68640 Federal Register / Vol. 79, No. 222 / Tuesday, November 18, 2014 / Proposed Rules 

A 30-day comment period is provided 

to allow interested persons to respond 

to this proposal. Thirty days is deemed 

appropriate because this action needs to 

be in place as soon as possible so the 

Board can begin to collect the additional 

funds for research and promotional 

activities designed to maintain and 

expand the market for honey and honey 

products in the United States and 

abroad. All written comments received 

in response to this proposed rule by the 

date specified will be considered prior 

to finalizing this action. 

List of Subjects in 7 CFR Part 1212 

Administrative practice and 

procedure, Advertising, Consumer 

information, Honey Packer and Importer 

promotion, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, Part 1212, Chapter XI of Title 

7 is proposed to be amended as follows: 

PART 1212—HONEY PACKERS AND 

IMPORTERS RESEARCH, 

PROMOTION, CONSUMER 

EDUCATION AND INDUSTRY 

INFORMATION ORDER 

■ 1. The authority citation for 7 CFR 

part 1212 continues to read as follows: 

Authority: 7 U.S.C. 7411–7425; 7 U.S.C. 

7401. 

■ 2. In § 1212.52, paragraphs (a), (b), (c), 

(d) and (e) are revised to read as follows: 

§ 1212.52 Assessments. 

(a) The Board will cover its expenses 

by levying in a manner prescribed by 

the Secretary an assessment on first 

handlers and importers. For the period 

January 1 through December 31, 2015, 

the assessment rate shall be $0.0125 per 

pound of assessable honey and honey 

products. On and after January 1, 2016, 

the assessment rate shall be $0.015 per 

pound of assessable honey and honey 

products. 

(b) Each first handler shall pay the 

assessment to the Board on all 

domestically produced honey or honey 

products the first handler handles. A 

producer shall pay the Board the 

assessment on all honey or honey 

products for which the producer is the 

first handler. 

(c) Each first handler responsible for 

remitting assessments shall remit the 

amounts due to the Board’s office on a 

monthly basis no later than the fifteenth 

day of the month following the month 

in which the honey or honey products 

were marketed. 

(d) Each importer shall pay an 

assessment to the Board on all honey or 

honey products the importer imports 

into the United States. An importer 

shall pay the assessment to the Board 

through the United States Customs and 

Border Protection (Customs) when the 

honey or honey products being assessed 

enters the United States. If Customs 

does not collect an assessment from an 

importer, the importer is responsible for 

paying the assessment to the Board. 

(e) The import assessment 

recommended by the Board and 

approved by the Secretary shall be 

uniformly applied to imported honey or 

honey products that are identified as 

HTS heading numbers 0409.00.00 and 

2106.90.9988 by the Harmonized Tariff 

Schedule of the United States or any 

other numbers used to identify honey or 

honey products. 

* * * * * 

■ 3. In § 1212.53, paragraph (d) is 

revised to read as follows: 

§ 1212.53 Exemption from assessment. 

* * * * * 

(d) Upon receipt of an application, the 

Board shall determine whether an 

exemption may be granted. The Board 

will then issue, if deemed appropriate, 

a certificate of exemption to each person 

who is eligible to receive one. The 

exemption is effective when approved 

by the Board. It is the responsibility of 

these persons to retain a copy of the 

certificate of exemption. 

* * * * * 

■ 4. Section 1212.71 is revised to read 

as follows: 

§ 1212.71 Books and records. 

Each first handler and importer, 

including those who are exempt under 

this subpart, must maintain any books 

and records necessary to carry out the 

provisions of this part, and any 

regulations issued under this part, 

including the books and records 

necessary to verify any required reports. 

Books and records must be made 

available during normal business hours 

for inspection by the Board’s or 

Secretary’s employees or agents. A first 

handler or importer must maintain the 

books and records for three years 

beyond the fiscal period to which they 

apply. 

Dated: November 13, 2014. 

Rex A. Barnes, 

Associate Administrator. 

[FR Doc. 2014–27253 Filed 11–17–14; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

36 CFR Part 79 

[NPS–WASO–CR–16170; PPWOCRADI0, 

PCU00RP14R50000] 

RIN 1024–AE17 

Curation of Federally-Owned and 

Administered Archeological 

Collections 

AGENCY: National Park Service, Interior. 

ACTION: Proposed rule. 

