[Federal Register Volume 68, Number 64 (Thursday, April 3, 2003)]
[Rules and Regulations]
[Pages 16354-16364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7947]



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Part II





Department of the Interior





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43 CFR Part 10



Native American Graves Protection and Repatriation Act Regulations--
Civil Penalties; Final Rule

  Federal Register / Vol. 68, No. 64 / Thursday, April 3, 2003 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AC84


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

AGENCY: Department of the Interior.

ACTION: Final rule.

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SUMMARY: This final rule relates to regulations implementing the Native 
American Graves Protection and Repatriation Act of 1990 (``the Act'' or 
``NAGPRA''). This section outlines procedures for assessing civil 
penalties on museums that fail to comply with applicable provisions of 
the Act.

EFFECTIVE DATE: This final rule becomes effective on May 5, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. John Robbins, Assistant Director, 
Cultural Resources Stewardship and Partnerships, National Park Service, 
1849 C Street NW (2253), Washington, DC 20240. Telephone: (202) 354-
2269.

SUPPLEMENTARY INFORMATION: 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 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 (``the Secretary'') to 
promulgate regulations to carry out provisions of the Act [25 U.S.C. 
3011]. Final regulations implementing the Act were published in the 
Federal Register on December 4, 1995, and went into effect on January 
3, 1996. The final regulations had five sections reserved for later 
publication.
    Section 9 of the Act authorizes the Secretary to assess a civil 
penalty against any museum that fails to comply with the requirements 
of the Act [25 U.S.C. 3007]. Such penalties must be assessed according 
to procedures established by the Secretary through regulation. An 
interim rule establishing civil penalty procedures was published in the 
Federal Register on January 13, 1997 (62 FR 1820), and went into effect 
on February 12, 1997. Written comments on the interim rule were 
solicited from Indian tribes, Native Hawaiian organizations, museums, 
Federal agencies, and members of the public. The extended period 
between the receipt of comments and publication of this final rule is 
attributed to administrative processing delays and National NAGPRA 
program organizational changes. Despite the delay, the comments 
continue to be relevant as there has been no significant developments 
regarding NAGPRA civil penalties since publication of the interim rule.
    Twenty-four written comments were received representing 28 
organizations and individuals. These included one Indian tribe, four 
Native American organizations, eight museums, one university, three 
national scientific organizations, three state agencies, two Federal 
agencies, four other organizations, and two individuals. Several 
letters represented more than one organization. Comments addressed most 
of the interim rule. All comments were fully considered when revising 
the interim rule for publication as a final rule.

Primary Changes

    There are two primary changes to the interim rule.
    The first change concerns the relationship between the notice of 
failure to comply and the notice of assessment. As explained in the 
preamble of the interim rule, the administrative procedures for 
providing notice, holding a hearing, appealing an administrative 
decision, and issuing a final administrative decision were patterned 
after the regulatory procedures currently used in assessing civil 
penalties under the Archaeological Resources Protection Act (ARPA). 
Further consideration revealed a statutory distinction between the ARPA 
and NAGPRA civil penalty procedures, particularly regarding the 
relationship between the notice of failure to comply and the notice of 
assessment. ARPA specifies that no penalty may be assessed until the 
person who violates the ARPA is given notice and opportunity for a 
hearing [16 U.S.C. 470 ff (a)(1)]. Regulations implementing the ARPA 
civil penalty provisions require that the notice of violation include a 
proposed penalty amount, which may be addressed at the hearing [43 CFR 
7.15 (b)(3)]. NAGPRA is different. Section 9 (a) of NAGPRA stipulates 
that both the determination and assessment of the penalty can occur 
only after the museum has an opportunity for an agency hearing [25 
U.S.C. 3007]. The regulatory text has been revised to indicate that the 
notice of failure to comply must be issued first, followed by a period 
during which the museum may request a hearing. A notice of assessment 
may be issued after the first period for requesting a hearing has 
expired. The possibility of a second hearing on the notice of 
assessment has been added to the regulations. Figure 1 outlines the 
civil penalty hearing and appeal process. If the museum consents, the 
Secretary may also combine the two notices, in which case the two 
opportunities for hearing will also be combined.
    The second change concerns the amount of the per-day penalty that 
may be assessed if the museum continues to violate NAGPRA after the 
date of the final administrative decision on the notice of assessment. 
Several commenters considered the $100-per-day amount too low. Others 
recommended that the Secretary should have some discretion depending on 
the nature of failure to comply and the human remains, funerary object, 
sacred object, or object of cultural patrimony in question. The amount 
has been changed from a set $100 per day to a range not to exceed 
$1,000 per day.

