[Federal Register Volume 79, Number 222 (Tuesday, November 18, 2014)]
[Proposed Rules]
[Pages 68640-68647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26839]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 79

[NPS-WASO-CR-16170; PPWOCRADI0, PCU00RP14R50000]
RIN 1024-AE17


Curation of Federally-Owned and Administered Archeological 
Collections

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service proposes to amend the regulations 
for the curation of federally-owned and administered archeological 
collections to establish definitions, standards, and procedures to 
dispose of particular material remains that are determined to be of 
insufficient archaeological interest. This rule would promote more 
efficient and effective curation of these archeological collections.

DATES: Comments must be received by February 17, 2015.

ADDRESSES: You may submit comments, identified by Regulation Identifier 
Number (RIN) 1024-AE17, by any of the following methods:
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow instructions for submitting comments.
     Mail to: Stanley C. Bond, Departmental Consulting 
Archeologist, National Park Service, Docket No. 1024-AE17, 1201 Eye 
Street NW., 7th Floor (2275), Washington, DC 20005.
     Hand deliver to: Stanley C. Bond, Departmental Consulting 
Archeologist, 1201 Eye Street NW., Room 760, Washington, DC 20005.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: David A. Gadsby, Archeology Program, 
National Park Service, 1201 Eye Street NW., Washington, DC 20005, 202-
354-2101, email: david_gadsby@nps.gov.

SUPPLEMENTARY INFORMATION: 

Background

Statutory Authority and Jurisdiction

    The Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470aa-
mm) authorizes the Secretary of the Interior to promulgate regulations 
for the disposition of archaeological

[[Page 68641]]

resources and other resources recovered under the authority of ARPA, 
the Reservoir Salvage Act (RSA; 16 U.S. C. 469-469c-2), as amended, and 
the Antiquities Act (16 U.S.C. 431-433). In addition, the National 
Historic Preservation Act (NHPA; 16 U.S.C. 470a(a)(7) and 470h-4(a)) 
authorizes the Secretary of the Interior to promulgate regulations for 
the proper curation of archeological collections created under NHPA, 
RSA, and ARPA. The Department of the Interior's Departmental Consulting 
Archeologist (DCA), located in the National Park Service (NPS), is 
responsible for developing regulations concerning the preservation of 
prehistoric and historic material remains of archaeological interest 
under ARPA, under the Department of the Interior's Departmental Manual 
``Protection of the Cultural Environment'' (519 DM 2.3D).

Disposal of Particular Material Remains From Archeological Collections

    The regulations at 36 CFR Part 79 establish definitions, standards, 
procedures, and guidelines to be followed by Federal agencies to 
preserve collections of prehistoric and historic material remains and 
associated records that generally include those resulting from a 
prehistoric or historic resource survey, excavation, or other study 
conducted in connection with a Federal action, assistance, license, or 
permit.
    As currently written, 36 CFR Part 79 does not provide a process for 
Federal agencies to dispose of particular material remains from 
archeological collections that, after rigorous evaluation, are 
determined to have insufficient archaeological interest. Prehistoric or 
historic material remains improperly disposed of could later be 
rediscovered and misinterpreted by unwitting archeologists or others as 
evidence of activity in the distant past, so it is important to 
delineate appropriate methods of disposal. A proposed rule to establish 
procedures to discard particular material remains from Federal 
collections was published in the Federal Register in 1990 (55 FR 37670, 
September 12, 1990). The NPS received less than 10 sets of comments 
about the proposed rule, but these comments raised a variety of issues, 
including the following:
     Lack of defined terms.
     Potential for future development of archeological methods 
and theories that could be applied to disposed material remains.
     Qualifications of persons involved in the procedure to 
recommend the appropriateness of the decision to discard.
     Need for more detail about procedures to discard material 
remains.
     Need for procedures to determine a ``representative'' 
sample of bulky, non-diagnostic objects to be retained for future 
research from material remains to be discarded.
     Need for procedures to ensure that the discard of material 
remains would not create an artificial archeological site.
    Due, in part, to the comments received, a final rule for the 1990 
proposed rule was never published. Instead, the DCA decided to focus on 
proper curation of federally-owned and administered collections before 
the option to dispose of any material remains was introduced.