SUMMARY: The National Park Service 

proposes to amend the regulations for 

the curation of federally-owned and 

administered archeological collections 

to establish definitions, standards, and 

procedures to dispose of particular 

material remains that are determined to 

be of insufficient archaeological interest. 

This rule would promote more efficient 

and effective curation of these 

archeological collections. 

DATES: Comments must be received by 

February 17, 2015. 

ADDRESSES: You may submit comments, 

identified by Regulation Identifier 

Number (RIN) 1024–AE17, by any of the 

following methods: 

• Federal eRulemaking portal: http:// 

www.regulations.gov. Follow 

instructions for submitting comments. 

• Mail to: Stanley C. Bond, 

Departmental Consulting Archeologist, 

National Park Service, Docket No. 1024– 

AE17, 1201 Eye Street NW., 7th Floor 

(2275), Washington, DC 20005. 

• Hand deliver to: Stanley C. Bond, 

Departmental Consulting Archeologist, 

1201 Eye Street NW., Room 760, 

Washington, DC 20005. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this 

rulemaking. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

David A. Gadsby, Archeology Program, 

National Park Service, 1201 Eye Street 

NW., Washington, DC 20005, 202–354– 

2101, email: david_gadsby@nps.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Statutory Authority and Jurisdiction 

The Archaeological Resources 

Protection Act (ARPA; 16 U.S.C. 470aa– 

mm) authorizes the Secretary of the 

Interior to promulgate regulations for 

the disposition of archaeological 


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resources and other resources recovered 

under the authority of ARPA, the 

Reservoir Salvage Act (RSA; 16 U.S. C. 

469–469c–2), as amended, and the 

Antiquities Act (16 U.S.C. 431–433). In 

addition, the National Historic 

Preservation Act (NHPA; 16 U.S.C. 

470a(a)(7) and 470h–4(a)) authorizes the 

Secretary of the Interior to promulgate 

regulations for the proper curation of 

archeological collections created under 

NHPA, RSA, and ARPA. The 

Department of the Interior’s 

Departmental Consulting Archeologist 

(DCA), located in the National Park 

Service (NPS), is responsible for 

developing regulations concerning the 

preservation of prehistoric and historic 

material remains of archaeological 

interest under ARPA, under the 

Department of the Interior’s 

Departmental Manual ‘‘Protection of the 

Cultural Environment’’ (519 DM 2.3D). 

Disposal of Particular Material Remains 

From Archeological Collections 

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 provide a process for Federal 

agencies to dispose of particular 

material remains from archeological 

collections that, after rigorous 

evaluation, are determined to have 

insufficient archaeological interest. 

Prehistoric or historic material remains 

improperly disposed of could later be 

rediscovered and misinterpreted by 

unwitting archeologists or others as 

evidence of activity in the distant past, 

so it is important to delineate 

appropriate methods of disposal. A 

proposed rule to establish procedures to 

discard particular material remains from 

Federal collections was published in the 

Federal Register in 1990 (55 FR 37670, 

September 12, 1990). The NPS received 

less than 10 sets of comments about the 

proposed rule, but these comments 

raised a variety of issues, including the 

following: 

• Lack of defined terms. 

• Potential for future development of 

archeological methods and theories that 

could be applied to disposed material 

remains. 

• Qualifications of persons involved 

in the procedure to recommend the 

appropriateness of the decision to 

discard. 

• Need for more detail about 

procedures to discard material remains. 

• Need for procedures to determine a 

‘‘representative’’ sample of bulky, nondiagnostic objects to be retained for 

future research from material remains to 

be discarded. 

• Need for procedures to ensure that 

the discard of material remains would 

not create an artificial archeological site. 

Due, in part, to the comments 

received, a final rule for the 1990 

proposed rule was never published. 

Instead, the DCA decided to focus on 

proper curation of federally-owned and 

administered collections before the 

option to dispose of any material 

remains was introduced. 

Proposed Rule 

Based on renewed interest from 

Federal agencies, the Department of the 

Interior (DOI) now proposes new 

sections 79.12 through 79.18, and 

related amendments to sections 79.2 

and 79.3 of 36 CFR Part 79, to establish 

regulations to dispose of particular 

material remains from federally-owned 

and administered archeological 

collections. This rule would establish 

certain circumstances under which 

specific procedures may be used to 

dispose of material remains of 

insufficient ‘‘archaeological interest,’’ as 

this term is defined in 43 CFR 7.3(a)(1). 

