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Future Applicability Final Rule
43 CFR 10.13
March 21, 2007
FR Doc E7-5113
[Federal Register: March 21, 2007 (Volume 72, Number 54)]
[Rules and Regulations]
[Page 13184-13189]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21mr07-7]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
RIN 1024-AC84
Native American Graves Protection and Repatriation Act
Regulations--Future Applicability
AGENCY: Department of the Interior.
ACTION: Final rule.
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SUMMARY: This final rule relates to one section of the 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.
DATES: Effective Date: This rule is effective April 20, 2007.
ADDRESSES: Mail inquires to Dr. Sherry Hutt, Manager, National NAGPRA
Program, National Park Service, 1849 C Street, NW. (2253), Washington,
DC 20240-0001. Telephone: (202) 354-1479. Fax: (202) 371-5197.
FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program
Manager, National Park Service, 1849 C Street, NW., Room 7241,
Washington, DC 20240. Phone: (202) 208-4206. E-mail:
jerry_case@nps.gov.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1990, the Native American Graves Protection and
Repatriation Act (25 U.S.C. 3001 et seq.) was signed into law. 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.
Final regulations implementing the Act were published in the
Federal Register on December 4, 1995, (60 FR 62138), and codified as 43
CFR part 10. Five sections were reserved in the final regulations with
the intention that they would be published in the future. One of the
five reserved sections, designated Sec. 10.13, was set aside to
clarify the applicability of the Act to museums and Federal agencies
following the statutory deadlines for completion of summaries and
inventories.
The Act requires museums and Federal agencies, as defined by the
Act, to provide summaries of their collections to any Indian tribe or
Native Hawaiian organization that is, or is likely to be, culturally
affiliated with the collection by November 16, 1993. The Act also
requires museums and Federal agencies to prepare, in consultation with
culturally affiliated Indian tribes and Native Hawaiian organizations,
inventories of human remains and associated funerary objects by
November 16, 1995. The Act also requires museums and Federal agencies
to submit notices for publication in the Federal Register prior to
repatriation.
Four types of situations are anticipated where a museum or Federal
agency may fall under the jurisdiction of the Act after the statutory
deadlines: (1) The museum or Federal agency receives new collections;
(2) a previously unrecognized Indian group is recognized as an Indian
tribe; (3) an institution in possession or control of Native American
human remains, funerary objects, sacred objects, or objects of cultural
patrimony receives Federal funds for the first time; and (4) the museum
or Federal agency revises a decision previously published in the
Federal Register. In each case, this final rule establishes deadlines
for the required summaries, inventories, or notices.
This final rule provides museums and Federal agencies with a
uniform set of procedures to ensure that lineal descendants, Indian
tribes, and Native Hawaiian organizations know of the existence and
location of cultural items with which they are affiliated and which
they may be able to repatriate. These procedures facilitate the
existing repatriation provisions of the Act, and are essential to the
continued effectiveness of the Act.
Preparation of the Rulemaking
The proposed rule to clarify future applicability of the Act was
published in the Federal Register on October 20, 2004 (69 FR 61613).
Public comment was invited for a 90-day period, ending on January 18,
2005. The proposed rule was also posted on the National NAGPRA Program
Web site. The Native American Graves Protection and Repatriation Review
Committee commented on the proposed rule at its November 2, 2004
teleconference. In addition, ten written comments were received during
the comment period, representing three museums; three national
scientific or museum organizations; two Federal agencies; one national
Native American organization; and one non-Federally recognized Native
American group. Comments addressed all sections of the proposed rule.
All comments were fully considered when revising the proposed rule as a
final rulemaking.
Changes in Response to Public Comment
Subsection 10.13 (a)
This subsection outlines the purpose of the proposed rule to
clarify the applicability of the Act to museums and Federal agencies
after expiration of the statutory deadlines for completion of summaries
and inventories.
[[Page 13185]]
Comment 1: Six commenters questioned whether the Department of the
Interior has authority to promulgate regulations establishing new
deadlines for completion of summaries and inventories after those
specified in the Act.