Proposed Rule

    Based on renewed interest from Federal agencies, the Department of 
the Interior (DOI) now proposes new sections 79.12 through 79.18, and 
related amendments to sections 79.2 and 79.3 of 36 CFR Part 79, to 
establish regulations to dispose of particular material remains from 
federally-owned and administered archeological collections. This rule 
would establish certain circumstances under which specific procedures 
may be used to dispose of material remains of insufficient 
``archaeological interest,'' as this term is defined in 43 CFR 
7.3(a)(1). The term ``material remains,'' as defined in section 
79.4(1)(a) of this part, refers to artifacts, objects, specimens, and 
other physical evidence, including human remains, of a historic or 
prehistoric resource and of historic or prehistoric cultures and 
lifeways. This proposed rule would not affect any material remains 
defined as ``cultural items'' by the Native American Graves Protection 
and Repatriation Act (25 U.S.C. 3001 et seq.), including human remains, 
funerary objects, sacred objects, or objects of cultural patrimony, and 
subject to the provisions of that statute. The Federal agency would be 
responsible for ensuring that disposition is conducted in accordance 
with the proposed rule and 36 CFR 79.7, ``Methods to fund curatorial 
services.''
    In addition to providing a mechanism for appropriate and carefully 
considered disposition, this rule would improve the curation of 
federally-owned and administered archeological collections, including 
more effective space and cost management. This proposed rule would 
address many of the comments submitted in 1990 by incorporating 
independent advice and opinions supplied by numerous experts that we 
consulted while drafting the proposed rule between 2005 and 2013.
    This proposed rule was written with the cooperation and 
consultation of the following Federal agencies and bureaus: Bureau of 
Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of 
Reclamation (BR), U.S. Fish and Wildlife Service (FWS), U.S. Air Force 
(USAF), U.S. Army Corps of Engineers (USACE), U.S. Navy (USN), and U.S. 
Forest Service (USFS). Each agency and bureau provided a specialist in 
the curation of archeological collections to participate in an informal 
interagency working group to provide expert advice during the drafting 
of this proposed rule.

Section-by-Section Analysis

Section 79.2 Authority
    Paragraph 79.2(a) identifies the authorities under which the 
regulations in Part 79 are promulgated. The proposed rule would 
streamline the language and citations to these statutory authorities.
Section 79.3 Applicability
    Section 79.3 explains the applicability of the regulations in Part 
79. The proposed rule would clarify the applicability of these 
regulations by explaining what constitutes federally-owned and 
administered collections. The proposed rule would clarify that Part 79 
applies to collections (i) that are owned by the United States and for 
which a Federal agency has practical management authority, either 
directly or indirectly, as a result of that ownership; and (ii) that 
are not owned by the United States but that are managed or controlled 
by Federal agencies under law.
    This includes collections administered directly by a Federal agency 
or controlled by a Federal agency through the terms of an agreement, 
contract, or permit with a non-Federal organization or entity that is 
responsible for curation of a collection. This also includes 
collections for which a Federal agency has administrative authority 
resulting from authorized expenditures; and situations in which the 
Federal government has decision-making authority over the collections 
granted to it by law or regulation. For example, one Federal agency 
might fund an undertaking on land administered by another Federal 
agency. In this case, any material remains from such undertaking would 
be administered by the agency that recovered them.
    Collections from Indian lands made under ARPA are another example 
of federally administered collections. Federal agencies are not the 
owners of

[[Page 68642]]