The term ‘‘material remains,’’ as defined 

in section 79.4(1)(a) of this part, refers 

to artifacts, objects, specimens, and 

other physical evidence, including 

human remains, of a historic or 

prehistoric resource and of historic or 

prehistoric cultures and lifeways. This 

proposed rule would not affect any 

material remains defined as ‘‘cultural 

items’’ by the Native American Graves 

Protection and Repatriation Act (25 

U.S.C. 3001 et seq.), including human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony, 

and subject to the provisions of that 

statute. The Federal agency would be 

responsible for ensuring that disposition 

is conducted in accordance with the 

proposed rule and 36 CFR 79.7, 

‘‘Methods to fund curatorial services.’’ 

In addition to providing a mechanism 

for appropriate and carefully considered 

disposition, this rule would improve the 

curation of federally-owned and 

administered archeological collections, 

including more effective space and cost 

management. This proposed rule would 

address many of the comments 

submitted in 1990 by incorporating 

independent advice and opinions 

supplied by numerous experts that we 

consulted while drafting the proposed 

rule between 2005 and 2013. 

This proposed rule was written with 

the cooperation and consultation of the 

following Federal agencies and bureaus: 

Bureau of Indian Affairs (BIA), Bureau 

of Land Management (BLM), Bureau of 

Reclamation (BR), U.S. Fish and 

Wildlife Service (FWS), U.S. Air Force 

(USAF), U.S. Army Corps of Engineers 

(USACE), U.S. Navy (USN), and U.S. 

Forest Service (USFS). 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 proposed 

rule. 

Section-by-Section Analysis 

Section 79.2 Authority 

Paragraph 79.2(a) identifies the 

authorities under which the regulations 

in Part 79 are promulgated. The 

proposed rule would streamline the 

language and citations to these statutory 

authorities. 

Section 79.3 Applicability 

Section 79.3 explains the applicability 

of the regulations in Part 79. The 

proposed rule would clarify the 

applicability of these regulations by 

explaining what constitutes federallyowned and administered collections. 

The proposed rule would clarify that 

Part 79 applies to collections (i) 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 (ii) that are not owned by the 

United States but that are managed or 

controlled by Federal agencies under 

law. 

This includes collections 

administered directly by a Federal 

agency or controlled by a Federal 

agency through the terms of an 

agreement, contract, or permit with a 

non-Federal organization or entity that 

is responsible for curation of a 

collection. This also includes 

collections for which a Federal agency 

has administrative authority resulting 

from authorized expenditures; and 

situations in which the Federal 

government has decision-making 

authority over the collections granted to 

it by law or regulation. For example, one 

Federal agency might fund an 

undertaking on land administered by 

another Federal agency. In this case, any 

material remains from such undertaking 

would be administered by the agency 

that recovered them. 

Collections from Indian lands made 

under ARPA are another example of 

federally administered collections. 

Federal agencies are not the owners of 


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68642 Federal Register / Vol. 79, No. 222 / Tuesday, November 18, 2014 / Proposed Rules 

such collections. ARPA and its 

implementing regulations give BIA the 

authority to issue Permits for 

Archeological Investigation (PAIs) for 

Indian lands and the responsibility for 

custody of those collections (25 CFR 

Part 262). For example, Section 5 of 

ARPA and 43 CFR 7.13(c) apply to 

resources from both public and Indian 

lands and discuss the authority to 

exchange and dispose of resources. 

Material remains collected under a PAI 

are subject to the consent of the tribe or 

Indian before disposal or transfer to a 

curatorial facility through the BIA 

permitting process. The fact that these 

resources may be owned by a tribal or 

Indian owner does not remove them 

from Federal administration under 

ARPA. 

Section 79.12 Determining Which 

Particular Material Remains are Eligible 

for Disposal 

Paragraph 79.12(a) would identify 

which material remains from collections 

may be disposed of under the proposed 

rule. The terms ‘‘material remains’’ and 

‘‘collection,’’ as used in the proposed 

rule, are defined in 36 CFR 79.4. 

Paragraph 79.12(b) would identify 

which material remains from collections 

may not be disposed of under the 

proposed rule. Paragraph 79.12(c) 

would identify who may propose the 

disposal of material remains from 

collections. Individuals who propose 

material remains for disposal should 

have verifiable knowledge of those 

particular material remains. The terms 

‘‘qualified museum professional,’’ 

‘‘repository,’’ and ‘‘curatorial services,’’ 

as used in the proposed rule, are 

defined in 36 CFR 79.4. Paragraph 

79.12(d) would clarify that the Federal 

Agency Official, also defined in 36 CFR 

79.4, is responsible for the disposition 

of material remains. Paragraph 79.12(e) 

would specify criteria to determine 

when particular material remains may 

be eligible for disposal because they are 

of insufficient archaeological interest. 

