[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)]
[Rules and Regulations]
[Pages 68465-68471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28041]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary of the Interior

43 CFR Part 10

[NPS-WASO-NAGPRA-19087; PPWOCRADN0-PCU00RP14.R50000]
RIN 1024-AE00


Disposition of Unclaimed Human Remains, Funerary Objects, Sacred 
Objects, or Objects of Cultural Patrimony

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: This final rule provides procedures for the disposition of 
unclaimed human remains, funerary objects, sacred objects, or objects 
of cultural patrimony excavated or discovered on, and removed from, 
Federal lands after November 16, 1990. It implements section 3(b) of 
the Native American Graves Protection and Repatriation Act.

DATES: The rule is effective December 7, 2015.

FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, Manager, National 
NAGPRA Program, National Park Service, 1849 C Street NW., Washington, 
DC 20240, telephone (202) 354-2204, email melanie_o'[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Secretary of the Interior (Secretary) is responsible for 
implementation of the Native American Graves Protection and 
Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001 et seq.), including 
the issuance of appropriate regulations implementing and interpreting 
its provisions. NAGPRA addresses the rights of lineal descendants, 
Indian tribes, and Native Hawaiian organizations in certain human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony, for which the Act uses the broader term ``cultural items'' 
(25 U.S.C. 3001(3)). Pursuant to Section 13 of NAGPRA (25 U.S.C. 3011), 
the Department of the Interior (Department) published the initial rules 
to implement NAGPRA in 1995 (60 FR 62158, December 4, 1995); those 
rules are now codified at 43 CFR part 10. Subsequently, the Department 
published additional rules concerning:
     Civil penalties (68 FR 16354, April 3, 2003);
     Future applicability (72 FR 13189, March 21, 2007); and
     Disposition of culturally unidentifiable human remains (75 
FR 12378, March 15, 2010).
    Section 3(b) of the Act (25 U.S.C. 3002 (b)) explicitly directs the 
Secretary to publish regulations for the disposition of unclaimed 
cultural items excavated or discovered on, and removed from, Federal 
lands after November 16, 1990. When we published the NAGPRA regulations 
on December 4, 1995, we reserved 43 CFR 10.7 for this purpose.
    This rule is limited to Federal lands, as NAGPRA provides that 
ownership or control of any cultural item excavated or discovered on, 
and removed from, tribal land after November 16, 1990, is in either a 
known lineal descendant (for human remains and associated funerary 
objects) or in the Indian tribe from whose tribal land the cultural 
items were removed, and does not require the lineal descendant or the 
Indian tribe to make a claim for the cultural items.
    Consultation regarding a proposed rule for Sec.  10.7 began in 
2005. On three separate occasions, we consulted with representatives of 
Indian tribes, Native Hawaiian organizations, museums, and scientific 
organizations. We also consulted with the Native American Graves 
Protection and Repatriation Review Committee (Review Committee) during 
its scheduled meetings in Albuquerque, NM (November 2005); Washington, 
DC (April 2007); Phoenix, AZ (October 2007); and Washington, DC 
(November 2010).
    We published a proposed rule on October 29, 2013 (78 FR 64436). 
Public comment was invited for a 60-day period, ending December 30, 
2013. The proposed rule also was posted on the National Park Service's 
National NAGPRA Program Web site. The Review Committee commented on the 
record on the proposed rule at a public meeting on November 6, 2013.

Summary of and Responses to Comments on the Proposed Rule

    During the comment period, we received 27 written comments on the 
proposed rule, contained in 20 separate submissions from 5 Indian 
tribes, 1 Indian organization, 1 non-federally recognized Indian group, 
1 Native Hawaiian organization, 1 museum, 1 scientific organization, 3 
Federal entities, 6 individual members of the public, and 1 anonymous 
commenter. All relevant comments on the proposed rule were considered 
during the final rulemaking.

Final Rule 43 CFR 10.2 Definition of ``Unclaimed Cultural Items''