Our Response: Three conditions must be satisfied before the
Secretary can be said to have sufficient authority to extend the
reporting requirements of the Act beyond that expressly provided: (1)
The cultural items affected by the rule's new reporting requirements
must be subject to repatriation or disposition under the existing terms
of the Act; (2) Congress must have delegated to the Secretary the
authority to create regulations to implement the terms of the Act; and
(3) the regulations crafted by the Secretary must constitute a
legitimate and lawful exercise of the implementation authority
delegated by Congress.
The scope of cultural items subject to repatriation under Section 7
of Act is best discerned from the language of the statute itself.
Section 7 addresses the ``repatriation of Native American human remains
and objects possessed or controlled by Federal agencies and museums.''
The only limitations of Section 7 are by item type (Native American
human remains and objects), party (Federal agencies and museums), and
the party's interest in the cultural item (possessed or controlled).
Section 7 establishes procedures by which all cultural items in the
possession or control of Federal agencies and museums can be
repatriated upon demand. Subsections (a)(1) and (a)(2) provide
conditions for the repatriation of cultural items listed in the
inventories and summaries completed according to Sections 5 and 6 of
the Act, respectively, to known lineal descendants or culturally
affiliated Indian tribes and Native Hawaiian organization. Subsections
(a)(4) and (a)(5) provide conditions for the repatriation of cultural
items not listed in such inventories or summaries. Subsection (c)
provides additional standards for repatriating unassociated funerary
objects, sacred objects, and objects of cultural patrimony separate and
apart from the standards in subsection (a). When added together, these
individual provisions in Section 7 establish procedures by which all
cultural items in the possession or control of Federal agencies and
museums can be repatriated upon demand. Thus, the scope of items
subject to repatriation under Section 7 extends to all NAGPRA-defined
"cultural items'' that are "possessed or controlled by Federal
agencies and museums.''
There are three Congressional grants of authority that give the
Secretary the power to issue regulations to implement the Act. Section
13 of the Act specifically directs the Secretary to promulgate
regulations to carry out the Act. In addition, 25 U.S.C. 2 and 9 give
the President and his subordinates a broad, general authority to issue
regulations necessary to manage Indian affairs and implement
legislation related to Indians. These three grants of legislative
authority lead us to conclude that Congress has given the Secretary
sufficient power to promulgate regulations to implement the various
provisions of the Act, including the provisions governing the
repatriation of cultural items in Section 7.
The Supreme Court established the test for assessing the propriety
of an exercise of rulemaking authority in Chevron v. NRDC, 467 U.S. 837
(1984). "The power of an administrative agency to administer a
congressionally created * * * program necessarily requires the
formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress. If Congress has explicitly left
a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the
statute by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious, or manifestly
contrary to the statute. Sometimes the legislative delegation to an
agency on a particular question is implicit rather than explicit. In
such a case, a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the
administrator of an agency.'' Chevron v. NRDC, 467 U.S. 837, 843.
The Act does not clearly indicate how museums that become subject
to the Section 7 requirements after the expiration of the statutory
reporting requirements are to disseminate information about cultural
items in their possession or control to potential repatriation
claimants. The Act also does not set clear procedures for Indian tribes
or Native Hawaiian organizations to learn of cultural items for which
they have a right to repatriate under Section 7. This rule facilitates
the repatriation process, a core function of the Act, by requiring
museums and Federal agencies to prepare and disseminate information
regarding their newly acquired or newly regulated collections. It
addresses a gap left in the statute regarding how the Section 7
repatriation process is to be implemented once the statutory reporting
requirements end. Congress expressly delegated to the Secretary,
through Section 13 of Act, and through 25 U.S.C. 2 and 9, the authority
to fill such gaps. Without the dissemination of information about the
collections held by Federal agencies and museums as envisioned by the
proposed rule, the repatriation of cultural items under Section 7 would
be frustrated. Without such information, lineal descendants and Indian
tribes may not otherwise learn about the existence or location of
cultural items to which they have rights under the statute.