As defined in 43 CFR 7.3(a)(1), the term 

‘‘of archaeological interest’’ means 

capable of providing scientific or 

humanistic understandings of past 

human behavior, cultural adaptation, 

and related topics. The criteria in the 

proposed rule to determine which 

material remains may be eligible for 

disposal would distinguish particular 

material remains that no longer have 

those capabilities. The criteria would be 

narrowly defined to ensure that material 

remains of archaeological interest are 

not disposed of inadvertently or 

casually. 

Section 79.13 Acceptable Methods for 

Disposition of Particular Material 

Remains 

Section 79.13 would outline two 

procedures by which Federal Agency 

Officials may determine the methods of 

disposing of particular material remains. 

The first would apply to material 

remains recovered from Indian lands, 

while the second would apply to 

material remains that are not from 

Indian lands. 

Paragraph (a) in § 79.13 would 

identify appropriate methods of 

disposing of particular material remains 

determined to be of insufficient 

archaeological interest that have been 

excavated or removed from Indian lands 

after October 31, 1979. As defined in 

ARPA (16 U.S. C. 470 bb(4)), the term 

‘‘Indian lands’’ means lands of Indian 

tribes, or Indian individuals, which are 

either held in trust by the United States 

or are subject to a restriction against 

alienation imposed by the United States, 

except for any subsurface interests in 

land not owned or controlled by an 

Indian tribe or an Indian individual. 

The proposed rule would require the 

Federal Agency Official to offer to 

return the material remains to the 

Indian tribe or Indian individual from 

whose lands the material remains were 

excavated or removed under ARPA’s 

custody regulations, 43 CFR 7.13(b), 36 

CFR 296.13(b), 32 CFR 229.13(b), and 18 

CFR 1312.13(b). The tribe or individual 

may or may not choose to accept 

custody of these material remains. 

Determining the appropriate Indian 

tribe or individual to be approached 

about disposition would be made based 

on existing documentation concerning 

the location of the relevant archeology 

site. 

Paragraph (b) in § 79.13 would 

identify appropriate methods of 

disposing of particular material remains 

determined to be of insufficient 

archaeological interest that were not 

excavated or removed from Indian 

lands. These material remains may be 

transferred within the Federal agency; 

transferred to another Federal agency; 

conveyed to a suitable repository; 

conveyed to a federally recognized 

Indian tribe; conveyed to another 

institution, such as a school or historical 

society; or—if all of the other methods 

of disposition are unacceptable— 

destroyed. These methods were listed in 

priority order in a draft of the proposed 

rule sent to leaders of federally 

recognized tribes in 2009. Based on 

outreach to tribes in 2013, the methods 

of disposal in the proposed rule are no 

longer listed in priority order. 

Section 79.14 Restrictions on 

Disposition of Particular Material 

Remains 

Paragraph (a) in § 79.14 would 

prohibit Federal employees or their 

relatives from acquiring disposed 

material remains or benefiting in any 

way from a disposition. 

Paragraph (b) in § 79.14 would 

prohibit disposed material remains from 

being traded, sold, bought, or bartered 

as commercial goods. 

Section 79.15 Final Determination on 

Disposition of Particular Material 

Remains 

Section 79.15 would describe the 

process that the Federal Agency Official 

must follow in order to reach a final 

determination of disposition of 

particular material remains. It would 

also clarify that any determination made 

under this section must in no way affect 

the Federal land manager’s obligations 

under other applicable laws and 

regulations. This section would require 

the Federal Agency Official to do the 

following: 

• Verify that material remains are 

appropriately documented through a 

professional procedure approved by the 

Federal agency that is consistent with 

curatorial services as defined in 

§ 79.4(b). 

• Establish a collections advisory 

committee to review proposed 

dispositions of material remains. 

• Retain a representative sample of 

those material remains determined to be 

overly redundant and not useful for 

research. 

• Retain all associated records in the 

archeological collection as defined in 

§ 79.4(a)(2). 

• Notify appropriate entities of the 

proposed disposition and solicit 

comments on the proposal. If the 

material remains proposed to be 

disposed of are from a site on public 

lands that has religious or cultural 

importance to an Indian tribe or tribes, 

the proposed rule would require that 

these Indian tribes be notified of the 

proposed disposition. 

