58 FR 3112258 FR 31122
Native American Graves Protection and Repatriation Act Regulations
SUMMARY: By this action we are publishing proposed regulations for implementing the Native American Graves Protection and Repatriation Act of 1990. These regulations are mandated by Native American Graves Protection and Repatriation Act of 1990 and their publication is intended to solicit comments from Indian tribes, Federal agencies, museums and members of the public prior to publishing the regulations in final form. These regulations develop a systematic process for determining the rights of lineal descendants and members of Indian Tribes and Native Hawaiian organizations to certain Native American human remains and cultural items with which they are affiliated.
Background
On November 16, 1990, President George Bush signed into law the Native American Graves Protection and Repatriation Act, hereafter referred to as the Act. The Act addresses the rights of lineal descendants and members of Indian Tribes and Native Hawaiian organizations to certain Native American human remains and cultural items with which they are affiliated. Section 13 of the Act requires the Secretary of the Interior to promulgate regulations to carry out provisions of the Act. Readers are reminded that the requirements of the Act, including all deadlines, apply regardless of the effective date of these regulations.
These regulations consist of 17 sections divided into four subparts and five appendicies. Subpart A includes introductory sections outlining the purpose and applicability of these regulations and presenting definition of 31 key terms. Subpart B includes procedures implementing section 3 of the Act related to the intentional excavation and inadvertent discovery of human remains or cultural items from Federal or Tribal lands. Subpart C includes procedures implementing sections 5, 6, and 7 of the Act for conducting summaries and inventories and repatriating human remains or cultural items in museums or Federal collections. Subpart D includes general procedures for determining lineal descent and cultural affiliation, operation of the Review Committee, and resolving disputes. Appendices A through E include documents to clarify the procedures outlined in earlier subparts. Section 4 of the Act, which deals with illegal trafficking and is incorporated directly into chapter 53 of title 18, United States Code, does not require implementing regulations.
Section by Section Analysis
Section 10.1
This section outlines the purpose and applicability of the regulations.
Section 10.2
This section defines terms used throughout the regulations. The 31 definitions are grouped into five categories concerning: (a) Participants, (b) human remains and cultural items, (c) cultural affiliation, (d) location, and (e) procedures.
Subsection (a) defined fifteen principal organizations and individuals who implement or are referenced in these regulations. Definitions of "museum" and "Indian Tribe" have been expanded to clarify the statutory language. For "museum," additional clarification and an example are included to elaborate the meaning of "receives Federal funds."
The definition of Indian Tribe has been clarified to refer to those Indian Tribes and Native Alaskan entities on the current list of recognized Indian tribes as published by the Bureau of Indian Affairs. The definition of Indian Tribe used in the Act was explicitly drawn from the American Indian Self Determination and Education Assistance Act (25 U.S.C. 450b) which is interpreted to refer to only those Indian Tribes and Native Alaskan entities recognized by the Bureau of Indian Affairs. This definition is also consistent with the regulatory definitionof the term "Indian Tribe" (43 CFR 7.3(f)) as developed in connection with the Archaeological Resources Protection Act ("ARPA"), 16 U.S.C. 470aa et seq. For use in these regulations, the term "Indian Tribe" includes Native Hawaiian organizations. Comment is particularly invited as to the proposed definition of the term "Indian Tribe."
Subsection (b) defines the types of human remains and objects covered by the regulations. "Human remains," which were not defined by the Act, are defined broadly to include all Native American human remains with exceptions for remains or portions of remains freely given by the individual from whom they were obtained and for remains incorporated into cultural items. Comment is requested particularly on the sentence in the definition which defines human remains that have been incorporated into a cultural item as part of that cultural item, rather than as human remains.
"Cultural item" is used in a slightly different way than in the Act, referring here only to funerary objects, sacred objects, and objects of cultural patrimony, and not to human remains. This different usage, however, is only editorial and does not alter the requirements of the Act with respect to treatment of human remains and other cultural items. This modified usage is intended to address the offense some individuals have expressed over referring to human remains as "items." The definitions of "sacred objects" and "objects of cultural patrimony" have been elaborated to incorporate language from the House and Senate Committee reports relating to the Act.
Subsection (c) reiterates the statutory definition of "cultural affiliation."