such collections. ARPA and its implementing regulations give BIA the 
authority to issue Permits for Archeological Investigation (PAIs) for 
Indian lands and the responsibility for custody of those collections 
(25 CFR Part 262). For example, Section 5 of ARPA and 43 CFR 7.13(c) 
apply to resources from both public and Indian lands and discuss the 
authority to exchange and dispose of resources. Material remains 
collected under a PAI are subject to the consent of the tribe or Indian 
before disposal or transfer to a curatorial facility through the BIA 
permitting process. The fact that these resources may be owned by a 
tribal or Indian owner does not remove them from Federal administration 
under ARPA.
Section 79.12 Determining Which Particular Material Remains are 
Eligible for Disposal
    Paragraph 79.12(a) would identify which material remains from 
collections may be disposed of under the proposed rule. The terms 
``material remains'' and ``collection,'' as used in the proposed rule, 
are defined in 36 CFR 79.4. Paragraph 79.12(b) would identify which 
material remains from collections may not be disposed of under the 
proposed rule. Paragraph 79.12(c) would identify who may propose the 
disposal of material remains from collections. Individuals who propose 
material remains for disposal should have verifiable knowledge of those 
particular material remains. The terms ``qualified museum 
professional,'' ``repository,'' and ``curatorial services,'' as used in 
the proposed rule, are defined in 36 CFR 79.4. Paragraph 79.12(d) would 
clarify that the Federal Agency Official, also defined in 36 CFR 79.4, 
is responsible for the disposition of material remains. Paragraph 
79.12(e) would specify criteria to determine when particular material 
remains may be eligible for disposal because they are of insufficient 
archaeological interest. As defined in 43 CFR 7.3(a)(1), the term ``of 
archaeological interest'' means capable of providing scientific or 
humanistic understandings of past human behavior, cultural adaptation, 
and related topics. The criteria in the proposed rule to determine 
which material remains may be eligible for disposal would distinguish 
particular material remains that no longer have those capabilities. The 
criteria would be narrowly defined to ensure that material remains of 
archaeological interest are not disposed of inadvertently or casually.
Section 79.13 Acceptable Methods for Disposition of Particular Material 
Remains
    Section 79.13 would outline two procedures by which Federal Agency 
Officials may determine the methods of disposing of particular material 
remains. The first would apply to material remains recovered from 
Indian lands, while the second would apply to material remains that are 
not from Indian lands.
    Paragraph (a) in Sec.  79.13 would identify appropriate methods of 
disposing of particular material remains determined to be of 
insufficient archaeological interest that have been excavated or 
removed from Indian lands after October 31, 1979. As defined in ARPA 
(16 U.S. C. 470 bb(4)), the term ``Indian lands'' means lands of Indian 
tribes, or Indian individuals, which are either held in trust by the 
United States or are subject to a restriction against alienation 
imposed by the United States, except for any subsurface interests in 
land not owned or controlled by an Indian tribe or an Indian 
individual. The proposed rule would require the Federal Agency Official 
to offer to return the material remains to the Indian tribe or Indian 
individual from whose lands the material remains were excavated or 
removed under ARPA's custody regulations, 43 CFR 7.13(b), 36 CFR 
296.13(b), 32 CFR 229.13(b), and 18 CFR 1312.13(b). The tribe or 
individual may or may not choose to accept custody of these material 
remains. Determining the appropriate Indian tribe or individual to be 
approached about disposition would be made based on existing 
documentation concerning the location of the relevant archeology site.
    Paragraph (b) in Sec.  79.13 would identify appropriate methods of 
disposing of particular material remains determined to be of 
insufficient archaeological interest that were not excavated or removed 
from Indian lands. These material remains may be transferred within the 
Federal agency; transferred to another Federal agency; conveyed to a 
suitable repository; conveyed to a federally recognized Indian tribe; 
conveyed to another institution, such as a school or historical 
society; or--if all of the other methods of disposition are 
unacceptable--destroyed. These methods were listed in priority order in 
a draft of the proposed rule sent to leaders of federally recognized 
tribes in 2009. Based on outreach to tribes in 2013, the methods of 
disposal in the proposed rule are no longer listed in priority order.
Section 79.14 Restrictions on Disposition of Particular Material 
Remains
    Paragraph (a) in Sec.  79.14 would prohibit Federal employees or 
their relatives from acquiring disposed material remains or benefiting 
in any way from a disposition.
    Paragraph (b) in Sec.  79.14 would prohibit disposed material 
remains from being traded, sold, bought, or bartered as commercial 
goods.
Section 79.15 Final Determination on Disposition of Particular Material 
Remains
    Section 79.15 would describe the process that the Federal Agency 
Official must follow in order to reach a final determination of 
disposition of particular material remains. It would also clarify that 
any determination made under this section must in no way affect the 
Federal land manager's obligations under other applicable laws and 
regulations. This section would require the Federal Agency Official to 
do the following:
     Verify that material remains are appropriately documented 
through a professional procedure approved by the Federal agency that is 
consistent with curatorial services as defined in Sec.  79.4(b).
     Establish a collections advisory committee to review 
proposed dispositions of material remains.
     Retain a representative sample of those material remains 
determined to be overly redundant and not useful for research.
     Retain all associated records in the archeological 
collection as defined in Sec.  79.4(a)(2).
     Notify appropriate entities of the proposed disposition 
and solicit comments on the proposal. If the material remains proposed 
to be disposed of are from a site on public lands that has religious or 
cultural importance to an Indian tribe or tribes, the proposed rule 
would require that these Indian tribes be notified of the proposed 
disposition.
     Publish a notice of determination of disposition in the 
Federal Register with specific information that the Federal Agency 
Official must include in this notice and in the determination itself.
Section 79.16 Objecting to a Determination of Disposition of Particular 
Material Remains
    This section would describe the process for objecting to a 
determination of disposition by requesting a review from the DCA, and 
the process for reaching a final determination of disposition.

[[Page 68643]]

Section 79.17 Timing of Disposition
    Section 79.17 would prevent the disposition of material remains 
until 30 days after the notice of determination of disposition is 
published in the Federal Register. If the Federal agency receives an 
objection to the determination, however, disposal would occur after the 
Federal Agency Official's notice of decision on the objection and any 
amendments are published in the Federal Register.
Section 79.18 Administrative Record of Disposition
    Paragraph (a) would identify the types of activities that must be 
documented in the administrative record supporting the Federal Agency 
Official's final determination to dispose of particular material 
remains. This paragraph would require that the administrative record 
for a disposition of material remains be made public upon request and 
would require that the Federal agency review and update the catalog and 
inventory documents related to the disposal.

