17VAC5-20 Regulations Governing Permits for the Archaeological Removal of Human Remains

REGULATIONS

Vol. 32 Iss. 6 - November 16, 2015

TITLE 17. LIBRARIES AND CULTURAL RESOURCES

BOARD OF HISTORIC RESOURCES

Chapter 20

Proposed Regulation

Title of Regulation: 17VAC5-20. Regulations Governing Permits for the Archaeological Removal of Human Remains (amending 17VAC5-20-30 through 17VAC5-20-60).

Statutory Authority: §§ 10.1-2205 and 10.1-2305 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 15, 2016.

Agency Contact: Jennifer Pullen, Executive Assistant, Department of Historic Resources, 2801 Kensington Avenue, Richmond, VA 23221, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 10.1-2305 of the Code of Virginia authorizes the Department of Historic Resources to issue permits for the archaeological removal of human remains and associated artifacts, whether alone or in concert with a court-approved removal permit. Section 10.1-2305 D of the Code of Virginia calls on the Board of Historic Resources to promulgate regulations to "provide for appropriate public notice prior to issuance of a permit, provide for appropriate treatment of excavated remains, the scientific quality of the research conducted on the remains, and the appropriate disposition of the remains upon completion of the research."

Purpose: Public concerns about local governments and private property owners seeking court orders or other permits for the removal of "abandoned" cemeteries without sufficient public notification resulted in the passage of new statutory requirements for these processes. In order to be consistent with the new court order process, and because of past occurrences where an applicant removed graves and then claimed they did not have the funds to rebury those remains with due respect and consideration, the Board of Historic Resources is proposing to revise its implementing regulations (17VAC5-20) to enhance public notification requirements rendering the application process more transparent and responsive to community interests; to ensure that the applicant has the financial and other resources to complete the proposed work and the respectful disposition of the recovered remains; and to incorporate other technical changes in order to modernize the language of the regulations.

Substance: 17VAC5-20-40 A is revised to specifically require (i) proof of ownership of the archaeological site or property upon which the recovery will take place and (ii) a signed statement confirming adequate resources to complete the research design as well as final disposition of the recovered remains. These revisions are necessary in order to document that the permit holder has the permission of the landowner and is capable, financially and otherwise, of ensuring the respectful disposition of all recovered remains.

17VAC5-20-50 B is revised to require publication of notices of intent using relevant electronic and social media and other public outlets as well as print newspapers, notice posted at the recovery site, direct consultation with local preservation/historical/genealogical organizations, and a public hearing. This section is further revised to require that the notice include a statement regarding the reason for the proposed recovery, additional contact information for the applicant, the street address of one or more locations where the general public may view a copy or copies of the application, and a statement regarding the proposed disposition of any recovered human remains and associated artifacts. These revisions recognize the prevalence of electronic and social media in modern communication, and the need for greater flexibility in use of signage and other means of passive public notification as well as the importance of thorough and open documentation of intent.

17VAC5-20-50 C is revised to clarify instances in which the public notice may be waived. These revisions are necessary in order to fully inform both applicants and the interested public of this option, which is rarely exercised.

In pursuing these revisions, the department intends to render the permit application and consideration process more transparent to the interested public, to further ensure the respectful treatment of recovered human remains, and to more fully modernize the language of these implementing regulations.

Issues: As development pressure increases the need for land, historically significant cemeteries and unmarked burials will be moved to make way for new construction. While most such removals are conducted by professionals in the funeral/cemetery industry, occasionally the responsible party will engage archaeologists to conduct the work. In these cases (roughly four to six per year) the Department of Historic Resources is charged with ensuring the respectful treatment of both buried human remains and the living community that has an interest in these remains. Recent cases in which interested parties felt they had not been given enough notice or consideration by the property owners has prompted the department to reevaluate existing requirements and revise those requirements to go beyond the traditional public notices in local newspapers, which seldom reach the interested community.