Section-by-Section

General

    Five commenters offered no specific changes to the text. Two 
commenters encouraged the Department of the Interior to remain flexible 
in its application of civil penalties and to refrain from penalizing 
museums that have attempted, in good faith, to comply with the Act. 
Whether a museum has failed to comply is determined under a strict 
liability standard. Mitigating factors, such as whether the museum has 
made a good faith attempt to comply, may be used by the Secretary to 
determine the penalty amount.

Paragraph 10.12 (a)

    This paragraph outlines the Secretary's authority to assess civil 
penalties. Several comments concerned applicability of the rule to 
specific types of institutions. One commenter recommended amending the 
rule to apply to Federal agencies that fail to comply with provisions 
of the Act. One commenter recommended amending the rule to apply to 
non-Federally-funded institutions that refuse to return human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
controlled by a Federal agency or museum. One commenter recommended 
amending the rule to apply to museums in other countries that control 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony.
    Section 9 of the Act authorizes the Secretary to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act [25 U.S.C. 3007]. Section 2 (8) of the Act defines

[[Page 16355]]

a ``museum'' as any institution or State or local government agency 
(including any institution of higher learning) that receives Federal 
funds and has possession of, or control over, Native American human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony [25 U.S.C. 3001 (8)]. The definition of museum specifically 
excludes the Smithsonian Institution or any other Federal agency. The 
definition of museum is further clarified by regulation [paragraph 10.2 
(a)(3) of this part]. The Act does not authorize the Secretary to 
assess civil penalties on a Federal agency that fails to comply with 
the Act. Section 15 of the Act does specifically grant the United 
States district courts jurisdiction over any action brought by any 
person alleging a violation of the Act, including violations by a 
Federal agency [25 U.S.C. 3013]. Institutions that do not receive 
Federal funds are not required to comply with the Act. However, human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony recovered from Federal lands generally fall under provisions 
of the Act regardless of where they currently are curated.
    One commenter recommended amending the definition of the term 
``you'' to exclude ``the museum official designated responsible for 
matters related to implementation of the Act.'' The term is used in the 
rule only to advise the museum official designated responsible for 
matters related to implementation of the Act of actions that they may 
take in the notification and appeal process. Section 9 of the Act 
authorizes the Secretary to assess civil penalties on any museum that 
fails to comply with the requirements of the Act, not on an individual 
employee of that institution.

Paragraph 10.12 (b)

