DAR File No. 30820

Community and Culture, History

R212-4

Ancient Human Remains

NOTICE OF PROPOSED RULE

DAR File No.: 30820
Filed: 12/12/2007, 11:33
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule filing is made subsequent to the enactment of Section 9-8-309, which gave new responsibilities to the Antiquities Section of the Division of State History under S.B. 204 in the 2007 General Session. The old Rule R212-4 is being repealed because changes made to Section 9-8-303 removed archaeological permitting as a function of the Antiquities Section; as of of the expiration of the last existing permit issued by the Antiquities Section in November 2007, the rule is no longer needed. (DAR NOTE: S.B. 204 (2007) is found at Chapter 231, Laws of Utah 2007, and was effective 04/30/2007.)

Summary of the rule or change:

The specific provisions of the repealed rule that are no longer needed include: defined the kinds of archaeological permits required for working in Utah; set minimum qualifications and standards for archaeologists; set standards for excavation permits; identified provisions of permits; and identified processes for issuing and terminating permits. None of these provisions are needed as the division no longer issues archaeological permits. The specific provisions of the reenacted rule include definitions of key terms referred to in statue such as "Native American", "human remains", and "excavate". The new reenacted rule also explicates the time frames in which certain key decisions will be made regarding discovered human remains and within which the Antiquities Section will complete the excavation, analyzing, recovering, reporting, and determining the disposition of ancient human remains of ancient Native American human remains, if needed.

State statutory or constitutional authorization for this rule:

Sections 9-8-309, 9-8-403, and 76-9-704

Anticipated cost or savings to:

the state budget:

$100,000 in ongoing funds were appropriated to the Division of State History by the legislature for implementation of Section 9-8-309.

local governments:

The statute and rule change relieve cities, counties, and some state agencies of the responsibility to analyze, care for, and repatriate ancient human remains and places that responsibility with the Antiquities Section of the Division of State History. Funding for this service was provided by the legislature. This rule and statute will save developers and agencies significant time and expense in dealing with ancient human remains. An average of 15 discoveries of human remains per year have been made over the past five years. Removing the expense of lawfully dealing with those remains will save developers, landowners, and agencies a considerable amount, in addition to significant time savings. In recent years, the costs of excavating and reporting human remains have run from $3,600 to $28,000 per individual.

small businesses and persons other than businesses:

The statute and rule change relieve small businesses or other persons of the responsibility to analyze, care for, and repatriate ancient human remains and places that responsibility with the Antiquities Section of the Division of State History. Funding for this service was provided by the legislature. This rule and statute will save developers and agencies significant time and expense in dealing with ancient human remains. An average of 15 discoveries of human remains per year have been made over the past five years. Removing the expense of lawfully dealing with those remains will save developers, landowners, and agencies a considerable amount, in addition to significant time savings. In recent years, the costs of excavating and reporting human remains have run from $3,600 to $28,000 per individual.

Compliance costs for affected persons:

The statute and rule change relieve private citizens, cities, and counties of the compliance costs to analyze, care for, and repatriate ancient human remains and places that responsibility with the Antiquities Section of the Division of State History. Funding for this service was provided by the legislature. This rule and statue will save developers and agencies significant time and expense in dealing with ancient human remains. An average of 15 discoveries of human remains per year have been made over the past five years. Removing the expense of lawfully dealing with those remains will save developers, landowners, and agencies a considerable amount, in addition to significant time savings. In recent years the costs of excavating and reporting human remains have run from $3,600 to $28,000 per individual.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no fiscal impact on business associated with this amendment. In cases where ancient human remains are found on private lands or by private developers, this rule and the statute it implements will result in a significant cost and time savings for those individuals. Palmer DePaulis, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Community and Culture
History
300 RIO GRANDE
SALT LAKE CITY UT 84101-1182

Direct questions regarding this rule to:

Alycia Aldrich at the above address, by phone at 801-533-3556, by FAX at 801-533-3567, or by Internet E-mail at AALDRICH@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/31/2008

This rule may become effective on:

02/07/2008

Authorized by:

Philip F Notarianni, Director

R212. Community and Culture, History.

[R212-4. Archaeological Permits.

R212-4-1. General Authority.