• Publish a notice of determination of 

disposition in the Federal Register with 

specific information that the Federal 

Agency Official must include in this 

notice and in the determination itself. 

Section 79.16 Objecting to a 

Determination of Disposition of 

Particular Material Remains 

This section would describe the 

process for objecting to a determination 

of disposition by requesting a review 

from the DCA, and the process for 

reaching a final determination of 

disposition. 


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Section 79.17 Timing of Disposition 

Section 79.17 would prevent the 

disposition of material remains until 30 

days after the notice of determination of 

disposition is published in the Federal 

Register. If the Federal agency receives 

an objection to the determination, 

however, disposal would occur after the 

Federal Agency Official’s notice of 

decision on the objection and any 

amendments are published in the 

Federal Register. 

Section 79.18 Administrative Record 

of Disposition 

Paragraph (a) would identify the types 

of activities that must be documented in 

the administrative record supporting the 

Federal Agency Official’s final 

determination to dispose of particular 

material remains. This paragraph would 

require that the administrative record 

for a disposition of material remains be 

made public upon request and would 

require that the Federal agency review 

and update the catalog and inventory 

documents related to the disposal. 

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. We have 

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 and 

Administered Archeological 

Collections’’ that is available online at 

http://www.nps.gov/archeology/tools/

laws/Regulatory_Analyses_36_CFR_

Part_79_12.pdf. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

(a) Does not have an annual effect on 

the economy of $100 million or more. 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, federal, state, 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. This rule produces no costs 

outside of the Federal government and 

does not create an additional burden on 

state, local, or tribal governments, or the 

private sector. 

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 proposed rule does not contain 

collections of information that require 

approval by the Office of Management 

and Budget under the Paperwork 

Reduction Act. This rule would not 

impose recordkeeping or reporting 

requirements on state, tribal, or local 

governments; individuals; businesses; or 

organizations. We may not conduct or 

sponsor and you are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment. A 

detailed statement under the National 

Environmental Policy Act of 1969 

(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 


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68644 Federal Register / Vol. 79, No. 222 / Tuesday, November 18, 2014 / Proposed Rules 

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. We have evaluated this rule 

under the Department’s consultation 

policy and under the criteria in 

Executive Order 13175 and have 

identified direct effects on federally 

recognized Indian tribes that will result 

from this rule. We conducted outreach 

to tribes and Native Hawaiian 

Organizations, initiated consultation 

through two letters to tribal leaders, and 

conducted face-to-face consultation on 

this proposed 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 Web site: http://www.nps.gov/ 

archeology/tools/laws/Tribal_

Consultation_36_CFR_Part_79_12.pdf. 

Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

Clarity of This Regulation 

We are required by Executive Orders 

12866 (section 1(b)(12)), 12988 (section 

3(b)(1)(B)), and 13563 (section 1(a)), and 

by the Presidential Memorandum of 

June 1, 1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use common, everyday words and 

clear language rather than jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that you find 

unclear, which paragraphs or sentences 

are too long, the sections where you feel 

lists or tables would be useful, etc. 

Drafting Information. This proposed 

rule was prepared by the office of the 

Departmental Consulting Archeologist, 

National Park Service, Washington, DC 

with the able assistance of an informal 

interagency working group. Terry Childs 

(DOI) drafted the proposed rule and 

served as chair of the group that 

included Michael Hilton (USFS), 

Thomas Lincoln (BR), Eugene Marino 

(FWS), Kathleen McLaughlin (USN and 

US Army), Emily Palus (BIA and BLM), 

Christopher Pulliam (USACE), and 

James Wilde (USAF). Marvin Keller and 

Anna Pardo (BIA) and Rochelle Bennett 

(BR) joined the working group in 2013. 

David Gadsby (NPS) also joined the 

group and provided administrative 

oversight of the proposed rule. Carla 

Mattix and Stephen Simpson of the 

Department of the Interior’s Office of the 

Solicitor provided legal guidance. 

Public Participation 

It is the policy of the Department of 

the Interior, whenever practicable, to 

afford the public an opportunity to 

participate in the rulemaking process. 

Accordingly, interested persons may 

submit written comments regarding this 

proposed rule by following the 

instructions in the ADDRESSES section of 

this document. 

Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, be aware that your entire 

comment—including your personally 

identifiable information—may be made 

publicly available at any time. While 

you can ask in your comment to 

withhold your personal identifiable 

information from public view, we 

cannot guarantee that we will be able to 

do so. 

