Future Applicability of the Act
Proposed Regulation
Future Applicability of NAGPRA
43 CFR 10.13
Draft Proposed Rule: 5/6/2002
Version presented to the NAGPRA Review Committee in Tulsa, OK
5/31/02
4310-70
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CRF Part 10
RIN: 1024-AC84
Native Americn Graves Protection and Repatriation Act Regulations,
Disposition of culturally unidentifiable human remains.
AGENCY:Department of the Interior
ACTION:Proposed Rule
SUMMARY:This proposed rule and request for comments relates
to one section of regulations implementing the Native American
Graves Protection and Repatriation Act of 1990 ("the Act").
This section outlines procedures for the future applicability
of the Act to museums and Federal agencies.Publication of this
section is intended to solicit comments from Indian tribes, Native
Hawaiian organizations, museums, Federal agencies, and members
of the public prior to its publication in final form.
DATE:Written comments will be accepted until [insert date
90 days from date of publication in the Federal Register].
ADDRESSES:Comments (2 copies) should be addressed to Dr.
Robert Stearns, Manager, National NAGPRA Program, National Park
Service, Docket No. 1024-AC84, 1849 C. Street NW- 350NC, Washington
DC 20240, or hand deliver comments to room 350 800 North Capitol
Street, Washington DC.
FOR FURTHER INFORMATION CONTACT:Dr. Robert Stearns, Manager,
National NAGPRA Program, National Park Service, 1849 C Street
NW-350NC, Washington, DC 20240.
Telephone: 202/343-8161. Fax: 202/343-5260.
SUPPLEMENTARY INFORMATION:
On November 16, 1990, President George Bush signed into law the
Native American Graves Protection and Repatriation Act (25 U.S.C.
3001 et seq.), hereafter referred to as the Act. The Act addresses
the rights of lineal descendants, Indian Tribes and Native Hawaiian
organizations to certain Native American human remains, funerary
objects, sacred objects and objects of cultural patrimony with
which they are affiliated. Section 13 of the Act requires the
Secretary of the Interior to promulgate regulations to carry
out provisions of the Act.
Regulations implementing the Act were published as final in
the Federal Register on
December 6, 1995. Five sections were reserved in the final regulations
with the intention that they would be published in the future.
This proposed rule for §10.13 develops procedures regarding
the future applicability of the Act to museums and Federal agencies.
SECTION-BY-SECTION:
Section 10.13
This section clarifies the applicability of the Act to museums
and Federal agencies
following the statutory deadlines for completion of summaries
and inventories. The Act requires museums and Federal agencies
to provide summaries of their collections to any Indian tribe
or Native Hawaiian organization that is, or is likely to be,
culturally affiliated with the collection by November 16, 1993.
The Act also requires museums and Federal agencies to prepare,
in consultation with culturally affiliated Indian tribes and
Native Hawaiian organizations, inventories of human remains and
associated funerary objects by November 16, 1995. The Act also
requires museums and Federal agencies to submit notices for publication
in the Federal Register prior to repatriation. Four types of
situations are anticipated where a museum or Federal agency may
fall under the jurisdiction of the Act after the statutory deadlines:
(1) the museum or Federal agency receives new collections; (2)
a previously unrecognized Indian group is recognized as an Indian
tribe; (3) an institution in possession or control of Native
American human remains, funerary objects, sacred objects or objects
of cultural patrimony receives Federal funds for the first time;
and (4) the museum or Federal agency revises a decision previously
published in the Federal Register. In each case the proposed
rule establishes deadlines for the required summaries, inventories,
or notices.
Public Participation
It is the policy of the Department of the Interior, whenever
practicable, to afford the
public an opportunity to participate in the rulemaking process.
Accordingly, interested persons may submit written comments regarding
this proposed rule to the address noted at the beginning of this
rulemaking. The NPS will review all comments and consider making
changes to the rule based upon analysis of the comments.
