[Federal Register Volume 62, Number 8 (Monday, January 13, 1997)]
[Rules and Regulations]
[Pages 1820-1823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-653]



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Part II





Department of the Interior





_______________________________________________________________________



Office of the Secretary



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43 CFR Part 10



Native American Graves Protection and Repatriation Act; Interim Rule

  Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AC48


Native American Graves Protection and Repatriation Act 
Regulations--Civil Penalties

AGENCY: Department of the Interior.

ACTION: Interim rule.

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SUMMARY: This interim rule relates to one section of regulations 
implementing the Native American Graves Protection and Repatriation Act 
of 1990 (``the Act''). This section outlines procedures for assessing 
civil penalties upon museums that fail to comply with applicable 
provisions of the Act. Comments on this rule are requested.

DATES: Effective Date: This interim rule becomes effective on February 
12, 1997. This interim rule will remain in effect until final 
regulations are adopted through general notice and comment rulemaking. 
However, written comments on this interim rule are solicited from 
Indian tribes, Native Hawaiian organizations, museums, Federal agencies 
and members of the public. Comments will be taken into account in 
developing a final rule. The Departmental Consulting Archeologist will 
accept written comments until April 14, 1997.

ADDRESSES: Comments (2 copies) should be addressed to: Departmental 
Consulting Archeologist, Archeology and Ethnography Program, National 
Park Service, Docket No. 1024-AC48, Box 37127, Washington, D.C. 20013-
7127, or hand deliver comments to room 210, 800 North Capital Street, 
Washington, D.C. 20001.

FOR FURTHER INFORMATION CONTACT: Dr. Francis P. McManamon, Departmental 
Consulting Archeologist, Archeology and Ethnography Program, National 
Park Service, Box 37127, Washington, DC 20013-7127. Telephone: 202-343-
4101. Fax: 202-523-1547.

SUPPLEMENTARY INFORMATION:

Background

    On November 16, 1990, President George Bush signed the Act into 
law. The Act addresses the rights of lineal descendants, Indian Tribes, 
and Native Hawaiian organizations to certain Native American human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony with which they are affiliated. Section 13 of the Act 
requires the Secretary of the Interior to promulgate regulations to 
carry out provisions of the Act. Final regulations implementing the Act 
were published in the Federal Register on December 4, 1995 (60 FR 
62158). The final regulations had five sections reserved for later 
publication. This interim rule includes one section that was reserved 
in the final regulations. Section 10.12 develops procedures for 
assessing civil penalties upon museums that fail to comply with 
provisions of the Act. This section does not apply to Federal agencies. 
However, Federal agencies are subject to enforcement actions by 
aggrieved parties under section 15 of the Act.