List of Subjects in 36 CFR Part 79 

Archives and records, Historic 

preservation, Indians-lands, Museums, 

Public lands. 

In consideration of the foregoing, the 

National Park Service proposes to 

amend 36 CFR part 79 as set forth 

below: 

PART 79—CURATION OF FEDERALLYOWNED AND ADMINISTERED 

ARCHAEOLOGICAL COLLECTIONS 

■ 1. The authority citation for part 79 

continues to read as follows: 

Authority: 16 U.S.C. 470aa–mm, 16 U.S.C. 

470 et seq. 

■ 2. Sections 79.1 through 79.4 are 

designated as subpart A under the 

following heading: 

Subpart A—Administrative Provisions 

■ 3. In § 79.2, revise paragraph (a) to 

read as follows: 

§ 79.2 Authority 

(a) The regulations in this part are 

promulgated under 16 U.S.C. 470a(7) 

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 services. 

This requirement applies to artifacts and 

associated records subject to the 

National Historic Preservation Act (16 

U.S.C. 470 et seq.), the Reservoir 

Salvage Act (16 U.S.C. 469–469c), and 

the Archaeological Resources Protection 

Act (16 U.S.C. 470aa–mm). 

* * * * * 

■ 4. In § 79.3, in paragraph (a) 

introductory text, add two sentences at 

the end to read as follows: 

§ 79.3 Applicability. 

(a) * * * Such collections also 

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 law. The collections described in this 

paragraph are considered federallyowned and administered for purposes of 

this part. 

* * * * * 

■ 5. Sections 79.5 through 79.9 are 

designated subpart B under the 

following heading: 

Subpart B—Archeological Collections 

Management 

■ 6. Section 79.10 is designated subpart 

C under the following heading: 

Subpart C—Public Access to and Use 

of Collections 

■ 7. Section 79.11 is designated subpart 

D under the following heading: 

Subpart D—Inspections and 

Inventories of Collections 

■ 8. 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. 


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79.13 Acceptable methods for disposition of 

particular material remains. 

79.14 Restrictions on disposition of 

particular material remains. 

79.15 Final determination on 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? In order to be 

eligible for disposal, material remains 

from collections must be: 

(1) Archaeological resources, as 

defined in 16 U.S.C. 470bb(1), or other 

resources excavated and removed under 

the Reservoir Salvage Act (16 U.S.C. 

469–469c) or the Antiquities Act (16 

U.S.C. 431–433); and 

(2) Considered to be of insufficient 

archaeological 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 may not 

be disposed of? The following material 

remains from collections may not be 

disposed of: 

(1) Native American ‘‘cultural items’’ 

as defined in the Native American 

Graves Protection and Repatriation Act 

of 1990 (25 U.S.C. 3001(3)), since 

disposition is governed by that Act and 

its implementing regulations (43 CFR 

10); 

(2) Human remains; 

(3) Material remains excavated and 

removed from Indian lands on or before 

October 31, 1979; and 

(4) Material remains excavated and 

removed from Indian lands under the 

Antiquities Act (16 U.S.C. 431–433). 

(c) Who may propose the disposal of 

particular material remains? The 

following individuals may propose the 

disposal of particular material remains 

from a collection: 

(1) Agency staff members, 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 from collections 

according to the requirements of this 

part. 

(e) When are particular material 

remains considered to be of insufficient 

archaeological interest? Particular 

material remains are considered to be of 

insufficient archaeological interest 

when, on a case-by-case basis, at least 

one qualified archeological or museum 

professional with experience in the type 

of material remains being evaluated 

determines and documents 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 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 have been lost or 

destroyed and cannot be recovered after 

a concerted effort to find them is 

performed and documented. 

(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 or 

decomposition over time, or as a result 

of a human-caused incident or a natural 

disaster. 

(iii) Overly redundant and not useful 

for research. A determination that 

material remains are overly redundant 

and not useful for research must be 

carefully considered. Archeological 

context, research questions, and 

research potential may vary based on 

geography, time and culture period, 

scientific or cultural significance, prior 

analysis, and other factors. It is difficult 

to predict if future analytical methods 

will yield useful information about the 

material remains proposed for disposal. 

As a result, a representative sample of 

material remains that are determined to 

be overly redundant and not useful for 

research must be retained for curation, 

as required by § 79.15(d). 