Furthermore, the process provided in this rule is consistent with the
Secretary's longstanding interpretation that additional procedures were
necessary for implementing the summary and inventory provisions after
the statutory deadlines. The present section was initially proposed as
a reserved section on May 28, 1993, (58 FR 31127), and finalized as a
reserved section on December 4, 1995, (60 FR 62115). In its December
21, 2004 Chief's Directive, the Fish and Wildlife Service directed its
officers to comply with Section 7's repatriation process for all
cultural items "that are seized or in the possession of Service
officers as a result of Service investigations.'' The National Park
Service, as well, has issued letters stating that a museum "does have
an obligation to update its summaries and inventories to reflect newly
acquired collections and newly recognized Indian tribes,'' and that
cultural items that came into a museum's possession after January 1,
2000, are subject to the Act [Letter from Francis P. McManamon,
Departmental Consulting Archaeologist, National Park Service, to
Michael Sims, Middle Tennessee Support Group, American Indian Movement
(Jul. 31, 1997) (emphasis in original)]. These administrative
statements demonstrate the Department's understanding that the Section
7 repatriation process applies, without limitation, to all cultural
items within the possession or control of a Federal agency or museum.
We conclude that facilitating the repatriation process by
administratively requiring the dissemination of information about
cultural items subject to repatriation is neither arbitrary,
capricious, nor manifestly contrary to the Act, but instead constitutes
a reasoned approach to implementing the Section 7 of the Act. As such,
we find that this rule constitutes a proper exercise of the Secretary's
delegated rulemaking authority.
Comment 2: One commenter thought the proposed deadline for
summaries and inventories were reasonable as long as the Act's
recognition of good faith
[[Page 13186]]
effort when those deadlines cannot be met continues to apply.
Our Response: The Act explicitly authorizes the Secretary of the
Interior to extend the inventory time requirement for any museum which
has made a good faith effort but has been unable to complete the
inventory process [25 U.S.C. 3003(c)]. The statutory provisions are
reiterated in Sec. 10.9 of the regulations, which were incorporated by
reference in the proposed future applicability rule. However,
additional text has been added to Sec. 10.13(b)(1)(ii) and (c)(1)(ii)
to explicitly state that inventory extensions are available to museums
that have made a good faith effort but have been unable to complete the
inventory process.
Comment 3: The drafters noted that the consultation requirements in
Sec. 10.13(b)(i), (b)(ii), (d)(i), and (d)(ii) of the proposed rule
were limited to "culturally affiliated'' Indian tribes and Native
Hawaiian organizations while the consultation requirements in Sec.
10.8(c) and 10.9(b) applies to a broader group of Indian tribes and
Native Hawaiian organizations.
Our Response: Section 10.8(c) and 10.9(b) require museums and
Federal agencies to consult with Indian tribe officials and traditional
religious leaders: (1) From whose tribal lands cultural items
originated; (2) that are, or are likely to be, culturally affiliated
with cultural items; and (3) from whose aboriginal lands cultural items
originated. The drafters intend the same consultation standards to
apply to consultation situations covered in this rule. The text has
been revised to require consultation with "affiliated'' Indian tribes
and Native Hawaiian organizations, to include the range specified in
Sec. 10.8(c) and 10.9(b).
Subsection 10.13(b)
This subsection establishes deadlines for completing summaries and
inventories of collections received after expiration of the statutory
deadlines.
Comment 4: One commenter requested clarification as to whether the
term "collection'' can refer to a single human remain, funerary
object, sacred object, or object of cultural patrimony.
Our Response: The summary and inventory requirements of the Act
apply to "holdings or collections'' of Native American human remains,
funerary objects, sacred objects, or objects of cultural patrimony [25
U.S.C. 3003(a) and 3004(a)]. The phrase ``holding or'' has been added
before "collection'' throughout the section to clarify that the
summary and inventory requirements of the Act apply to both single and
multiple human remains, funerary objects, sacred objects, or objects of
cultural patrimony.
Comment 5: One commenter recommended exempting a museum or Federal
agency from completing a summary or inventory of a newly acquired
collection if that collection had been previously reported in a summary
or inventory by another museum or Federal agency.