The primary advantages for the general public are greatly increased access to information during the application review process, as well as greater clarity with regard both to project parameters and permit requirements. Permit applicants will be required to provide a considerably greater amount of information as a result of these revisions, which may be perceived by some as a disadvantage. However, the department's proposed regulatory revisions regarding public notification and consultation are entirely in line with those already made to §§ 57-36 and 57-38.1 of the Code of Virginia--the laws governing the court-approved recovery process. The remaining revisions are for documentary and clarification purposes and should pose no disadvantage to permit applicants or the general public.

The department views these proposed revisions as entirely advantageous with regard to its review and management of future archaeological recovery permits. Although review and oversight of the amplified requirements will necessitate a greater investment in time and effort by department staff, encouraging more open and comprehensive public involvement during the review process will assist the department in addressing citizen concerns and render the entire process more transparent.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Department of Historic Resources (Department) is responsible for issuing permits for the conduct of archaeological field investigations involving the removal of buried human remains and associated artifacts from unmarked burials, and for archaeological recovery undertaken pursuant to a circuit court-approved removal of a cemetery. Pursuant to Chapter 588 of the 2014 Acts of Assembly, the Virginia Board of Historic Resources (Board) proposes to revise the Regulations Governing Permits for the Archaeological Removal of Human Remains so that permit applications include: 1) proof of ownership of the property of the archaeological site upon which the field investigation will be conducted, 2) a signed statement confirming both financial and other resources for reburial in an appropriate location, and 3) a current email address. The Board also proposes to require the permit applicant to post notice of the planned activity and other information: at the investigation site; to and in consultation with local historical and genealogical commissions/societies; and at a public hearing. Additionally, the Board proposes to require that the notice include "a statement regarding the reason for the proposed relocation," and "the street address of one or more locations in the project vicinity where a copy of the complete application can be viewed by members of the general public during regular business hours."

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Both archaeological and court-ordered processes require public notification and a good faith effort to consult with descendants and interested parties. Recently, public concerns about the inadequacy of existing notification and consultation requirements associated with the court-ordered process resulted in significant revisions to the sections of Virginia Code governing these actions,¹ which revisions were signed into law in 2014 (Chapter 588).

The proposal to require proof of ownership of the property of the archaeological site upon which the field investigation will be conducted is beneficial in that it will help prevent the possibility of inadvertent state approval of the misuse of a property owner's land. The cost of providing a copy of a deed within an application package would be small compared to the benefit of reducing the chance of such misuse of property.

According to the Department there has been at least one instance where after human remains were exhumed the permit holder claimed insufficient resources to properly rebury the remains. Thus the proposed requirement that permit applications include a signed statement confirming both financial and other resources for reburial in an appropriate location would potentially provide significant benefit. The cost of providing such information would not likely be large for those who do have sufficient resources.

Providing an email address on the permit application is essentially costless and reflects the existence of current technology. The proposal to require this information on the permit application will be beneficial in that it will help enable efficient communication.

The current regulation only requires that upon notice from the Department that the permit application is complete, that the applicant publishes notice of the planned activity and other information in a newspaper of general circulation in the area where the field investigation will occur. The Board proposes to further require that the applicant provide notice posted at the site of the graveyard or burial; notice to any historic preservation or other such commission, as well as area historical and genealogical societies; and notice at least one public hearing. The proposed increased notice will be beneficial in that it will significantly increase the likelihood that individuals or organizations potentially concerned with the specific proposed removal of buried human remains and associated artifacts will become informed of the planned activity.

The proposed increased notice will produce some cost in time and materials for permit applicants. The time and cost of producing and posting a sign at the site of the graveyard or burial would be fairly small. The Department states that it has contact with the various historic preservation commissions and historical and genealogical societies throughout the Commonwealth, and that it would be willing to help find and to notify the relevant entities for the applicant by request. Thus the practical cost of this proposed additional notice would be quite small as well. If desired, holding a public hearing where public comment is received could be done at a fairly small cost. Such a hearing could be done for example in a room at a library and perhaps take an hour or less if interest turns out to be limited.