§ 79.13 Acceptable methods for 

disposition of particular material remains. 

(a) Material remains excavated or 

removed from Indian lands after 

October 31, 1979, that are archaeological 

resources under the Archaeological 

Resources Protection Act (16 U.S.C. 

470aa–mm) remain 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 

that are determined to be of insufficient 

archaeological interest under the criteria 

in § 79.12(e) are 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 them, the Federal 

Agency Official may otherwise dispose 

of the material remains using the 

disposition methods in § 79.13(b) after 

receiving written consent from the 

Indian individual or Indian tribe having 

rights of ownership. 

(b) This paragraph applies to material 

remains that are determined to be of 

insufficient archaeological interest 

under § 79.12(e) and that were 

excavated or removed from lands that 

are not Indian lands. The Federal 

Agency Official may use any of 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(j) 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). 

(4) Convey to a federally recognized 

Indian tribe from whose aboriginal 

lands the material remains were 

removed. Aboriginal occupation may be 

documented by 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) Transfer within the Federal agency 

for the purpose of education or 


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interpretation, or convey to a suitable 

institution to be used for public benefit 

and education including, but not 

limited to, local historical societies, 

university or college departments, and 

schools. 

(6) If the Federal Agency Official 

considers each of these prior methods 

carefully and is still unable to find an 

acceptable method of disposition, then 

destruction may be considered. The 

Federal Agency Official or their 

designee must witness and document 

the destruction, including through 

photography or video. 

§ 79.14 Restrictions on disposition of 

particular material remains. 

(a) Can Federal employees and their 

relatives acquire disposed material 

remains? No. Federal employees or their 

relatives cannot acquire disposed 

material remains (or a financial interest 

therein) and must not appear to benefit 

personally in any way from an action to 

deaccession or dispose of archeological 

material remains. 

(b) Can disposed material remains be 

regarded as commercial goods? No. 

Disposed material remains may not be 

traded, sold, bought, or bartered as 

commercial goods. 

§ 79.15 Final determination on 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 part. A 

determination made under this part in 

no way affects the Federal land 

manager’s obligations under other 

applicable laws or regulations. The 

Federal Agency Official must carry out 

all of the following steps 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), including a written 

verification that no Native American 

‘‘cultural items’’ as defined in the 

Native American Graves Protection and 

Repatriation Act of 1990 (25 U.S.C. 

3001(3)) are considered for disposal. 

(b) The Federal Agency Official must 

verify that the material remains 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) of this part. 

(c) The Federal Agency Official must 

establish a collections advisory 

committee of at least five members to 

review proposed dispositions of 

material remains and make 

recommendations to the Federal Agency 

Official about proposed dispositions 

based on the adequacy of the 

documentation addressing the 

requirements in § 79.15(a) and (b) and 

the appropriateness of the proposed 

disposition. 

(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 principal archeologist and 

curator of the Federal agency that owns 

or administers the material remains if 

either of these two positions exists. 

(2) Committee members must include 

Federal employees with subject matter 

or technical expertise. These employees 

may include archeologists, 

anthropologists, curators, and 

conservators with expertise in historic, 

prehistoric, or underwater material 

remains. 

(3) Committee members may include 

or one or more members of a federally 

recognized Indian tribe regularly 

consulted by the Federal agency who 

are elected tribal officers or their 

designated employees acting in their 

official capacities. 

(4) The committee must have written 

procedures, including terms of member 

appointments and duration of the 

committee, approved by the Federal 

Agency Official to ensure all 

recommendations of disposal are fair, 

open, timely, and in the best interests of 

the public. 

(5) Federal employees or qualified 

members of federally recognized Indian 

tribes may be temporarily added to the 

committee if its current members 

determine that specific expertise is 

needed on a case-by-case basis. 

(6) Committee members or their 

family members may not benefit 

financially or in any other way from a 

disposition of material remains. 

(d) The Federal Agency Official must 

retain a representative sample of those 

material remains determined to be 

overly redundant and not useful for 

research. 

(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 

well documented and consistent with 

professional prehistoric or historic 

archeological practice. 

(e) The Federal Agency Official must 

retain all associated records in the 

archeological collection as defined in 

§ 79.4(a)(2) of this part. 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)). 

(f) 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, in accordance 

with procedures established by the 

Federal agency. All written comments 

must be reviewed and responded to by 

the Federal Agency Official and the 

collections advisory committee. Notice 

must be given to the following: 

(1) The State Historic Preservation 

Officer from the state(s) where the 

particular objects to be disposed were 

recovered. 