Copies of this proposed rule may be obtained by submitting
a request to the Manager,
National NAGPRA Program, National Park Service, at the address
noted at the beginning of this rulemaking. Commentors wishing
the National Park Service to acknowledge receipt of their comments
must submit with those comments a self-addressed, stamped postcard
on which the following statement is made: "Comments to Docket
No 1024-AC84." The postcard will be date stamped and returned
to the commentor.
Drafting Information
This final rule was prepared by Dr. C. Timothy McKeown (National
NAGPRA
Program), Dr. Francis P. McManamon (Archeology and Ethnography
Program), and Mr. Lars Hanslin (Office of the Solicitor) in consultation
with the Native American Graves Protection and Repatriation Review
Committee as directed by section 8 (c)(7) of the Act.
Regulatory Planning and Review
This rule has been reviewed by the Office of Management and Budget
under Executive
Order 12866.
This rule will not have an effect of $100 million or more
on the economy. It will not
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety,
or State, local, or tribal governments or communities.
This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs, or the rights or obligations
of their recipients
This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant
economic effect on a substantial number of small entities under
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804 (2), the Small
Business Regulatory
Enforcement Fairness Act. This rule will not: (l) have an annual
effect on the economy of $100 million or more; (2) cause a major
increase in costs or prices for consumers, individual
industries, Federal, State, local or tribal government agencies,
or geographic regions; or (3) have significant adverse effects
on competition, employment, investment, productivity, innovation,
or the ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local,
or tribal governments or
the private sector of more than %100 million per year. The rule
does not have a significant or
unique effect on State, local or tribal governments, or the private
sector. A statement containing the information required by the
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings
implications. A takings implication assessment is not required.
Museums are only required to
repatriate human remains, funerary objects, sacred objects, or
objects of cultural patrimony for which they can not prove right
of possession [25 U.S.C. 3005 (c)]. This rule applies to museums
that fail to comply with the administrative provisions of the
Act.
Federalism
In accordance with Executive Order 12612, the rule does not have
sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
A Federalism Assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the Solicitor
has determined
that this rule does not unduly burden the judicial system and
does not meet the requirements of sections 3 (a) and 3 (b) of
the order.
Paperwork Reduction Act
The collection of information contained in this rule has been
submitted to the Office of
Management and Budget for approval as required by 44 U.S.C. 3501
et seq. The collection of this information will not be required
until it has been approved by the Office of Management and Budget.
Public reporting burden for this collection of information is
expected to average 20 hours for the exchange of summary/inventory
information between a museum end an Indian tribe and six hours
per response for the notification to the Secretary of the Interior,
including time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and
completing and reviewing the collected information. Send comments
regarding this burden estimate or any other aspects of this collection
of information, including suggestions for reducing the burden,
to Information Collection Officer, Attn: Docket No 1024-AC84,
National Park Service, Department of Interior Building, 1849
C Street NW, Room 3317. Washington D.C. 20240, and the Office
of Management and Budget, Office of Information and Regulatory
Affairs, Attention: Desk Officer for the Department of the Interior,
Washington, D.C. 20503.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of
the human environment.
Clarity of this Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite comments on how to make
this rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the rule clearly
stated? (2) Does the rule contain technical language or jargon
that interferes with its clarity7 (3) Does the format of the
rule (grouping and order of sections, use of headings, paragraphing,
etc.) aid or reduce its clarity? (4) Would the rule be easier
to understand if it were divided into more (but shorter) sections?
(A "section" appears in bold type and is preceded by
the symbol "§" and a numbered heading; for example,
§10.13 future Applicability.) (5) Is the description of
the rule in the "Supplementary Information" section
of the preamble helpful in understanding the proposedrule' What
else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make
this rule easier to
understand to: Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street NW, Washington, DC 20240.
You may also e-mail the comments to: Exsec@os.doi.gov
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Graves, Hawaiian Natives,
Historic preservation,
Indians-claims, Museums, Reporting and record keeping requirements.
