[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Rules and Regulations]
[Pages 22447-22462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07471]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 79

Office of the Secretary of the Interior

43 CFR Part 3

[NPS-WASO-CR-33054; PPWOCRADI0, PCU00RP14R50000]
RIN 1024-AE58


Curation of Federally Owned or Administered Archeological 
Collections

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service amends regulations governing the 
curation of federally owned or administered archeological collections 
to establish definitions, standards, and procedures to dispose of 
material remains that have insufficient archeological interest. This 
rule promotes more efficient and effective curation of archeological 
collections.

DATES: This rule is effective May 16, 2022.

[[Page 22448]]


FOR FURTHER INFORMATION CONTACT: Karen Mudar, Archeology Program, 
National Park Service, 1849 C Street NW, Washington, DC 20005, 202-354-
2103, email: [email protected]. Individuals in the United States who 
are deaf, deafblind, hard of hearing, or have a speech disability may 
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

Authority To Promulgate Regulations

    The Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470aa-
mm) authorizes the Secretary of the Interior (the Secretary) to 
promulgate regulations for the disposition of archeological and other 
resources recovered under the authority of ARPA, the Reservoir Salvage 
Act (RSA; 54 U.S.C. 312501-312508), and the Antiquities Act (54 U.S.C. 
320301-320303). 36 CFR part 79's disposition process for resources 
recovered under ARPA, RSA, and the Antiquities Act is authorized 
thereunder. In addition, the National Historic Preservation Act (NHPA; 
54 U.S.C. 302107 and 306131) authorizes the Secretary to promulgate 
regulations for the proper curation of archeological collections 
created under ARPA, RSA, and NHPA. 36 CFR part 79's curation 
requirements for resources recovered under ARPA, RSA, and NHPA are 
authorized thereunder. The Department of the Interior's Departmental 
Manual entitled ``Protection of the Cultural Environment'' (519 DM 
2.3D) requires the Departmental Consulting Archeologist (DCA), located 
within the National Park Service (NPS), to develop regulations 
concerning the preservation of prehistoric and historic material 
remains of archeological interest under ARPA.

Regulatory History

    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 discuss processes for 
Federal agencies to dispose of particular material remains from 
archeological collections. It is important for Federal agencies to 
establish appropriate methods of disposal because prehistoric or 
historic material remains improperly disposed of could later be 
rediscovered and misinterpreted by archeologists or others as evidence 
of activity in the distant past. A proposed rule to establish 
procedures for discarding particular material remains from Federal 
collections was published in the Federal Register in 1990 (55 FR 37670, 
September 12, 1990). A final rule was never published. Instead, the DCA 
focused on the proper curation of federally owned or administered 
collections and left the subject of disposal of material remains for a 
future rulemaking.
    In recent years, renewed interest from Federal agencies to address 
the issue of deaccessioning certain material remains has led to the 
promulgation of this rule. Specifically, Federal agencies such as the 
Department of Defense asked the DCA to help them find solutions to the 
growing costs of managing archeological collections. The NPS published 
a proposed rule in the Federal Register on November 18, 2014 (79 FR 
68640).

Final Rule

    This rule establishes procedures for the disposal of particular 
material remains of insufficient archeological interest that are held 
in federally owned or administered archeological collections. The 
procedures are not intended to apply to entire collections. Material 
remains refers to artifacts, objects, specimens, and other physical 
evidence, including human remains, of a historic or prehistoric 
resource. Federal agencies are responsible for ensuring that 
disposition of material remains is conducted in accordance with this 
rule and 36 CFR 79.7 ``Methods to fund curatorial services.'' This rule 
does not affect any material remains defined as ``cultural items'' by 
the Native American Graves Protection and Repatriation Act (NAGPRA; 25 
U.S.C. 3001 et seq.) and subject to that statute. NAGPRA cultural items 
include Native American human remains, funerary objects, sacred 
objects, or objects of cultural patrimony.
    In addition to providing a mechanism for appropriate and carefully 
considered disposition, this rule will improve the curation of 
federally owned or administered archeological collections, such as by 
promoting more effective space and cost management. This rule addresses 
many of the comments submitted in 1990 by incorporating independent 
advice and opinions supplied by numerous experts that were consulted 
between 2005 and 2013. The NPS stresses that the disposition process 
laid out in this rule must be employed as part of a comprehensive 
collection management program that emphasizes collection stewardship 
and responsible accessioning practices. The best deaccession policy is 
a good accession policy. This rule provides measures to allow for 
deaccessioning only as a last resort. The NPS recommends that, in 
addition to proposing deaccession, agencies implement carefully 
designed field collection policies and create and implement clear and 
thoughtful scope of collections statements. Consistent with the 
Secretary's authority to promulgate regulations for ultimate 
disposition of certain material remains, this rule uses the term 
disposition throughout. The NPS acknowledges the museum practice of 
deaccessioning will be an integral and parallel part of the disposition 
process described in this rule.
    In addition to adding a new Subpart E--Disposition of Particular 
Material Remains (Sections 79.12-79.18), this rule organizes existing 
sections 79.1-79.11 into Subparts A (Administrative Provisions), B 
(Archeological Collections Management), C (Public Access to and Use of 
Collections), and D (Inspections and Inventories of Collections). This 
rule also revises sections 79.1-79.4 to update legal citations, removes 
paragraph designations for defined terms in section 79.4 as recommended 
by the Office of the Federal Register's Document Drafting Handbook, and 
adds two defined terms that are used in Subpart E. A section-by-section 
analysis of the rule can be found in the Background section of the 
proposed rule.

Summary of Public Comments

    The NPS published a proposed rule in the Federal Register on 
November 18, 2014 (79 FR 68640). The NPS accepted comments on the 
proposed rule through the mail, hand delivery, and through the Federal 
eRulemaking Portal at http://www.regulations.gov. Comments were 
accepted through February 17, 2015. The NPS received comments from 
individuals, federally recognized tribes, state and local government 
agencies, public institutions, and professional organizations. 
Summaries of the issues raised in the comments and responses from the 
NPS are provided below.

Disposition Process

    1. Comment: Several commenters addressed the notification and 
consultation requirements in the

[[Page 22449]]

proposed rule. Commenters requested more time be given to interested 
parties to comment on a proposed disposition, and that additional 
direct notice be given to interested parties during the disposition 
process. Commenters asked that the Federal Agency Official (FAO) take 
additional steps to engage with public stakeholders during the 
disposition process.
    NPS Response: The NPS made several changes in the final rule to 
ensure there is sufficient notice provided to interested parties during 
the disposition process. The NPS added a requirement that the FAO 
provide at least 60 days for notified entities to comment on a proposed 
disposition. The NPS increased the time allowed for objecting to a 
final determination of disposition from 30 to 60 days. The NPS added to 
the list of parties who must receive notice of proposed dispositions by 
including state archeologists, certain private landowners, broader 
categories of Indian tribes with cultural relationships to material 
remains in the collections, and organizations and institutions for 
which the agency has an existing relationship for research, excavation, 
curation, education, or other partnership in the state and region from 
which the material remains to be disposed were recovered. The NPS 
believes these notice requirements will sufficiently involve the 
relevant stakeholders in the disposition process prior to any 
determination of disposition published in the Federal Register.
    2. Comment: Two commenters recommended that the rule limit the 
amount of time given to the FAO to choose a method of disposition.
    NPS Response: The NPS declines to adopt this recommendation because 
it is important to preserve flexibility in this part of the disposition 
process, so that the most appropriate method is chosen. Time limits are 
required in other phases of the process such as during the periods for 
commenting on and objecting to determinations of disposition. A time 
limit at this stage would not further the purpose of the rule because 
agencies could be motivated to forego considered deliberation in order 
to select a method of disposition merely to meet a time limit.
    3. Comment: One commenter argued that judgements other than those 
of the Indian Claims Court, as well as other types of documentation, 
should be allowed to determine aboriginal occupancy of land for 
purposes of whether an Indian tribe may receive deaccessioned materials 
excavated from lands other than Indian lands. Another commenter argued 
that culturally affiliated tribes that request deaccessioned material 
remains should be allowed to receive them.
    NPS Response: The NPS has added two methods of disposition in 
paragraph 79.13(b) to accommodate these requests. Aboriginal occupation 
of lands where material remains were removed can now be documented by 
any type of evidence. The final rule allows material remains to be 
conveyed to federally recognized Indian tribes for the purposes of 
traditional, cultural, educational, or religious practices.
    4. Comment: One commenter asked whether deaccessioned materials 
could be reused for educational or interpretive purposes (i.e., 
adaptive reuse).
    NPS Response: Deaccessioned materials may be used for educational 
or interpretive purposes. The methods of disposition in section 79.13 
allow for such reuse. The rule is therefore sufficiently flexible to 
allow adaptive reuse after material remains have been deaccessioned.
    5. Comment: One commenter argued that all methods of disposition 
are unacceptable because disposition is not a preservation activity.
    NPS Response: ARPA section 5 (16 U.S.C. 470dd) specifically 
authorizes the Secretary of the Interior to promulgate regulations 
providing for the ultimate disposition of archeological resources. A 
requirement for specific disposition methods to constitute a 
preservation activity has no basis in the statutory authority.
    6. Comment: Two commenters requested that the NPS list the methods 
of disposition in priority order for material remains excavated from 
public lands. One commenter requested that the rule provide a clear 
step-by-step process.
    NPS Response: The NPS declines to impose a priority order on the 
methods of disposition because this would unduly restrict the 
discretion given to FAOs to dispose of deaccessioned material remains 
in the manner most appropriate to the situation. With the goal of 
making the disposition process as clear as possible, the NPS has 
provided a step-by-step process for an FAO to follow.