Section-by-Section Analysis

Section 10.12

    Section 9 of the Act authorizes the Secretary of the Interior to 
assess a civil penalty against any museum that fails to comply with the 
requirements of this Act. This section defines procedures for assessing 
those civil penalties.
    A ``museum'' is defined at 43 CFR 10.2 (a)(3) as any institution or 
State or local government agency (including any institution of higher 
learning) that receives Federal funds and possesses or has control over 
Native American human remains, funerary objects, sacred objects, or 
objects of cultural patrimony as defined in 43 CFR 10.2 (d). The phrase 
``receives Federal funds'' is defined at 43 CFR 10.2 (a)(3)(iii) to 
mean the receipt of funds by a museum after November 16, 1990, from a 
Federal agency through any grant, loan, contract (other than a 
procurement contract), or other arrangement by which a Federal agency 
makes or made available to a museum assistance in the form of funds. 
Federal funds provided for any purpose that are received by a larger 
entity of which the museum is a part are considered Federal funds for 
the purposes of these regulations. For example, if a museum is part of 
a state or local government or private university, and the state or 
local government or private university received Federal funds for any 
purpose, the museum is considered to receive Federal funds for purpose 
of these regulations. Although Federal agencies are not considered 
``museums'' for purposes of civil penalties under this section, civil 
actions may be taken against Federal agencies to compel compliance with 
the Act in the United States District Courts under section 15 of the 
Act.
    Section 9(b) of the Act identifies some of the criteria to be used 
by the Secretary in determining the amount of the civil penalty to be 
assessed. The Secretary has consulted the Native American Graves 
Protection and Repatriation Review Committee which has recommended that 
the Secretary use a two stage approach to implementing these criteria. 
They recommend an initial assessment based upon the sum of three 
factors: (1) an amount equal to .25% of the museum's annual budget, or 
$5,000, whichever is less; (2) damages suffered by any aggrieved party 
or parties, including, but not limited to, the costs of attorney and 
expert witness fees, investigations, and administrative expenses 
incurred by the aggrieved parties to compel compliance with the Act; 
and (3) the importance of the human remains, funerary objects, sacred 
object, or object of cultural patrimony to performing traditional 
practices by the aggrieved party or parties. The review committee 
recognizes that this initial assessment, and in particular that portion 
based upon the museum's annual budget, might be considered overly 
modest by some, but emphasizes that civil penalties should be used to 
ensure compliance instead of simply imposing large penalty amounts. The 
review committee considers .25% of the museum's annual budget, or 
$5,000, whichever is less, an amount sufficient to compel compliance 
without inflicting undue damage, particularly on small institutions. We 
believe that a monetary standard is useful as it will lessen the need 
to make more difficult assessment determinations based on 
archeological, historical, and commercial value. As the law allows for 
establishment of civil penalties based on other factors as the 
Secretary considers appropriate, this formula will further the goals of 
the legislation. We have therefore adopted it. The review committee 
also recommended assessment of a subsequent penalty amount of $100 per 
day after the date of the final administrative decision that the museum 
continues not to comply with the Act. We have also adopted this 
recommendation. In addition to the above factors, the commercial value 
of any human remains, funerary object, sacred object, or object of 
cultural patrimony may be assessed on any museum that, after November 
16, 1990, sells or otherwise transfers such object in violation of the 
Act. The review committee also recommends that the Secretary double the 
penalty amount for subsequent failures to comply. We have included the 
number of violations that have occurred as a criterion in determining 
the penalty amount. The Secretary gave the review committee's 
recommendations careful consideration in developing the procedures 
outlined in this interim rule.

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    The administrative procedures for providing notice, holding a 
hearing, appealing an administrative decision, and issuing a final 
administrative decision are patterned after the procedures currently 
used in assessing civil penalties under the Archaeological Resources 
Protection Act. As a matter of general policy, the Secretary does not 
intend to institute civil penalty actions under this section for 
violations which occurred before the effective date of these 
regulations if the museum in question made a good faith effort to 
comply with the basic requirements of the Act.

Administrative Procedures Act

    The Secretary of the Interior has determined under 5 U.S.C. 553 
(b)(B) and 318 DM 6.4 (B)(1) that it is not in the public interest to 
delay the effective date of this regulation to accommodate notice and 
comment procedures. There are three reasons for this decision:
    (a) The requirements that the Act places upon museums as outlined 
in section 10.12 (b)(1) of these regulations are generally known and 
were established by statute in 1990 or by regulation in 1995;
    (b) Section 9 of the Act clearly outlines the limits of the 
Secretary's discretion in enforcing provisions of the Act; and
    (c) The administrative procedures for appealing the levy of a 
penalty as outlined in section 10.12 (e) through (l) closely imitate 
those already used under the Archaeological Resources Protection Act.
    The civil penalty provisions of the Act are intended to assist in 
the protection and appropriate repatriation of Native American human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony that are of extreme importance to lineal descendants, Indian 
tribes and Native Hawaiian organizations. Loss of such items causes 
irreparable injury to the lineal descendants, Indian tribes, and Native 
Hawaiian organizations entitled to their repatriation under the terms 
of the Act. Delaying implementation of the enforcement procedures of 
this section to accommodate notice and comment procedures will likely 
result in further losses or in an inability to remedy, to the extent 
feasible, losses which have already occurred.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this interim rule to the address noted at the 
beginning of this rulemaking. The National Park Service will review 
comments and consider making changes to the rule based upon an analysis 
of the comments.
    If you wish the National Park Service to acknowledge receipt of 
your comments you must submit with those comments, a self-addressed, 
stamped postcard that includes the following statement: ``Comments to 
Docket No 1024-AC48.'' The Departmental Consulting Archeologist will 
date stamp the postcard and return it to you. The Departmental 
Consulting Archeologist will consider comments received on or before 
April 14, 1997 before taking action on a final rule and may change the 
interim rule contained in this notice in light of the comments 
received.