The proposal to require that the notice include a statement regarding the reason for the proposed relocation would likely have value in that it would help interested parties have greater understanding of the planned project. Including such a brief statement would not likely be time consuming for the applicant. Maintaining a copy of the complete application at one or more locations in the project vicinity where it can be viewed by members of the general public during regular business hours could be somewhat more costly, but not necessarily prohibitively so. According to the Department, libraries are typically willing to keep such items on hand for public convenience.

Businesses and Entities Affected. The proposed amendments affect firms, individuals, organizations, and agencies that own property containing unmarked and/or historic burials and cemeteries that they wish to relocate; individuals with an interest in or objection to this recovery; local and state agencies with a regulatory interest in the process; archaeological firms contracted to perform the recovery; physical anthropologists and their employers; and funeral homes contracted to perform reburials where required by local ordinance. Given current permitting rates, the Department of Historic Resources anticipates that approximately 5 archaeological firms will be affected per year. All would likely be small businesses. Depending on land ownership, permit applicants may also be businesses and may be affected at the same rate.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments will require that additional efforts are made to inform the public when there are plans to remove human remains from private and public property.

Small Businesses: Costs and Other Effects. Small firms such as property developers may on rare occasions desire to move human remains so as to go forward on a development project. The proposed amendments will require that additional efforts are made to inform the public when there are plans to remove human remains from private and public property. This will produce a relatively small increase in costs for such firms.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that lower cost while still meeting the policy goal of better informing the public of plans for the removal of buried human remains and associated artifacts from unmarked burials.

Real Estate Development Costs. The proposed amendments will moderately increase real estate development costs in the rare instances where the land to be developed includes human remains.

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¹Specifically §§ 57-36 and § 58-38.1 of the Code of Virginia.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared and submitted by the Department of Planning and Budget.

Summary:

Pursuant to Chapter 588 of the 2014 Acts of Assembly, the proposed amendments revise the regulations so that permit applications include (i) proof of ownership of the property of the archaeological site upon which the field investigation will be conducted, (ii) a signed statement confirming both financial and other resources for reburial in an appropriate location, and (iii) a current email address.

The proposed amendments also require the permit applicant to (i) publish notice in a local newspaper, post notice of the planned activity and other information at the investigation site, and provide notice to local historical and genealogical commissions and societies; (ii) provide notice of at least one public hearing; and (iii) include in the notice a statement regarding the reason for the proposed relocation and the street address of one or more locations in the project vicinity where a copy of the complete application can be viewed by members of the general public during regular business hours.

17VAC5-20-30. General provisions.

Any person conducting any field investigation involving the removal of human remains or associated artifacts from any unmarked human burial on an archaeological site shall first obtain a permit from the director.

1. No field investigation involving the removal of human remains or associated artifacts from any unmarked human burial on an archaeological site shall be conducted without a permit.

2. In cases where a field investigation may reasonably be anticipated to involve the excavation and removal of human remains or associated artifacts, the person conducting such investigation may obtain a permit prior to the actual discovery of human burials.

3. In any case where human remains are encountered in a field investigation without having received a permit, all work on the burial or burials shall cease until a permit has been obtained.

4. No field investigation involving the removal of human remains or associated artifacts from any unmarked human burial on an archaeological site shall be performed except under the supervision and control of an archaeologist meeting the qualifications stated in 17VAC5-20-40.

5. Any human remains removed in the course of field investigations shall be examined by a skeletal biologist or other specialist meeting the qualifications stated in 17VAC5-20-40.

6. Any approved field investigation shall include an interim progress report summarizing the field portion of the permitted investigation within 60 days of completion of the removal of all human remains and associated artifacts. Reports indicating progress on analysis and report preparation shall be submitted to the department at 90-day intervals until the final report and disposition are accomplished.

7. The applicant shall make the site and laboratory available to the department for purposes of monitoring progress and compliance with this chapter as requested by the department.

8. A copy of the final report including the analysis of materials removed from the burial shall be delivered to the director according to the timetable described in the application.

