Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 22447 

while it is in the possession of the 

Commission or its staff. After 

completing its review of the 

supplemental information, the 

Commission or its staff will return or 

destroy it, if the Registrant complies 

with the procedures outlined in Rule 

418 under the Securities Act [17 CFR 

230.418]. 

7. Each exhibit identified in the 

exhibit index (other than an exhibit 

filed in eXtensible Business Reporting 

Language) must include an active link to 

an exhibit that is filed with the 

registration statement or, if the exhibit 

is incorporated by reference, an active 

hyperlink to the exhibit separately filed 

on EDGAR. If the registration statement 

is amended, each amendment must 

include active hyperlinks to the exhibits 

required with the amendment.’’ 

* * * * * 

Note: The text of Form N–3 does not, and 

these amendments will not, appear in the 

Code of Federal Regulations. 

■ 13. Amend Form N–3 (referenced in 

§§ 239.17a and 274.11b), Cover Page, by 

adding a new paragraph immediately 

after the sentence [‘‘t]he Commission 

also may use the information provided 

on Form N–3 in its regulatory, 

disclosure review, inspection, and 

policy making roles’’ To read as follows: 

* * * * * 

A Registrant is required to disclose 

the information specified by Form N–3, 

and the Commission will make this 

information public. A Registrant is not 

required to respond to the collection of 

information contained in Form N–3 

unless the Form displays a currently 

valid Office of Management and Budget 

(‘‘OMB’’) control number. Please direct 

comments concerning the accuracy of 

the information collection burden 

estimate and any suggestions for 

reducing the burden to Secretary, 

Securities and Exchange Commission, 

100 F Street NE, Washington, DC 20549. 

The OMB has reviewed this collection 

of information under the clearance 

requirements of 44 U.S.C. 3507. 

* * * * * 

Note: The text of Form N–CEN does not, 

and these amendments will not, appear in 

the Code of Federal Regulations. 

■ 14. Amend Form N–CEN (referenced 

in § 274.101) by replacing the 

Instruction following Item F.3 and 

replacing Item F.18 to read as follows: 

* * * * * 

Part F: Additional Questions for Unit 

Investment Trusts 

* * * * * 

Item F.3. * * * 

Instruction. If the answer to Item F.3 

is yes, respond to Item F.12 through 

Item F.19. If the answer to Item F.3 is 

no, respond to Item F.4 through Item 

F.11, and Item F.17 through Item F.19. 

* * * * * 

Item F. 18. Reliance on rule 12d1–4. 

Did the Registrant rely on rule 12d1–4 

under the Act (17 CFR 270.12d1–4) 

during the reporting period? [Y/N] 

* * * * * 

Note: The text of Form N–PX does not, and 

these amendments will not, appear in the 

Code of Federal Regulations. 

■ 15. Amend Form N–PX (referenced in 

§ 274.129), Cover Page by removing 

‘‘§§ 239.24 and 274.5 of this chapter’’ 

and adding, in its place, ‘‘17 CFR 239.24 

and 274.5’’. 

Note: The text of Form N–MFP does not, 

and these amendments will not, appear in 

the Code of Federal Regulations. 

■ 16. Amend Form N–MFP (referenced 

in § 274.201), in Item A.14.c. by 

removing the term ‘‘A.14.a–c.’’ and 

adding, in its place, the term ‘‘A.14.a– 

b.’’ 

PART 275—RULES AND 

REGULATIONS, INVESTMENT 

ADVISERS ACT OF 1940 

■ 17. The authority for part 275 

continues to read, in part, as follows: 

Authority: 15 U.S.C. 80b–2(a)(11)(G), 80b– 

2(a)(11)(H), 80b–2(a)(17), 80b–3, 80b–4, 80b– 

4a, 80b–6(4), 80b–6a, and 80b–11, unless 

otherwise noted. 

* * * * * 

Section 275.204–2 is also issued under 15 

U.S.C. 80b–6. 

* * * * * 

Section 275.204–5 is also issued under sec. 

913, Public Law 111–203, sec. 124 Stat. 

1827–28 (2010). 

* * * * * 

§ 275.204–2 [Amended] 

■ 18. In § 275.204–2 amend paragraph 

(a)(15)(ii) by removing ‘‘.’’ and adding, 

in its place, ‘‘; and’’. 