Compliance With Other Laws, Executive Orders and Department Policy. 
Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
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. Executive Order 13563 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.

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 information 
contained in the economic analyses found in the report entitled ``Cost-
Benefit and Regulatory Flexibility Analyses: Proposed Regulations on 
the Curation of Federally-Owned and Administered Archeological 
Collections'' that is available online at http://www.nps.gov/archeology/tools/laws/Regulatory_Analyses_36_CFR_Part_79_12.pdf.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    The rule relates to internal administrative procedures and 
management of government function. It does not regulate external 
entities, impose any costs on them, or eliminate any procedures or 
functions that would result in a loss of employment or income on the 
part of the private sector.

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. This 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. This rule produces no costs 
outside of the Federal government and does not create an additional 
burden on state, local, or tribal governments, or the private sector.

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.

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. This rule does 
not regulate, change, or otherwise affect the relationship between 
Federal and state governments. A federalism summary impact statement is 
not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

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

    This proposed rule does not contain collections of information that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act. This rule would not impose recordkeeping or 
reporting requirements on state, tribal, or local governments; 
individuals; businesses; or organizations. We may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this rule is covered by a categorical exclusion. This 
rule is excluded from the requirement to prepare a detailed statement 
because it qualifies as a regulation of an administrative and 
procedural nature. (For further information see 43 CFR 46.210(i)). This 
rule does not involve any of the extraordinary circumstances listed in 
43 CFR 46.215 that would require further analysis under NEPA.

Federal Advisory Committee Act

    Intergovernmental consultation recommended under this rule is 
exempt from the Federal Advisory Committee Act (FACA). This rule 
requires that consultation with Indian tribes be conducted between 
Federal officials and elected tribal officers or their designated 
employees acting in their official capacities, who meet solely for the 
purpose of exchanging views, information, or advice related to the 
management or implementation of this rule. Consultation with tribes 
under this rule thus meets the two-part test for an

[[Page 68644]]

exemption from the FACA set out in the Unfunded Mandates Reform Act of 
1995, Public Law 104-4.

Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consult 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 effects on federally 
recognized Indian tribes that will result from this rule. We conducted 
outreach to tribes and Native Hawaiian Organizations, initiated 
consultation through two letters to tribal leaders, and conducted face-
to-face consultation on this proposed rule upon request. Additional 
information regarding the identified effects on Indian tribes and these 
outreach and consultation efforts is contained in a document entitled 
``Consultation with Indian Tribes (E.O. 13175) regarding the proposed 
36 CFR 79.12,'' which is available at the following Web site: http://www.nps.gov/archeology/tools/laws/Tribal_Consultation_36_CFR_Part_79_12.pdf.

Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which paragraphs or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.
    Drafting Information. This proposed rule was prepared by the office 
of the Departmental Consulting Archeologist, National Park Service, 
Washington, DC with the able assistance of an informal interagency 
working group. Terry Childs (DOI) drafted the proposed rule and served 
as chair of the group that included Michael Hilton (USFS), Thomas 
Lincoln (BR), Eugene Marino (FWS), Kathleen McLaughlin (USN and US 
Army), Emily Palus (BIA and BLM), Christopher Pulliam (USACE), and 
James Wilde (USAF). Marvin Keller and Anna Pardo (BIA) and Rochelle 
Bennett (BR) joined the working group in 2013. David Gadsby (NPS) also 
joined the group and provided administrative oversight of the proposed 
rule. Carla Mattix and Stephen Simpson of the Department of the 
Interior's Office of the Solicitor provided legal guidance.

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 by following the instructions in 
the ADDRESSES section of this document.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, be aware that 
your entire comment--including your personally identifiable 
information--may be made publicly available at any time. While you can 
ask in your comment to withhold your personal identifiable information 
from public view, we cannot guarantee that we will be able to do so.

List of Subjects in 36 CFR Part 79

    Archives and records, Historic preservation, Indians-lands, 
Museums, Public lands.

    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR part 79 as set forth below:

PART 79--CURATION OF FEDERALLY-OWNED AND ADMINISTERED 
ARCHAEOLOGICAL COLLECTIONS

0
1. The authority citation for part 79 continues to read as follows:

    Authority:  16 U.S.C. 470aa-mm, 16 U.S.C. 470 et seq.