Subsection (d) defines three types of property on which human remains or cultural items are discovered or excavated. The statutory definition of "Federal lands" has been elaborated to clarify that "control" refers to "those lands in which the United States has a legal interest sufficient to permit it to apply these regulations without abrogating the otherwise existing legal rights of a person." The statutory definition of "Tribal lands" has been elaborated to clarify that the regulations do not apply to strictly private land located within the boundaries of an [31123] Indian reservation but do apply to allotments held in trust or subject to a restriction on alienation by the United States." The Act's legislative history supports the interpretation that the Congress did not intend the Act to apply to private lands within the boundaries of an Indian reservation. The definition of "aboriginal lands" is derived from statutory language.
Public Participation
Any person may obtain a copy of this NPRM by submitting a request to the Departmental Consulting Archeologist, Archeological Assistance Division, National Park Service, Box 37127, Washington DC 20013-7127, by calling (202) 343-4101, or by faxing a request to (202) 523-1547. Requests must identify the notice number of this NPRM.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments relating to the effects that might result from adoption of the proposals contained in this notice are invited. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address listed above. Commentors wishing the National Park Service to acknowledge receipt of their comments must submit with those comments a self-addressed, stamped postcard on which the following statement is made: "Comments to Docket No 1024-AC07." The postcard will be date stamped and returned to the commentor. All communications received on or before the closing date for comments will be considered by the Departmental Consulting Archeologist before taking action on the proposed rule. The proposals contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the rule Docket both before and after the closing date for comments.
The Department of the Interior has determined that these proposed regulations will not have a significant effect on the quality of the human environment under the National Environmental Policy Act (42 U.S.C. 4321-4347). In addition, the Department of the Interior has determined that these proposed regulations are categorically excluded from the procedural requirements of the National Environmental Policy Act by Departmental regulations in 516 DM 2. As such, neither an Environmental Assessment nor an Environmental Impact statement has been prepared.
62 FR 3370862 FR 33708
The Secretary of the Interior's Historic Preservation Professional Qualification Standards
The National Historic Preservation Act of 1966 (Pub. L. 89-665) gave the Secretary authority to set criteria for State grants, surveys, and plans. The National Park Service administratively required State Historic Preservation Officers (SHPOs) to maintain professionally qualified staff (in 1976), and to appoint qualified individuals as advisors to serve on State Review Boards (in 1977). The professional qualification standards have not changed since then. The 1980 Amendments to the National Historic Preservation Act (Pub. L. 96-515) statutorily affirmed the previous regulatory requirement for professionally qualified staff. Congress also reiterated the regulation's requirement that State Review Boards include a majority of members qualified in one of the professional disciplines which met minimum Professional [33709] Qualification Standards defined in regulation in 36 CFR part 61 (Architecture, Architectural History, Prehistoric Archeology or Historic Archeology, and History). In addition, the 1980 amendments created the Certified Local Government (CLG) program to recognize the role of local governments in the national partnership, and stipulated that the CLG Review Commission membership needed to be adequate and qualified. The Congressional Committee Report for the 1980 amendments (H.R. Rept. 96-1457) called for "professional bodies which can objectively evaluate the historic significance of properties and provide professional advice on historic preservation matters." Finally, States, local governments, Federal agencies, and the private sector often require that proposals from historic preservation contractors or work submitted by them meet these same professional practice Standards.
Following the standard for each discipline is guidance about meeting the standard for that specific discipline, including a list of some of the most common "closely related fields" within academic degree programs; information on documenting professional experience; and a list of typical products and activities that may be used to document acquired proficiencies in the field of historic preservation.
Finally, a list of Professional Organizations is included to assist users in obtaining additional information about the disciplines, college and university departments, and publications on the practice of each discipline.
As a result, NPS consulted at length with Federal agencies, SHPOs, CLGs, and professional societies involved in historic preservation about issuing updated and expanded Professional Qualification Standards that recognize the evolution and development of the disciplines in the field.
"The Secretary of the Interior's Historic Preservation Professional Qualification Standards" are designed to be national measures for determining minimum requirements for professionals practicing in the field of historic preservation. The format for the Standards provides a consistent, yet flexible, framework for establishing sound professionalism in the twelve disciplines. There is one Standard for each of the disciplines.
Each Standard defines:
These Standards do not apply to "entry-level" applicants or to preeminent professionals in the field. Rather, they outline the minimum education and experience and products that together provide an assurance that the applicant, employee, consultant, or advisor will be able to perform competently on the job and be respected within the larger historic preservation community. The effective application of any of these national Standards will require the development of a detailed job description containing additional information to suit a particular situation and need.
Note: In each discipline, the most common method of meeting that Professional Qualifications Standard is discussed first. Less common alternatives follow. Typically, a graduate degree or professional license is listed first.