    Comment 1: Four commenters stated that the definition of unclaimed 
cultural items should include the phrase ``as used in Sec.  10.7 of 
this part.''
    Our Response: The term ``unclaimed cultural items'' is used only in 
Sec.  10.7 and therefore the specific reference is not needed.
    Comment 2: Three commenters stated that the definition of unclaimed 
cultural items should be expanded and the difference between the 
categories of unclaimed cultural items be clarified. One of these 
commenters added that the definition should provide a timeframe that 
structures how long cultural items must be held by the Federal agency 
prior to being classified as unclaimed.
    Our Response: We agree. In the final rule, we have revised the 
definition of unclaimed cultural items and clarified the difference 
between the categories. We have included a timeframe.
    Comment 3: Four commenters stated that the definition of unclaimed 
cultural items imposes an inappropriate time limit on Indian tribes and 
Native Hawaiian organizations to make claims for cultural items. One of 
these commenters added that the definition assumes Federal agencies 
have been proactive and have provided notice to all potential 
claimants.
    Our Response: A potential claimant may make a claim for unclaimed 
cultural items at any time prior to transfer or reinterment under this 
rule. While the rule establishes a timeframe for cultural items to 
become unclaimed, there is no timeline imposed for Federal agencies to 
transfer or to reinter cultural items. We feel the timeframes 
established by the definitions in this final rule strike an appropriate 
balance between assuring Federal agencies that the NAGPRA process will 
end at a certain time and granting non-claimant Indian tribes and 
Native Hawaiian organizations an opportunity to request the transfer of 
these cultural items.
    Comment 4: One commenter stated that the definition of 
``disposition'' in Sec.  10.2(g)(5) should be changed to include 
disposition of unclaimed cultural items.

[[Page 68466]]

    Our Response: We agree. In this final rule, we have added a new 
paragraph at Sec.  10.2 (g)(5)(iv).
    Comment 5: One commenter stated that a notice under Sec.  10.6(c) 
is only required upon ``proposed disposition,'' and not upon the 
determination of an Indian tribe entitled to priority of custody. 
Therefore, publication of a notice under Sec.  10.6(c) cannot be a 
determining factor in the definition of unclaimed cultural items.
    Our Response: A notice under Sec.  10.6(c) is not dependent on an 
actual claim but is dependent on the existence of a potential claimant. 
Under section 3(a) of the Act (25 U.S.C. 3002(a)), ownership or control 
of cultural items is transferred to the Indian tribe or Native Hawaiian 
organization which ``upon notice, states a claim. . .'' The notice 
required by Sec.  10.6(c) precedes a claim from an Indian tribe or 
Native Hawaiian organization and is dependent only upon the 
identification of one or more Indian tribes or Native Hawaiian 
organizations or lineal descendants as a potential claimant. 
Furthermore, that notice is the only communication to the public during 
the disposition process. Consequently, publication of a notice under 
Sec.  10.6(c) is an appropriate factor for determining when cultural 
items become unclaimed.
    Comment 6: One commenter stated that reasonableness is not a 
criterion for transfer of custody under the disposition process 
established in Sec.  10.6. The definition at Sec.  10.2(h)(2)(ii) 
should read: ``No Indian tribe with priority of custody has been 
identified.''
    Our Response: We believe, as a general matter, that Federal 
agencies should use reasonable efforts in complying with the 
requirements of NAGPRA. In addition, section 3(a)(2)(C) of the Act (25 
U.S.C. 3002 (a)(2)(C)) explicitly states that the cultural affiliation 
of cultural items is established using a reasonableness standard.

Final Rule Sec.  10.7(b)(1) Federal Agencies Must Report Unclaimed 
Cultural Items to the Manager, National NAGPRA Program