Section 9-8-201 provides for the creation and purpose of the division.

Section 9-8-203 defines the division's duties and includes the provision to mark and preserve historic sites, areas, and remains.

Section 9-8-304 specifies the Antiquities section duties and includes responsibility for the stimulation of research, study, and activities in the field of antiquities; the marking, protection, and preservation of sites; the administration of site survey and excavation records; and the cooperation with local, state, and federal agencies and all interested persons to achieve the purposes of this part and Part 4.

Section 9-8-305 provides that the division shall make rules for the issuance of permits for the survey and excavation of archaeological resources on state lands and allows for the division to enter into memoranda of agreement to issue permits for federal and Native American lands within the state.

Section 9-8-306 requires a permit to excavate a privately owned designated landmark.

Section 9-8-307 requires any person who discovers any archaeological resources on privately owned lands to promptly report the discovery to the division and discourages field investigations except by those holding a permit from the division.

Section 9-8-404 regards the issuance of a permit in consultation with the State Historic Preservation Officer.

 

R212-4-2. Purpose.

The primary purposes of issuing a permit are to:

A. Ensure that survey, excavation and related work are consistently and reliably executed by qualified personnel; and,

B. Ensure that educational, scientific, archaeological, anthropological, and historical information is recovered and preserved; and,

C. Ensure that physical items recovered and owned by the state are not lost to the people of Utah.

 

R212-4-3. Applicability.

This rule applies to all those seeking a permit from the division on any lands within the State of Utah.

 

R212-4-4. Definitions.

A. Terms used in this rule are defined in Section 9-8-302.

B. In addition:

1. "board" means the Board of State History;

2. "division" means the Division of State History;

3. "director" means the Director of the division;

4. "recovery" means the scientific disturbance, removal, or study of subsurface and substantial surface archaeological resources by a qualified permit holder.

5. "permit" means a valid approval by the division issued to professionals meeting qualifications.

6. "section" means the Antiquities Section of the division.

7. "surface investigation" means the study, including insubstantial surface collection and limited subsurface testing, of archaeological resources for determination of elegibility for State or National Register.

 

R212-4-5. Qualifications of Permit Holders.

The division shall issue a permit for the survey or excavation of archaeological resources to individuals and entities who demonstrate compliance with the following requirements:

A. Education, Experience, and Capabilities.

1. Archaeologists shall meet the minimum standards for education and experience set by federal regulation. The federal regulations, codified as 43 CFR 7.8, Subtitle A (October 1, 2000 Edition) as amended, Issuance of permits are hereby incorporated by reference.

a) Archaeologists shall be Registered Professional Archaeologists (RPA) in good standing, as recognized by the Register of Professional Archaeologists. Applicants listed on Antiquities Permits at the time this rule takes effect, but who may not meet the standards for RPA status, will not have their permit status revoked.

2. Applicants shall submit a resume or vita as proof of compliance.

3. Applicants shall provide written evidence indicating the ability to conduct surveys or the proposed excavation in a manner consistent with current professional practice, including access to proper equipment and facilities, and use of other personnel qualified to execute portions of the research design.

4. All work conducted under authority of an Antiquities Permit shall be undertaken to current standards of scientific rigor, and must conform to standards established by the Utah Professional Archaeological Council and the Register of Professional Archaeologists.

 

R212-4-6. Survey Permit Required for Archaeological Surveys.

A. A survey permit is issued to a qualified professional upon request. The permit holder may conduct archaeological surveys on behalf of land owners within the State of Utah.

 

R212-4-7. Excavation Permits.

A. The division may issue a permit for excavation on lands owned or controlled by the state and its subdivisions, and on school and institutional trust lands when permitting authority is delegated to the division, when the applicant complies with the requirements of sub-section C.

B. The division may issue a permit for excavation on other lands, including private lands, when the landowner gives permission and the applicant complies with the requirements of sub-section C.