§ 275.204–3 [Amended] 

■ 19. In § 275.204–3 amend paragraph 

(b) by removing ‘‘Subject to paragraph 

(g), you’’ and adding, in its place, 

‘‘You’’. 

§ 275.204–5 [Amended] 

■ 20. In § 275.204–5 amend paragraph 

(e)(1) by removing ‘‘§ 275.204–1(b)(3)’’ 

and adding, in its place ‘‘§ 275.204– 

1(b)’’. 

§ 275.206(4)–1 [Amended] 

■ 21. In § 275.206(4)–1 amend 

paragraph (b)(2)(i) by removing ‘‘,’’ and 

adding in its place ‘‘;’’. 

PART 279—FORMS PRESCRIBED 

UNDER THE INVESTMENT ADVISERS 

ACT OF 1940 

■ 22. The authority for part 279 

continues to read, in part, as follows: 

Authority: The Investment Advisers Act of 

1940, 15 U.S.C. 80b–1, et seq., Public Law 

111–203, 124 Stat. 1376. 

Note: The text of Form ADV does not, and 

these amendments will not, appear in the 

Code of Federal Regulations. 

■ 23. Amend Form ADV (referenced in 

§ 279.1) by: 

■ a. In General Instruction 4 to Form 

ADV removing ‘‘Section 10 of Schedule 

R’’ and adding, in its place, ‘‘Section 4 

of Schedule R’’; and 

■ b. In the Instruction to Section 4.B.7 

of Schedule R removing ‘‘pre-fill 

Schedule B with the same indirect 

owners you have provided in Schedule 

B’’ and adding, in its place, ‘‘pre-fill the 

chart below with the same indirect 

owners you have provided in Schedule 

B for your filing adviser’’. 

* * * * * 

Dated: March 29, 2022. 

Vanessa A. Countryman, 

Secretary. 

[FR Doc. 2022–06972 Filed 4–14–22; 8:45 am] 

BILLING CODE 8011–01–P 

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. 

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. 


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22448 Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 

FOR FURTHER INFORMATION CONTACT: 

Karen Mudar, Archeology Program, 

National Park Service, 1849 C Street 

NW, Washington, DC 20005, 202–354– 

2103, email: karen_mudar@nps.gov. 

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-ofcontact 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 


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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. 


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22450 Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 

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 


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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 


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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 nonFederal 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 reinterment 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 


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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. 


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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 the terms ‘‘Departmental Consulting Archeologist’’ and ‘‘provenience information’’.Clarifies the meaning of these terms for non-specialists. 

79.12(b)(2) ........................... Specified that the term ‘‘human remains’’ refers to 

human remains that are not ‘‘cultural items’’ under 

NAGPRA.

Clarifies that no human remains may be disposed of 

under this rule, whether or not they are subject to 

NAGPRA. 

79.12(c) ................................ Clarified that only persons who meet the applicable 

Professional Qualification Standards set by the Secretary may propose the disposal of material remains.

Helps ensure that only qualified experts may initiate the 

disposition process. Ensures that disposition is not 

undertaken casually or as a matter of convenience. 

The professional standards are available here: 

https://www.nps.gov/articles/sec-standards-profquals.htm. 

79.12(c)(1) ............................ Added a requirement that Federal agency staff members must have verifiable knowledge of the particular 

material remains that are proposed for disposal.

Helps ensure that disposition is not undertaken improperly because qualified experts were not involved. 

79.12(e) ................................ Added a requirement that archeological or museum 

professionals must have verifiable knowledge of the 

particular material remains in order to determine 

whether those material remains have insufficient archeological interest.

Helps ensure that disposition is not undertaken improperly because qualified experts were not involved. 

79.12(e)(2)(i)(C) ................... Clarified that a lack of provenience information may be 

established if associated records never existed, have 

been lost, or have been destroyed.

Addresses a legitimate circumstance where there is no 

existing provenience information. 

79.12(e)(2)(iii) ....................... Clarified that representative samples of material remains that are overly redundant and not useful for research must be representative of the population as a 

whole from which the sample was taken.