Our Response: The drafters do not intend to require museums or
Federal agencies to complete a summary or inventory of a holding or
collection if it had been previously reported in a summary or inventory
by another museum or Federal agency. However, the receiving museum or
Federal agency does have an obligation to notify lineal descendants and
culturally affiliated Indian tribes identified in the earlier summary
or inventory of the change in possession and control of the holding or
collection. Text has been added to clarify that a museum or Federal
agency may rely upon a previously prepared summary or inventory. The
receiving museum or Federal agency must provide a copy of the
previously prepared summary or inventory to all affiliated Indian
tribes or Native Hawaiian organizations, along with notification that
the museum or Federal agency has assumed possession and control of the
holding or collection.
Comment 6: One commenter recommended defining "substantive
change.''
Our Response: The term "substantive change,'' along with the
example in the following sentence, has been replaced with text
indicating that publication of a notice in the Federal Register is not
required if there is no change in the number or cultural affiliation of
the cultural items listed in the previous notice.
Comment 7: One commenter recommended allowing a museum or Federal
agency to proceed with repatriation of newly found fragments from
previously repatriated cultural items regardless of whether the
previous repatriation occurred prior to or after establishment of the
Act.
Our Response: The Act may not be construed to delay actions on
repatriation requests that were pending on November 16, 1990 [25 U.S.C.
3009 (2)]. Newly found fragments from cultural items that were
repatriated prior to November 16, 1990 may be repatriated to the same
party without publication of a notice in the Federal Register. Newly
found fragments from cultural items that were repatriated after
November 16, 1990 may not be repatriated without publication of a
notice in the Federal Register, unless the newly found fragments do not
result in a change in the number or cultural affiliation of the
cultural items listed in the previous notice.
Comment 8: One commenter recommended that the regulation clarify
that there is no obligation to revisit collections that had been
previously repatriated in good faith.
Our Response: The only obligation to revisit previously repatriated
holdings or collections would be to determine if the newly found
fragments will result in a change in the number or cultural affiliation
of the cultural items listed in a previously published notice. While
such a review may reveal discrepancies in the original summary or
inventory, Section 7 (f) of the Act states that any museum that
repatriates cultural items in good faith is not liable for claims by an
aggrieved party or for claims of breach of fiduciary duty, public
trust, or violations of state law that are inconsistent with provisions
of the Act.
Subsection 10.13(c)
This subsection establishes deadlines for completing summaries and
inventories when a previously non-Federally recognized Indian group is
acknowledged as an Indian tribe by the Secretary.
Comment 9: One commenter recommended that museums and Federal
agencies should be required to provide summaries and inventories to
newly recognized Indian tribes "as soon as practicable.''
Our Response: Specific deadlines are necessary to ensure that
summaries and inventories are completed expeditiously. The recommended
change has not been made.
Comment 10: Seven commenters recommended that the National Park
Service ensure that information regarding the acknowledgment of new
Indian tribes is made available to museums and Federal agencies.
Our Response: The Secretary is required to publish a list of Indian
Entities Recognized and Eligible to Receive Services from the United
States in the Federal Register on or before January 30 of each year
[Pub. L. 103-454, 108 Stat. 4791]. The purpose of the list is to assist
various departments and agencies of the United States in determining
the eligibility of certain groups to receive Federal services. Since
1990, six tribal entities have been newly acknowledged as eligible for
funding and services by virtue of their status as Indian tribes. These
are the Jena Band of Choctaws, Huron Potawatomi Inc., and Samish Indian
Tribe (listed on November 13, 1996); Snoqualmie Indian
[[Page 13187]]
Tribe and Match-e-be-nash-she-wish Band of Pottawatomi Indians of
Michigan (listed on March 13, 2000); and Cowlitz Tribe of Indians
(listed on July 12, 2002). In order to facilitate consultation with
newly acknowledged Indian tribes, the National Park Service will
identify newly acknowledged Indian tribes on the National NAGPRA
Program Web site - http://www.cr.nps.gov/nagpra/ - and will include
contact and other relevant information as it comes available for each
Indian tribe on the National Consultation Database.
Comment 11: One commenter recommended that the Department of the
Interior provide specific notice that a new Indian tribe has been
acknowledged to each museum and Federal agency and have the deadlines
run from that notification.