(2) The Tribal Historic Preservation 

Officer (or other designated tribal 

representative) from the tribal land(s) 

where the particular objects to be 

disposed were recovered. 

(3) Federal, state, tribal, or local 

agencies that were involved in the 

recovery of the objects to be disposed. 

(4) Universities, museums, scientific 

institutions, and educational 

institutions with an active department 

of or program in archaeology or 

anthropology that have interest in the 

archaeology of the region from which 

the objects to be disposed of were 

recovered. 

(5) 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). 

(6) 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. 

(g) The Federal Agency Official must, 

after the comment period described in 

§ 79.15(f) has expired, 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. 


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(ii) The criteria used to determine that 

the material remains are of insufficient 

archaeological 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 

and address of the Department of the 

Interior’s Departmental Consulting 

Archeologist. 

(2) The determination referenced by 

the notice must include 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 a photograph of the 

objects when appropriate. 

(ii) The criteria used to determine that 

the material remains are of insufficient 

archaeological interest under § 79.12(e). 

(iii) Justification of the method to be 

used to dispose of the material remains 

under § 79.13. 

(iv) Documentation that all of the 

procedures in §§ 79.15 and 79.16 have 

been met. 

(v) The name of the recipient entity or 

method of destruction, as appropriate. 

(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 

unless an objection is filed in 

accordance with § 79.16. 

§ 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 30 

days of publication in the Federal 

Register. The request must document 

why the requester disagrees with the 

Federal Agency Official’s determination 

or the terms and conditions to be 

applied to the disposal. The procedure 

for objecting to a determination of 

disposition is as follows: 

(a) The request must be sent to the 

Departmental Consulting Archeologist, 

whose address must be published with 

the notice of determination of 

disposition in the Federal Register. The 

Departmental Consulting Archeologist 

must immediately forward a copy of the 

request to the Federal Agency Official 

who made the determination under 

objection. The Federal Agency Official 

must postpone the planned disposition 

until the Departmental Consulting 

Archeologist completes the requested 

review. 

(b) The Departmental Consulting 

Archeologist must review the request, 

the Federal Agency Official’s 

determination, and its supporting 

documentation. 

(c) Within 60 days of receipt of the 

request, the Departmental Consulting 

Archeologist must transmit to the 

Federal Agency Official a non-binding 

recommendation for further 

consideration. 

(d) The Federal Agency Official must 

consider the recommendation in making 

a final determination. Within 60 days of 

receipt of the recommendation, the 

Federal Agency Official must respond to 

the Departmental Consulting 

Archeologist and the requester with a 

final determination. The final 

determination must include any 

information on administrative appeal 

rights required by internal agency 

appeal procedures or a statement that 

the final determination is a final agency 

action under the Administrative 

Procedure Act, as appropriate. 

(e) The Federal Agency Official must 

publish notice of the decision on the 

objection and any amendments made to 

the original determination of disposition 

in the Federal Register. 

§ 79.17 Timing of disposition. 

Disposition will occur no sooner than 

30 days after the notice of determination 

of disposition is published in the 

Federal Register under § 79.15(g). If the 

Federal agency receives an objection 

under § 79.16, however, disposal will 

occur after the Federal Agency Official’s 

notice of decision and any amendments 

are published in the Federal Register 

under § 79.16(e). 

§ 79.18 Administrative record of 

disposition. 

(a) After the Federal Agency Official 

has made a final determination of 

disposition, he or she must document 

the determination and retain the 

administrative record as used in the 

definition of associated records 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 recommendations and 

rationale of the collections advisory 

committee provided in accordance with 

§ 79.15(c). 

(3) Notifications of the proposed 

disposition under § 79.15(f); consent of 

Indian individuals or tribes, if 

applicable, under § 79.13(a); and 

comments received from the parties 

notified under § 79.15(f). 

(4) Requests for review received by 

the Departmental Consulting 

Archeologist, the non-binding 

recommendation of the Departmental 

Consulting Archeologist, and the 

response by the Federal Agency Official 

to the Departmental Consulting 

Archeologist and the requester, as 

appropriate, 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 

reasonable and 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 through 79.16 and 

79.18(a) must be retained. 

Dated: November 5, 2014. 

Michael Bean, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks. 

[FR Doc. 2014–26839 Filed 11–17–14; 8:45 am] 

BILLING CODE 4310–EJ–P 


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