Drafting Information

    This interim rule was prepared by Dr. Francis P. McManamon 
(Departmental Consulting Archeologist, National Park Service), Dr. C. 
Timothy McKeown (NAGPRA Team Leader, National Park Service), and Lars 
Hanslin (Senior Attorney, Office of the Solicitor), in consultation 
with the Native American Graves Protection and Repatriation Review 
Committee as directed by section 8 (c)(7) of the Act.

Paperwork Reduction Act

    This interim rule does not contain collections of information 
requiring approval by the Office of Management and Budget under the 
Paperwork Reduction Act of 1995.

Compliance With Other Laws

    This rule was reviewed by the Office of Management and Budget under 
Executive Order 12866. The Department of the Interior determined that 
this document will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 USC 601 et seq.). The civil penalties are expected to be 
assessed on only a very small number of museums that have failed to 
comply with the Act. Civil penalty amounts will be calculated to ensure 
compliance and not as retribution.
    The National Park Service has determined and certifies pursuant to 
the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this 
proposed rule will not impose a cost of $100 million or more in any 
given year on local, State, or tribal governments or private entities.
    The National Park Service has determined that this interim rule 
will not have a significant effect on the quality of the human 
environment, health and safety because it is not expected to:
    (a) Increase public use to the extent of compromising the nature 
and character of the area or causing physical damage to it;
    (b) Introduce non-compatible uses which compromise the nature and 
characteristics of the area, or cause physical damage to it;
    (c) Conflict with adjacent ownerships or land uses; or
    (d) Cause a nuisance to adjacent owners or occupants.
    Based on this determination, this interim rule is categorically 
excluded from the procedural requirements of the National Environmental 
Policy Act (NEPA) by Departmental regulations in 516 DM 6 (49 FR 
21438). As such, neither an Environmental Assessment (EA) nor an 
Environmental Impact Statement (EIS) has been prepared.

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Hawaiian Natives, Historic 
preservation, Indians--Claims, Museums, Reporting and record keeping 
requirements.

    In consideration of the forgoing, 43 CFR Subpart A is amended as 
follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT 
REGULATIONS

    1. The authority citation for Part 10 continues to read as follows:

    Authority: 25 U.S.C. 3001 et seq.

    2. Part 10 is amended by adding Sec. 10.12 to read as follows:


Sec. 10.12  Civil Penalties.

    (a) The Secretary's authority to assess civil penalties. The 
Secretary is authorized by section 9 of the Act to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act. As used in this section, ``failure to comply with requirements 
of the Act'' also means failure to comply with applicable portions of 
the regulations set forth in this part. As used in this section ``you'' 
refers to the museum or the museum official designated responsible for 
matters related to implementation of the Act.
    (b) Definition of ``failure to comply''. (1) Your museum has failed 
to comply with the requirements of the Act if it:
    (i) After November 16, 1990, sells or otherwise transfers human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony in violation of the Act, including, but not limited to, an 
unlawful sale or transfer