Our Response: The summary and inventory provisions of the Act apply
to Federal agencies and institutions that receive Federal funds that
have possession or control of Native American cultural items. There is
no centralized information source to identify all institutions that
receive Federal funds nor of all institutions that have possession or
control of Native American cultural items. Providing specific
notification that a new Indian tribe has been acknowledges is thus
impractical. The National Park Service will ensure that information
regarding new Indian tribes is readily available through the National
NAGPRA Program Web site.
Comment 12: One commenter recommended that the rule require museums
and Federal agencies to provide summaries and inventories to all non-
Federally recognized Indian groups currently involved in the Federal
acknowledgement process.
Our Response: Nothing in the Act or regulations precludes museums
and Federal agencies from consulting with or providing information to
non-Federally recognized Indian groups. Disposition of human remains
and associated funerary objects to non-Federally recognized Indian
groups is currently facilitated by the Native American Graves
Protection and Repatriation Review Committee and a recommendation from
the Secretary. Requiring the disposition of cultural items to a non-
Federally recognized Indian group would appear to be beyond the
Secretary's authority under the Act.
Subsection 10.13(d)
This subsection establishes deadlines for completing summaries and
inventories by any institution that receives Federal funds for the
first time.
Comment 13: One commenter recommended that the National Park
Service provide notification of the summary and inventory requirements
to all institutions that receive Federal funds for the first time.
Our Response: There is no centralized information source to
identify all institutions that receive Federal funds.
Subsection 10.13(e)
This subsection establishes requirements for amending previously
published Federal Register notices when a museum or Federal agency
revises its identification of cultural items or determination of
cultural affiliation.
Comments 14: One commenter identified the requirements as
reasonable, but questioned that perhaps such requirements are already
covered by existing regulations.
Our Response: As currently written, Sec. 10.8 does not establish a
deadline for a museum or Federal agency to complete a summary if it
acquires new holdings or collections, or a new Indian tribe is
recognized, or it receives Federal funds for the first time. Similarly,
Sec. 10.9 does not establish a deadline for a museum or Federal agency
to complete an inventory if it acquires new holdings or collections, or
a new Indian tribe is recognized, or it receives Federal funds for the
first time. Without the information provided in summaries and
inventories, an Indian tribe and Native Hawaiian organization has no
way to have its right to repatriate under Section 7 of the Act. While
many museums and Federal agencies have continued to update their
summaries and inventories to accommodate new collections and newly
recognized Indian tribes, the absence of regulations leaves them
without clear guidance on how and when to provide summaries and
inventories to possible claimants. The absence of regulations is likely
to result in museums and Federal agencies accumulating a growing number
of culture items that could otherwise rightfully be repatriated by
lineal descendants or culturally affiliated Indian tribes or Native
Hawaiian organizations.
Other Issues
Comment 15: One commenter recommended revising references in other
sections of the rule to the Departmental Consulting Archeologist, to
whom the Secretary had previously delegated some responsibilities under
the Act, to the Manager, National NAGPRA Program.
Our Response: These duties were reassigned to the Manager, National
NAGPRA Program by means of a technical amendment. September 30, 2005,
(70 FR 57177).
Comment 16: One commenter questioned the legal citation for the
right of possession as used in the discussion of Executive Order 12630
in the preamble.
Our Response: The commenter accurately points out that 25 U.S.C.
3005 (c) specifically addresses the standard of repatriation for
unassociated funerary objects, sacred objects, and objects of cultural
patrimony. Reference to that section has been removed from the preamble
to the rule. However, nothing in the Act requires museums to repatriate
human remains, funerary objects, sacred objects, or objects of cultural
patrimony for which they can prove right of possession
Comment 17: One commenter questioned the public reporting burden
estimated in the preamble.
Our Response: The commenter failed to provide evidence showing that
the estimated public reporting burden of an average of 20 hours for the
exchange of summary/inventory information between a museum and an
Indian tribe and six hours per response for the notification to the
Secretary of the Interior, including time for reviewing instructions,
searching existing data sources, gathering and maintaining data needed
and completing and reviewing the collected information is not
reasonable.