9. Documentation of final disposition as required by the permit shall be delivered to the department within 15 days of such disposition.

10. Work conducted under a permit will not be considered complete until all reports and documentation have been submitted to and reviewed by the department to meet all conditions cited in this chapter or specified as part of an approved permit.

11. Failure to complete the conditions of the permit within the permitted time limit may result in revocation of the permit and constitute grounds for denial of future applications.

11. 12. The applicant may apply for an extension or change to the conditions of the permit, including changes in research design, principal personnel or disposition, for good cause. Granting such an extension or alteration will be at the discretion of the director, after consultation with interested parties.

17VAC5-20-40. Permit application.

A. Application for a permit shall be in such form as required by the director, but shall include the following basic information:

1. Name, address, email address, phone number, and institutional affiliation of the applicant.

2. Location and description of the archaeological site for which field investigation is proposed, including site number if assigned.

3. Proof of ownership of the archaeological site or the property on which the field investigation is to be conducted.

3. 4. A written statement of the landowner's permission both to conduct such research and to remove human remains on his the landowner's property, and allowing the director or his the director's designee access to the field investigation site at any reasonable time for the duration of the permit. The landowner's signature should to the written statement shall be notarized.

4. 5. Applicant shall provide evidence indicating a signed statement confirming that adequate resources (financial and otherwise) are available to carry out the approved research design including respectful reburial in an appropriate location.

5. 6. Applicant shall indicate whether or not this permit is being requested as part of a federal, state, or local government undertaking and, if so, shall provide a brief description of the undertaking.

B. A statement of goals and objectives of the project and proposed research design shall be provided as part of the permit application. The research design shall, at a minimum, address the following:

1. How the research design adheres to professionally accepted methods, standards, and processes used to obtain, evaluate, and analyze data on mortuary practices in particular and cultural practices in general.

2. Field documentation which shall include, but not be limited to (i) photographs, (ii) maps, (iii) drawings, and (iv) written records. Collected information shall include, but not be limited to (i) considerations of containment devices, (ii) burial shaft or entombment configuration, (iii) burial placement processes, (iv) skeletal positioning and orientation, (v) evidence of ceremonialism or religious practices, and (vi) grave items or artifacts analyses.

To the extent possible, the cultural information shall be examined at the regional level with appropriate archival research. The results of the evaluation, along with the osteological analysis, will be submitted in report form to the director for review, comment, and final acceptance.

3. The planned osteological examination of the human skeletons which shall include determinations of age, sex, racial affiliation, dental structure, and bone inventories for each individual in order to facilitate comparative studies of bone and dental disease. Said inventories shall provide to the extent possible a precise count of all skeletal elements observed, as well as the degree of preservation (complete or partial); separate tabulation of the proximal and distal joint surfaces for the major long bones should be recorded.

The research design should also address at a minimum the following additional analytical techniques and when they will be used: under what circumstances will bone be examined and x-rayed if necessary, to detect lesions or conditions resulting from disease, malnutrition, trauma, or congenital defects; the presence of dental pathological conditions including carious lesions, premortem tooth loss, and alveolar abscessing to be recorded: craniometric and postcraniometric data to be obtained in a systematic format that provides basic information such as stature; and other techniques as appropriate. Although the initial focus concerns description and documentation of a specific sample, the long-term objective is to obtain information that will facilitate future comparative research. The report based on the osteological analysis should identify the research objectives, method of analysis, and results. Specific data (e.g., measurements, discrete trait observations) supplementing those traits comprising the main body of the report may be provided in a separate file including, for example, tables, graphs, and copies of original data collection forms. Unique pathological specimens should be photographed as part of basic documentation.