Federal Agency Official (FAO)

    7. Comment: One commenter asked the NPS to identify the level of 
government where the FAO is located.
    NPS Response: The FAO is defined in section 79.4 to mean ``any 
officer, employee or agent officially representing the secretary of the 
department or the head of any other agency or instrumentality of the 
United States having primary management authority over a collection 
that is subject to this part.'' In practice, the FAO is typically 
situated at the departmental, national, headquarters, or equivalent 
level of the agency, unless the agency has a different policy.

Collections Advisory Committee

    8. Comment: Several commenters asked that individuals from outside 
of the Federal government be invited to participate on the collections 
advisory committee. One commenter proposed that any disposition should 
be contingent on a consensus recommendation from the collections 
advisory committee. Another commenter suggested that the DCA should not 
be eligible to serve on a collections advisory committee. Several 
commenters recommended that qualified experts be given more influence 
on the committee, while one commenter argued that the collections 
advisory committee should be made up of individuals who are 
professionally disinterested or distanced from the material remains 
being considered for disposition.
    NPS Response: The NPS has revised the rule to clarify the 
qualifications necessary to serve on a collections advisory committee. 
The NPS added a requirement that the committee make consensus 
recommendations to the FAO about proposed dispositions. The NPS also 
added a provision stating that the DCA may not participate on the 
committee, because the DCA may be called upon to make recommendations 
in the case of a dispute. With the exception of certain Tribal 
officials specified in paragraph 79.15(e)(3), the NPS declines to 
delegate the responsibilities of Federal agencies for federally owned 
or administered property to non-Federal employees through an expansion 
of the composition of the committee. In order to increase the 
transparency of the committee, the final rule requires the collections 
advisory committee to prepare a written report for the FAO that 
contains, at a minimum, the following:
     The information required for the Federal Register notice 
of determination of disposition identified in paragraphs (i)(1)(i) 
through (iii) of section 79.15;
     The membership of the committee and their role and 
expertise pertinent to the deliberations;
     The committee's recommendations, including any conditions 
of transfer or conveyance; and
     An explanation of why the committee determined other 
methods of disposition were of lesser public benefit.

[[Page 22450]]

    9. Comment: Several commenters asked the NPS to include specific 
procedures in the rule that collections advisory committee members must 
follow in order to make recommendations to the FAO about proposed 
dispositions, rather than allowing the committee to determine their own 
rules. One commenter recommended that the committee have clearly 
written procedures, including timelines and opportunities for public 
consultation and input. Another argued that the rule should identify 
the specific tasks and procedures of the collections advisory 
committee. One commenter proposed that the regulations establish a 
single committee to review every proposed disposition.
    NPS Response: The rule supports the need for flexibility in the 
disposition process, including in the formation and operation of 
collection advisory committees. The NPS believes these committees must 
address the unique circumstances of each proposed disposition, as well 
as reflect the unique needs, capacities, and operating environments of 
the responsible Federal agencies, which a single central committee 
could not do. However, the rule also establishes some basic 
requirements about the composition and operation of the committees to 
enable appropriate recommendations. In order to strike a balance 
between fostering flexibility and imposing standard requirements, the 
rule establishes qualifications for committee membership and requires 
written procedures to be approved by the FAO. The NPS believes this is 
sufficient to ensure all recommendations are fair, open, timely, and in 
the best interest of the public. Mandating specific rules of procedure 
for each committee would be unduly rigid and make the work of the 
committees more difficult because they would be forced to apply strict 
rules to the unique situations and capacities of each committee. 
Although the regulations require that the composition of the committees 
be tailored to the characteristics of each disposition, nothing in the 
regulations prevents the same committee from reviewing more than one 
disposition of a similar nature. Under these circumstances, the Federal 
agency would not need to form a new committee for each proposed 
disposition provided the members of the committee meet the requirements 
in the regulations with respect to the particular collection under 
review.

Insufficient Archeological Interest

    10. Comment: One commenter argued that a determination of 
insufficient archeological interest should be made on the basis of 
independent peer review that includes experts outside of the Federal 
government.
    NPS Response: The NPS added a requirement in the final rule that 
the FAO must consult with qualified museum professionals at non-Federal 
repositories about the appropriateness of a proposed disposal. The NPS 
acknowledges that the perspective of qualified museum professionals 
responsible for the care and curation of the subject materials is 
necessary for the FAO to make an informed determination. FAOs must use 
appropriate judgment and base determinations of disposition on 
appropriate supporting information. Because the rule regulates 
federally owned or administered collections, however, it remains 
appropriate that Federal agency staff and officials, with verifiable 
knowledge of the materials, make decisions regarding the disposition of 
material remains in those collections.
    11. Comment: One commenter argued that a lack of original records 
should not be sufficient to presume a determination of insufficient 
archeological interest if provenience can be reconstructed through 
other means.
    NPS Response: The loss or destruction of associated records is one 
factor in determining whether there is a lack of provenience 
information. Under section 79.12, a qualified archeological or museum 
professional must determine that a disposition will not negatively 
impact the overall value of the collection in order to make a finding 
of insufficient archeological interest. In doing so, the professional 
must make a concerted effort to research all records, including museum 
records, associated with a collection. In addition, the FAO must 
determine that disposition of the material remains will not negatively 
impact the overall integrity of the original collection.
    12. Comment: One commenter stated that it is unclear who makes the 
determination of insufficient archeological interest and what that 
individual's qualifications should be.
    NPS Response: At least one qualified archeological or museum 
professional with verifiable knowledge of and experience in the type of 
material remains being evaluated makes a determination of insufficient 
archeological interest. The FAO determines whether the professional is 
qualified, using the Professional Qualification Standards set by the 
Secretary of the Interior as a benchmark, and considering the 
professional's verifiable knowledge of the material remains. The FAO 
then determines, under section 79.15, whether the material remains are 
eligible for disposition under this subpart.
    13. Comment: Two commenters requested that the rule define the 
following terms related to insufficient archeological interest: 
Material remains, physical integrity, irreparable damage, overly 
abundant, and representative sample.
    NPS Response: Existing regulations define material remains as 
``artifacts, objects, specimens and other physical evidence that are 
excavated or removed in connection with efforts to locate, evaluate, 
document, study, preserve or recover a prehistoric or historic 
resource.'' This definition goes on to provide illustrative examples of 
different classes of material remains. The NPS declines to define the 
other terms requested by the commenters. These terms are commonly used 
by the archeological community and must be applied in context using the 
professional judgement of qualified personnel. For example, the amount 
sampled and sampling method for a representative sample must be 
determined on a case-by-case basis, using the professional discretion 
of subject matter experts and best available information. The rule 
requires subject matter experts to have verifiable knowledge of the 
material remains to be examined.
    14. Comment: One commenter questioned whether material remains 
could possess increasing archeological interest over time.
    NPS Response: For material remains that are overly redundant and 
not useful for research, the rule requires that a sampling strategy be 
developed and implemented in order that the retained samples may be 
subjected to new or improved analytical technologies in the future that 
could demonstrate those materials remains have greater archeological 
interest than previously known. The NPS has revised the rule to clarify 
that samples of material remains determined to be overly redundant and 
not useful for research must be representative of the population as a 
whole from which the sample was taken. This will help ensure the 
integrity and potential future worth of samples that are retained.
    15. Comment: One commenter suggested that the criterion ``overly 
redundant and not useful for research'' be split into two separate 
criteria, each of which could support a determination of insufficient 
archeological interest.
    NPS Response: The NPS declines to split this criterion into 
separate criteria because both elements of this criterion are necessary 
to establish insufficient

[[Page 22451]]

archeological interest. Fulfilling only one of these two elements 
(overly redundant or not useful for research) could not result in a 
determination of insufficient archeological interest. A redundant set 
of material remains that is still useful for research could have 
sufficient archeological interest. For instance, two sets of similar 
material remains derived from different archeological contexts are 
likely, by virtue of their spatial disparity, to provide some 
information about the past, even though those material remains may seem 
similar or identical in a museum setting. Alternatively, material 
remains not useful for research but not overly redundant could still 
have archeological interest because: (1) Their uniqueness may render 
them inherently informative about the past and (2) they may become 
useful for research in the future as new technologies are developed. 
Thus, to meet this test, material remains must be both overly redundant 
and not useful for research.
    16. Comment: One commenter suggested that the NPS establish a 
hierarchy of levels of archeological interest and provide a range of 
disposition options for each level.
    NPS Response: The rule only addresses the ultimate disposition of 
certain materials that have insufficient archeological interest. 
Identifying different degrees or levels of insufficient archeological 
interest and assigning different disposal options for each level would 
unnecessarily complicate the process.