    This paragraph defines the term ``failure to comply.''
    Paragraph 10.12 (b)(1)(i) of this section stipulates that a museum 
has failed to comply if, after November 16, 1990, the museum 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 to any individual or 
institution that is not required to comply with the Act. Six commenters 
recommended inserting the word ``knowingly'' before the phrase ``sells 
or otherwise transfers'' to be consistent with the criminal provisions 
in section 4 of the Act [18 U.S.C. 1170]. The criminal provisions in 
section 4 of the Act require mens rea or criminal intent. The civil 
penalty provisions in section 9 of the Act do not include such a 
requirement. Nothing precluded Congress from specifically requiring an 
element of knowledge or intent to the civil penalty provisions, but 
this was not done. The text has not been changed.
    One commenter recommended deleting the phrase ``or otherwise 
transfers,'' as this concept does not appear in the Act. Another 
commenter recommended clarifying that this phrase applies to transfers 
where the intent was avoiding compliance with the Act. This phrase is 
intended to identify instances where human remains, funerary objects, 
sacred objects, or objects of cultural patrimony are conveyed from one 
party to another, without reciprocal financial consideration, to avoid 
compliance with provisions of the Act. The phrase has been retained.
    One commenter considered use of the term ``in violation of'' to be 
tautological, that is, defining a term with reference to itself. The 
term has been replaced with ``contrary to provisions of.''
    One commenter recommended deleting the word ``unlawful'' referring 
to the sale or transfer of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. Since museums may sell or 
otherwise transfer such items if they can prove a right of possession, 
the term has been retained to distinguish sales or transfers that 
violate provisions of the Act from sales or transfers of items for 
which the museum has right of possession.
    One commenter recommended adding provisions to specifically 
prohibit the sale or transfer of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony across State lines. 
The criminal provisions of the Act already apply to the sale, purchase, 
use for profit, or transport for sale or profit of Native American 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony within the United States. Transfer across a State boundary is 
not a necessary element of this crime.
    One commenter questioned whether assessing civil penalties on 
museums that acquire items that are otherwise widely available for sale 
to the general public might actually encourage the growth of private 
collections and restrict Federally funded institutions from adding to 
their collections. Section 4 of the Act makes it a crime under certain 
conditions to knowingly sell, purchase, use for profit, or transport 
for sale or profit Native American human remains, funerary objects, 
sacred objects, or objects of cultural patrimony. The rule in part 
provides an alternative administrative mechanism to prosecute museums 
that violate these criminal provisions.
    No comments were received regarding paragraphs 10.12 (b)(1)(ii), 
(b)(1)(iii), or (b)(1)(iv) of this section.
    Paragraph 10.12 (b)(1)(v) of this section stipulates that a museum 
has failed to comply if it refuses to repatriate human remains, 
funerary objects, sacred objects, or objects of cultural patrimony to a 
lineal descendant or culturally affiliated Indian tribe or Native 
Hawaiian organization pursuant to the requirements of the Act. Two 
commenters requested clarification of the relevant requirements of the 
Act, particularly as it applies to disputes. The section has been 
rewritten to apply to any museum that, absent any of the exemptions 
specified at paragraph 10.10 (c) of this part, refuses to repatriate 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony to a lineal descendant or culturally affiliated Indian tribe 
or Native Hawaiian organization.
    Paragraph 10.12 (b)(1)(vi) of this section stipulates that a museum 
has failed to comply if it repatriates human remains, funerary objects, 
sacred objects, or objects of cultural patrimony before publication of 
a notice in the Federal Register as required by the Act. One commenter 
pointed out that the regulations require publication of two separate 
types of notice, depending on the type of cultural item. Publication of 
a notice of intent to repatriate is required prior to repatriation of 
an unassociated funerary object, sacred object, or object of cultural 
patrimony [paragraph 10.10 (a)(3) of this part]. Publication of a 
notice of inventory completion is required prior to repatriation of 
human remains or an associated funerary object [paragraph 10.10 (b)(2) 
of this part]. The text has been rewritten to refer to publication of 
the required notice in the Federal Register. Another commenter 
suggested deleting this section since the Secretary ultimately is 
responsible for publication of notices in the Federal Register, not the 
submitting museum. The Secretary is responsible for publishing the 
museum's notice in the Federal Register. However, as the regulations 
make clear, repatriation may not occur until at least 30 days after the 
notice is published [paragraphs 10.10 (a)(3) and (b)(2) of this part]. 
The section has been retained.
    One commenter recommended that failure to adequately consult with 
the relevant lineal descendants, Indian tribe officials, and 
traditional religious leaders also should constitute a ``failure to 
comply.'' Other sections of the