    Comment 7: One commenter stated that the term ``has'' is better 
defined by adding ``possession or control'' after it.
    Our Response: A Federal agency does not have ``possession'' or 
``control'' of cultural items that are excavated or discovered on, and 
removed from, Federal lands after November 16, 1990, as the terms 
``possession'' and ``control'' are defined in Sec.  10.2. Instead, the 
Federal agency acts as caretaker or temporary custodian for these 
cultural items.
    Comment 8: One commenter stated that the phrase ``a list of the 
items'' should be replaced with ``a list of currently held items.'' The 
commenter also suggested that ``the nature'' of unclaimed items be 
better explained.
    Our Response: The sentence introducing Sec.  10.7(b)(1) in this 
final rule (previously Sec.  10.7(a)(1)) states the unclaimed cultural 
items on the list are items that the Federal agency ``has.'' We believe 
that the use of the present tense in the introductory sentence makes 
clear that the reporting requirement refers to unclaimed cultural items 
currently held by the Federal agency. The required description of ``the 
nature of the unclaimed cultural items'' is the same as the current 
requirement in a notice under 43 CFR 10.6(c). The purpose of both 
documents is the same--to provide information adequate to allow lineal 
descendants, Indian tribes, or Native Hawaiian organizations to 
determine their interest in the cultural items under these regulations.
    Comment 9: One commenter stated that there is nothing in the 
statute that allows the National NAGPRA Program to create and maintain 
an inventory of cultural items that have been removed from Federal 
lands after 1990, unclaimed or otherwise. The commenter suggested that 
Federal agencies should convey periodic notices of the existence of 
unclaimed cultural items to potential claimants but not report those 
items to the National NAGPRA Program.
    Our Response: Section 3(b) of the Act (25 U.S.C. 3002(b)) directs 
the Secretary to promulgate regulations for the disposition of 
unclaimed cultural items in consultation with the Native American 
Graves Protection and Repatriation Review Committee and other 
interested parties. The Review Committee recommended that the National 
NAGPRA Program maintain a database of unclaimed cultural items. We have 
included the Review Committee's recommendation in this final rule. The 
list of unclaimed cultural items submitted to the National NAGPRA 
Program promotes transparency in the disposition of unclaimed cultural 
items by providing information adequate to allow lineal descendants, 
Indian tribes, or Native Hawaiian organizations to determine their 
interest in cultural items under these regulations.
    Comment 10: Seven commenters stated that the list of unclaimed 
cultural items should include additional information. Suggestions 
included the specific site of removal, the specific types of cultural 
items, the names of those consulted on the cultural items, and any 
potential claimants. One of these commenters added that the list of 
unclaimed cultural items should identify which items have potential 
claimants and which items have no identified potential claimants.
    Our Response: The proposed rule required that the list include a 
description of the place of discovery and the nature of the unclaimed 
cultural items, and these requirements are retained in this final rule 
at Sec.  10.7(b)(1). We agree that information on consultation efforts 
under 43 CFR 10.5 could be useful for purposes of disposition of 
cultural items. In response to these comments, this final rule requires 
that the list include a summary of consultation efforts under Sec.  
10.5. A summary of consultation efforts inherently will include the 
identification of potential claimants. We have qualified that the 
description of the place of discovery or excavation, and removal, 
should generally protect any sensitive information.
    Comment 11: Three commenters questioned the date of the reporting 
requirement for Federal agencies to submit a list of unclaimed cultural 
items to the National NAGPRA Program. One of these commenters added 
that it would be difficult for Federal agencies to track when reports 
were required, as cultural items might have varying reporting 
deadlines. Two of these commenters added that the requirement should be 
shortened and lists should be submitted within one year or 90 days 
after excavation or discovery and removal.
    Our Response: By adding to the definition of unclaimed cultural 
items the specific circumstances under which cultural items become 
unclaimed in this final rule, we adjusted the dates for submitting a 
list of unclaimed cultural items to the Manager of the National NAGPRA 
Program. For those cultural items that meet the definition of unclaimed 
cultural items on the effective date of the regulation, the list must 
be submitted within one year. We feel this provides Federal agencies 
with sufficient time to prepare this list. For items that meet the 
definition of unclaimed cultural items after the effective date of the 
regulation, the list must be submitted within one year after the 
cultural items meet the definition. This allows for Federal agencies to 
submit lists of unclaimed cultural items at regular intervals. To 
simplify the reporting requirements, a Federal agency could submit a 
list of all unclaimed cultural items that met the definition for 
unclaimed cultural items during the previous year and still be 
compliant with the regulation.

[[Page 68467]]

    For example, under the definition at Sec.  10.2 (h)(2)(ii), if a 
Federal agency:

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                                   and cannot
                               reasonably identify
                              any Indian tribes or   then a list of the
 obtains cultural items from     Native Hawaiian    unclaimed items must
   Federal lands on . . .       organizations or     be submitted by . .
                               lineal descendants             .
                                 as a potential
                                claimant by . . .
------------------------------------------------------------------------
January 19, 2016............  January 19, 2018....  January 19, 2019.
May 23, 2016................  May 23, 2018........  May 23, 2019.
October 16, 2016............  October 16, 2018....  October 16, 2019.
December 5, 2016............  December 5, 2018....  December 5, 2019.
------------------------------------------------------------------------

    In this example, a list submitted on January 18, 2019, of all 
unclaimed cultural items that met the definition during calendar year 
2018 would satisfy the requirements of this final rule.
    Alternately, under the definition at Sec.  10.2 (h)(2)(i), if a 
Federal agency:

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                                        and publishes a notice
                                      under Sec.   10.6(c) after  and no Indian tribe or
                                        determining the lineal        Native Hawaiian
obtains cultural items from Federal   descendant, Indian tribe,   organization submits a    then a list of the
           lands on . . .                 or Native Hawaiian        claim, or no lineal    unclaimed items must
                                      organization that appears   descendant responds to   be submitted by . . .
                                     to be entitled to ownership    the notice by . . .
                                         or control on . . .
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January 19, 2016...................  January 18, 2018...........  January 18, 2019......  January 18, 2020.
May 23, 2016.......................  May 22, 2018...............  May 22, 2019..........  May 22, 2020.
October 16, 2016...................  October 15, 2018...........  October 15, 2019......  October 15, 2020.
December 5, 2016...................  December 4, 2018...........  December 4, 2019......  December 4, 2020.
----------------------------------------------------------------------------------------------------------------

