CFR Subpart E

CFR Subpart E
in effect

36 C.F.R. § 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 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).

36 C.F.R. § 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.

36 C.F.R. § 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 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.

36 C.F.R. § 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).

36 C.F.R. § 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).

36 C.F.R. § 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.

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