0
2. Sections 79.1 through 79.4 are designated as subpart A under the 
following heading:

Subpart A--Administrative Provisions

0
3. In Sec.  79.2, revise paragraph (a) to read as follows:


Sec.  79.2  Authority

    (a) The regulations in this part are promulgated under 16 U.S.C. 
470a(7) which requires that the Secretary of the Interior issue 
regulations ensuring that significant prehistoric and historic 
artifacts and associated records are deposited in an institution with 
adequate long-term curatorial services. This requirement applies to 
artifacts and associated records subject to the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), the Reservoir Salvage Act (16 
U.S.C. 469-469c), and the Archaeological Resources Protection Act (16 
U.S.C. 470aa-mm).
* * * * *
0
4. In Sec.  79.3, in paragraph (a) introductory text, add two sentences 
at the end to read as follows:


Sec.  79.3  Applicability.

    (a) * * * Such collections also include those that are owned by the 
United States and for which a federal agency has practical management 
authority, either directly or indirectly, as a result of that 
ownership; and those collections that are not owned by the United 
States but that are managed or controlled by a federal agency pursuant 
to law. The collections described in this paragraph are considered 
federally-owned and administered for purposes of this part.
* * * * *
0
5. Sections 79.5 through 79.9 are designated subpart B under the 
following heading:

Subpart B--Archeological Collections Management

0
6. Section 79.10 is designated subpart C under the following heading:

Subpart C--Public Access to and Use of Collections

0
7. Section 79.11 is designated subpart D under the following heading:

Subpart D--Inspections and Inventories of Collections

0
8. Add subpart E to read as follows:

Subpart E--Disposition of Particular Material Remains

Sec.
79.12 Determining which particular material remains are eligible for 
disposal.

[[Page 68645]]

79.13 Acceptable methods for disposition of particular material 
remains.
79.14 Restrictions on disposition of particular material remains.
79.15 Final determination on disposition of particular material 
remains.
79.16 Objecting to a determination of disposition of particular 
material remains.
79.17 Timing of disposition.
79.18 Administrative record of disposition.

Sec.  79.12  Determining which particular material remains are eligible 
for disposal.

    (a) Which material remains are eligible for disposal? In order to 
be eligible for disposal, material remains from collections must be:
    (1) Archaeological resources, as defined in 16 U.S.C. 470bb(1), or 
other resources excavated and removed under the Reservoir Salvage Act 
(16 U.S.C. 469-469c) or the Antiquities Act (16 U.S.C. 431-433); and
    (2) Considered to be of insufficient archaeological interest under 
the criteria in paragraph (e) of this section, based on the definition 
of ``of archaeological interest'' in 43 CFR 7.3(a)(1).
    (b) Which material remains may not be disposed of? The following 
material remains from collections may not be disposed of:
    (1) Native American ``cultural items'' as defined in the Native 
American Graves Protection and Repatriation Act of 1990 (25 U.S.C. 
3001(3)), since disposition is governed by that Act and its 
implementing regulations (43 CFR 10);
    (2) Human remains;
    (3) Material remains excavated and removed from Indian lands on or 
before October 31, 1979; and
    (4) Material remains excavated and removed from Indian lands under 
the Antiquities Act (16 U.S.C. 431-433).
    (c) Who may propose the disposal of particular material remains? 
The following individuals may propose the disposal of particular 
material remains from a collection:
    (1) Agency staff members, including archeologists, curators, and 
conservators; and
    (2) Qualified museum professionals located in a repository that 
provides curatorial services for a collection held in that repository.
    (d) Who is responsible for the disposal of particular material 
remains? The Federal Agency Official is responsible for ensuring that 
particular material remains are disposed of from collections according 
to the requirements of this part.
    (e) When are particular material remains considered to be of 
insufficient archaeological interest? Particular material remains are 
considered to be of insufficient archaeological interest when, on a 
case-by-case basis, at least one qualified archeological or museum 
professional with experience in the type of material remains being 
evaluated determines and documents that:
    (1) Disposition of the material remains will not negatively impact 
the overall integrity of the original collection recovered during the 
survey, excavation, or other study of a prehistoric or historic 
resource; and
    (2) At least one of the following three requirements--lack of 
provenience information; lack of physical integrity; or overly 
redundant and not useful for research--are met:
    (i) Lack of provenience information. Lack of provenience 
information may be established by one or more of the following 
circumstances:
    (A) The labels on the material remains or the labels on the 
containers that hold the material remains do not provide adequate 
information to reliably establish meaningful archeological context for 
the material remains;
    (B) The labels on the material remains or the labels on the 
containers that hold the material remains have been lost or destroyed 
over time and cannot be reconstructed through the associated records; 
or
    (C) The associated records of the material remains have been lost 
or destroyed and cannot be recovered after a concerted effort to find 
them is performed and documented.
    (ii) Lack of physical integrity. Material remains lack physical 
integrity when, subsequent to recovery during the survey, excavation, 
or other study of a prehistoric or historic resource, the material 
remains were irreparably damaged through decay or decomposition over 
time, or as a result of a human-caused incident or a natural disaster.
    (iii) Overly redundant and not useful for research. A determination 
that material remains are overly redundant and not useful for research 
must be carefully considered. Archeological context, research 
questions, and research potential may vary based on geography, time and 
culture period, scientific or cultural significance, prior analysis, 
and other factors. It is difficult to predict if future analytical 
methods will yield useful information about the material remains 
proposed for disposal. As a result, a representative sample of material 
remains that are determined to be overly redundant and not useful for 
research must be retained for curation, as required by Sec.  79.15(d).