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regulations already require museum and Federal agency officials to 
consult with Indian tribe officials and traditional religious leaders 
by the completion of the summary process [paragraph 10.8 (d)(2) of this 
part]. The regulations also require museum and Federal agency officials 
to consult with lineal descendants, Indian tribe officials, and 
traditional religious leaders at the point in the inventory process 
when investigation into the cultural affiliation is being conducted 
[paragraph 10.9 (b)(2) of this part], and prior to repatriation in 
order to determine the place and manner of repatriation [paragraph 
10.10 (d) of this part]. Text has been added as paragraph 10.12 
(b)(1)(vii) of this section specifically identifying as a failure to 
comply a museum official's failure to consult with lineal descendants, 
Indian tribe officials, and traditional religious leaders as required.
    Text also has been added as paragraph 10.12 (b)(1)(viii) of this 
section specifically identifying as a failure to comply a museum 
official's failure to inform the recipients of repatriations of any 
presently known treatment of the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony with pesticides, 
preservatives, or other substances that represent a potential hazard to 
the objects or to persons handling the objects as required in paragraph 
10.10 (e) of this part.
    One commenter asked whether failure to comply with regulations 
regarding the curation of Federally owned and administered 
archeological collections would constitute a failure to comply under 36 
CFR Part 79. Federal agencies are responsible for the administration of 
all collections within their control, including Federal collections in 
the possession of non-Federal repositories. This includes the curation 
of archeological collections -- artifacts, objects, specimens, and 
other physical evidence -- that are excavated or removed under the 
authority of the Antiquities Act [16 U.S.C. 431-433], the Reservoir 
Salvage Act [16 U.S.C. 469-469c], the National Historic Preservation 
Act [16 U.S.C. 470-2], or the Archaeological Resources Protection Act 
[16 U.S.C. 40aa-mm]. Federal agencies also are responsible for 
completion of summaries and inventories, publication of notices, and 
other activities under the Native American Graves Protection and 
Repatriation Act [25 U.S.C. 3001 et seq.]. A Federal agency's failure 
to comply with curation regulations is a matter separate and unrelated 
to compliance with NAGPRA.
    Paragraph 10.12 (b)(2) of this section stipulates that each 
violation constitutes a separate offense. One commenter requested 
clarification of what would constitute separate violations. 
Determination of the number of separate violations of unlawful sale or 
transfer [paragraph 10.12 (b)(1)(i) of this section], refusal to 
repatriate [paragraph 10.12 (b)(1)(v) of this section], or repatriate 
prior to publication of the required notice [paragraph 10.12 (b)(1)(vi) 
of this section] will be based on the number of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony involved. 
Determination of the number of separate violations of failure to 
provide summaries [paragraph 10.12 (b)(1)(ii) of this section], 
inventories [paragraph 10.12 (b)(1)(iii) of this section], 
notifications [paragraph 10.12 (b)(1)(iv) of this section], 
consultations [paragraph 10.12 (b)(1)(vii) of this section], or 
information regarding potentially hazardous human remains, funerary 
objects, sacred objects, or objects of cultural patrimony [paragraph 
10.12 (b)(1)(viii) of this section] will be based on the number of 
lineal descendants, Indian tribes, or Native Hawaiian organizations 
involved.

Paragraph 10.12 (c)

    This paragraph explains how to notify the Secretary of a failure to 
comply.
    Paragraph 10.12 (c) of this section stipulates that any person may 
bring an allegation of failure to comply to the Secretary's attention. 
One commenter suggested requiring the person who makes the allegation 
to provide credible evidence of a failure to comply. Text has been 
added stipulating that allegations must be in writing, and should 
include documentation of the alleged failure to comply. This 
documentation might include evidence that: the museum has possession or 
control of Native American human remains, funerary objects, sacred 
objects, or objects of cultural patrimony; receives Federal funds; and 
has failed to comply with specific provisions of the Act. 
``Possession'' is defined in paragraph 10.2 (a)(3)(i) of this section. 
``Control'' is defined in paragraph 10.2 (a)(3)(ii) of this section. 
``Native American,'' ``human remains,'' ``funerary objects,'' ``sacred 
objects,'' and ``objects of cultural patrimony'' are defined in 
paragraph 10.2 (d) of this section. ``Receives Federal funds'' is 
defined in paragraph 10.2 (b) of this section.