Applicability It should be emphasized that the "Historic Preservation Professional Qualification Standards" that follow are, in most instances, advisory in nature and may thus be used by anyone hiring personnel or consultants or appointing advisory boards or commissions. Because use of the Standards can help ensure appropriate, informed decisions about protecting and preserving our nation's historic and archeological resources, NPS strongly encourages their adoption and implementation.
However, under well-defined circumstances discussed below, "the Secretary's Historic Preservation Professional Qualification Standards" are requirements by statute and regulation. In those instances, a note is added at the end of the required Standard.
First, the National Historic Preservation Act, Section 101, requires that a professionally qualified staff be appointed or employed by State Historic Preservation Offices. Indian tribes that have executed a Memorandum of Agreement with NPS and assumed responsibilities pursuant to Section 101(d) of the Act also must employ or consult with professionally qualified individuals in carrying out those responsibilities. The performance and supervision of Historic Preservation Fund grant-assisted work must be performed and/or supervised by professionally qualified staff and/or contractors. In accordance with 36 CFR part 61 and NPS policy, three of twelve disciplines are required for State program staff and for staff of Tribes with Section 101(d) status: History, Archeology, and Architectural History. States and Tribes with 101(d) status may propose an alternative minimum staff composition for NPS concurrence if their historic resources, needs, or circumstances would be better served or met. States and Tribes with 101(d) status are expected to obtain the services of other qualified professionals as needed for different types of resources.
Second, section 101(b)(1)(B) and section 301(12) of the Act requires that a majority of State Review Board members be professionally qualified. As specified in 36 CFR part 61, this majority must include, but need not be limited, to the required disciplines of History, Archeology, and Architectural History. One person may meet the Standards for more than one required discipline.
Third, section 101(c)(1)(B) and section 301(13) of the Act requires that State programs encourage CLG Review Commissions to include individuals who are professionally qualified, to the extent that such individuals are [33710] available in the community. The State may specify the minimum number of Commission members that must meet the Standards and decide which, if any, of the disciplines listed in the Standards need to be represented on the Commission.
An accompanying guidance section, Applying the Historic Preservation Professional Qualification Standards, has been prepared to assist the consistent application of the "Historic Preservation Professional Qualification Standards" when selecting an employee, consultant, or advisor. As such, the guidance provides additional information and recommendations, but never constitutes a requirement.
How To Use the Historic Preservation Professional Qualification Standards
There are three basic components of each Historic Preservation Professional Qualification Standard: academic degrees or comparable training; professional experience; and products and activities that demonstrate proficiency in the field of historic preservation. A number of commonly asked questions about the design and content of the Standards, as well as their application and implementation, are answered below in order to assist anyone applying for a position or anyone charged with obtaining the services of a professional in the field of historic preservation.
Merely having a degree in a closely related field does not automatically meet the Standard. The course work taken to earn a degree in a related field should be weighed against the course requirements in the Standard's "main" discipline. For example, a degree in Art History does not necessarily, on its own, meet the Standard for Architectural History, unless course work relevant to the Standard can be documented, such as American architectural history. (See the Academic Background guidance given after each Standard, which discusses the typical closely related fields of study for each historic preservation discipline.)
Discipline and Historic Preservation Proficiencies The Historic Preservation Professional Qualification Standards call for an understanding of the general principles, procedures, and practices in the discipline as they are applied to historic preservation. This type of expertise is necessary for historic preservation programs in which the employee, consultant, or advisor is expected to deal with a range of historic resources and issues. Proficiencies in the disciplines and in the practice of historic preservation are outlined below. Recommended Discipline Proficiencies The following discipline proficiencies (knowledge, skills, and abilities) should be possessed by applicants, employees, consultants, and advisors:
Recommended Historic Preservation Proficiencies The following historic preservation proficiencies (knowledge, skills, and abilities) should be possessed by applicants, employees, consultants, and advisors:
In consideration of the foregoing, the "Secretary of the Interior's Professional Qualification Standards" are proposed to read as follows:
Archeology
History Archeology; Historic Preservation Professional Qualification Standards
Archeology is the study of past human lifeways through the systematic observation, analysis, and protection of the material remains of human activities.