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to any individual or institution that is not required to comply with 
the Act; or
    (ii) After November 16, 1993, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or the date specified in an 
extension issued by the Secretary, whichever is later, has not 
completed inventories as required by the Act; or
    (iv) After May 16, 1996, or six months after completion of an 
inventory under an extension issued by the Secretary, whichever is 
later, has not notified culturally affiliated Indian tribes and Native 
Hawaiian organizations; or
    (v) Refuses to repatriate human remains, funerary object, sacred 
object, or object of cultural patrimony to a lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization 
pursuant to the requirements of the Act; or
    (vi) Repatriates human remains, funerary object, sacred object, or 
object of cultural patrimony before publishing a notice in the Federal 
Register as required by the Act.
    (2) Each violation will constitute a separate offense.
    (c) How to notify the Secretary of a failure to comply. (1) Any 
person may bring an allegation of failure to comply to the attention of 
the Secretary.
    (2) The Secretary may take the following steps upon receiving such 
an allegation:
    (i) Review the alleged failure to comply;
    (ii) Identify the specific provisions of the Act which allegedly 
have not been complied with;
    (iii) Determine if the institution of a civil penalty action is in 
the public interest in the circumstances; and
    (iv) If appropriate, estimate the proposed penalty.
    (d) How the Secretary determines the penalty amount. (1) The 
penalty amount will be .25% of your museum's annual budget, or $5000, 
whichever is less, and, such additional sum as the Secretary may 
determine is appropriate after taking into account:
    (i) The archeological, historical, or commercial value of the human 
remains, funerary object, sacred object, or object of cultural 
patrimony involved including, but not limited to, consideration of 
their importance to performing traditional practices; and
    (ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, the costs of 
attorney and expert witness fees, investigations, and administrative 
expenses related to efforts to compel compliance with the Act; and
    (iii) The number of violations that have occurred.
    (2) An additional penalty of $100 per day after the date the final 
administrative decision takes effect if your museum continues to 
violate the Act.
    (3) The Secretary may reduce the penalty amount if there is:
    (i) A determination that you did not willfully fail to comply; or
    (ii) An agreement by you to mitigate the violation, including, but 
not limited to, payment of restitution to the aggrieved party or 
parties; or
    (iii) A demonstration of hardship or inability to pay, provided 
that this factor will only apply when you have not been previously 
found to have failed to comply with the regulations in this part; or
    (iv) A determination that the proposed penalty would constitute 
excessive punishment under the circumstances.
    (e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary serves you with a notice of 
failure to comply either by personal delivery or by registered or 
certified mail (return receipt requested). The notice includes:
    (i) A concise statement of the facts believed to show a failure to 
comply;
    (ii) A specific reference to the provisions of the Act and/or the 
regulations in this part that you have allegedly not complied with;
    (iii) The amount of the proposed penalty, including any initial 
proposal to mitigate or remit where appropriate, or a statement that 
the Secretary will serve notice of a proposed penalty amount after 
ascertaining the damages associated with the alleged failure to comply; 
and
    (iv) Notification of the right to file a petition for relief as 
provided in this section below, or to await the Secretary's notice of 
assessment and to request a hearing. The notice will also inform you of 
your right to seek judicial review of any final administrative decision 
assessing a civil penalty.
    (2) The Secretary also sends a copy of the notice of failure to 
comply to:
    (i) Any lineal descendant of a known Native American individual 
whose human remains or cultural items are in question; and
    (ii) Any Indian tribes or Native Hawaiian organizations that are, 
or are likely to be, culturally affiliated with the human remains or 
cultural items in question.
    (f) Actions you may take upon receipt of a notice. If you are 
served with a notice of failure to comply, you may: (1) Seek informal 
discussions with the Secretary;
    (2) File a petition for relief. You may file a petition for relief 
with the Secretary within 45 calendar days of receiving the notice of 
failure to comply (or of a proposed penalty amount, if later). Your 
petition for relief may request the Secretary to assess no penalty or 
to reduce the amount. Your petition must be in writing and signed by an 
official authorized to sign such documents. Your petition must set 
forth in full the legal or factual basis for the requested relief.
    (3) Take no action and await the Secretary's notice of assessment; 
or
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. If you accept the 
proposed penalty or mitigation or remission, you waive the notice of 
assessment and the right to request a hearing.
    (g) How the Secretary assesses the penalty. (1) The Secretary 
assesses the civil penalty when the period for filing a petition for 
relief expires, or upon completing the review of any petition filed, or 
upon completing informal discussions, whichever is later.
    (2) The Secretary considers all available information, including 
information provided during the process of assessing civil penalties or 
furnished upon further request by the Secretary.
    (3) If the facts warrant a conclusion that you have not failed to 
comply, the Secretary notifies you that you will have no penalty 
assessed.
    (4) If the facts warrant a conclusion that you have failed to 
comply, the Secretary may determine a penalty according to the 
standards in paragraph (d) of this section.
    (5) The Secretary notifies you of the penalty amount assessed by 
serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The notice of 
assessment includes:
    (i) The facts and conclusions from which the Secretary determined 
that you have failed to comply;
    (ii) The basis for determining the penalty amount assessed and/or 
any offer to mitigate or remit the penalty; and
    (iii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (h) How you request a hearing. (1) You may file a written, dated 
request for a hearing on a notice of assessment with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 4015 Wilson Boulevard,