Helps ensure that a statistically valid sample is retained 

in the event that new analytical techniques are developed that allow the sample to generate useful information about the past. 

79.13(a)(2) ........................... Clarified that the FAO must receive written consent and 

relinquishment of ownership from the Indian individual or tribe having rights of ownership before otherwise disposing of material remains excavated from 

Indian lands.

Helps ensure that the FAO will not dispose of material 

remains owned by Indian individuals or tribes without 

their consent. 

79.13(b)(5) ........................... Added the following method of disposal for material remains excavated or removed from public lands: Convey to a federally recognized Indian tribe for the purpose of traditional cultural, educational, or religious 

practices.

Responds to public comment and improves consistency 

between the acceptable methods of disposition for 

materials removed from Indian and public lands. 


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Final rule section 

or paragraph Change Reason for change 

79.15(d) ................................ Added a requirement that the FAO consult with qualified museum professionals located in the repository 

that provides curatorial services for material remains 

proposed for disposal when those museum professionals did not propose the disposal.

Helps ensure that appropriate experts are involved in 

the disposition process. 

79.15(e) ................................ Added a requirement that the collections advisory committee make consensus recommendations to the 

FAO about proposed dispositions.

Responds to public comment and helps ensure that 

disposition is not undertaken lightly or improperly. 

79.15(e)(1) ........................... Added a provision stating that the DCA may not participate on a collections advisory committee.Helps maintain the impartiality of the DCA, who serves 

as the arbiter of disputes about proposed dispositions. 

79.15(e)(3) ........................... Clarified that the requirement that collections advisory 

committees include at least one representative of an 

Indian tribe only applies if there are Native American 

material remains proposed for disposal.

Ensures the appropriate inclusion of tribal viewpoints in 

considering a disposition of Native American material 

remains. 

79.15(e)(5) ........................... Added a requirement that the collections advisory committee submit a written report to the FAO about any 

proposed disposition.

Responds to public comments and improves the administrative record of a disposition. 

79.15(g) ................................ Added a requirement that, for material remains excavated from Indian land, the FAO provide a copy of 

the associated records to the appropriate Tribal Historic Preservation Officer or tribal official.

Responds to public comments and improves accountability to tribal governments. 

79.15(h) ................................ Added a minimum duration of 60 days for the public 

comment period for a proposed disposition. Made the 

FAO responsible for responding only to relevant, substantive comments.

Responds to public comments to improve timeliness 

and public accountability. Reduces the administrative 

burden on the FAO during the comment review period. 

79.15(h)(1) ........................... Added a requirement that the FAO must give notice of 

proposed dispositions to the State Archeologist if 

there is one.

Improves coordination with state officials and improves 

the administrative record. 

79.15(h)(3) ........................... Added a requirement that the FAO must give notice of 

proposed dispositions to private landowners from 

whose lands the objects to be disposed were removed.

Responds to public comments to provide additional information to landowners. 

79.15(h)(5) ........................... Removed the requirement that the FAO must give notice to organizations and institutions with an active 

department of or program in archeology or anthropology pertaining to the archeology of the state or region from which the material remains to be disposed 

of were recovered. Clarified that the FAO must give 

notice of proposed 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.

Removes ambiguity about which institutions and organizations must receive notice of proposed dispositions. 

Reduces the burden of compliance for the FAO by 

requiring only notification of those entities that have a 

formal relationship. Improves communication about 

proposed disposition actions with interested researchers. 

79.16 .................................... Lengthened the timeframe to object to a determination 

of disposition from 30 to 60 days after publication of 

the notice of determination of disposition in the Federal Register.

Responds to public comments and provides more opportunity for the public to object to a proposed disposition. 

79.16(a) ................................ Added a requirement that the DCA forward a copy of 

objections to the FAO within 5 days of receipt.

Improves accountability from the DCA to the FAO and 

streamlines the objection process. 

79.16(c) ................................ Added a requirement that the DCA consult with the objecting party and the FAO with the aim of resolving 

the objection.

Responds to public comments to improve the fairness 

of the objection process by providing another opportunity for discussion between the objecting party and 

the FAO. 

79.16(d) ................................ Added a requirement that the DCA must thoroughly explain their non- binding recommendation to the FAO.Responds to public comment to provide a more effective and inclusive disputes process. 

