Current through Register Vol. 35, No. 11, June 11, 2024
Section 4.10.11.9 - PERMITTING PROCEDURES AND REQUIREMENTS PERTAINING TO THE REMOVAL OF HUMAN BURIALSA. Permitting procedures - individual permits. (1) All applicants for a permit to exhume human burials shall meet the following requirements: (a) hold a graduate degree in archaeology, anthropology, or equivalent training acceptable to the permitting authority; or(b) be a member in good standing of an amateur archaeological society certified by the archaeological society of New Mexico; and(c) have at least 6 months of archaeological field experience within the region where the project will be undertaken, under the guidance of or in cooperation with a recognized professional archaeologist, or demonstrated competence based on analogous experience acceptable to the permitting authority; and(d) demonstrate an ability to carry out archaeological excavation, documentation and report preparation; amateur societies may be required to coordinate with a professional archaeologist to provide the necessary technical assistance;(e) applicants shall provide the SHPO with vitas of all members of the applicants' organization expected to supervise the excavation of a burial; vitas need not be submitted with subsequent permit applications, provided that the applicant ensures that the information contained in this file is current at the time of a subsequent permit application; the use of volunteers or other individuals who may not meet the specified qualifications is acceptable only if they will be directly supervised by the permittee or qualified personnel.(2) Individual case permits will be issued to excavate all burials in specific unmarked burial grounds. The permitting authority will take action on the permit within 60 days of receipt of application.(3) Applications for individual permits will include the following: (a) a legal description of the location of the burial (i. e., township, range, section, to the 1/4 1/4 section), land ownership, and a copy of the appropriate USGS 7.5' quad with the location identified;(b) current vitas of personnel who may supervise the excavation; such persons must be present while burials are being excavated and must directly supervise any volunteers or assistants who participate in the excavation of the burial;(c) a preliminary set of recommendations outlining the methods and techniques to be employed during the permitted activity, including methods for estimating the date of interment and general procedures that may be used to identify and notify living persons who may be related to the human burial; all excavation and analysis will be conducted in accordance with the guidelines listed in 4.10.11.10 NMAC;(d) written authorization from the landowner to remove the burial(s);(e) the information requested in 4.10.11.11 NMAC and any preliminary proposals for reinterment or other appropriate disposal of the human burial consistent with the guidelines listed in 4.10.11.12 NMAC.(4) The application information and all attachments shall be reviewed by the permitting authority.(5) The SHPO will notify the applicant in writing of the approval or disapproval of the permit by the permitting authority.(6) The term of an individual permit will be set by the permitting authority, not to exceed 1 year.(7) The permitting authority may expedite the review process in emergency discovery situations.B. Permitting procedures - annual permits.(1) Permits to excavate burials may be issued on an annual basis. The annual permits are intended to provide for expeditious removal of burials in discovery situations by eliminating the 60 day review period required for an individual permit. Excavations of human remains under an annual permit may take place after notification of the SHPO.(2) All applicants for annual permits to exhume human burials shall meet the following requirements: (a) hold a graduate degree in archaeology, anthropology, or closely related field or equivalent training acceptable to the permitting authority; and(b) have at least 6 months of archaeological field experience within the region where the project will be undertaken, under the guidance of or in cooperation with a recognized professional archaeologist, or demonstrated competence based on analogous experience acceptable to the permitting authority; and(c) demonstrate an ability to carry out archaeological excavation, documentation and report preparation.(3) Applications for annual permits will include the following:(a) current vitas of personnel who may supervise excavation of a human burial or unmarked burial ground; vitas need not be submitted with subsequent permit applications, provided that the applicant ensures that the information contained in this file is current at the time of a subsequent permit application; the use of volunteers or other individuals who may not meet the specified qualifications is acceptable only if they will be directly supervised by the permittee or qualified personnel;(b) a brief discussion of the methods and techniques to be employed during the permitted activity, including methods for estimating the date of burial, general procedures that may be employed to identify and notify living persons who may be related to the human burial, and general procedures for determining the disposition of human burials, including curation agreements; all excavation and analysis will be conducted in accordance with the guidelines listed in 4.10.11.10 NMAC.