Costs

    17. Comment: Several commenters addressed the costs for Federal 
agencies and recipient entities of complying with the disposition 
process under the rule. Several commenters were concerned that the rule 
would place financial strain on repositories for retaining materials 
during the disposition process without addressing a general shortfall 
of personnel and funding. One commenter expressed concern that several 
methods of disposition (e.g., conveyance to suitable repositories or 
institutions) would impose unfair financial burdens on recipients of 
deaccessioned material remains.
    NPS Response: The rule will impose little or no direct cost upon 
the public. Section 79.7 makes Federal agencies responsible for funding 
the curation of material remains. This includes costs associated with 
deaccessioning material remains in federally owned or administered 
collections, including costs borne by repositories that retain 
materials during the disposition process. Federal agencies must 
accession and catalog material remains before deaccessioning, and must 
follow relevant law and agency policy in ensuring that funding 
decisions address all aspects of collection stewardship, not just 
deaccessioning. The rule provides a series of options for disposition 
and does not require any group or individual to accept material remains 
that are eligible for disposal. The rule does not impose unfair 
financial burdens on recipients of deaccessioned material remains 
because those recipients are under no obligation to accept the material 
remains. A recipient must independently choose to accept deaccessioned 
material, thus it will have an opportunity in advance to consider the 
financial impact of its participation in the disposition process. The 
NPS believes the disposition process in the rule is financially 
achievable for Federal agencies.
    18. Comment: Two commenters inquired about the costs of 
deaccessioning material remains of insufficient archeological interest. 
They were concerned that resources, which could be used to catalog and 
curate collections, might be diverted to deaccessioning instead.
    NPS Response: To limit the possibility that Federal agencies 
allocate resources to deaccessioning rather than to curating 
collections, the rule provides controls, under section 79.12, on the 
disposition process, intended to limit its use only to appropriate 
circumstances. Deaccessioning is one part of a comprehensive curation 
methodology. In order to be eligible for disposition, material remains 
must be part of a Federal collection, and thus have undergone 
appropriate intake and accessioning procedures, which must be 
documented in accordance with agency protocols. Agency staff 
responsible for determining whether particular material remains lack 
archeological interest must consider the relationship of the material 
remains to the collection as a whole. Any effort to determine the 
archeological interest of material remains must include a review of the 
overall collection, along with associated documentation, from which 
those material remains are derived. For these reasons, the NPS does not 
believe that the disposition process will divert funds from curation 
because deaccessioning is part of a responsible curation program.
    19. Comment: One commenter suggested that the disposition process 
will impose new costs for excavation because allowing for disposition 
will force archeologists to perform a more thorough analysis of 
material remains prior to curating them in a repository.
    NPS Response: The NPS does not consider this scenario as likely to 
occur. However, a more thorough analysis of collections during an 
initial excavation project could be a desirable outcome because it 
means that the documentation concerning material remains will provide a 
better understanding of the archeological interest and improve the 
value of the resulting curated collections to the public. Any increase 
in the initial cost of analysis would be voluntary.

Compliance

    20. Comment: Several commenters discussed ways that implementation 
of the rule will support and interplay with compliance regimes for laws 
such as the NHPA and the National Environmental Policy Act (NEPA).
    NPS Response: Under section 106 of the NHPA, Federal agencies must 
consider the effect of an undertaking on any historic property that is 
included in or eligible for inclusion in the National Register. Museum 
collections, including archeology collections, are not generally 
considered historic properties (see National Register Bulletin 15). 
Further, material remains determined to be of insufficient 
archeological interest are not likely to be included in or eligible for 
inclusion in the National Register because, characteristically, they 
would not be worthy of preservation. NEPA requires Federal agencies to 
fully consider the impacts of proposals that would affect the human 
environment prior to deciding to take an action. The disposal of 
material remains under this rule will generally not constitute a 
Federal action under NEPA that would have a significant effect on the 
human environment. Nevertheless, FAOs must consider the context related 
to each proposed disposal of material remains and comply with all 
applicable laws, including the NHPA and NEPA, before making a final 
determination. The FAO must consider the opinions, as appropriate, of 
the collections advisory committee, Indian Tribes, and other available 
experts in making disposition decisions to ensure compliance with 
Federal law. In cases where collections are held under a compliance 
agreement, such as a Memorandum of Agreement under section 106 of NHPA, 
the FAO must consider the context and the terms of the agreement to 
determine whether disposal is appropriate.

Administrative Record

    21. Comment: Several commenters focused on the creation and 
preservation of the administrative record of the disposition process. 
One commenter asked that the

[[Page 22452]]

administrative record be provided to tribes and SHPOs, particularly 
when they possess additional data about the site or collection. Other 
commenters asked the NPS to clarify the requirement in paragraph 
79.15(i)(2)(i) to prepare a detailed list of material remains to be 
deaccessioned and better define when photographic documentation would 
be considered appropriate.
    NPS Response: Section 79.18 requires Federal agencies to include in 
their administrative record specific documentation of the determination 
of disposition. Consistent with these requirements, Federal agencies 
should follow their own procedures for preparing, preserving, and 
distributing administrative records. The FAO should follow existing 
practices that comply with applicable state and Federal standards for 
recording material remains in archeological collections when preparing 
the detailed list of material remains required by paragraph 
79.15(i)(2)(i). This paragraph specifies that the list must include a 
description of each object, or lot of objects if there are multiples of 
a particular type, and photograph(s) of the objects when appropriate. 
The FAO should also consider standard practices to determine when 
photographic documentation is appropriate.

Authority and Applicability of Regulations

    22. Comment: Two commenters questioned whether the authorities 
cited in section 79.2 authorize the NPS to allow the disposition of 
material remains. Two commenters questioned the applicability of the 
rule to material remains excavated under the Antiquities Act and the 
interplay with prior regulations.
    NPS Response: Section 5 of ARPA (16 U.S.C. 470dd) gives the 
Secretary the explicit and sole authority to promulgate regulations 
providing for ``the ultimate disposition'' of ARPA archeological 
resources and other resources removed pursuant to the Antiquities Act 
and the RSA. These authorities are cited in paragraph 79.2(b)(2) which, 
except for updated citations, is not changed by this rule. The explicit 
statutory authority to promulgate this rule supersedes any preceding 
regulatory requirements regarding similar subject matter, in 
particular, 43 CFR 3.17. This more recent statutory authority thus 
makes it appropriate to include those resources excavated under the 
Antiquities Act and eligible for disposal via the process described in 
the new Subpart E as subject to this rule. For clarity, this rule adds 
a note to 43 CFR 3.17 stating that resources excavated under the 
Antiquities Act are eligible for disposal via Subpart E of 36 CFR 79.
    23. Comment: Several commenters requested clarification about the 
term ``practical management authority'' and the meaning of ``indirect'' 
practical management authority.
    NPS Response: Part 79 applies to federally owned or administered 
collections. Section 79.3(a) uses the term ``practical management 
authority'' to further explain the circumstances under which 
collections that are owned by the United States are subject to Part 79. 
Federal agencies have ownership of collections due to specific laws, 
activities on Federal lands, or other circumstances, and these 
collections are managed in a variety of ways. In order for those 
collections to be subject to Part 79, a Federal agency that owns a 
collection also must have ``practical management authority'' over that 
collection, either directly or indirectly. Otherwise, Federal agencies 
would be responsible for curating collections that they do not control. 
Direct practical management authority generally includes situations 
where a Federal agency is directly administering collections at Federal 
facilities. Indirect practical management authority includes situations 
in which a Federal agency has legal responsibility and control over 
collections but a non-Federal entity has responsibility for curating 
the collection. This is usually documented through the terms of an 
agreement, contract, permit, or authorized expenditures.
    24. Comment: One commenter stated that the rule should only apply 
to federally owned collections and that there should be no question 
about who has legal title over material remains that are proposed for 
disposal.
    NPS Response: The FAO should be able to discern the ownership of 
material remains when determining if those remains are eligible for 
disposal under paragraph 79.12(a) and when reviewing the provenience 
information to determine if those remains have insufficient 
archeological interest under paragraph 79.12(e)(2)(i). Directions from 
ascertainable owners or questions regarding ownership must inform the 
FAO's proposed disposition determination. Clear legal ownership by the 
United States is not a prerequisite for disposal of material remains 
under Part 79; the rule also applies to material remains that are not 
owned by the United States but that are managed or controlled by a 
Federal agency pursuant to the Antiquities Act, NHPA, RSA and ARPA. 
Other provisions of the rule explicitly ensure that certain owners of 
federally administered collections, such as Indian individuals or 
tribes under 79.13(a), have an opportunity to receive them or to object 
to a proposed disposition. This aspect of the rule is intended to 
ensure that the government cares for archeological collections in its 
possession in accordance with applicable laws.
    25. Comment: Based on established practices that allow for the re-
interment of human remains not subject to NAGPRA, several commenters 
suggested that this rule should apply to human remains not subject to 
NAGPRA and identify reburial as a method of disposition. One commenter 
suggested that the rule establish a disposition process for human 
remains that are not subject to NAGPRA.
    NPS Response: During consultation for the proposed rule, Federal 
agencies, Tribes, and professional organizations suggested that 
excluding all human remains from the disposition process for materials 
of insufficient archeological interest described in this subpart would 
simplify the rule and avoid confusion with NAGPRA and its implementing 
regulations. As a result, the proposed rule excluded all human remains 
from disposition and, in doing so, did not distinguish between human 
remains subject to NAGPRA and other human remains. The final rule 
clarifies in paragraph 7.12(b)(1) that Native American cultural items 
under NAGPRA, which can include human remains, are not eligible for 
disposition under this rule. Native American human remains are subject 
to disposition or repatriation under NAGPRA. In paragraph 7.12(b)(2), 
the final rule also states that other human remains not subject to 
NAGPRA are ineligible for disposition under Subpart E. The NPS does not 
intend for this subpart to affect established practices that otherwise 
allow for the disposition and re-interment of human remains not subject 
to NAGPRA. The final rule clarifies that human remains not subject to 
NAGPRA are excluded only from the process described in Subpart E. The 
NPS is reserving section 79.14 to address this issue in the future if 
necessary.