C. The division shall require that the applicant:

1. Provide a research design which:

a) explicitly states the questions to be addressed;

b) the reasons for conducting the work;

c) defines the methods to be used;

d) describes the analysis to be performed;

e) outlines the expected results and the plans for reporting;

f) evaluates expected contributions of the proposed archaeological work to archaeological science and the field of anthropology or related disciplines;

g) provides for recovery of the maximum amount of historic, scientific, archaeological, anthropological, and educational information;

h) provides that the physical recovery of specimens and the reporting of archaeological information meet current standards of scientific rigor and conforms to standards established by the Utah Professional Archaeological Council and the Register of Professional Archaeologists; and

i) provides that no specimen, site or portion of any site is removed from the state of Utah, prior to placement in a museum, repository, or curation facility, without explicit permission from the division and after consultation with landowners and any other agency managing any interest in the land.

2. Possess written proof of consultation with the appropriate Native American Tribe or Nation, if required by law.

3. Provide written proof of consultation with the Museum of Natural History, if required by law.

4. Possess written proof of consultation with other agencies that manage other legal interests in the land.

5. Provide all other information requested by the division.

 

R212-4-8. Permit Provisions.

All permits shall contain the following provisions:

A. A permittee shall provide reports documenting results of the work and data obtained, and deliver relevant records, site forms, and reports to the section within the time specified in the permit.

B. A permittee who discovers human remains shall cease further activity and notify the landowner, antiquities section and appropriate agencies pursuant to Section 9-9-403 and 76-9-704.

C. Duration of Permits.

1. Survey permits are issued for a period of up to two years.

2. Permits for excavation are issued for a period of time necessary to accomplish the proposed work.

a) The period of time may be extended by the division upon application of the permittee and

b) The Museum of Natural History shall be consulted by the permittee if the duration of a required excavation permit is to be modified.

D. Other provisions the division deems necessary.

 

R212-4-9. Application Review.

A. Application for a survey or excavation permit shall be made on a form provided by the section. Applicants shall fully complete the application form.

B. Applicants shall be notified of the acceptance or rejection of the completed application within 30 calendar days.

 

R212-4-10. Violations of Statue or Rule.

If the division receives information indicating a violation of statute or rule, the division shall make a good faith effort to notify the alleged violator of the legal requirements and potential penalties. The division shall also notify the landowner, and take other actions deemed necessary.

 

R212-4-11. Terminating Permits.

If the permittee fails to comply with any statute, rule, or the provisions of the permit, the division may terminate the permit, temporarily suspend the permit, place additional restrictions on a permit, require other conditions, refuse to issue a permit, or take other appropriate actions.

A. Before action is taken regarding a permit, the division shall notify the permittee.

1. The notification shall describe deficiencies in performance or qualifications.

2. The division shall provide the permittee a reasonable opportunity to respond.

B. The division shall take into account a permittee's timely response before taking action on a permit.

C. The division may seek a peer review as necessary.

 

R212-4-12. Appeal of Decision.

Any applicant desiring review of a decision concerning an application, termination, or other conditions placed on a permit may appeal the decision pursuant to R212-1.

 

R212-4-13. Records Access.

The division shall maintain records of archaeological sites and localities. Access to location information within these records shall be restricted to those with legitimate research interests, and those holding valid permits, landowners, or state or federal agencies in accordance with the requirements contained in 16 USC 470 Section 304, the National Historic Preservation Act of 1966, as amended, and Title 63, Chapter 2.

 

R212-4-14. Exceptions.

Exceptions to this rule may be granted, with landowner permission, in emergency cases requiring immediate action, if in the best judgment of the division the intent of the law will not be compromised. The division shall require that a permit application be filed as soon as possible. The division shall notify the board of this action as soon as possible.

 

KEY: administrative procedures, archaeology

Date of Enactment or Last Substantive Amendment: November 23, 2004

Notice of Continuation: August 1, 2006

Authorizing, and Implemented or Interpreted Law: 9-8-302; 9-8-305; 9-9-403; 63-2; 16 USC 470 Sec. 304; 43 CFR 7.8 Subtitle A]

R212-4. Ancient Human Remains.

R212-4-1. General Authority.

Section 9-8-309 defines the Antiquities Section's duties with respect to recovery, disposition, and determination of ownership of ancient human remains found on nonfederal lands that are not state lands in the State of Utah.

 

R212-4-2. Purpose.