(4) The application information and all attachments shall be reviewed by the permitting authority.(5) Upon completion of the review process, the SHPO will notify the applicant in writing of the approval or disapproval of the permit.(6) The term of an annual permit shall be the end of calendar year in which it was approved.(7) Written notice of a permittee's intent to use an annual permit shall be submitted in writing to the SHPO before excavation begins and will include: (a) a legal description of the location of the burial (i.e., township, range, section, to the 1/4 1/4 section), land ownership, and a copy of the appropriate USGS 7.5' with the location identified;(b) written authorization from the landowner to remove the burial(s);(c) the information requested in 4.10.11.11 NMAC;(d) a list of the personnel supervising and conducting excavations of the human burial.(8) The holder of a blanket permit may act as a representative of the SHPO in consultation with the MI under 4.10.11.8 NMAC above. If it is determined that the human burial or unmarked burial ground falls under Section 18-6-11.2(F) NMSA 1978, the permit holder may proceed to remove the burial, consistent with the terms of the permit, immediately following notification of the SHPO.C. Procedures for appeal of permit denial. (1) Any applicant denied a permit by the permitting authority or aggrieved by the terms of a permit shall have the right to appeal the decision.(2) The SHPO shall inform the applicant, in writing, that a permit has been denied and shall specify the reason for denial.(3) Any applicant wishing to appeal the denial of a permit or the terms of a permit shall write to the SHPO requesting a hearing. The hearing board may designate an alternative to serve in his place if, for any reason, he believes it would be inappropriate to serve on the hearing board. Within 2 weeks of receipt of a request for a hearing, the SHPO will inform the applicant in writing of the date, time, and place of the hearing at which the appeal will be heard.(4) The chairman of the committee will serve as the chairman of the hearing board. The hearing will be conducted in accordance with the committee's rules of procedure. Decisions in any case brought before the board will be decided by a majority vote of the members of the board. The SHPO will inform the applicant in writing of the decision of the hearing board. The decision of the hearing board will be a final administrative decision.(5) All appeals shall include a statement of the applicant's reason for requesting an appeal and shall contain any additional information that the applicant believes will support the appeal.D. Permit stipulations.(1) Recipients of burial excavation permits issued by the permitting authority agree to abide by all stipulations contained in this regulation and any special stipulation that may be imposed by the permitting authority.(2) Costs incurred in the execution of the activities conducted under the permit shall be borne by the permittee or the permittee's client or sponsor.(3) The state of New Mexico, including its bureaus and employees and landholding agencies, shall be held blameless for any and all events, deeds or mishaps resulting from the activities of the permittee, regardless of whether or not they arise from operations authorized under the permit.(4) The permitting authority shall determine, in consultation with any living relative, conditions for the appropriate disposition of the human remains and any or all of the associated funerary objects, material objects or artifacts. All conditions for final disposition will become stipulations of the permit.(5) Documentation of all funerary objects, material objects, or artifacts associated with a human burial will be provided to the SHPO, consistent with provisions in Subsection D of 4.10.11.10 NMAC. The permittee will ensure that all documented items are disposed of in accordance with the disposition plan. The permit will also stipulate measures to ensure that the burials and associated funerary objects, material objects, or artifacts remain undisturbed after disposition.(6) If the excavation is delayed as a result of unforeseen circumstances and cannot be completed within the permit period, the permittee shall contact the SHPO in writing to request an extension of the term of the permit. This request must be received by the SHPO prior to the expiration date of the permit in order to be considered.(7) If the excavation is discontinued and cannot be completed as a result of unforeseen circumstances, the permittee shall notify the SHPO in writing to request a cancellation of the permit. Disposition of any human remains and associated funerary objects, material objects or artifacts collected during the excavation conducted under the permit and of copies of all written and photographic records resulting from a discontinued excavation will be determined by the permitting authority.(8) Failure by a permittee to comply with these and any additional special stipulations set forth in this regulation or on the permit itself shall be considered adequate reason for revocation of a permit and denial of future permits.(9) If fieldwork is not begun within the permit period, and an extension has not been requested as described above, the permit shall become void at the end of the permit period.9-15-89; 4.10.11.9 NMAC - Rn, 4 NMAC 10.11.9, 1/1/08; A, 5/30/2008