Disputes

    26. Comment: Several commenters addressed the procedures for 
objecting to determinations of disposition. One commenter asked that 
the public have 90 days to dispute a determination of disposition, and 
that the requirement for submission of documentation be removed. 
Another commenter recommended that those objecting to a disposition 
should be responsible for finding a new repository. One

[[Page 22453]]

commenter suggested that the DCA should make binding decisions for all 
objections instead of non-binding recommendations to the FAO. Another 
commenter requested that the rule require the DCA to thoroughly explain 
their recommendation to the FAO. Two commenters asked that the rule 
include a dispute resolution process in section 79.16 to help resolve 
disagreements over which tribes should receive material remains that 
have been determined to be eligible for disposal. One commenter 
specifically recommended adopting the dispute resolution language from 
NAGPRA.
    NPS Response: The NPS made several changes in section 79.16 of the 
final rule to provide a more effective and inclusive process for 
objecting to a determination of disposition. The NPS lengthened the 
timeframe to object to a determination of disposition from 30 to 60 
days. The NPS believes this will provide sufficient time for interested 
parties to file an objection, in part because the list of those 
notified and consulted with prior to the determination of disposition 
is comprehensive. It is important that the objecting party document the 
reasons for the objection so that the DCA and the FAO are able to 
evaluate the merits of the objection. While objecting parties may 
suggest a different repository, they are not required to as a condition 
to filing an objection. The NPS also shortened the timeframe for the 
FAO to respond to the DCA's non-binding recommendation from 60 to 30 
days and added a requirement that the DCA forward a copy of the 
objection to the FAO within 5 days of receipt of the objection. The 
final rule also requires the DCA to consult with the objecting party 
and the FAO with the aim of resolving the objection. This will ensure 
that the DCA plays a significant role in the resolution of disputes 
over determinations of disposition. The final rule requires that the 
DCA explain their recommendation to the FAO.
    The NPS declines to make the DCA's decision binding because the 
DCA's role to other government agencies is advisory in nature. The DCA 
has no authority to broker binding arbitration with other Federal 
agencies, nor does the DCA have the authority to make decisions on 
their behalf. Similarly, the NPS declines to outline a dispute 
resolution process specifically for tribes because such a process would 
be duplicative of the appeal process in section 79.16. In addition, the 
NPS notes that the dispute resolution process in NAGPRA is specifically 
authorized in 25 U.S.C. 3006(c); no such authorization exists in ARPA 
or the other applicable authorities for this rule.

Rulemaking Process

    27. Comment: Several commenters stated that the rulemaking process 
was inadequate because of insufficient opportunities for public 
comment. One commenter asked for an extension of the public comment 
period.
    NPS Response: The NPS consulted widely with Tribes and interest 
groups before publishing the proposed rule. The proposed rule was open 
for public comment for 90 days, from November 18, 2014, through 
February 17, 2015. This is 30 days longer that the standard comment 
period of 60 days that is identified in Department of the Interior 
Policy (318 Departmental Manual, section 5.3). The NPS received a 
substantial number of comments and has worked to address or respond to 
all issues raised by those comments in this final rule.

Impacts to Federal Collections

    28. Comment: Two commenters stated that many collections were made 
with the understanding that they would be held in perpetuity by the 
government for future study, and that perpetual curation might be 
required by agreements entered into for purposes of complying with 
section 106 of the NHPA.
    NPS Response: Legal instruments for the curation of materials, 
including those created under the section 106 consultation process, 
such as memoranda of agreement or programmatic agreements, may contain 
provisions requiring curation of materials beyond what otherwise would 
be required by this rule. When considering the potential disposal of 
materials covered by any such agreement, the FAO must review the terms 
of the agreement to determine whether the agreement and section 79.12 
can be reconciled to allow disposal. Legally binding requirements for 
the perpetual curation of materials that appear in an agreement or 
other written instrument will not be affected by the disposition 
process established in this rule.
    29. Comment: One commenter argued that deaccessioning would greatly 
reduce the volume of material remains available for study, which would 
lead to increased excavation.
    NPS Response: The disposition process established in this rule 
applies narrowly to material remains of insufficient archeological 
interest. The rule does not compel the wholesale divestment by the 
government of its collections, but instead allows for small reductions 
in the size of some collections under specific circumstances. Samples 
of material remains to be deaccessioned under this rule must be 
retained when those materials are deemed overly redundant and not 
useful for research. The cautious approach to disposition required by 
this rule makes it unlikely that the rule will result in a steep 
reduction in the amount of materials available for study in Federal 
collections, and a consequential need for additional excavations.

NAGPRA Consultation

    30. Comment: Two commenters sought stronger requirements to consult 
with Tribes regarding the determination that material remains are not 
subject to NAGPRA. One commenter asked the NPS to clarify the FAO's 
responsibilities to consider NAGPRA compliance.
    NPS Response: Federal agencies have separate procedural 
requirements under NAGPRA to ensure that NAGPRA cultural items in their 
collections are included in inventories and summaries. Extensive 
consultation is required during the inventory and summary process under 
43 CFR 10.8 and 10.9. In general, Federal agencies were required to 
complete their NAGPRA summaries by November 16, 1993, and their NAGPRA 
inventories by November 16, 1995, so, in most cases, Federal agencies 
will have already determined which items in their collections are 
NAGPRA cultural items. Section 79.12 provides an additional measure to 
ensure NAGPRA cultural items are handled pursuant to NAGPRA and not 
subject to disposition under this rule. Prior to making a final 
determination of disposition, the FAO must determine that the material 
remains are not NAGPRA cultural items. The rule further states that, 
when Native American material remains are proposed for disposition, the 
collections advisory committee must include one or more elected 
officers (or their designees) of federally recognized Indian Tribes 
that are regularly consulted by the Federal agency. The rule also 
contains robust notification requirements that will help ensure that 
interested Tribes are aware of proposed dispositions. Further, any 
Tribe may object to determinations of disposition if it believes the 
materials are NAGPRA cultural items. The NPS believes that these 
requirements are sufficient to ensure that Native American cultural 
items subject to NAGPRA will not be disposed of under this rule.

[[Page 22454]]

Use of Deaccessioned Material Remains

    31. Comment: One commenter argued that enforcing the restrictions 
on disposition of material remains in the proposed rule would 
constitute a taking of property under the Fifth Amendment of the 
Constitution, specifically for material remains excavated and removed 
from Indian lands and returned to the Indian individual or Indian tribe 
having rights of ownership over the resources. Commenters sought to 
ensure that deaccessioned material remains may not be sold in the 
future. Another commenter questioned the ability of the FAO to enforce 
prohibitions on government employees receiving deaccessioned material 
remains.
    NPS Response: The NPS has clarified in paragraph 79.13(b) that, as 
a condition of disposal, the FAO will reasonably ensure that material 
remains from public lands that are not Indian lands may not be traded, 
sold, bought, or bartered after disposal is completed. This condition 
will not apply to material remains from Indian lands. The NPS has 
removed the prohibition on government employees receiving deaccessioned 
material remains because it is redundant with government-wide ethics 
requirements that address the concerns originally underlying this 
proposed restriction. Indian individuals who are also Federal employees 
must work with their agency's ethics officials to determine a course of 
action in the event that they wish to receive deaccessioned material 
remains.

General Support and Opposition

    32. Comment: Some commenters expressed general support for the 
rule, praising its clear language and stringent and rigorous 
disposition process. Commenters recognized the need for the rule and 
its potential to improve the value of collections and reduce careless 
accession of material remains. Other commenters expressed general 
opposition to the rule, citing their belief that material remains 
should not be deaccessioned and that the rule will not provide a 
complete solution to the curation crisis.
    NPS Response: Responsible deaccessioning is a necessary tool for 
maintaining the scientific value of collections. Several Federal 
agencies requested this rule, which supports the proper curation of 
Federal collections. This rule establishes a rigorous and deliberative 
disposition process that, when properly implemented, will prevent the 
careless deaccessioning of material remains. Supporting agency 
stewardship of archeological collections is the foundational goal of 36 
CFR 79.

Changes in the Final Rule

    After considering the public comments and after additional review, 
the NPS made the following substantive changes in the final rule. The 
NPS made other non-substantive, editorial changes for clarity and ease 
of reading. In many places, the NPS replaced outdated citations to 
Title 16 of the U.S. Code with correct citations to Title 54. The NPS 
also removed the paragraph designations in section 79.4 and organized 
the defined terms alphabetically, as recommended in the Office of the 
Federal Register's Document Drafting Handbook. In order to make these 
changes, the entire section 79.4 appears below in the regulatory text 
even though the only changes to that section are to add definitions of 
``Departmental Consulting Archeologist'' and ``provenience 
information.''