Comment 18: One commenter questioned whether time limits should be
set for repatriation.
Our Response: This issue will be considered in a future rulemaking
for the currently reserved section at 10.15 (b) regarding failure to
claim where no repatriation or disposition has occurred.
Compliance With Other Laws
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and has not been reviewed
by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. Actions
taken under this rule will not interfere with other
[[Page 13188]]
agencies or local government plans, policies or controls. This rule is
an agency specific rule.
(3) This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs, or the rights or obligations of
their recipients. This rule will have no effects on entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No grants or other forms of monetary supplements are
involved.
(4) This rule does not raise novel legal or policy issues.
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.).
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This final 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.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments, or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required, since the rule does not compel the repatriation of Native
American cultural items, nor does it affect any item not already
subject to repatriation under NAGPRA. Further, museums are only
required to repatriate human remains, funerary objects, sacred objects,
or objects of cultural patrimony for which they cannot prove right of
possession [25 U.S.C. 3001(13) and 3005(c)].
Federalism (Executive Order 12612)
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 (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and does not meet the requirements of sections 3(a) and
3(b) of the order.
Paperwork Reduction Act
The collection of information contained in this rule has been
submitted to the Office of Management and Budget for approval as
required by 44 U.S.C. 3501 et seq. The collection of this information
will not be required until it has been approved by the Office of
Management and Budget. Public reporting burden for this collection of
information is expected to average 20 hours for the exchange of
summary/inventory information between a museum and an Indian tribe and
six hours per response for the notification to the Secretary of the
Interior, including time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collected information. Send comments regarding this
burden estimate or any other aspects of this collection of information,
including suggestions for reducing the burden, to Information
Collection Officer, Attn: Docket No. 1024-AC84, National Park Service,
Department of Interior Building, 1849 C Street, NW., Room 3317,
Washington, DC 20240, and the Office of Management and Budget, Office
of Information and Regulatory Affairs, Attention: Desk Officer for the
Department of the Interior, Washington, DC 20503.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment and can be Categorically
Excluded under NPS exclusion 3.4A(8) "Modifications or revisions to
existing regulations, or the promulgation of new regulations for NPS-
administered areas, provided the modifications, revisions, or new
regulations do not:
(a) Increase public use to the extent of compromising the nature
and character of the area or cause physical damage to it.
(b) Introduce non-compatible uses that might compromise the nature
and characteristics of the area or cause physical damage to it.
(c) Conflict with adjacent ownerships or land uses.
(d) Cause a nuisance to adjacent owners or occupants.''
Government-to-Government Relationship With Tribes
The rule clarifies the circumstances in which museums and Federal
agencies are required to provide summaries and inventories thereby
increasing notice and opportunity for Indian tribes to repatriate
cultural items. As required by Executive Order 13175, the drafters
consulted with representatives of Indian tribal governments prior to
and during the development of the proposed rule as part of multiple,
duly-noticed public meetings held by the Native American Graves
Protection and Repatriation Review Committee. No Indian tribes raised
concerns regarding the proposed rule during the comment period.
Clarity of Rule
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite comments on how to make this
rule easier to understand, including answers to questions such as the
following--(1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (A "section'' appears in bold type
and is preceded by the symbol "Sec. '' and a numbered heading; for
example, Sec. 10.13 Future Applicability.) (5) Is the description of
the rule in the SUPPLEMENTARY INFORMATION section of the preamble
helpful in understanding the proposed rule? What else could we do to
make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.
You may also e-mail the comments to: exsec@os.doi.gov.
Drafting Information
This final rule was prepared by Dr. C. Timothy McKeown in
consultation with the Native American Graves Protection and
Repatriation Review Committee as directed by Section 8(c)(7) of the
Act.
[[Page 13189]]
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Graves, Hawaiian Natives,
Historic preservation, Indians--claims, Museums, Reporting and
recordkeeping requirements, Repatriation.
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
Authority: 25 U.S.C. 3001 et seq.
Sec. 10.13 Future applicability.