Paragraph 10.12 (d)

    Paragraph 10.12 (d) of this section, designated paragraph 10.12 
(c)(2) in the interim rule, explains what steps the Secretary must take 
upon receiving an allegation.
    One commenter requested that the person making the allegation be 
notified that the allegation has been received. Text specifying this 
required action has been added to paragraph 10.12 (d)(1) of this 
section. Six commenters requested that the Secretary also be required 
to notify the museum that the allegation has been received. It is 
anticipated that the Secretary usually will notify the museum upon 
receipt of an allegation. However, this decision must be made on a 
case-by-case basis in order to avoid jeopardizing investigation of the 
alleged failure to comply or any other ongoing law enforcement 
investigation.
    Paragraph 10.12 (d)(2) of this section, designated paragraph 10.12 
(c)(2) in the interim rule, outlines the steps that the Secretary may 
take upon receiving an allegation of failure to comply. These include: 
(i) reviewing the alleged failure to comply; (ii) identifying the 
specific provisions of the Act with which the museum allegedly failed 
to comply; (iii) determining if the institution of a civil penalty 
action is in the public interest; and (iv) if appropriate, estimating 
the proposed penalty.
    Seven commenters requested clarification of the procedures by which 
the Secretary will investigate an allegation of failure to comply. One 
commenter stressed that such an investigation must be conducted fully 
and fairly before the Secretary commences with the determination of the 
penalty. Investigation of an allegation of failure to comply must 
necessarily be done on a case-by-case basis. Paragraph 10.12 (d)(2) of 
this section outlines the basic steps necessary to complete such an 
investigation.
    One commenter considered the language in paragraph 10.12 (d)(2)(i) 
of this section, designated paragraph 10.12 (c)(2)(i) in the interim 
rule, too vague and offered revised wording. One commenter objected 
that no provision was made to involve the alleging party in the 
process. Text has been added to this section to indicate that 
additional information may be requested from the person making the 
allegation, the museum that has allegedly failed to comply, and other 
parties. Subpoenas may be issued if the Secretary's request for 
information is resisted.
    Section 9 (a) of the Act stipulates that the penalty may only be 
determined after the museum is provided with an opportunity for an 
agency hearing [25 U.S.C. 3007 (a)]. Paragraph 10.12 (c)(2)(iv) of the 
interim rule has been deleted.
    One commenter objected to the investigatory procedure's being at 
the Secretary's discretion. Section 9 (a) of

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the Act makes it clear that assessment of a civil penalty is completely 
at the Secretary's discretion [25 U.S.C. 3007 (a)]. However, consistent 
with the Department of the Interior's continuing responsibility to keep 
constituents and the general public informed of its activities [43 DM 
1.1], the regulations require certain investigatory steps.
    Six commenters requested that the Secretary be required to provide 
notification if, after consideration of the allegation, no further 
action will be taken. Text has been added as paragraph 10.12 (d)(3) of 
this section requiring notification of the person making the allegation 
and the museum if the available evidence does not show a failure to 
comply.
    One commenter requested clarification of how long the Secretary 
might take in determining whether a museum has failed to comply. 
Generally, a civil penalty must be assessed within five years of when 
facts material to the failure to comply become known, unless the 
assessment: 1) is founded upon a tort on behalf of a Federally 
recognized Indian tribe [28 U.S.C. 2415 (b)], or 2) is intended to 
establish title to, or right of possession of, a human remains, 
funerary object, sacred object, or object of cultural patrimony [28 
U.S.C. 2415 (c)], in which case a longer period may apply.