    In this example, a list submitted on January 17, 2020, of all 
unclaimed cultural items that met the definition during calendar year 
2019 would satisfy the requirements of this final rule.
    Comment 12: Five commenters stated that the National NAGPRA Program 
should be required to post the lists submitted by Federal agencies to 
its Web site.
    Our Response: The National NAGPRA Program publishes information on 
summaries, inventories, and notices on its Web site, and will publish 
similar information for these lists.

Final Rule Sec.  10.7(b)(2) Federal Agencies Must Care for Unclaimed 
Cultural Items Consistent With the Federal Curation Regulations at 36 
CFR Part 79

    Comment 13: Seven commenters requested an expansion of the language 
in the proposed rule, including adding language directly from 36 CFR 
part 79 in the text of Sec.  10.7. Some of these commenters noted that 
some cultural items under NAGPRA do not fit within the definitions 
established by 36 CFR part 79.
    Our Response: This final rule requires Federal agencies to care for 
and manage all unclaimed cultural items under NAGPRA in a manner 
consistent with but not pursuant to 36 CFR part 79. Even unclaimed 
cultural items that do not fit the definitions of 36 CFR part 79 must 
be provided with the same level of care and management as those items 
that are covered by 36 CFR part 79. There is no need to include the 
text at 36 CFR part 79 in this final rule.
    Comment 14: One commenter suggested that, in addition to 36 CFR 
part 79, unclaimed cultural items should be cared for in accordance 
with a Plan of Action if one was prepared under Sec.  10.5(e).
    Our Response: As long as there is no conflict with this final rule, 
a Plan of Action prepared under Sec.  10.5(e) related to the care and 
management of unclaimed cultural items that is consistent with 36 CFR 
part 79 and already in place may still be used.

Final Rule Sec.  10.7(b)(3) Federal Agencies Must Consider and Respect 
the Traditions of Identified Potential Claimants to the Maximum Extent 
Feasible

    Comment 15: Three commenters stated that there should be respect 
for cultural practices of potential claimants to unclaimed cultural 
items.
    Our Response: We agree, and in the final rule we clarified that the 
potential claimants referenced in this section are the potential 
claimants listed in a notice of intended disposition.
    Comment 16: Five commenters stated that the word ``feasible'' was 
vague and should be replaced with ``permitted under law.''
    Our Response: There are no applicable laws that require 
consideration or respect of potential claimants to unclaimed cultural 
items. The suggested wording is more restrictive and could result in 
less consideration for the traditions of potential claimants. We 
believe that the word ``feasible'' provides Federal agencies with 
appropriate discretion to respect the desires of potential claimants 
listed in a notice of intended disposition, and better aligns with the 
existing requirements at Sec.  10.5(e)(7).

Final Rule Sec.  10.7(c) Federal Agencies May Transfer Control of 
Unclaimed Cultural Items

    Comment 17: Five commenters approved of the process for 
transferring control of unclaimed cultural items to other Indian tribes 
or Native Hawaiian organizations. One of these commenters suggested 
concurrence with any disposition plan should be required from any non-
claiming Indian tribes. One of these commenters suggested that tribal 
laws or customs of the Indian tribe with the closest cultural 
relationship to the unclaimed cultural items should be followed. One of 
these commenters suggested the word ``another'' before Indian tribe or 
Native Hawaiian organization should not be used and ``an'' should be 
substituted.
    Our Response: The transferee of unclaimed cultural items will have 
the right to control the disposition of the cultural items, as no 
potential claimant will have made a claim. Consequently, we have 
specified in this final rule that the transfer of cultural items is 
conditioned on the transferee agreeing to accept transfer and treat the 
cultural items according to the transferee's own laws and customs. 
Also, in this final rule we have specified that the transferee in 
question is an Indian tribe or Native Hawaiian organization that is

[[Page 68468]]

not an Indian tribe or Native Hawaiian organization with a potential 
claim to the unclaimed cultural items.
    Comment 18: Three commenters stated that transfer should be allowed 
to Indian groups that are not federally recognized, and that Sec.  10.7 
should include the same authority to transfer as applied to culturally 
unidentifiable human remains in 43 CFR 10.11(c)(2)(ii)(A).
    Our Response: Because this was not proposed, including non-
federally recognized Indian groups among the potential transferees of 
cultural items is beyond the scope of this final rule. This comment 
will be considered during any proposed revision of these regulations in 
their entirety.