Sec.  79.13  Acceptable methods for disposition of particular material 
remains.

    (a) Material remains excavated or removed from Indian lands after 
October 31, 1979, that are archaeological resources under the 
Archaeological Resources Protection Act (16 U.S.C. 470aa-mm) remain the 
property of the Indian individual or Indian tribe having rights of 
ownership over the resources. Under the authority of 16 U.S.C. 470dd, 
disposition of these material remains that are determined to be of 
insufficient archaeological interest under the criteria in Sec.  
79.12(e) are subject to the consent of the Indian individual or Indian 
tribe. The Federal Agency Official must use the following methods of 
disposal for these material remains in the following order:
    (1) Return them to the Indian individual or Indian tribe having 
rights of ownership under the Archaeological Resources Protection Act's 
custody regulations, 43 CFR 7.13(b), 36 CFR 296.13(b), 32 CFR 
229.13(b), and 18 CFR 1312.13(b).
    (2) If the Indian individual or Indian tribe having rights of 
ownership does not wish to accept them, the Federal Agency Official may 
otherwise dispose of the material remains using the disposition methods 
in Sec.  79.13(b) after receiving written consent from the Indian 
individual or Indian tribe having rights of ownership.
    (b) This paragraph applies to material remains that are determined 
to be of insufficient archaeological interest under Sec.  79.12(e) and 
that were excavated or removed from lands that are not Indian lands. 
The Federal Agency Official may use any of the following methods for 
disposal of the material remains.
    (1) Transfer to another Federal agency.
    (2) Convey to a suitable public or tribal scientific or 
professional repository as defined in Sec.  79.4(j) of this part.
    (3) Convey to a federally recognized Indian tribe if the material 
remains were excavated or removed from lands of religious or cultural 
importance to that tribe and were identified and documented by a 
Federal land manager under 43 CFR 7.7(b)(1).
    (4) Convey to a federally recognized Indian tribe from whose 
aboriginal lands the material remains were removed. Aboriginal 
occupation may be documented by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or a treaty, Act of 
Congress, or Executive Order.
    (5) Transfer within the Federal agency for the purpose of education 
or

[[Page 68646]]

interpretation, or convey to a suitable institution to be used for 
public benefit and education including, but not limited to, local 
historical societies, university or college departments, and schools.
    (6) If the Federal Agency Official considers each of these prior 
methods carefully and is still unable to find an acceptable method of 
disposition, then destruction may be considered. The Federal Agency 
Official or their designee must witness and document the destruction, 
including through photography or video.


Sec.  79.14  Restrictions on disposition of particular material 
remains.

    (a) Can Federal employees and their relatives acquire disposed 
material remains? No. Federal employees or their relatives cannot 
acquire disposed material remains (or a financial interest therein) and 
must not appear to benefit personally in any way from an action to 
deaccession or dispose of archeological material remains.
    (b) Can disposed material remains be regarded as commercial goods? 
No. Disposed material remains may not be traded, sold, bought, or 
bartered as commercial goods.


Sec.  79.15  Final determination on disposition of particular material 
remains.