Standard for Archeologist
The applicant, employee, consultant, or advisor will have a graduate degree in Anthropology with a specialization in Prehistoric Archeology, or a graduate degree in Archeology with a specialization in Prehistoric Archeology, or a graduate degree in a closely related field (see Academic Background for Archeology), PLUS a minimum of two and one-half (2 1/2) years of full-time professional experience in applying the theories, methods, and practices of Archeology that enables professional judgments to be made about the identification, evaluation, documentation, registration, or treatment of prehistoric archeological properties in the United States and its Territories (at least six months of experience must have been acquired in the performance of field and analytical activities under the supervision of a professional prehistoric archeologist, and one year of experience in the study of the archeological resources of the prehistoric period must have been at a supervisory level); and products and activities that demonstrate the successful application of acquired proficiencies in the discipline to the practice of historic preservation (see Documenting Professional Experience for Archeologists).
The applicant, employee, consultant, or advisor will have a graduate degree in Anthropology with a specialization in Historical Archeology, or a graduate degree in Archeology with a specialization in Historical Archeology, or a graduate degree in a closely related field (see Academic Background for Archeology), plus a minimum of two and one-half (2 1/2) years of full-time professional experience applying the theories, methods, and practices of Archeology that enables professional judgments to be made about the identification, evaluation, documentation, registration, or treatment of historic archeological properties in the United States and its Territories (at least six months of experience must have been acquired in [33713] the performance of field and analytical activities under the supervision of a professional Historical Archeologist, and one year of experience in the study of the archeological resources of the historic period must have been at a supervisory level); and products and activities that demonstrate the successful application of acquired proficiencies in the discipline to the practice of historic preservation (see Documenting Professional Experience for Archeologists).
(Note: Pursuant to 36 CFR part 61, a person meeting this Standard (either Prehistoric or Historic Archeology) is required as part of the core staff for each State Historic Preservation Office (SHPO) and as part of each State Review Board. Expertise described by this standard is also needed for Tribal Preservation Office staff or consultants of tribes that have executed a Memorandum of Agreement to implement Section 101(d) of the National Historic Preservation Act. It also may be needed for consultants hired with HPF grant funds and for members of Certified Local Government Commissions.)
Archeology--Academic Background
Closely related fields: Anthropology, with a specialization in Archeology, is the typical degree discipline for archeologists practicing in the United States. One of the usual requirements for receiving the degree is completion of an archeological field school in which the student learns about techniques of survey, excavation, and laboratory processing. However, degree programs have also been established in Archeology, Cultural Resources Management, Historical Archeology, and Public Archeology. Some Historical Archeology programs are housed in History, Public History, or American Studies Departments. For these degrees, a list of courses taken should be reviewed to determine if the program is equivalent to that typically provided for a degree in Anthropology with a specialization in Archeology, including course work in archeological methods and theory, archeology of a geographic region (e.g., North America), and the field school.
Discipline specializations: The most prevalent specializations in Archeology include Historical Archeology or Prehistoric Archeology, i.e., the specialization in resources of either the prehistoric period or the historic period. These specializations necessarily require expertise in different types of sites and different sources of information about past human activities. For example, a prehistoric archeologist usually requires a knowledge of environmental sciences, while a historical archeologist needs to understand the techniques of archival research. Additional specialized training and experience is also required for those specializing in, for example, underwater archeology, physical anthropology (human bones and burials), forensic archeology, or zooarcheology (non-human bones). In addition, archeologists typically specialize in the archeological resources of a particular time period, geographic region, resource type, or research subject.
Applying the Standard for Archeologist--Documenting Professional Experience
A professional archeologist typically has experience in field survey, site testing, site excavation, artifact identification and analysis, documents research, and report preparation. Supervised field experience as a graduate student may be counted as part of the overall 2 1/2 year professional experience requirement.
A Prehistoric Archeologist meeting this Standard would document one year of supervisory experience in the study of prehistoric archeological sites; a Historical Archeologist would document one year of supervisory experience in the study of sites of the historic period.
The two archeologist specializations of Prehistoric Archeology and Historic Archeology are not interchangeable. Documentation to show that someone qualifies in both Prehistoric and Historic Archeology should include a minimum of one additional year of supervisory experience on resources of the other specialty, for a total of 3 1/2 years of experience, with products and activities in both specializations.
Products and Activities.
Professional experience and expertise must be documented through "products and activities that demonstrate the successful application of acquired proficiencies in the discipline to the practice of historic preservation." Products and activities that meet the appropriate Secretary Standards for Archeology and Historic Preservation may include:
This list is not comprehensive. Furthermore, it is not expected that all of these products and activities will need to be documented in order to meet the Standard; rather, a combination of several of these products and activities would be more typical. However, if the applicant were documenting professional experience in one of the specializations, the majority of products and activities should reflect that specialization.