Paragraph 10.12 (e)

    This section explains how the Secretary notifies the museum and 
potentially aggrieved parties if the alleged failure to comply is 
verified.
    One commenter recommended that written notice of failure to comply 
be explicitly required. The word ``written'' has been inserted before 
phrase ``notice of failure to comply'' in paragraph 10.12 (e)(1) of 
this section.
    Section 9 (a) of the Act stipulates that the determination of the 
penalty may only occur after the museum is provided with an opportunity 
for an agency hearing [25 U.S.C. 3007 (a)]. Paragraph 10.12 (e)(1)(iii) 
of this section has been deleted and subsequent sections renumbered.
    Paragraph 10.12 (e)(1)(iii) of this section, designated paragraph 
10.12 (e)(1)(iv) in the interim rule, has been revised to reflect the 
options available in paragraph 10.12 (f) of this section.
    Paragraph 10.12 (e)(2) of this section allows the Secretary, with 
the consent of the museum, to combine the notice of failure to comply 
and notice of assessment.

Paragraph 10.12 (f)

    This Paragraph outlines the actions that the museum may take upon 
receipt of a notice of failure to comply. Four options were outlined in 
the interim rule: (1) seek informal discussions with the Secretary; (2) 
file a petition for relief; (3) take no action and await the 
Secretary's notice of assessment; or (4) accept the proposed penalty.
    Paragraphs 10.12 (f)(1) and (f)(3) of this section have been 
retained. Paragraph 10.12 (f)(2) of this section described the process 
for filing a petition for relief of the penalty amount. Because the 
Notice of Failure to Comply will not necessarily include a 
determination of penalty amount, paragraph 10.12 (f)(2) of this section 
has been deleted and replaced with the option of requesting a hearing. 
The process for requesting a hearing is described in paragraph 10.12 
(j) of this section. Paragraph 10.12 (f)(4) of the interim rule, which 
also dealt with the proposed penalty, has been deleted.

Paragraph 10.12 (g)

    This paragraph, designated paragraph 10.12 (d) in the interim rule, 
explains how the Secretary determines the penalty amount.
    Section 9 (b) of the Act stipulates that the amount of a penalty 
assessed must be determined taking into account, in addition to other 
factors: (1) the archeological, historical, or commercial value of the 
item involved; (2) the damages suffered, both economic and non-
economic, by an aggrieved party; and (3) the number of violations [25 
U.S.C. 3007 (b)].
    The interim rule outlined a two-stage approach to implementing 
these statutory criteria. The first stage, outlined in paragraph 10.12 
(g)(1) of this section, designated paragraph 10.12 (d)(1) in the 
interim rule, stipulated that the initial assessment is based on an 
amount equal to .25 percent of the museum's annual budget, or $5,000, 
whichever is less, plus an additional sum determined after taking into 
account: (1) the archeological, historical, and commercial value of the 
human remains, funerary object, sacred object, or object of cultural 
patrimony, including, but not limited to, consideration of their 
importance to performing traditional practices; (2) 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 (3) the number of violations that 
have occurred. The second stage, outlined in paragraph 10.12 (g)(2) of 
this section, designated paragraph 10.12 (d)(2) in the interim rule, 
provided for an additional penalty amount of $100 per day if the museum 
continues to violate the Act after the date that the final 
administrative decision takes effect.
    Five commenters considered the base penalty amount stipulated in 
paragraph 10.12 (g)(1) of this section, designated paragraph 10.12 
(d)(1) in the interim rule, insufficient to encourage compliance. One 
commenter considered the base penalty amount too severe. While the base 
penalty amount of $5000 or less might be considered overly modest by 
some, the Secretary is authorized to assess a penalty based on the sum 
of the listed factors. This amount might be substantial depending on 
the situation.
    Three commenters requested clarification of the process by which 
the archeological, historical, or commercial value of the human 
remains, funerary object, sacred object or object of cultural patrimony 
in paragraph 10.12 (g)(1)(i) of this section, designated paragraph 
10.12 (d)(1)(i) in the interim rule, will be determined by the 
Secretary. In calculating civil penalties, the Secretary will consider 
the value to be the benefit derived by the museum through control of 
the particular human remains, funerary object, sacred object, or object 
of cultural patrimony. This value can be calculated in a variety of 
ways. Archeological and historical values focus on the benefits derived 
by the museum through the study or exhibition of the human remains, 
funerary object, sacred object, or object of cultural patrimony. These 
values might include research fees and grants obtained to study the 
cultural items, admission fees or donations obtained for the public 
display of the human remains, funerary object, sacred object, or object 
of cultural patrimony, and royalties obtained from publication of 
information related to or images of the cultural items. Commercial 
value means the price a willing buyer would pay, and a willing seller 
accept, for the human remains, funerary object, sacred object, or 
object of cultural patrimony in the open market.
    One commenter objected to using the value of the cultural item in 
calculating part of the penalty amount and the subsequent assumption 
that, after paying such a penalty, the museum also will be forced to 
relinquish control of the cultural item. The Act addresses the rights 
of lineal descendants, Indian tribes, and Native Hawaiian organizations 
to Native American human remains, funerary objects, sacred objects, or 
objects of cultural patrimony with which they are affiliated. By 
failing to comply with the Act, the museum is depriving lineal 
descendants, Indian