    The Federal Agency Official is responsible for ensuring that the 
agency disposes of material remains according to the requirements of 
this part. A determination made under this part in no way affects the 
Federal land manager's obligations under other applicable laws or 
regulations. The Federal Agency Official must carry out all of the 
following steps before making a final determination that it is 
appropriate to dispose of material remains.
    (a) The Federal Agency Official must determine that the material 
remains are eligible for disposal under the criteria in Sec.  79.12(a), 
including a written verification that no Native American ``cultural 
items'' as defined in the Native American Graves Protection and 
Repatriation Act of 1990 (25 U.S.C. 3001(3)) are considered for 
disposal.
    (b) The Federal Agency Official must verify that the material 
remains are appropriately documented through a professional procedure 
approved by the Federal agency that is consistent with curatorial 
services, including accessioning and cataloging, as defined in Sec.  
79.4(b) of this part.
    (c) The Federal Agency Official must establish a collections 
advisory committee of at least five members to review proposed 
dispositions of material remains and make recommendations to the 
Federal Agency Official about proposed dispositions based on the 
adequacy of the documentation addressing the requirements in Sec.  
79.15(a) and (b) and the appropriateness of the proposed disposition.
    (1) The collections advisory committee must consist of qualified 
employees from Federal agencies who meet appropriate Professional 
Qualification Standards set by the Secretary of the Interior, and must 
include the principal archeologist and curator of the Federal agency 
that owns or administers the material remains if either of these two 
positions exists.
    (2) Committee members must include Federal employees with subject 
matter or technical expertise. These employees may include 
archeologists, anthropologists, curators, and conservators with 
expertise in historic, prehistoric, or underwater material remains.
    (3) Committee members may include or one or more members of a 
federally recognized Indian tribe regularly consulted by the Federal 
agency who are elected tribal officers or their designated employees 
acting in their official capacities.
    (4) The committee must have written procedures, including terms of 
member appointments and duration of the committee, approved by the 
Federal Agency Official to ensure all recommendations of disposal are 
fair, open, timely, and in the best interests of the public.
    (5) Federal employees or qualified members of federally recognized 
Indian tribes may be temporarily added to the committee if its current 
members determine that specific expertise is needed on a case-by-case 
basis.
    (6) Committee members or their family members may not benefit 
financially or in any other way from a disposition of material remains.
    (d) The Federal Agency Official must retain a representative sample 
of those material remains determined to be overly redundant and not 
useful for research.
    (1) The size of the representative sample must be large enough to 
permit future analysis for research purposes.
    (2) The method for establishing a representative sample, including 
sample size and typology, must be determined by a qualified museum or 
archeological professional with expertise in the type of prehistoric or 
historic material remains being sampled.
    (3) The sampling method must be well documented and consistent with 
professional prehistoric or historic archeological practice.
    (e) The Federal Agency Official must retain all associated records 
in the archeological collection as defined in Sec.  79.4(a)(2) of this 
part. A copy of the original associated records must be given to the 
recipient of any transferred or conveyed items subject to the 
restrictions stipulated in the Archaeological Resources Protection Act 
(16 U.S.C. 470hh(a)).
    (f) The Federal Agency Official must notify the entities listed in 
this paragraph of the proposed disposition and solicit comments on the 
proposal. Notifications must be made in writing, and must include a 
deadline for submitting comments, in accordance with procedures 
established by the Federal agency. All written comments must be 
reviewed and responded to by the Federal Agency Official and the 
collections advisory committee. Notice must be given to the following:
    (1) The State Historic Preservation Officer from the state(s) where 
the particular objects to be disposed were recovered.
    (2) The Tribal Historic Preservation Officer (or other designated 
tribal representative) from the tribal land(s) where the particular 
objects to be disposed were recovered.
    (3) Federal, state, tribal, or local agencies that were involved in 
the recovery of the objects to be disposed.
    (4) Universities, museums, scientific institutions, and educational 
institutions with an active department of or program in archaeology or 
anthropology that have interest in the archaeology of the region from 
which the objects to be disposed of were recovered.
    (5) Indian tribes that consider the land to have religious or 
cultural importance, if the material remains are from a site on public 
lands that has religious or cultural importance to Indian tribes under 
43 CFR 7.7(b)(1).
    (6) Indian tribes from whose aboriginal lands the material remains 
were removed, if aboriginal occupation has been documented by a final 
judgment of the Indian Claims Commission or the United States Court of 
Claims, treaty, Act of Congress, or Executive Order.
    (g) The Federal Agency Official must, after the comment period 
described in Sec.  79.15(f) has expired, publish a notice of 
determination of disposition in the Federal Register.
    (1) The notice published in the Federal Register must include the 
following:
    (i) A general description of the material remains to be disposed.

[[Page 68647]]

    (ii) The criteria used to determine that the material remains are 
of insufficient archaeological interest under Sec.  79.12(e).
    (iii) The method of disposal.
    (iv) The name of the Federal Agency Official or their designee as a 
point of contact.
    (v) An explanation of a person's right to object to the 
determination of disposition under Sec.  79.16 and the name and address 
of the Department of the Interior's Departmental Consulting 
Archeologist.
    (2) The determination referenced by the notice must include the 
following:
    (i) A detailed list of the material remains to be disposed, 
including a description of each object, or lot of objects if there are 
multiples of a particular type, and a photograph of the objects when 
appropriate.
    (ii) The criteria used to determine that the material remains are 
of insufficient archaeological interest under Sec.  79.12(e).
    (iii) Justification of the method to be used to dispose of the 
material remains under Sec.  79.13.
    (iv) Documentation that all of the procedures in Sec. Sec.  79.15 
and 79.16 have been met.
    (v) The name of the recipient entity or method of destruction, as 
appropriate.
    (vi) The name of the Federal Agency Official or their designee as a 
point of contact.
    (vii) Other conditions of transfer or conveyance, as appropriate.
    (viii) A statement that the determination is a final agency action 
under the Administrative Procedure Act unless an objection is filed in 
accordance with Sec.  79.16.