(a) General. This section sets forth the applicability of the Act
to museums and Federal agencies after expiration of the statutory
deadlines for completion of summaries and inventories.
(b) New holdings or collections.
(1) Any museum or Federal agency that, after completion of the
summaries and inventories as required by Sec. Sec. 10.8 and 10.9,
receives a new holding or collection or locates a previously unreported
current holding or collection that may include human remains, funerary
objects, sacred objects or objects of cultural patrimony, must:
(i) Within 6 months of receiving a new holding or collection or
locating a previously unreported current holding or collection, or
within 6 months of the effective date of this rule, whichever is later,
provide a summary of the holding or collection as required by Sec.
10.8 to any Indian tribe or Native Hawaiian organization that is, or is
likely to be, affiliated with the collection; and
(ii) Within 2 years of receiving a new holding or collection or
locating a previously unreported current holding or collection, or
within 2 years of the effective date of this rule, whichever is later,
prepare, in consultation with any affiliated Indian tribe or Native
Hawaiian organization, an inventory as required by Sec. 10.9 of these
regulations. Any museum that has made a good faith effort to complete
its inventory, but which will be unable to complete the process by this
deadline, may request an extension of the time requirements under Sec.
10.9(f).
(2) Additional pieces or fragments of previously repatriated human
remains, funerary objects, sacred objects and objects of cultural
patrimony may be returned to the appropriate Indian tribe or Native
Hawaiian organization without publication of a notice in the Federal
Register, as otherwise required under Sec. Sec. 10.8(f) and 10.9(e),
if they do not change the number or cultural affiliation of the
cultural items listed in the previous notice.
(3) A museum or Federal agency that receives a new holding or
collection for which a summary or inventory was previously prepared, as
required by Sec. Sec. 10.8 or 10.9, may rely upon the previously
prepared documents. The receiving museum or Federal agency must provide
a copy of the previously prepared summary or inventory to all
affiliated Indian tribes or Native Hawaiian organizations, along with
notification that the receiving museum or Federal agency has assumed
possession and control of the holding or collection.
(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
newly Federally recognized Native American tribe, must:
(i) Within 6 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, or within 6 months of the effective date of
this rule, whichever is later, provide a summary of the collection as
required by Sec. 10.8 to that Indian tribe; and
(ii) Within 2 years of the publication in the Federal Register of
the Native American group's placement on the list of Indian Entities
Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs, or within 2 years of the effective date of
this rule, whichever is later, prepare, in consultation with the newly
recognized culturally affiliated Indian tribe an inventory as required
by Sec. 10.9. Any museum that has made a good faith effort to complete
its inventory, but which will be unable to complete the process by this
deadline, may request an extension of the time requirements under Sec.
10.9(f).
(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 as required by provisions of the Federally
Recognized Indian Tribe List Act of 1994 [Pub. L. 103-454, 108 Stat.
4791].
(d) New Federal funds. Any museum that has possession or control of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony and receives Federal funds for the first time after
expiration of the statutory deadlines for completion of summaries and
inventories must:
(1) Within 3 years of the date of receipt of Federal funds, or
within 3 years of the effective date of this rule, whichever is later,
provide a summary of the collection as required by Sec. 10.8 to any
Indian tribe or Native Hawaiian organization that is, or is likely to
be, culturally affiliated with the collections; and
(2) Within 5 years of the date of receipt of Federal funds, or
within 5 years of the effective date of this rule, whichever is later,
prepare, in consultation with any affiliated Indian tribe or Native
Hawaiian organization, an inventory as required by Sec. 10.9.
(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 under Sec. 10.8(f), or the completion of an inventory of
Native American human remains and associated funerary objects as
required by Sec. 10.9(e), must publish an amendment to that notice if,
based on subsequent information, the museum or Federal agency revises
its decision in a way that changes the number or cultural affiliation
of the cultural items listed.
(2) Repatriation may not occur until at least 30 days after
publication of the amended notice in the Federal Register.
(f) All actions taken as required by this section must also comply
with all other relevant sections of 43 CFR 10.
Dated: March 6, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-5113 Filed 3-20-07; 8:45 am]
BILLING CODE 4310-70-P
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