------------------------------------------------------------------------
   Final rule section  or
          paragraph                  Change           Reason for change
------------------------------------------------------------------------
79.4........................  Added definitions of  Clarifies the
                               the terms             meaning of these
                               ``Departmental        terms for non-
                               Consulting            specialists.
                               Archeologist'' and
                               ``provenience
                               information''.
79.12(b)(2).................  Specified that the    Clarifies that no
                               term ``human          human remains may
                               remains'' refers to   be disposed of
                               human remains that    under this rule,
                               are not ``cultural    whether or not they
                               items'' under         are subject to
                               NAGPRA.               NAGPRA.
79.12(c)....................  Clarified that only   Helps ensure that
                               persons who meet      only qualified
                               the applicable        experts may
                               Professional          initiate the
                               Qualification         disposition
                               Standards set by      process. Ensures
                               the Secretary may     that disposition is
                               propose the           not undertaken
                               disposal of           casually or as a
                               material remains.     matter of
                                                     convenience. The
                                                     professional
                                                     standards are
                                                     available here:
                                                     https://www.nps.gov/articles/sec-standards-prof-quals.htm.
79.12(c)(1).................  Added a requirement   Helps ensure that
                               that Federal agency   disposition is not
                               staff members must    undertaken
                               have verifiable       improperly because
                               knowledge of the      qualified experts
                               particular material   were not involved.
                               remains that are
                               proposed for
                               disposal.
79.12(e)....................  Added a requirement   Helps ensure that
                               that archeological    disposition is not
                               or museum             undertaken
                               professionals must    improperly because
                               have verifiable       qualified experts
                               knowledge of the      were not involved.
                               particular material
                               remains in order to
                               determine whether
                               those material
                               remains have
                               insufficient
                               archeological
                               interest.
79.12(e)(2)(i)(C)...........  Clarified that a      Addresses a
                               lack of provenience   legitimate
                               information may be    circumstance where
                               established if        there is no
                               associated records    existing
                               never existed, have   provenience
                               been lost, or have    information.
                               been destroyed.
79.12(e)(2)(iii)............  Clarified that        Helps ensure that a
                               representative        statistically valid
                               samples of material   sample is retained
                               remains that are      in the event that
                               overly redundant      new analytical
                               and not useful for    techniques are
                               research must be      developed that
                               representative of     allow the sample to
                               the population as a   generate useful
                               whole from which      information about
                               the sample was        the past.
                               taken.
79.13(a)(2).................  Clarified that the    Helps ensure that
                               FAO must receive      the FAO will not
                               written consent and   dispose of material
                               relinquishment of     remains owned by
                               ownership from the    Indian individuals
                               Indian individual     or tribes without
                               or tribe having       their consent.
                               rights of ownership
                               before otherwise
                               disposing of
                               material remains
                               excavated from
                               Indian lands.
79.13(b)(5).................  Added the following   Responds to public
                               method of disposal    comment and
                               for material          improves
                               remains excavated     consistency between
                               or removed from       the acceptable
                               public lands:         methods of
                               Convey to a           disposition for
                               federally             materials removed
                               recognized Indian     from Indian and
                               tribe for the         public lands.
                               purpose of
                               traditional
                               cultural,
                               educational, or
                               religious practices.

[[Page 22455]]

 
79.15(d)....................  Added a requirement   Helps ensure that
                               that the FAO          appropriate experts
                               consult with          are involved in the
                               qualified museum      disposition
                               professionals         process.
                               located in the
                               repository that
                               provides curatorial
                               services for
                               material remains
                               proposed for
                               disposal when those
                               museum
                               professionals did
                               not propose the
                               disposal.
79.15(e)....................  Added a requirement   Responds to public
                               that the              comment and helps
                               collections           ensure that
                               advisory committee    disposition is not
                               make consensus        undertaken lightly
                               recommendations to    or improperly.
                               the FAO about
                               proposed
                               dispositions.
79.15(e)(1).................  Added a provision     Helps maintain the
                               stating that the      impartiality of the
                               DCA may not           DCA, who serves as
                               participate on a      the arbiter of
                               collections           disputes about
                               advisory committee.   proposed
                                                     dispositions.
79.15(e)(3).................  Clarified that the    Ensures the
                               requirement that      appropriate
                               collections           inclusion of tribal
                               advisory committees   viewpoints in
                               include at least      considering a
                               one representative    disposition of
                               of an Indian tribe    Native American
                               only applies if       material remains.
                               there are Native
                               American material
                               remains proposed
                               for disposal.
79.15(e)(5).................  Added a requirement   Responds to public
                               that the              comments and
                               collections           improves the
                               advisory committee    administrative
                               submit a written      record of a
                               report to the FAO     disposition.
                               about any proposed
                               disposition.
79.15(g)....................  Added a requirement   Responds to public
                               that, for material    comments and
                               remains excavated     improves
                               from Indian land,     accountability to
                               the FAO provide a     tribal governments.
                               copy of the
                               associated records
                               to the appropriate
                               Tribal Historic
                               Preservation
                               Officer or tribal
                               official.
79.15(h)....................  Added a minimum       Responds to public
                               duration of 60 days   comments to improve
                               for the public        timeliness and
                               comment period for    public
                               a proposed            accountability.
                               disposition. Made     Reduces the
                               the FAO responsible   administrative
                               for responding only   burden on the FAO
                               to relevant,          during the comment
                               substantive           review period.
                               comments.
79.15(h)(1).................  Added a requirement   Improves
                               that the FAO must     coordination with
                               give notice of        state officials and
                               proposed              improves the
                               dispositions to the   administrative
                               State Archeologist    record.
                               if there is one.
79.15(h)(3).................  Added a requirement   Responds to public
                               that the FAO must     comments to provide
                               give notice of        additional
                               proposed              information to
                               dispositions to       landowners.
                               private landowners
                               from whose lands
                               the objects to be
                               disposed were
                               removed.
79.15(h)(5).................  Removed the           Removes ambiguity
                               requirement that      about which
                               the FAO must give     institutions and
                               notice to             organizations must
                               organizations and     receive notice of
                               institutions with     proposed
                               an active             dispositions.
                               department of or      Reduces the burden
                               program in            of compliance for
                               archeology or         the FAO by
                               anthropology          requiring only
                               pertaining to the     notification of
                               archeology of the     those entities that
                               state or region       have a formal
                               from which the        relationship.
                               material remains to   Improves
                               be disposed of were   communication about
                               recovered.            proposed
                               Clarified that the    disposition actions
                               FAO must give         with interested
                               notice of proposed    researchers.
                               dispositions to
                               organizations and
                               institutions for
                               which the agency
                               has an existing
                               relationship
                               pursuant to a
                               written instrument
                               (e.g., permit,
                               agreement) for
                               research,
                               excavation,
                               curation,
                               education, or other
                               partnership in the
                               state and region
                               from which the
                               objects to be
                               disposed were
                               recovered.
79.16.......................  Lengthened the        Responds to public
                               timeframe to object   comments and
                               to a determination    provides more
                               of disposition from   opportunity for the
                               30 to 60 days after   public to object to
                               publication of the    a proposed
                               notice of             disposition.
                               determination of
                               disposition in the
                               Federal Register.
79.16(a)....................  Added a requirement   Improves
                               that the DCA          accountability from
                               forward a copy of     the DCA to the FAO
                               objections to the     and streamlines the
                               FAO within 5 days     objection process.
                               of receipt.
79.16(c)....................  Added a requirement   Responds to public
                               that the DCA          comments to improve
                               consult with the      the fairness of the
                               objecting party and   objection process
                               the FAO with the      by providing
                               aim of resolving      another opportunity
                               the objection.        for discussion
                                                     between the
                                                     objecting party and
                                                     the FAO.
79.16(d)....................  Added a requirement   Responds to public
                               that the DCA must     comment to provide
                               thoroughly explain    a more effective
                               their non- binding    and inclusive
                               recommendation to     disputes process.
                               the FAO.
79.16(e)....................  Shortened the         Streamlines the
                               timeframe for the     objection process
                               FAO to respond to     and encourages
                               the DCA and the       timely resolution
                               objector with a       to objections.
                               final determination
                               from 60 to 30 days.
79.16(f)....................  Clarified that        Responds to public
                               notice of a           comment to make
                               decision on an        procedures clear to
                               objection is a        the public.
                               final agency action
                               under the
                               Administrative
                               Procedure Act.
79.17.......................  Added a requirement   Responds to public
                               that disposition      comment to make
                               after an objection    procedures clear to
                               will occur no         the public.
                               sooner than 30 days
                               after the FAO
                               publishes the
                               notice of decision
                               on the objection
                               and any amendments
                               in the Federal
                               Register.
43 CFR 3.17.................  Added a note that     Responds to public
                               resources excavated   comments
                               under the             questioning the
                               Antiquities Act may   applicability of
                               be eligible for       the rule to
                               disposal under        material remains
                               Subpart E of 36 CFR   excavated under the
                               79.                   Antiquities Act.
------------------------------------------------------------------------


[[Page 22456]]

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. The NPS has 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 or Administered Archeological 
Collections'' that is available online at the following URL: https://www.nps.gov/orgs/1187/upload/Regulatory_Analyses_36_CFR_Part_79_12.pdf.

Congressional Review Act (CRA)

    This rule is not a major rule under 5 U.S.C. 804(2), the CRA. This 
rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, state, or local government 
agencies, or geographic regions.
    (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.

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 rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget under the Paperwork 
Reduction Act is not required. The NPS 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 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 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. The NPS has evaluated this 
rule under the criteria in Executive Order 13175 and under the 
Department's tribal consultation policy and has determined that tribal 
consultation is not required because the rule will have no substantial 
direct effect on federally recognized Indian tribes. Nevertheless, the 
NPS conducted outreach to tribes and Native Hawaiian Organizations, 
initiated consultation through two letters to tribal leaders, and 
conducted face-to-face consultation on this 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 URL: https://www.nps.gov/orgs/1187/upload/Tribal_Consultation_36_CFR_Part_79_12.pdf.