Sec.  79.16  Objecting to a determination of disposition of particular 
material remains.

    Anyone may object to and request in writing that the Departmental 
Consulting Archeologist review a Federal Agency Official's 
determination to dispose of material remains within 30 days of 
publication in the Federal Register. The request must document why the 
requester disagrees with the Federal Agency Official's determination or 
the terms and conditions to be applied to the disposal. The procedure 
for objecting to a determination of disposition is as follows:
    (a) The request must be sent to the Departmental Consulting 
Archeologist, whose address must be published with the notice of 
determination of disposition in the Federal Register. The Departmental 
Consulting Archeologist must immediately forward a copy of the request 
to the Federal Agency Official who made the determination under 
objection. The Federal Agency Official must postpone the planned 
disposition until the Departmental Consulting Archeologist completes 
the requested review.
    (b) The Departmental Consulting Archeologist must review the 
request, the Federal Agency Official's determination, and its 
supporting documentation.
    (c) Within 60 days of receipt of the request, the Departmental 
Consulting Archeologist must transmit to the Federal Agency Official a 
non-binding recommendation for further consideration.
    (d) The Federal Agency Official must consider the recommendation in 
making a final determination. Within 60 days of receipt of the 
recommendation, the Federal Agency Official must respond to the 
Departmental Consulting Archeologist and the requester with a final 
determination. The final determination must include any information on 
administrative appeal rights required by internal agency appeal 
procedures or a statement that the final determination is a final 
agency action under the Administrative Procedure Act, as appropriate.
    (e) The Federal Agency Official must publish notice of the decision 
on the objection and any amendments made to the original determination 
of disposition in the Federal Register.


Sec.  79.17  Timing of disposition.

    Disposition will occur no sooner than 30 days after the notice of 
determination of disposition is published in the Federal Register under 
Sec.  79.15(g). If the Federal agency receives an objection under Sec.  
79.16, however, disposal will occur after the Federal Agency Official's 
notice of decision and any amendments are published in the Federal 
Register under Sec.  79.16(e).


Sec.  79.18  Administrative record of disposition.

    (a) After the Federal Agency Official has made a final 
determination of disposition, he or she must document the determination 
and retain the administrative record as used in the definition of 
associated records in Sec.  79.4(a)(2), which must include:
    (1) The professional evaluation of the material remains, conducted 
under Sec.  79.12(e) and Sec.  79.15(b).
    (2) The recommendations and rationale of the collections advisory 
committee provided in accordance with Sec.  79.15(c).
    (3) Notifications of the proposed disposition under Sec.  79.15(f); 
consent of Indian individuals or tribes, if applicable, under Sec.  
79.13(a); and comments received from the parties notified under Sec.  
79.15(f).
    (4) Requests for review received by the Departmental Consulting 
Archeologist, the non-binding recommendation of the Departmental 
Consulting Archeologist, and the response by the Federal Agency 
Official to the Departmental Consulting Archeologist and the requester, 
as appropriate, under Sec.  79.16.
    (5) The disposition action with specific information, including a 
description and evaluation of objects; the method of disposition and 
the reason for the method chosen; names and titles of persons 
initiating and approving the disposition; date of disposition; relevant 
accession and catalog numbers; evidence of the receipt for the return, 
transfer, or conveyance of the material remains by the recipient tribe, 
agency, repository, or institution, including the title to the received 
material remains, as appropriate; photographic documentation, as 
appropriate; and the name and location of the recipient institution or 
entity, as appropriate.
    (6) A detailed inventory of the reasonable and representative 
sample of material remains retained, when the larger proportion is 
disposed of because it is overly redundant and not useful for research.
    (7) Other activities and decisions pertaining to the disposition of 
the material remains, such as conditions of use after the disposition 
is completed, as appropriate.
    (b) The administrative record must be made available to the public 
upon request, unless the information or a portion of it must be 
withheld under the terms of the Freedom of Information Act (5 U.S.C. 
552) or the Archaeological Resources Protection Act (16 U.S.C. 470hh). 
The latter restricts the government's ability to make sensitive 
information, such as archeological site location data, available to the 
public.
    (c) After disposition, the accession and catalog records must be 
reviewed and amended through a procedure established by the Federal 
agency. The amendments must identify the material remains that were 
deaccessioned and disposed of, the date of disposition, and the manner 
in which they were disposed. The documentation prepared under 
Sec. Sec.  79.15 through 79.16 and 79.18(a) must be retained.

    Dated: November 5, 2014.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-26839 Filed 11-17-14; 8:45 am]
BILLING CODE 4310-EJ-P