Final Rule Sec.  10.7(d) Federal Agencies May Reinter Unclaimed Human 
Remains or Funerary Objects

    Comment 19: One commenter stated that reinterment should be noted 
as satisfactory for the requirement to care and manage cultural items 
consistent with 36 CFR part 79.
    Our Response: Title 36 CFR part 79 does not address reinterment. 
Under this final rule, the requirement to care for and manage unclaimed 
cultural items consistent with 36 CFR part 79 does not impinge on, or 
otherwise affect, the discretion of a Federal agency to transfer or 
reinter cultural items for which it acts as caretaker or temporary 
custodian.
    Comment 20: Three commenters stated that the draft rule unfairly 
emphasized reinterment and precluded options for other disposition 
strategies, including cooperative curation agreements or future claims. 
One of these commenters also felt allowing reinterment violates tribal 
rights as established in the Act in section 11 (25 U.S.C. 3009).
    Our Response: This final rule provides a Federal agency with the 
discretion to transfer or reinter unclaimed cultural items. It does not 
require either of these actions. Also, this final rule is consistent 
with sections 3(e) and 11(1)(B) of the Act (25 U.S.C. 3002(e) and 
3009(1)(B), respectively). In order to take the actions under sections 
3(e) and 11(1)(B) of the Act, an Indian tribe or Native Hawaiian 
organization must first have control of the cultural items in question.
    Comment 21: Five commenters stated that the draft rule should put 
more emphasis on reinterment and require Federal agencies to justify 
not reinterring unclaimed cultural items. One of these commenters 
suggested that Federal agencies should use field documentation 
procedures and immediately rebury any human remains discovered on 
Federal land.
    Our Response: This final rule provides a Federal agency with the 
discretion to reinter unclaimed human remains or funerary objects 
according to applicable interment laws or policy. Requiring a Federal 
agency to immediately rebury human remains or funerary objects removed 
from Federal land contradicts section 3(a) of the Act (25 U.S.C. 
3002(a)).
    Comment 22: Two commenters stated that reinterment should require 
the concurrence of any potential claimants or consulting Indian tribes 
and Native Hawaiian organizations and any reinterment should be done in 
accordance with the tribal laws and customs of the potential claimants. 
One of these commenters felt any application of state law in 
reinterment should be restricted.
    Our Response: An Indian tribe or Native Hawaiian organization that 
has been identified as a potential claimant in a notice of intended 
disposition but has not made a claim does not control the right of 
disposition of human remains or funerary objects. The concurrence of 
such potential claimants or consulting Indian tribes and Native 
Hawaiian organizations with a proposed reburial of unclaimed human 
remains or funerary objects, and the conduct of the reburial in 
accordance with their laws and customs, are not legally required. 
Moreover, requiring a Federal agency to obtain the concurrence of the 
potential claimants very likely would be infeasible where there are 
multiple such Indian tribes or Native Hawaiian organizations, each 
having different laws and customs. However, this rule does not preclude 
a Federal agency from consulting with any potential claimant on the 
proposed reinterment of unclaimed human remains or funerary objects and 
on having the reburial conducted in accordance with their laws and 
customs. As for restricting the application of State law to the 
reinterment of unclaimed human remains or funerary objects, we have 
eliminated altogether the provision in the proposed rule allowing for 
the offer of human remains or funerary objects for disposition 
according to State or other law or policy.

Final Rule Sec.  10.7(e) Federal Agencies Must Follow Certain 
Requirements Prior to Transferring Control or Reinterring Under 
Paragraphs (c) and (d)