[[Page 22457]]

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

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

Drafting Information

    This rule was written with the cooperation and consultation of the 
following Federal agencies and bureaus: U.S. Bureau of Indian Affairs, 
U.S. Bureau of Land Management, U.S. Bureau of Reclamation, U.S. Fish 
and Wildlife Service, U.S. Air Force, U.S. Army Corps of Engineers, 
U.S. Navy, and U.S. Forest Service. 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 rule.

List of Subjects

36 CFR Part 79

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

43 CFR Part 3

    Agriculture Department, Army Department, Historic preservation, 
Smithsonian Institution.

    In consideration of the foregoing, the National Park Service and 
Department of the Interior amend 36 CFR part 79, and 43 CFR part 2, as 
set forth below:

PART 79--CURATION OF FEDERALLY OWNED OR ADMINISTERED ARCHEOLOGICAL 
COLLECTIONS

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

    Authority: 16 U.S.C. 470aa-mm, 54 U.S.C. 300101 et seq.

0
2. Revise the part heading to read as shown above.


Sec. Sec.  79.1 through 79.4   [Designated as Subpart A]

0
3. Designate Sec. Sec.  79.1 through 79.4 as subpart A and add a 
heading for subpart A to read as follows:

Subpart A--Administrative Provisions


Sec.  79.1   [Amended]

0
4. In Sec.  79.1 amend paragraph (a) by:
0
a. Removing ``(16 U.S.C. 431-433)'' and adding, in its place, ``(54 
U.S.C. 320301-320303)'';
0
b. Removing ``(16 U.S.C. 469-469c)'' and adding, in its place, ``(54 
U.S.C. 312501-312508)''; and
0
c. Removing ``(16 U.S.C. 470h-2)'' and adding, in its place, ``(54 
U.S.C. 306101-306114)''.

0
5. In Sec.  79.2:
0
a. Revise paragraph (a).
0
b. In paragraph (b)(2), remove ``(16 U.S.C. 431-433)'' and add, in its 
place, ``(54 U.S.C. 320301-320303)'' and remove ``(16 U.S.C. 469-
469c)'' and add, its place, ``(54 U.S.C. 312501-312508)''.
    The revision reads as follows:


Sec.  79.2  Authority

    (a) The regulations in this part are promulgated under 54 U.S.C. 
302107 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 capabilities. This requirement applies to 
artifacts and associated records subject to the National Historic 
Preservation Act (54 U.S.C. 300101 et seq.), the Reservoir Salvage Act 
(54 U.S.C. 312501-312508), and the Archaeological Resources Protection 
Act (16 U.S.C. 470aa-mm).
* * * * *

0
6. In Sec.  79.3, revise paragraph (a) to read as follows:


Sec.  79.3  Applicability.

    (a) Except as otherwise stated in this section, the regulations in 
this part apply to collections, as defined in Sec.  79.4 of this part, 
that are excavated or removed under the authority of the Antiquities 
Act (54 U.S.C. 320301-320303), the Reservoir Salvage Act (54 U.S.C. 
312501-312508), section 110 of the National Historic Preservation Act 
(54 U.S.C. 306101-306114) or the Archaeological Resources Protection 
Act (16 U.S.C. 470aa-mm). Such collections generally include those that 
are the result of a prehistoric or historic resource survey, excavation 
or other study conducted in connection with a Federal action, 
assistance, license, or permit. Such collections 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 the laws cited in this paragraph (a).
* * * * *

0
7. Revise Sec.  79.4 to read as follows:


Sec.  79.4   Definitions.

    As used for purposes of this part:
    Associated records means original records (or copies thereof) that 
are prepared, assembled and document efforts to locate, evaluate, 
record, study, preserve or recover a prehistoric or historic resource. 
Some records such as field notes, artifact inventories and oral 
histories may be originals that are prepared as a result of the field 
work, analysis, and report preparation. Other records such as deeds, 
survey plats, historical maps and diaries may be copies of original 
public or archival documents that are assembled and studied as a result 
of historical research. Classes of associated records (and illustrative 
examples) that may be in a collection include, but are not limited to:
    (1) Records relating to the identification, evaluation, 
documentation, study, preservation, or recovery of a resource (such as 
site forms, field notes, drawings, maps, photographs, slides, 
negatives, films, video and audio cassette tapes, oral histories, 
artifact inventories, laboratory reports, computer cards and tapes, 
computer disks and diskettes, printouts of computerized data, 
manuscripts, reports, and accession, catalog, and inventory records);
    (2) Records relating to the identification of a resource using 
remote sensing methods and equipment (such as satellite and aerial 
photography and imagery, side scan sonar, magnetometers, subbottom 
profilers, radar, and fathometers);
    (3) Public records essential to understanding the resource (such as 
deeds, survey plats, military and census records, birth, marriage and 
death certificates, immigration and naturalization papers, tax forms 
and reports);
    (4) Archival records essential to understanding the resource (such 
as historical maps, drawings and photographs, manuscripts, 
architectural and landscape plans, correspondence, diaries, ledgers, 
catalogs, and receipts); and
    (5) Administrative records relating to the survey, excavation, or 
other study of the resource (such as scopes of work, requests for 
proposals, research proposals, contracts, antiquities permits, reports, 
documents relating to compliance with section 106 of the National 
Historic Preservation Act (16 U.S.C. 470f), and National Register of 
Historic Places nomination and determination of eligibility forms).
    Collection means material remains that are excavated or removed 
during a survey, excavation, or other study of a prehistoric or 
historic resource, and associated records that are prepared or

[[Page 22458]]

assembled in connection with the survey, excavation, or other study.
    Curatorial services means managing and preserving a collection 
according to professional museum and archival practices, including, but 
not limited to:
    (1) Inventorying, accessioning, labeling, and cataloging a 
collection;
    (2) Identifying, evaluating, and documenting a collection;
    (3) Storing and maintaining a collection using appropriate methods 
and containers, and under appropriate environmental conditions and 
physically secure controls;
    (4) Periodically inspecting a collection and taking such actions as 
may be necessary to preserve it;
    (5) Providing access and facilities to study a collection; and
    (6) Handling, cleaning, stabilizing, and conserving a collection in 
such a manner to preserve it.
    Departmental Consulting Archeologist means the individual serving 
as the agent of the Secretary of the Interior in overseeing and 
coordinating the Department's archeological activities.
    Federal Agency Official means any officer, employee or agent 
officially representing the secretary of the department or the head of 
any other agency or instrumentality of the United States having primary 
management authority over a collection that is subject to this part.
    Indian lands has the same meaning as in Sec.  -.3(e) of uniform 
regulations 43 CFR part 7, 36 CFR part 296, 18 CFR part 1312, and 32 
CFR part 229.
    Indian tribe has the same meaning as in Sec.  -.3(f) of uniform 
regulations 43 CFR part 7, 36 CFR part 296, 18 CFR part 1312, and 32 
CFR part 229.
    Material remains means artifacts, objects, specimens, and other 
physical evidence that are excavated or removed in connection with 
efforts to locate, evaluate, document, study, preserve or recover a 
prehistoric or historic resource. Classes of material remains (and 
illustrative examples) that may be in a collection include, but are not 
limited to:
    (1) Components of structures and features (such as houses, mills, 
piers, fortifications, raceways, earthworks, and mounds);
    (2) Intact or fragmentary artifacts of human manufacture (such as 
tools, weapons, pottery, basketry, and textiles);
    (3) Intact or fragmentary natural objects used by humans (such as 
rock crystals, feathers, and pigments);
    (4) By-products, waste products or debris resulting from the 
manufacture or use of man-made or natural materials (such as slag, 
dumps, cores and debitage);
    (5) Organic material (such as vegetable and animal remains, and 
coprolites);
    (6) Human remains (such as bone, teeth, mummified flesh, burials, 
and cremations);
    (7) Components of petroglyphs, pictographs, intaglios, or other 
works of artistic or symbolic representation;
    (8) Components of shipwrecks (such as pieces of the ship's hull, 
rigging, armaments, apparel, tackle, contents, and cargo);
    (9) Environmental and chronometric specimens (such as pollen, 
seeds, wood, shell, bone, charcoal, tree core samples, soil, sediment 
cores, obsidian, volcanic ash, and baked clay); and
    (10) Paleontological specimens that are found in direct physical 
relationship with a prehistoric or historic resource.
    Personal property has the same meaning as in 41 CFR 100-43.001-14. 
Collections, equipment (e.g., a specimen cabinet or exhibit case), 
materials and supplies are classes of personal property.
    Provenience information means recorded data about the physical 
location of an object as it was found during a survey, excavation, or 
other study of a prehistoric or historic resource.
    Public lands has the same meaning as in Sec.  -.3(d) of uniform 
regulations 43 CFR part 7, 36 CFR part 296, 18 CFR part 1312, and 32 
CFR part 229.
    Qualified museum professional means a person who possesses 
knowledge, experience and demonstrable competence in museum methods and 
techniques appropriate to the nature and content of the collection 
under the person's management and care, and commensurate with the 
person's duties and responsibilities. Standards that may be used, as 
appropriate, for classifying positions and for evaluating a person's 
qualifications include, but are not limited to, the following:
    (1) The Office of Personnel Management's ``Position Classification 
Standards for Positions under the General Schedule Classification 
System'' (U.S. Government Printing Office, stock No. 906--028-00000-0 
(1981)) are used by Federal agencies to determine appropriate 
occupational series and grade levels for positions in the Federal 
service. Occupational series most commonly associated with museum work 
are the museum curator series (GS/GM-1015) and the museum technician 
and specialist series (GS/GM-1016). Other scientific and professional 
series that may have collateral museum duties include, but are not 
limited to, the archivist series (GS/GM-1420), the archeologist series 
(GS/GM-193), the anthropologist series (GS/GM-190), and the historian 
series (GS/GM-170). In general, grades GS-9 and below are assistants 
and trainees while grades GS-11 and above are professionals at the full 
performance level. Grades GS-11 and above are determined according to 
the level of independent professional responsibility, degree of 
specialization and scholarship, and the nature, variety, complexity, 
type, and scope of the work.
    (2) The Office of Personnel Management's ``Qualification Standards 
for Positions under the General Schedule (Handbook X-118)'' (U.S. 
Government Printing Office, stock No. 906-030-00000-4 (1986)) establish 
educational, experience and training requirements for employment with 
the Federal Government under the various occupational series. A 
graduate degree in museum science or applicable subject matter, or 
equivalent training and experience, and three years of professional 
experience are required for museum positions at grades GS-11 and above.
    (3) The ``Secretary of the Interior's Standards and Guidelines for 
Archeology and Historic Preservation'' (48 FR 44716, Sept. 29, 1983) 
provide technical advice about archeological and historic preservation 
activities and methods for use by Federal, State, and local Governments 
and others. One section presents qualification standards for a number 
of historic preservation professions. While no standards are presented 
for collections managers, museum curators or technicians, standards are 
presented for other professions (i.e., historians, archeologists, 
architectural historians, architects, and historic architects) that may 
have collateral museum duties.
    (4) Copies of the Office of Personnel Management's standards, 
including subscriptions for subsequent updates, may be purchased from 
the Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402. Copies may be inspected at the Office of 
Personnel Management's Library, 1900 E Street NW, Washington, DC, at 
any regional or area office of the Office of Personnel Management, at 
any Federal Job Information Center, and at any personnel office of any 
Federal agency. Copies of the ``Secretary of the Interior's Standards 
and Guidelines for Archeology and Historic Preservation'' are available 
at no charge from the Interagency Resources Division, National Park 
Service, P.O. Box 37127, Washington, DC 20013-7127.
    Religious remains means material remains that the Federal Agency 
Official