4. The expected timetable for excavation, analysis and preparation of the final report on the entire investigation.

C. A resume, vitae, or other statement of qualification shall be provided as part of the permit application demonstrating that the persons planning and supervising the field investigation and subsequent analysis meet the minimum qualifications consistent with the federal standards as cited in 36 CFR 61 and 43 CFR 7, as follows:

1. The qualifications of the archaeologist performing or supervising the work shall include a graduate degree in archaeology, anthropology, or closely related field plus:

a. At least one year of full-time professional experience or equivalent specialized training in archaeological research, administration, or management;

b. At least four months of supervised field and analytic experience in general North American archaeology; and

c. Demonstrated ability to carry research to completion.

In addition, a prehistoric archaeologist shall have at least one year of full-time experience at a supervisory level in the study of archaeological resources of the prehistoric period. An historic archaeologist shall have at least one year of full-time experience at a supervisory level in the study of archaeological resources of the historic period.

2. The qualifications of the skeletal biologist needed to undertake the types of analyses outlined in subdivision B 3 of this section should have at least a Masters degree with a specialization in human skeletal biology, bioarchaeology, forensic anthropology, or some other field of physical anthropology, plus two years of laboratory experience in the analysis of human skeletal remains. The individual must be able to develop a research design appropriate to the particular circumstances of the study and to conduct analyses of skeletal samples (including age, sex, race, osteometry, identification of osteological and dental disease, and the like), employing state-of-the-art technology. The individual must have the documented ability to produce a concise written report of the findings and their interpretation.

D. Under extraordinary circumstances, the director shall have the authority to waive the requirements of research design and professional qualifications.

E. The permit application shall also include a statement describing the curation, which shall be respectful, and the proposed disposition of the remains upon completion of the research. When any disposition other than reburial is proposed, then the application shall also include a statement of the reasons for alternative disposition and the benefits to be gained thereby. In the absence of special conditions, including those that may come to light during excavation or analysis, this disposition shall be reburial within a two-year period from the date of removal unless requested otherwise by next of kin or other closely affiliated party.

F. When a waiver of public notice or other requirement based on an emergency situation is requested by the applicant then the permit application must include:

1. A statement describing specific threats facing the human skeletal remains or associated artifacts. This statement must make it clear why the emergency justifies the requested waiver.

2. A statement describing the known or expected location of the burials or the factors that suggest the presence of burials.

3. A statement describing the conservation methods that will be used, especially for skeletal material. Note that conservation treatment of bones should be reversible.

17VAC5-20-50. Public comment.

A. Upon receiving notice from the director that the permit application is complete, the applicant shall arrange for public notification as deemed appropriate by the department.

B. In all cases, the applicant shall publish, or cause to be published, a notice in a newspaper of general circulation in the area where the field investigation will occur written notice in the following manners: notice in at least one local newspaper of general circulation in the area where the field investigation will occur; notice posted at the site of the graveyard or burial; notice to any historic preservation or other such commission, as well as area historical and genealogical societies; and notice of at least one public hearing. This Each notice shall include:

1. Name The name and address of applicant.;

2. Brief A brief description of proposed field investigation.;

3. A statement regarding the reason for the proposed relocation;

4. A statement informing the public reader that they the reader can request a public meeting.;

4. 5. A contact name, address, email address, and the phone number where they the reader can get more information, including a location in the project vicinity where a copy of the complete application can be viewed.;

6. The street address of one or more locations in the project vicinity where a copy of the complete application can be viewed by members of the general public during regular business hours;

5. 7. A statement that the complete application can also be reviewed and copied at the department. or on the department's website;

6. When any disposition other than reburial is proposed, this must be stated in the public notice. The notice should contain a 8. A statement of regarding the proposed disposition and of any human remains and associated funerary objects recovered during the permitted recovery process. If any disposition other than reburial is proposed, the notice must specifically request public comment on this aspect of the application.; and

7. Deadline 9. The deadline for receipt of comments.

The notice shall be of a form approved by the director and shall invite interested persons to express their views on all aspects of the proposed field investigation to the director by a date certain prior to the issuance of the permit. Such notice shall be published once each week for four consecutive weeks.

C. Such The public notice requirement may be waived:

1. If the applicant can document that the family of the deceased has been contacted directly and is in agreement with the proposed actions.