    Comment 23: Seven commenters stated that any notice related to the 
transfer or reinterment of unclaimed cultural items should be published 
in the Federal Register, either in addition to or in place of a notice 
in a newspaper. Three of these commenters suggested posting the notices 
to the National NAGPRA Program Web site in addition to other forms of 
notice.
    Our Response: We believe that requiring notices to be published in 
newspapers is consistent with other notice requirements currently 
required under the regulations at Sec.  10.6 implementing section 3 of 
the Act (25 U.S.C. 3002). This comment will be considered during any 
proposed revision of these regulations in their entirety. In light of 
technological changes since the promulgation of Sec.  10.6, we have 
provided a second form of notice of proposed transfer of cultural items 
or reinterment of unclaimed human remains or funerary objects through 
postings on the National NAGPRA Program's Web site.
    Comment 24: One commenter stated that the notice should include the 
previous determination of the Indian tribe or Native Hawaiian 
organization with priority of custody, if any (e.g., aboriginal land 
determination), and not only the ``affiliation, if any, of the 
unclaimed cultural items.''
    Our Response: In response to this comment, the final rule requires 
that the notice include a summary of consultation efforts under Sec.  
10.5. A summary of consultation efforts inherently will include the 
identification of any potential claimants.
    Comment 25: One commenter stated that a newspaper with general 
circulation ``in the area in which each potential claimant now 
resides'' is impractical. Disposition could possibly be to all Indian 
tribes or NHOs with standing under the Act.
    Our Response: In the case where potential claimants have been 
identified, the locations of the newspapers where a notice of proposed 
transfer or reinterment is published under this final rule are 
identical to the locations of the newspapers where a notice of intended 
disposition was published under Sec.  10.6(c). In the case of cultural 
items for which no potential claimant could be identified, the location 
where a notice of proposed transfer or reinterment is published is only 
the area in which the cultural items were excavated or discovered, and 
removed, as there are no potential claimants for these cultural items.
    Comment 26: One commenter stated that there was no process provided 
if an Indian tribe or Native Hawaiian organization asserts priority of 
ownership or control under section 3(a) of the Act and Sec.  10.6 . If 
the claim is determined to be valid, disposition

[[Page 68469]]

would occur under Sec.  10.6(c) and not under Sec.  10.7, as the 
cultural items would no longer be unclaimed.
    Our Response: If an Indian tribe or Native Hawaiian organization 
states a valid claim for cultural items appearing in a notice of 
proposed transfer or reinterment under Sec.  10.7, the cultural items 
are no longer unclaimed. As the Federal agency will no longer have the 
discretion to proceed with a transfer or reinterment under this final 
rule, the disposition of these cultural items will proceed under Sec.  
10.6(c). If the valid claim is from an Indian tribe or Native Hawaiian 
organization already listed in a notice of intended disposition, and if 
there are no competing claims, the Federal agency will transfer the 
right of control over the cultural items to the claimant. If the valid 
claim is from an Indian tribe or Native Hawaiian organization not 
already listed in a notice of intended disposition, the Federal agency 
will follow the notice provision under Sec.  10.6(c) prior to any 
transfer.

Final Rule Sec.  10.7(a) The Secretary Has the Authority To Promulgate 
the Rule on Unclaimed Cultural Items

    Comment 27: Two commenters suggested moving the statement on the 
purpose of this rule from the end of the rule to the beginning of the 
rule.
    Our Response: We agree. Proposed rule Sec.  10.7(e) has been 
renumbered Sec.  10.7(a) in this final rule.

Changes From the Proposed Rule

    Based on the preceding comments and responses, the drafters have 
made the following changes to the proposed rule language:
     Sec.  10.2(g)(5)(iv). This section specifies that 
disposition of unclaimed cultural items is established under Sec.  10.7 
of these regulations.
     Sec.  10.2(h)(2)(i). This section specifies that cultural 
items are unclaimed under the following circumstances: The Federal 
agency publishes a notice of intended disposition, and the agency has 
not received any claim from an Indian tribe or Native Hawaiian 
organization, or any response from a lineal descendant to the notice 
within one year of publishing the notice.
     Sec.  10.2(h)(2)(ii). This section specifies that cultural 
items are unclaimed under the following circumstances: The Federal 
agency knows, or has reason to know, that cultural items have been 
excavated or discovered on, and removed from Federal lands; for two 
years, the Federal agency has tried to reasonably identify any Indian 
tribe or Native Hawaiian organization, or a lineal descendant, as a 
potential claimant, and at the end of the two-year period, the Federal 
agency cannot reasonably identify an Indian tribe or Native Hawaiian 
organization, or a lineal descendant, as a potential claimant.
     Sec.  10.7(a) of the proposed rule has been renumbered 
Sec.  10.7(b) in this final rule.
     Sec.  10.7(a)(1) has been renumbered Sec.  10.7(b)(1) in 
this final rule. This section specifies that the list of unclaimed 
cultural items must include a summary of consultation efforts under 
Sec.  10.5, and adjusts the deadline for submitting a list of unclaimed 
cultural items. For those cultural items that meet the definition of 
unclaimed cultural items on the effective date of the regulation, a 
list of items must be submitted within one year. For items that meet 
the definition of unclaimed cultural items after the effective date of 
the regulation, a list of items must be submitted within one year of 
the cultural items becoming unclaimed.
     Sec.  10.7(a)(3) has been renumbered Sec.  10.7(b)(3) in 
this final rule. This section specifies that the potential claimants 
who are referenced are the potential claimants listed in a notice of 
intended disposition.
     Sec.  10.7(b) of the proposed rule has been renumbered 
Sec.  10.7(c) in this final rule. This section specifically identifies 
the Indian tribe or Native Hawaiian organization to which control may 
be transferred under this rule as an Indian tribe or Native Hawaiian 
organization that does not have a potential claim to the cultural 
items. Also, this section specifies that such transfer is conditioned 
on the transferee agreeing to accept transfer and treat the cultural 
items according to the transferee's own laws and customs.
     Sec.  10.7(c) of the proposed rule has been renumbered 
Sec.  10.7(d) in this final rule. This section specifies that, under 
this rule, any reinterment of unclaimed human remains or funerary 
objects by the Federal agency must be according to applicable interment 
laws. Also, the provision in the proposed rule regarding the offer of 
human remains or funerary objects for disposition according to State or 
other law has been eliminated.
     Sec.  10.7(d) of the proposed rule has been renumbered 
Sec.  10.7(e) in this final rule.
     Sec.  10.7(d)(3) has been renumbered Sec.  10.7(e)(3) in 
this final rule. This section specifies that the Manager of the 
National NAGPRA Program will post information received from the Federal 
agency under Sec.  10.7(e)(2) of this rule, on the National NAGPRA 
Program's Web site.
     Sec.  10.7(e) has been renumbered Sec.  10.7(a) in this 
final rule.