[[Page 22459]]

has determined are of traditional religious or sacred importance to an 
Indian tribe or other group because of customary use in religious 
rituals or spiritual activities. The Federal Agency Official makes this 
determination in consultation with appropriate Indian tribes or other 
groups.
    Repository means a facility such as a museum, archeological center, 
laboratory, or storage facility managed by a university, college, 
museum, other educational or scientific institution, a Federal, State, 
or local Government agency or Indian tribe that can provide 
professional, systematic, and accountable curatorial services on a 
long-term basis.
    Repository Official means any officer, employee or agent officially 
representing the repository that is providing curatorial services for a 
collection that is subject to this part.
    Tribal Official means the chief executive officer or any officer, 
employee or agent officially representing the Indian tribe.


Sec. Sec.  79.5 through 79.9  [Designated as Subpart B]

0
8. Designate Sec. Sec.  79.5 through 79.9 as subpart B and add a 
heading for subpart B to read as follows:

Subpart B--Archeological Collections Management


Sec.  79.10  [Designated as Subpart C]

0
9. Designate Sec.  79.10 as subpart C and add a heading for subpart C 
to read as follows:

Subpart C--Public Access to and Use of Collections


Sec.  79.11  [Designated as Subpart D]

0
10. Designate Sec.  79.11 as subpart D and add a heading for subpart D 
to read as follows:

Subpart D--Inspections and Inventories of Collections

0
11. 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.
79.13 Acceptable methods for disposition of particular material 
remains.
79.14 [Reserved].
79.15 Final determination of 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 under this 
subpart? In order to be eligible for disposal under this subpart, 
material remains from collections must be:
    (1) Archaeological resources, as defined in the Archaeological 
Resources Protection Act (16 U.S.C. 470bb(1)), or other resources 
excavated and removed under the Reservoir Salvage Act (54 U.S.C. 
312501-312508) or the Antiquities Act (54 U.S.C. 320301-320303); and
    (2) Considered to be of insufficient archeological 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 are not eligible for disposal under this 
subpart? The following material remains from collections are not 
eligible for disposal under this subpart:
    (1) Native American ``cultural items'' as defined in the Native 
American Graves Protection and Repatriation Act of 1990 (25 U.S.C. 
3001(3)), because disposition is governed by that Act and its 
implementing regulations (43 CFR part 10);
    (2) Other human remains not subject to the Native American Graves 
Protection and Repatriation Act of 1990;
    (3) Material remains excavated and removed from Indian lands on or 
before the enactment of the Archaeological Resources Protection Act (16 
U.S.C. 470aa-mm) on October 31, 1979; and
    (4) Material remains excavated and removed from Indian lands under 
the Antiquities Act (54 U.S.C. 320301-320303).
    (c) Who may propose the disposal of particular material remains? 
The following individuals who meet the applicable Professional 
Qualification Standards set by the Secretary of the Interior may 
propose the disposal of particular material remains from a collection:
    (1) Federal agency staff members with verifiable knowledge of the 
particular material remains, 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 according to the 
requirements of this subpart.
    (e) When are particular material remains considered to be of 
insufficient archeological interest? Particular material remains are 
considered to be of insufficient archeological interest when, on a 
case-by-case basis, at least one qualified archeological or museum 
professional who meets the Professional Qualification Standards set by 
the Secretary of the Interior and possesses verifiable knowledge of and 
experience in the type of material remains being evaluated makes a 
determination. The determination must follow the process established in 
Sec.  79.15 and document 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 after a concerted effort to recover the 
information in the related associated records is performed and 
documented and 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 never existed, 
have been lost, or have been destroyed.
    (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, decomposition, or 
inadvertent loss. Examples may include human-caused incidents, exposure 
to elements, or natural disaster.
    (iii) Overly redundant and not useful for research. Material 
remains are overly redundant and not useful for research in light of 
the collection's archeological context, research questions, and 
research potential. These considerations may vary based on geography, 
time and culture period, scientific or cultural significance, prior 
analysis, and other factors. Because it is difficult to predict if 
future analytical methods will yield

[[Page 22460]]

useful information about the material remains proposed for disposal, a 
sample of the material remains deemed to be overly redundant and not 
useful for research must be retained for curation, as required by Sec.  
79.15(f).


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

    (a) Indian lands. This paragraph applies to material remains that 
are determined to be of insufficient archeological interest under Sec.  
79.12(e) and that were excavated or removed from Indian lands after 
October 31, 1979. Under the Archaeological Resources Protection Act (16 
U.S.C. 470aa-mm), these material remains are 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 is 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 and take physical custody of the 
material remains, the Federal Agency Official may otherwise dispose of 
the material remains using the disposition methods in paragraph (b) of 
this section after receiving written consent and relinquishment of 
ownership from the Indian individual or Indian tribe having rights of 
ownership.
    (b) Public lands. This paragraph applies to material remains that 
are determined to be of insufficient archeological interest under Sec.  
79.12(e) and that were excavated or removed from public lands that are 
not Indian lands. As a condition of disposal, the Federal Agency 
Official will reasonably ensure that material remains from such lands 
may not be traded, sold, bought, or bartered after disposal. The 
Federal Agency Official must consider 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(k) 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), 36 CFR 296.7(b)(1), 32 CFR 
229.7(b)(1), or 18 CFR 1312.7(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 evidence including, but not limited to, 
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) Convey to a federally recognized Indian tribe for the purpose 
of traditional cultural, educational, or religious practices.
    (6) Transfer within the Federal agency for the purpose of education 
or interpretation, or convey to a suitable institution to be used for 
public benefit and education including, but not limited to, local 
historical societies, museums, university or college departments, and 
schools.
    (7) If the Federal Agency Official considers each of these prior 
methods carefully and is still unable to find an acceptable method of 
disposition, then the material remains may be destroyed. The Federal 
Agency Official or their designee must witness and document the 
destruction, including through photography or video as practicable.