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Arlington, Virginia 22203-1923. You must enclose a copy of the notice 
of failure to comply and a copy of the notice of assessment. Your 
request must state the relief sought, the basis for challenging the 
facts used as the basis for determining the failure to comply and 
fixing the assessment, and your preference as to the place and date for 
a hearing. You must serve a copy of the request upon the Solicitor of 
the Department of the Interior personally or by registered or certified 
mail (return receipt requested) at the address specified in the notice 
of assessment. Hearings will take place following procedures set forth 
in 43 CFR part 4, subparts A and B.
    (2) Your failure to file a written request for a hearing within 45 
days of the date of service of a notice of assessment waives your right 
to a hearing.
    (i) Hearing appearance and practice. (1) Upon receiving a request 
for a hearing, the Hearings Division assigns an administrative law 
judge to the case, gives notice of assignment promptly to the parties, 
and files all pleadings, papers, and other documents in the proceeding 
directly with the administrative law judge, with copies served on the 
opposing party.
    (2) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative, or by counsel, and may participate fully in those 
proceedings. If you fail to appear and the administrative law judge 
determines this failure is without good cause, the administrative law 
judge may, in his/her discretion, determine that this failure waives 
your right to a hearing and consent to the making of a decision on the 
record.
    (3) Departmental counsel, designated by the Solicitor of the 
Department, represents the Secretary in the proceedings. Upon notice to 
the Secretary of the assignment of an administrative law judge to the 
case, this counsel must enter his/her appearance on behalf of the 
Secretary and files all petitions and correspondence exchanges by the 
Secretary and the respondent which become part of the hearing record. 
Thereafter, you must serve all documents for the Secretary to his/her 
counsel.
    (4) Hearing administration. (i) The administrative law judge has 
all powers accorded by law and necessary to preside over the parties 
and the proceedings and to make decisions under 5 U.S.C. 554-557.
    (ii) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings constitute the record 
for decision. The administrative law judge renders a written decision 
upon the record, which sets forth his/her findings of fact and 
conclusions of law, and the reasons and basis for them, and an 
assessment of a penalty, if any.
    (iii) Unless you file a notice of appeal described in the 
regulations in this part, the administrative law judge's decision 
constitutes the final administrative determination of the Secretary in 
the matter and takes effect 30 calendar days from this decision.
    (iv) In this hearing, the amount of civil penalty assessed will be 
determined in accordance with paragraph (d) of this section, and will 
not be limited by the amount assessed by the Secretary or any offer of 
mitigation or remission made by the Secretary.
    (j) How you appeal a decision. (1) Either you or the Secretary may 
appeal the decision of an administrative law judge by filing a ``Notice 
of Appeal'' with the Director, Office of Hearings and Appeals, U.S. 
Department of Interior, 4015 Wilson Boulevard, Arlington, Virginia 
22203-1923, within 30 calendar days of the date of the administrative 
law judge's decision. This notice must be accompanied by proof of 
service on the administrative law judge and the opposing party.
    (2) Upon receiving this notice, the Director, Office of Hearings 
and Appeals, appoints an ad hoc appeals board to hear and decide an 
appeal. To the extent they are not inconsistent with the regulations in 
this part the provision of the Department of Hearings and Appeals 
Procedures in 43 CFR part 4, subparts A, B, and G apply to such appeal 
proceedings. The appeal board's decision on the appeal must be in 
writing and takes effect as the final administrative determination of 
the Secretary on the date it is rendered, unless otherwise specified in 
the decision.
    (3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Director, Office 
of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson 
Boulevard, Arlington, Virginia 22203-1923. Fees for this service are 
established by the Director of that Office.
    (k) The final administrative decision. (1) When you have been 
served with a notice of a failure to comply and have accepted the 
penalty as provided in the regulations in this part, the notice 
constitutes the final administrative decision;
    (2) When you have been served with a notice of assessment and have 
not filed a timely request for a hearing as provided in the regulations 
in this part, the notice of assessment constitutes the final 
administrative decision.
    (3) When you have been served with a notice of assessment and have 
filed a timely request for a hearing as provided in these regulations 
in this part, the decision resulting from the hearing or any applicable 
administrative appeal from it constitutes the final administrative 
decision.
    (l) How you pay the penalty. (1) If you are assessed a civil 
penalty, you have 45 calendar days from the date of issuance of the 
final administrative decision to make full payment of the penalty 
assessed to the Secretary, unless you have filed a timely request for 
appeal with a court of competent jurisdiction.
    (2) If you fail to pay the penalty, the Secretary may request the 
Attorney General to institute a civil action to collect the penalty in 
the U.S. District Court for the district in which your museum is 
located. Where the Secretary is not represented by the Attorney 
General, the Secretary may start civil action directly. In these 
actions, the validity and amount of the penalty will not be subject to 
review by the court.
    (3) Assessing a penalty under this section is not a waiver by the 
Secretary of the right to pursue other available legal or 
administrative remedies.

    Dated: November 5, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-653 Filed 1-10-97; 8:45 am]
BILLING CODE 4310-70-P