The primary purpose of the 9-8-309 and this rule is to assure that ancient human remains are given respectful, lawful, and scientifically-sound treatment, that landowners are not harmed or burdened by a discovery of ancient human remains on their property, and to ensure that steps are taken to determine lawful ownership of recovered remains.

 

R212-4-3. Definitions.

A. "Antiquities Section" means the Antiquities Section of the Division of State History.

B. "ancient" means one-hundred years of age or older.

C. "Native American" means of or relating to a tribe, people, or culture that is indigenous to the United States.

D. "human remains" means all or part of a physical individual, in any stage of decomposition, and objects on or in association with the physical individual that were placed there as part of the death rite or ceremony of a culture

E. "nonfederal land" includes land owned or controlled by the state, a county, city, or town, an Indian tribe, if the land is not held in trust by the United States for the Indian tribe or the Indian tribe's members, a person other than the federal government; or school and institutional trust lands as defined in Section 53C-1-103.

F. "state land" means any land owned by the state including the state's legislative and judicial branches, departments, divisions, agencies, boards, commissions, councils, and committees, institutions of higher education as defined under Section 53B-3-102. "State land" does not include land owned by a political subdivision of the state, land owned by a school district; private land, school and institutional trust lands as defined in Section 53C-1-103.

G. "excavate" means the scientific disturbance or removal of surface or subsurface archaeological resources by qualified archaeologists in compliance with Title 9, Chapter 8, Part 3, Antiquities.

H. "Director" means the Director of the Utah Division of State History

I. "local law enforcement agency" means the police department, sheriff's office, or other agency having jurisdiction.

 

R212-4-4. Response to Notification of a Discovery of Ancient Human Remains.

Human remains that are discovered in conjunction with a project or undertaking subject to Chapter 8, part 4 Historic Sites, or Section 106 of the National Historic Preservation Act, are the responsibility of the project proponents, not the Antiquities Section. The Antiquities Section may however advise, assist and cooperate with responsible agencies in meeting their obligations regarding ancient human remains. For ancient human remains recovered as part of a compliance project from lands covered by 9-8-309, the Antiquities Section will, following appropriate analyses, and if asked, assume the role of the landowner for purposes of determination of ownership as per 9-9-403(8).

The two day period specified in statute 9-8-309(1)(b)(ii)(A) for the Antiquities Section to notify the landowner of intent to excavate begins upon verification that human remains have been discovered, not upon notification, as sometimes nonhuman bones are mistaken for human remains. Care needs to be taken to make certain that the remains in question are indeed ancient human remains. This should generally take no more than a day, but may be longer if laboratory analysis is required. The Antiquities Section will move as quickly as possible to identify the remains and determine whether they are ancient human remains.

Upon verification that ancient human remains have been discovered, the Antiquities Section will gather information and consult as necessary with affected agencies and individuals and within two business days determine a course of action (leave remains in place or excavate and remove remains) and notify the landowner of the decision.

 

R212-4-5. Excavation and Removal of Ancient Human Remains.

If excavation and removal are deemed necessary, and the landowner grants permission, the Antiquities Section or its agent will conduct respectful and scientifically-sound investigations of the remains and will remove from the site the remains and associated artifacts and features within five days of receiving permission to excavate. If agreed to by the landowner, the five day limit may be waived. If extraordinary circumstances (as defined in 9-8-309(1)(c)(i) exist or arise requiring a time extension, the Antiquities Section will notify the landowner immediately.

If the landowner does not grant permission to excavate and remove the ancient human remains, the Antiquities Section will inform the landowner of the legal restrictions regarding human remains as specified in UCA 76-9-704.

Excavated human remains will be examined. Those determined to be Native American will be subject to Chapter 9, Part 4, Native American Grave Protection and Repatriation Act. For the purposes of determining ownership under the act, for all remains excavated under the provisions of this part by the Antiquities Section, the Section will serve in the capacity of the landowner and will make ownership and cultural affiliation determinations in consultation with the Division of Indian Affairs and allowing interested individuals and tribes to assert claims of ownership.

 

KEY: ancient human remains, archaeology

Date of Enactment or Last Substantive Amendment: 2008

Notice of Continuation: August 1, 2006

Authorizing, and Implemented or Interpreted Law: 9-8-309; 9-8-403; 76-9-704