Architectural History; Historic Preservation Professional Qualification Standards
Architectural History is the study of the development of building practices through written records and design and the examination of structures, sites, and objects in order to determine their relationship to preceding, contemporary, and subsequent architecture and events.
OAC Ann. 149-1-02
Guidelines for Archaeological Investigations on Public Land, Archaeological Preserves, and Sites Listed in The State Registry of Archaeological Landmarks.
(i) Information on properties listed in, nominated to, or determined eligible for listing in the national register, properties on the state registry of archaeological landmarks and state registry of historic landmarks, properties in the Ohio historic and archaeological inventories, and properties on which the state has evaluated and unevaluated survey data;
(ii) Information on predictive data regarding potential properties in the area;
(iii) Recommendations as to the need for surveys in the area;
(iv) Recommendations concerning methods that should be used in conducting such surveys and possible sources of professional expertise;
(v) Results of any previous surveys in the area and the state historic preservation officer's comments thereon; and
(vi) Recommendations concerning pertinent state or local laws and policies concerning historic properties.
National register listings are also accompanied by a list of properties of federal and nonfederal ownership which have been determined to be eligible for inclusion in the national register as well as a list of pending nominations. The catalogs of the historic American buildings survey and the historic American engineering record maintained by the national park service, and any similar surveys and published reports should be utilized. State, university, or professional society historians, architects, architectural historians, archaeologists, and local organizations may also have registers, inventories, catalogs, or other lists of sites or areas with known or presumed historic values.
Field inspection must be performed by qualified, competent historians, archaeologists, architectural historians and/or historical architects and such other specialists as local circumstances dictate.
The nature of the area will also affect the kinds of methods that must be employed to identify and record historic properties. Terrain, vegetation, land ownership and other factors will also affect the time required to conduct an inspection and the kinds of techniques that will be required to complete it.
Adequate records must be kept of all inspections to indicate clearly what lands were inspected, the degree of intensity with which they were inspected, the kinds of historic properties sought, all historic properties recorded, and any factors that may have affected the quality of the observations.
Data and material resulting from a data recovery program should be in the custody of a qualified institution. A "qualified institution" is one equipped with space, facilities, and personnel adequate to curate, store, and maintain the recovered data and material. The exact nature of the requisite space, facilities, and personnel will depend on the kinds of data and material recovered.
At one end of this spectrum is low-intensity reconnaissance of an area's archaeological resources and potential data yield. In addition to identifying obvious or well-known sites, the existence of sites in suspected locations represented in the literature or by informant interview may be determined and an impression gained of the topographic settings in which sites are likely to occur. Such a survey may provide planning guidance during the early stages of a project to aid in selecting the specific area(s) to be directly impacted. Predictive data on the nature and distribution of archaeological sites and archaeologically sensitive areas may also be derived before developing more detailed survey strategies.
More comprehensive approaches to archaeological survey commonly include sampling designs and subsurface testing which may not result in the identification of all existing archaeological resources in the area to be affected. Sampling may involve varying degrees of random or selected procedures, including systematic designs representing statistically valid samples providing detailed and meaningful predictive models for the entire area. Testing is commonly coordinated with or incorporated into a sampling strategy and is undertaken in an effort to identify sites whose superficial indications are obscured and/or to clarify or amplify relevant data. Deriving from these activities should be at least limited justification for protective stipulations for certain sites identified. Information gained is therefore evaluated, but not necessarily to determine the eligibility of specific sites for inclusion in the national register of historic places or the Ohio state registry of archaeological landmarks.
Under ordinary circumstances a permit shall be granted to the applicant within thirty days of the submission of a complete permit application form. A permit constitutes authorization by the director to the applicant to engage in archaeological survey or salvage work on the location(s) described in the application in accordance with the representations made in the application and the provisions of this rule.
The permit is contingent upon the applicant's procurement of permission to conduct the proposed archaeological investigation from the property owner(s) of the location(s) described in the application. A permit may be extended or amended upon written approval from the director. The applicant must submit a written request to the director to extend or amend the provisions of a permit. If archaeological survey or salvage work is conducted by applicant which is contrary to the representations made in the application or the provisions of this rule, the permit may be revoked by the director upon written notice to the applicant and such activity shall be considered unauthorized and the applicant will be subject to prosecution under section 149.54 of the Revised Code, for engaging in archaeological survey or salvage work without a written permit.