2. 1. In cases where the applicant has demonstrated that, due to the rarity of the site or its scientific or monetary value and where security is not possible, there is a likelihood it is likely that looting or other damage to the burial or surrounding site would occur as a result of the public notice.

3. If 2. In the case of an emergency and if, in the opinion of the director, the severity of a demonstrated emergency is such that compliance with the above public notice requirements may result in vandalism, looting, or the loss of significant information, or that the publication of such notice may substantially increase the threat of such loss through vandalism, the director, in such cases, may issue a permit prior to completion of the public notice and comment requirements. In such cases the The applicant shall provide for such public notice and comment as determined by the director to be appropriate under the circumstances.

D. In cases of marked burials where a permit is sought pursuant to a court order subject to § 57-38.1 or 57-39 of the Code of Virginia, and in accordance with § 10.1-2305 C of the Code of Virginia, the applicant shall provide evidence of a reasonable effort to identify and notify next of kin.

E. In addition to the notification described in subsection B of this section, in the case of both prehistoric and historic Native American burials, the department shall inform the Virginia Council on Indians and the appropriate tribal leaders of state-recognized and federally recognized tribes.

F. The department shall maintain a list of individuals and organizations who have asked to be notified of permit actions. This list will be updated annually and notices sent to all parties currently listed. In all cases notification shall be sent to the appropriate local jurisdiction.

G. Prior to the issuance of a permit, the director may elect to hold a public meeting on the permit application. The purpose of the public meeting shall be to obtain public comment on the proposed field investigations. The director shall decide whether or not to hold a public meeting on a case-by-case basis, and will include any requests following from the public notice in such considerations.

17VAC5-20-60. Issuance or denial of permit.

A. Upon completion of the public comment period, the director shall decide whether to issue the permit within a 30-day review period. In the event the director received no adverse public comment, no further action is required prior to decision.

B. The director shall consider any comment received and evaluate it in the light of the benefits of the proposed investigation, the severity of any emergency, or the amount of scientific information which may be lost in the event no permit is issued. The director may also take such comments into account in establishing any conditions of the permit. In considering such comment, the director shall give priority to comments and recommendations made by individuals and parties most closely connected with the human burials subject to the application.

C. In making his a decision on the permit application, the director shall consider the following:

1. The level of threat facing the human skeletal remains and associated cultural resources.

2. The appropriateness of the goals, objectives, research, design, and qualifications of the applicants to complete the proposed research in a scientific fashion. The director shall consider the United States Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation, set out at 48 FR 44716 (September 29, 1983), in determining the appropriateness of the proposed research and in evaluating the qualifications of the applicants.

3. Comments received from the public.

4. The appropriateness of the proposed disposition of remains upon completion of the research. The director may specify a required disposition as a condition of granting the permit.

5. The performance of the applicant on any prior permitted investigation.

6. The applicability of other federal, state and local laws and regulations.

D. Failure to adequately meet all conditions in a previous permit shall be grounds for denial of any subsequent permit applications.

E. In the event the director proposes to deny a permit application, the director shall conduct an informal conference in accordance with § 9-6.14:11 2.2-4019 of the Administrative Process Act.

F. The permit shall contain such conditions which, in the judgment of the director, will protect the excavated human remains or associated artifacts.

G. A permit shall be valid for a period of time to be determined by the director as appropriate under the circumstances.

H. The director may extend or change the period or conditions of the permit or the period of analysis as noted in subdivision 11 12 of 17VAC5-20-30. In order to obtain such an extension or change the applicant must submit a written request demonstrating good cause. "Good cause" may include but not be limited to situations in which many more burials were encountered than were expected in the original permit application or where a new analytical technique or question will be applied within an expanded term of the permit. In making any decision to extend a permit, the director will consult with appropriate interested parties as identified in the initial public review.

I. The director may revoke any permit issued under this chapter for good cause shown. Such revocation shall be in accordance with the provisions of the Administrative Process Act.

VA.R. Doc. No. R14-3990; Filed October 26, 2015, 2:36 p.m.