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

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives, E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This rule only pertains to the disposition of cultural items in the 
custody of a Federal agency for which potential claimants have chosen 
not to take ownership or control, or when no potential claimants have 
been identified. Thus, this rule does not constitute a significant 
economic burden.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local or tribal 
government agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or

[[Page 68470]]

the ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act (UMRA)

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

Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise 
have takings implications under Executive Order 12630. A takings 
implication assessment is not required. No taking of property will 
occur as a result of this rule.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism summary impact statement. A Federalism 
summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

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

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and tribal sovereignty. In accordance with the 
Presidential Memorandum entitled ``Government to Government Relations 
with Native American Tribal Governments'' (59 FR 22951, April 29, 
1994); Executive Order 13175, ``Consultation and Coordination with 
Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000); the 
President's Memorandum for the Heads of Executive Departments and 
Agencies on the Implementation of Executive Order 13175 (Nov. 5, 2009); 
and the Secretary of the Interior's Order No. 3317--Department of the 
Interior Policy on Consultation With Indian Tribes (Dec. 1, 2011); we 
have evaluated this rule and determined that it has a potential effect 
on federally recognized Indian tribes. The rule was developed in 
consultation with the Native American Graves Protection and 
Repatriation Review Committee, which includes members nominated by 
Indian tribes and traditional religious leaders. Formal consultation 
with the Review Committee was held on November 16-17, 2005, in 
Albuquerque, NM; on April 19-20, 2007, in Washington, DC; on October 
15-16, 2007, in Phoenix, AZ; on May 15-16, 2008, in De Pere, WI; on 
October 30-31, 2009, in Sarasota, FL; and on November 18-19, 2010, in 
Washington, DC. Also, the Review Committee had an opportunity to 
comment on the proposed rule following publication, which it did at a 
public meeting on November 6, 2013, in Mt. Pleasant, MI.
    Formal consultation with Indian tribes began on November 15, 2005, 
in Albuquerque, NM, and continued on April 18, 2007, in Washington, DC, 
and on October 14, 2007, in Phoenix, AZ. We have fully considered 
tribal and Review Committee comments in the final rule.

Paperwork Reduction Act

    The Office of Management and Budget has approved the information 
collection requirements in 43 CFR part 10 and assigned OMB Control 
Number 1024-0144. This rule does not contain any new information 
collections that require OMB approval under the Paperwork Reduction 
Act. An agency may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 is not required 
because the rule is covered by a categorical exclusion under 43 CFR 
46.210(i): ``Policies, directives, regulations, and guidelines: That 
are of an administrative, financial, legal, technical, or procedural 
nature; or whose environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will later be 
subject to the NEPA process, either collectively or case-by-case.'' We 
have also determined that the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under the National Environmental Policy Act.

Effects on the Energy Supply (Executive Order 13211)

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

Drafting Information

    The proposed rule and this final rule were prepared by staff of the 
National NAGPRA Program, National Park Service; Office of Regulations 
and Special Park Uses, National Park Service; and Office of the 
Solicitor, Division of Parks and Wildlife and Division of Indian 
Affairs, Department of the Interior.