Sec.  79.14  [Reserved]


Sec.  79.15  Final determination of 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 subpart. A determination made under this subpart in no way affects 
a Federal land manager's obligations under other applicable laws or 
regulations. The Federal Agency Official must take all the following 
actions 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).
    (b) The Federal Agency Official must verify in writing that none of 
the material remains proposed for disposal meet the criteria in Sec.  
79.12(b).
    (c) The Federal Agency Official must verify that the material 
remains proposed for disposal 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).
    (d) The Federal Agency Official must consult with qualified museum 
professionals located in the repository that provides curatorial 
services for the material remains proposed for disposal if those museum 
professionals did not propose the disposal under Sec.  79.12(c)(2). 
This consultation with the qualified museum professionals must address 
the appropriateness of the proposed disposal.
    (e) The Federal Agency Official must establish a collections 
advisory committee of at least five members to review proposed 
dispositions of material remains. The committee must make a consensus 
recommendation to the Federal Agency Official about each proposed 
disposition based on the adequacy of the documentation addressing the 
requirements in paragraphs (a) and (b) of this section and the 
appropriateness of the proposed disposition based on the criteria in 
Sec.  79.12(e).
    (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 curator and the principal archeologist of the Federal 
agency that owns or administers the material remains if either or both 
of these two positions exist. The Departmental Consulting Archeologist 
may not participate on the collections advisory committee. If the 
Departmental Consulting Archeologist is the principal archeologist, 
then the Federal Agency Official must designate another qualified 
archeologist at the agency instead.
    (2) Collections advisory committee members must include Federal 
employees with subject matter or technical expertise in the object 
types, cultural period, and culture area of the proposed disposition. 
These employees may include archeologists, anthropologists, curators, 
and conservators with expertise in historic, prehistoric, or underwater 
material remains.
    (3) If the material remains being proposed for disposal are Native 
American, then collections advisory committee members must also include 
at least one or more individuals who are Tribal Officials acting in 
their official capacities representing their respective federally 
recognized Indian tribes that are regularly consulted by the Federal 
agency regarding the collection containing the material remains being 
proposed for disposal.
    (4) The collections advisory committee must have written

[[Page 22461]]

procedures and governing rules, including terms of member appointments 
and the duration of the committee, approved by the Federal Agency 
Official, to ensure all recommendations about the appropriateness of 
disposal are fair, open, timely, and in the best interests of the 
public.
    (5) The collections advisory committee must submit a written report 
to the Federal Agency Official for each proposed disposition that, at a 
minimum, documents the information required for the Federal Register 
notice identified in paragraphs (i)(1)(i) through (iii) of this 
section; membership of the committee and each member's role and 
expertise pertinent to the proposed disposition; a summary of any 
comments received on the proposed disposition under paragraph (h) of 
this section; the recommendations for disposition, including any 
conditions of transfer or conveyance; and the reasons why other methods 
of disposal would be of lesser public benefit.
    (6) Federal employees or qualified members of federally recognized 
Indian tribes may be temporarily added to the committee if its existing 
members determine that specific expertise, including archeological 
knowledge of the cultural period and cultural area, is needed on a 
case-by-case basis.
    (7) Collections advisory committee members, whether permanent or 
temporary, and their family members may not benefit financially or in 
any other way from a disposition of material remains, except to the 
extent that members of a federally recognized Indian Tribe, when that 
Indian Tribe is being considered as a potential recipient of material 
remains, may participate in the collections advisory committee as 
described in Sec.  79.15(e)(3).
    (f) The Federal Agency Official must retain in the curated 
collection a sample of those material remains determined to be overly 
redundant and not useful for research that is representative of the 
population as a whole from which the sample was taken.
    (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 documented and consistent with 
professional prehistoric or historic archeological practice.
    (g) The Federal Agency Official must retain all associated records 
in the archeological collection as defined in Sec.  79.4(a)(2). 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)). For material remains excavated and removed from Indian land, 
a copy of the original associated records must be given to the Tribal 
Historic Preservation Officer (or other designated tribal 
representative) from the tribal land where the material remains were 
recovered.
    (h) 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 that is at least 60 days after notice 
is issued, in accordance with procedures established by the Federal 
agency. All written comments must be reviewed by the Federal Agency 
Official and the collections advisory committee. The Federal Agency 
Official will respond to all relevant, substantive comments received. 
Notice must be given to the following:
    (1) The State Historic Preservation Officer and, where established, 
the State Archeologist, from the state(s) where the material remains to 
be disposed of were recovered.
    (2) The Tribal Historic Preservation Officer (or other designated 
tribal representative) from the Indian land(s) where the material 
remains to be disposed of were recovered.
    (3) Federal, state, tribal, or local agencies that were involved in 
the recovery of the material remains to be disposed of.
    (4) Private landowners from whose lands the material remains to be 
disposed of were removed, but only in such cases where the Federal 
agency obtained practical management authority over the material 
remains as the result of activities conducted in connection with a 
Federal action, assistance, license, or permit, on those private lands.
    (5) Universities, museums, scientific institutions, and educational 
institutions with which the agency has an existing relationship 
pursuant to a written instrument (e.g., permit, agreement) for 
research, excavation, curation, education, or other partnership in the 
state and region from which the material remains to be disposed of were 
recovered.
    (6) 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).
    (7) 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.
    (i) The Federal Agency Official must, after the comment period 
described in paragraph (h) of this section has expired and the Federal 
Agency Official has responded to all relevant, substantive comments 
received, 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.
    (ii) The criteria used to determine that the material remains are 
of insufficient archeological 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, email, and 
physical address of the Departmental Consulting Archeologist.
    (2) The Federal Agency Official must also prepare a determination 
of disposition that includes 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 photograph(s) of the objects when 
appropriate.
    (ii) The report of the collections advisory committee as stipulated 
in paragraph (e)(5) of this section.
    (iii) Documentation that all of the procedures in Sec.  79.15 have 
been met.
    (iv) The name of the recipient entity or method of disposal, as 
appropriate.
    (v) Justification of the method to be used to dispose of the 
material remains under Sec.  79.13.
    (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 (5 U.S.C. 704) unless an 
objection is filed in accordance with Sec.  79.16.

[[Page 22462]]

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 60 days of 
publication of the notice of determination of disposition in the 
Federal Register. The objection must document why the objector 
disagrees with the Federal Agency Official's decision regarding the 
disposal. The procedure for objecting to a determination of disposition 
is as follows:
    (a) The objection must be sent to the Departmental Consulting 
Archeologist. The Departmental Consulting Archeologist must forward a 
copy of the objection within 5 days of receipt to the Federal Agency 
Official who made the determination under objection. The Federal Agency 
Official must halt the planned disposition until the Departmental 
Consulting Archeologist completes the requested review.
    (b) The Departmental Consulting Archeologist must review the 
objection, and the Federal Agency Official's determination of 
disposition in Sec.  79.15(i)(2).
    (c) The Departmental Consulting Archeologist must consult with the 
objecting party or parties and the Federal Agency Official with the aim 
of resolving the objection.
    (d) Within 60 days of receipt of the objection, whether or not a 
formal resolution has been agreed upon, the Departmental Consulting 
Archeologist must transmit to the Federal Agency Official a non-binding 
recommendation, including a thorough explanation, for further 
consideration.
    (e) The Federal Agency Official must consider the recommendation of 
the Departmental Consulting Archeologist prior to making a decision on 
the objection. Within 30 days of receipt of the recommendation, the 
Federal Agency Official must respond to the Departmental Consulting 
Archeologist and the objector with a decision on the objection and a 
justification for that decision. The decision document must include any 
information about administrative appeal rights required by internal 
agency appeal procedures or a statement that the decision document is a 
final agency action under the Administrative Procedure Act, as 
appropriate.
    (f) The Federal Agency Official must publish notice of the decision 
on the objection and any amendments made to the determination of 
disposition in the Federal Register. This may only be done after the 
objector exhausts any internal appeal procedures identified in the 
decision document sent to the objector under Sec.  79.16(e). 
Publication of the notice of the decision on the objection constitutes 
a final agency action under the Administrative Procedure Act (5 U.S.C. 
704).


Sec.  79.17  Timing of disposition.

    Disposition will occur no sooner than 60 days after the notice of 
determination of disposition is published in the Federal Register under 
Sec.  79.15(i). If the Federal agency receives an objection under Sec.  
79.16, then disposition will occur no sooner than 30 days after the 
notice of decision on the objection and any amendments are published in 
the Federal Register under Sec.  79.16(f).


Sec.  79.18  Administrative record of disposition.

    (a) After the Federal Agency Official has made a determination of 
disposition, he or she must document the determination and retain the 
administrative record as part of the associated records as defined in 
Sec.  79.4(a)(2), which must include:
    (1) The professional evaluation of the material remains conducted 
under Sec. Sec.  79.12(e) and 79.15(b).
    (2) The report of the collections advisory committee provided under 
Sec.  79.15(e)(5).
    (3) Notifications of the proposed disposition under Sec.  79.15(h); 
consent of Indian individuals or tribes, if applicable, under Sec.  
79.13(a)(2); and comments received from the parties notified under 
Sec.  79.15(h).
    (4) Objections received by the Departmental Consulting 
Archeologist, the non-binding recommendation of the Departmental 
Consulting Archeologist, and the decision on the objection and any 
amendments made to the determination of disposition, if applicable, 
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 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.  
79.15, Sec.  79.16, and paragraph (a) of this section must be retained 
in accordance with Federal agency policy.

TITLE 43: PUBLIC LANDS: INTERIOR

SUBTITLE A--OFFICE OF THE SECRETARY OF THE INTERIOR

PART 3--PRESERVATION OF AMERICAN ANTIQUITIES

0
12. The authority citation for part 3 is revised to read as follows:

    Authority: 54 U.S.C. 320302-320303.

0
13. Amend Sec.  3.17 by adding a note at the end of the section to read 
as follows:


Sec.  3.17  Preservation of Collection

* * * * *

    Note to Sec.  3.17: Regulations concerning curation of federally 
owned or administered archeological collections are found in 36 CFR 
part 79. Objects excavated under the Antiquities Act may be eligible 
for disposal under subpart E of 36 CFR part 79.


Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-07471 Filed 4-14-22; 8:45 am]
BILLING CODE 4312-52-P