In consideration of the foregoing, 43 CFR Subtitle A is proposed
to be amended as
follows.
§10.13 Future applicability.
(a) General. This section sets forth the applicability
of the Act to museums and Federal
agencies after expiration of the statutory deadlines for completion
of summaries and inventories.
(b) New collections.
(1) Any museum or Federal agency that, after expiration of
the
statutory deadlines for completion of summaries and inventories,
receives a new collection or locates a previously unreported
current collection that may include human remains, funerary objects,
sacred objects or objects of cultural patrimony, must:
(i) Within six months of the receipt or location, provide
a su~ of
the collection pursuant to §10.8 of these regulations to
any Indian tribe or Native Hawaiian organization that is, or
is likely to be, culturally affiliated with the collection; and
(ii) Within two years of the receipt or location, prepare, in
consultation
with any culturally affiliated Indian tribe or Native Hawaiian
organization, an inventory pursuant to §10.9 of these regulations.
(2) Additional pieces or fragments of previously repatriated
human remains, funerary objects, sacred objects and objects of
cultural patrimony may be returned to the
appropriate Indian tribe or Native Hawaiian organization without
publication of a notice in the Federal Register, as otherwise
required under §10.8 (f) and §10.9 (e), if they do
not constitute a substantive change in the notice published at
the time of the original repatriation. For example, repatriation
of newly found sherds from a previously repatriated funerary
bowl would not require a new Federal Register notice, while another
previously unreported ceramic vessel from the same burial site
would require a new Federal Register notice prior to repatriation.
(c) New Indian tribes.
(1) Any museum or Federal agency that has possession or control
of human remains, funerary objects, sacred objects, or objects
of cultural patrimony that are, or are likely to be, culturally
affiliated with a previously non-Federally recognized Native
American group, must:
(i) Within six months of the publication in the Federal Register
of the Native American group's placement on the list of Indian
Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, provide a summary of
the collection pursuant to §10.8 of these regulations to
that Indian tribe; and
(ii) Within two years of the publication in the Federal Register
of the Native American group's placement on the list of Indian
Entities Recognized and Eligible to Receive Service from the
United States Bureau of Indian Affairs, prepare, in consultation
with the newly recognized culturally affiliated Indian tribe
an inventory pursuant to §10.9 of these regulations.
(2) The list of Indian Entities Recognized and Eligible to
Receive Services from
the United States Bureau of Indian Affairs is published in the
Federal Register pursuant to
provisions of the Federally Recognized Indian Tribe List Act
of 1994 [P.L 103-454, 108 Stat. 4791].
(d) New Federal funds.
Any museum that has possession or control of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
and receives Federal fends for the first time after expiration
of the statutory deadlines for completion of summaries and inventories
must:
(1) Within three years of the date of receipt of Federal funds,
provide a summary
of the collection pursuant to §10.8 of these regulations
to any Indian tribe or Native Hawaiian organization that is,
or is likely to be, culturally affiliated with the collections;
and
(2) Within five years of the date of receipt of Federal funds,
prepare, in consultation with any culturally affiliated Indian
tribe or Native Hawaiian organization, an inventory pursuant
to §10.9 of these regulations.
(e) Amendment of previous decision.
(1) Any museum or Federal agency that has previously published
a notice in the Federal Register regarding the intent to repatriate
unassociated funerary objects, sacred objects, and objects of
cultural patrimony pursuant to §10.8 (f), or the completion
of an inventory of Native American human remains and associated
funerary objects pursuant to §10.9 (e), must publish an
amendment to that notice if, based on subsequent information,
the museum or Federal agency revises its decision in a way that
changes the number or cultural affiliation of the cultural items
listed.
(2) Repatriation may not occur until at least thirty (30)
days after publication of
the amended notice in the Federal Register.
(f) All actions taken pursuant to this section must also comply
with all other relevant
sections of43 CFR 10.
(to be signed by) Assistant Secretary for Fish and Wildlife
and Parks(date)
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