Act

    The collection of information contained in this rule has been 
submitted to the Office of Management and Budget for approval as 
required by 44 U.S.C. 3501 et seq. The collection of this information 
will not be required until it has been approved by the Office of 
Management and Budget. Public reporting burden for this collection of 
information is expected to average 20 hours for the exchange of 
summary/inventory information between a museum and an Indian tribe and 
six hours per response for the notification to the Secretary of the 
Interior, including time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collected information. Send comments regarding this 
burden estimate or any other aspects of this collection of information, 
including suggestions for reducing the burden, to Information 
Collection Officer, Attn: RIN 1024-AC84, National Park Service, 
Department of Interior Building, 1849 C Street NW., Room 3317, 
Washington DC 20240, and the Office of Management and Budget, Office of 
Information and Regulatory Affairs, Attention: Desk Officer for the 
Department of the Interior, Washington, DC 20503.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249), the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), and 
512 DM 2 we have evaluated potential effects on federally recognized 
Indian tribes and have determined that there are no potential effects. 
NAGPRA makes provisions for the return to lineal descendants, Indian 
tribes and Native Hawaiian organizations of Native American human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony. Native American organizations participated in the drafting 
of this rule.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite comments on how to make this 
rule easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (A ``section'' appears in bold type 
and is preceded by the symbol ``Sec.  '' and a numbered heading; for 
example, Sec.  10.13 Future Applicability.) (5) Is the description of 
the rule in the SUPPLEMENTARY INFORMATION section of the preamble 
helpful in understanding the proposed rule? What else could we do to 
make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. 
You may also e-mail the comments to: [email protected].

[[Page 61615]]

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Graves, Hawaiian Natives, 
Historic preservation, Indians-claims, Museums, Reporting and 
recordkeeping requirements.

    For the reasons stated in the preamble, the Department of the 
Interior proposes to amend 43 CFR subtitle A as follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

    1. The authority citation for part 10 continues to read as follows:

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

    2. Section 10.13 is added to read as follows:


Sec.  10.13  Future applicability.

    (a) General. This section sets forth the applicability of the Act 
to museums and Federal agencies after expiration of the statutory 
deadlines for completion of summaries and inventories.
    (b) New collections. (1) Any museum or Federal agency that, after 
completion of the summaries and inventories required pursuant to Sec.  
10.8 and Sec.  10.9 of these regulations, receives a new collection or 
locates a previously unreported current collection that may include 
human remains, funerary objects, sacred objects or objects of cultural 
patrimony, must:
    (i) Within six months of receiving a new collection or locating a 
previously unreported current collection, provide a summary of the 
collection pursuant to Sec.  10.8 of these regulations to any Indian 
tribe or Native Hawaiian organization that is, or is likely to be, 
culturally affiliated with the collection; and
    (ii) Within two years of receiving a new collection or locating a 
previously unreported current collection, prepare, in consultation with 
any culturally affiliated Indian tribe or Native Hawaiian organization, 
an inventory pursuant to Sec.  10.9 of these regulations.
    (2) Additional pieces or fragments of previously repatriated human 
remains, funerary objects, sacred objects and objects of cultural 
patrimony may be returned to the appropriate Indian tribe or Native 
Hawaiian organization without publication of a notice in the Federal 
Register, as otherwise required under Sec.  10.8(f) and Sec.  10.9(e), 
if they do not constitute a substantive change in the notice published 
at the time of the original repatriation. For example, repatriation of 
newly found sherds from a previously repatriated funerary bowl would 
not require a new Federal Register notice, while another previously 
unreported ceramic vessel from the same burial site would require a new 
Federal Register notice prior to repatriation.
    (c) New Indian tribes. (1) Any museum or Federal agency that has 
possession or control of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are, or are likely to 
be, culturally affiliated with a previously non-Federally recognized 
Native American group, must:
    (i) Within six months of the publication in the Federal Register of 
the Native American group's placement on the list of Indian Entities 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, provide a summary of the collection pursuant 
to Sec.  10.8 of these regulations to that Indian tribe; and
    (ii) Within two years of the publication in the Federal Register of 
the Native American group's placement on the list of Indian Entities 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, prepare, in consultation with the newly 
recognized culturally affiliated Indian tribe an inventory pursuant to 
Sec.  10.9 of these regulations.
    (2) The list of Indian Entities Recognized and Eligible to Receive 
Services from the United States Bureau of Indian Affairs is published 
in the Federal Register pursuant to provisions of the Federally 
Recognized Indian Tribe List Act of 1994 [Pub. L. 103-454, 108 Stat. 
4791].
    (d) New Federal funds. Any museum that has possession or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and receives Federal funds for the first time after 
expiration of the statutory deadlines for completion of summaries and 
inventories must:
    (1) Within three years of the date of receipt of Federal funds, 
provide a summary of the collection pursuant to Sec.  10.8 of these 
regulations to any Indian tribe or Native Hawaiian organization that 
is, or is likely to be, culturally affiliated with the collections; and
    (2) Within five years of the date of receipt of Federal funds, 
prepare, in consultation with any culturally affiliated Indian tribe or 
Native Hawaiian organization, an inventory pursuant to Sec.  10.9 of 
these regulations.
    (e) Amendment of previous decision. (1) Any museum or Federal 
agency that has previously published a notice in the Federal Register 
regarding the intent to repatriate unassociated funerary objects, 
sacred objects, and objects of cultural patrimony pursuant to Sec.  
10.8(f), or the completion of an inventory of Native American human 
remains and associated funerary objects pursuant to Sec.  10.9(e), must 
publish an amendment to that notice if, based on subsequent 
information, the museum or Federal agency revises its decision in a way 
that changes the number or cultural affiliation of the cultural items 
listed.
    (2) Repatriation may not occur until at least thirty (30) days 
after publication of the amended notice in the Federal Register.
    (f) All actions taken pursuant to this section must also comply 
with all other relevant sections of 43 CFR 10.

    Dated: September 24, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-23179 Filed 10-19-04; 8:45 am]
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