79.16(e) ................................ Shortened the timeframe for the FAO to respond to the 

DCA and the objector with a final determination from 

60 to 30 days.

Streamlines the objection process and encourages 

timely resolution to objections. 

79.16(f) ................................. Clarified that notice of a decision on an objection is a 

final agency action under the Administrative Procedure Act.

Responds to public comment to make procedures clear 

to the public. 

79.17 .................................... Added a requirement that disposition after an objection 

will occur no sooner than 30 days after the FAO publishes the notice of decision on the objection and any 

amendments in the Federal Register.

Responds to public comment to make procedures clear 

to the public. 

43 CFR 3.17 ........................ Added a note that resources excavated under the Antiquities Act may be eligible for disposal under Subpart E of 36 CFR 79.Responds to public comments questioning the applicability of the rule to material remains excavated under 

the Antiquities Act. 


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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-togovernment 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. 


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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 

■ 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. 

■ 2. Revise the part heading to read as 

shown above. 

§§ 79.1 through 79.4 [Designated as 

Subpart A] 

■ 3. Designate §§ 79.1 through 79.4 as 

subpart A and add a heading for subpart 

A to read as follows: 

Subpart A—Administrative Provisions 

§ 79.1 [Amended] 

■ 4. In § 79.1 amend paragraph (a) by: 

■ a. Removing ‘‘(16 U.S.C. 431–433)’’ 

and adding, in its place, ‘‘(54 U.S.C. 

320301–320303)’’; 

■ b. Removing ‘‘(16 U.S.C. 469–469c)’’ 

and adding, in its place, ‘‘(54 U.S.C. 

312501–312508)’’; and 

■ c. Removing ‘‘(16 U.S.C. 470h-2)’’ and 

adding, in its place, ‘‘(54 U.S.C. 306101– 

306114)’’. 

■ 5. In § 79.2: 

■ a. Revise paragraph (a). 

■ 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: 

§ 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). 

* * * * * 

■ 6. In § 79.3, revise paragraph (a) to 

read as follows: 

§ 79.3 Applicability. 

(a) Except as otherwise stated in this 

section, the regulations in this part 

apply to collections, as defined in § 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). 

* * * * * 

■ 7. Revise § 79.4 to read as follows: 

§ 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 


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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 § -.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 § -.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 § -.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 


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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. 

§§ 79.5 through 79.9 [Designated as 

Subpart B] 

■ 8. Designate §§ 79.5 through 79.9 as 

subpart B and add a heading for subpart 

B to read as follows: 

Subpart B—Archeological Collections 

Management 

§ 79.10 [Designated as Subpart C] 

■ 9. Designate § 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 

§ 79.11 [Designated as Subpart D] 

■ 10. Designate § 79.11 as subpart D and 

add a heading for subpart D to read as 

follows: 

Subpart D—Inspections and 

Inventories of Collections 

■ 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. 

§ 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 § 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 


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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 § 79.15(f). 

§ 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 § 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 § 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 § 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. 

§ 79.14 [Reserved] 

§ 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 

§ 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 § 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 § 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 § 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 

§ 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 


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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 § 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 

§ 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 § 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 § 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 § 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 § 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 § 79.16. 


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§ 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 

§ 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 § 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). 

§ 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 § 79.15(i). If the 

Federal agency receives an objection 

under § 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 § 79.16(f). 

§ 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 

§ 79.4(a)(2), which must include: 

(1) The professional evaluation of the 

material remains conducted under 

§§ 79.12(e) and 79.15(b). 

(2) The report of the collections 

advisory committee provided under 

§ 79.15(e)(5). 

(3) Notifications of the proposed 

disposition under § 79.15(h); consent of 

Indian individuals or tribes, if 

applicable, under § 79.13(a)(2); and 

comments received from the parties 

notified under § 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 § 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 § 79.15, § 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 

■ 12. The authority citation for part 3 is 

revised to read as follows: 

Authority: 54 U.S.C. 320302–320303. 

■ 13. Amend § 3.17 by adding a note at 

the end of the section to read as follows: 

§ 3.17 Preservation of Collection 

* * * * * 

Note to § 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 


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