List of Subjects in 43 CFR Part 10

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

    In consideration of the foregoing, the Department amends 43 CFR 
part 10 as follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

0
1. The authority citation for part 10 continues to read as follows:

    Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.


0
2. Amend Sec.  10.2 by adding paragraph (g)(5)(iv) and paragraph (h) to 
read as follows:


Sec.  10.2  Definitions.

* * * * *
    (g) * * *
    (5) * * *
    (iv) Disposition of unclaimed human remains, funerary objects, 
sacred objects, or objects of cultural patrimony is governed by Sec.  
10.7.
    (h) Unclaimed cultural items means Native American human remains, 
funerary objects, sacred objects, or objects of cultural patrimony:
    (1) That have been excavated or discovered on, and removed from, 
Federal lands after November 16, 1990, and
    (2) Whose disposition under 25 U.S.C. 3002(a) and Sec.  10.6 of 
this part has not occurred because either:
    (i) Within one year after publication of a notice under Sec.  
10.6(c) of this part,

[[Page 68471]]

no Indian tribe or Native Hawaiian organization has sent a written 
claim for the cultural items to the appropriate Federal agency, or no 
lineal descendant has responded to a notice for human remains and 
associated funerary objects; or
    (ii) Within two years after knowing or having reason to know that 
cultural items were excavated or discovered, and removed, the 
appropriate Federal agency could not reasonably identify any Indian 
tribe or Native Hawaiian organization or lineal descendant as a 
potential claimant.


0
3. Add Sec.  10.7 to read as follows:


Sec.  10.7  Disposition of unclaimed human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.

    (a) This section carries out section 3(b) of the Act (25 U.S.C. 
3002(b)) regarding unclaimed cultural items.
    (b) A Federal agency that has unclaimed cultural items (human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony) must:
    (1) Submit a list of the items to the Manager, National NAGPRA 
Program that describes the general place of discovery or excavation, 
and removal; the nature of the unclaimed cultural items; and a summary 
of consultation efforts under Sec.  10.5 of this part. This list must 
be received by December 5, 2016, or within 1 year after the cultural 
items have become unclaimed under Sec.  10.2(h), whichever is later;
    (2) Care for and manage unclaimed cultural items consistent with 
the regulations at 36 CFR part 79; and
    (3) To the maximum extent feasible, consider and respect the 
traditions of any potential claimants listed in a notice under Sec.  
10.6(c) concerning the unclaimed cultural items, including, but not 
limited to, traditions regarding housing, maintenance, and 
preservation.
    (c) Subject to paragraph (e) of this section, a Federal agency that 
has unclaimed cultural items may, upon request, transfer them to an 
Indian tribe or Native Hawaiian organization that is not a potential 
claimant and agrees:
    (1) To accept transfer; and
    (2) To treat them according to the laws and customs of the 
transferee.
    (d) Subject to paragraph (e) of this section, a Federal agency that 
has unclaimed human remains or funerary objects may reinter them 
according to applicable interment laws.
    (e) Before a Federal agency makes a transfer or reinterment under 
paragraphs (c) or (d) of this section, it must:
    (1) Submit the list required under paragraph (b)(1) of this section 
to the Manager, National NAGPRA Program; and
    (2) Publish a notice of the proposed transfer or reinterment in a 
newspaper of general circulation in the area in which the unclaimed 
cultural items were excavated or discovered, and removed, and, if 
applicable, in a newspaper of general circulation in the area in which 
each potential claimant now resides.
    (i) The notice must explain the nature of the unclaimed cultural 
items, summarize consultation efforts under Sec.  10.5, and solicit 
claims under the priority of ownership or control in section 3(a) of 
the Act (25 U.S.C. 3002(a)) and Sec.  10.6.
    (ii) The notice must be published at least two times at least a 
week apart.
    (iii) The transfer or reinterment may not take place until at least 
30 days after publication of the second notice to allow time for any 
claimants under the priority of ownership or control in section 3(a) of 
the Act and Sec.  10.6 to come forward.
    (3) Send to the Manager, National NAGPRA Program a copy of the 
notice published under paragraph (d)(2) of this section and information 
on when and in what newspaper(s) the notice was published. The National 
NAGPRA Program will post information from published notices on its Web 
site.

    Dated: October 21, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks .
[FR Doc. 2015-28041 Filed 11-4-15; 8:45 am]
 BILLING CODE 4310-EJ-P