[[Page 16358]]

tribes, and Native Hawaiian organizations of these rights. The value 
portion of the penalty calculation is intended to deprive the museum of 
any benefit derived through control of the particular cultural item. 
This assessment in no way reduces the lineal descendant's, Indian 
tribe's, or Native Hawaiian organization's right to the cultural item.
    One commenter questioned whether the importance of a cultural item 
to performing traditional practices is a reasonable criterion for 
calculating its archeological, historical, or commercial value. We 
agree that consideration of the importance of a cultural item should 
not be used in calculating its archeological, historical, or commercial 
value. The phrase has been deleted.
    One commenter requested clarification of how the damages suffered 
by aggrieved parties in paragraph 10.12 (g)(ii) of this section, 
designated paragraph 10.12 (d)(ii) in the interim rule, will be 
calculated. Section 9 (b)(2) of the Act stipulates that both economic 
and non-economic damages suffered by an aggrieved party be taken into 
account in determining the penalty amount.
    Two classes of aggrieved parties must be considered. The first 
class consists of lineal descendants, Indian tribes, or Native Hawaiian 
organizations that are denied access, by the museum's failure to 
comply, to human remains, funerary objects, sacred objects, or objects 
of cultural patrimony with which they are affiliated. The museum's 
failure to comply with the Act denies these parties a property right 
that may result in both economic and non-economic damages. Economic 
damages might include expenditures by the aggrieved party to compel the 
museum to comply with the Act, such as the cost of activities taken 
after November 16, 1993, to compel the museum to complete the required 
summary. Non-economic damages might include loss of use of or damage to 
the cultural item. One commenter recommended that non-Federally 
recognized Indian groups also must be consulted in determining the 
penalty amount. The Act addresses the rights of lineal descendants, 
Indian tribes, and Native Hawaiian organizations. While a non-Federally 
recognized Indian group also may have a property interest in cultural 
item, the Act and these regulations do not directly address that 
interest.
    The second class of aggrieved parties consists of the people of the 
United States who, due to the museum's failure to comply, are burdened 
with an obligation to investigate and, if appropriate, assess a civil 
penalty against a museum that has failed to comply. This burden could 
include expenditures by the Department of the Interior related to 
assessing the archeological, historical, or commercial value of a 
cultural item and the economic and non-economic damages to the 
aggrieved lineal descendants, Indian tribes, or Native Hawaiian 
organizations.
    Two commenters objected to including attorney's fees in calculating 
economic damages. One commenter cited the case of Alyeska Pipeline 
Service Company v. Wilderness Society [421 U.S. 247, 250 (1975)] in 
which the court found that parties must bear all of their own costs of 
litigation absent a specific fee-shifting statute. Another commenter 
recommended that a museum must be required to pay all attorney fees, 
expert witness fees, investigation costs, and any other expenses that 
are required to compel compliance if the museum was found to be in 
noncompliance. The example in paragraph 10.12 (g)(1)(ii) of this 
section, designated paragraph 10.12 (d)(1)(ii) in the interim rule, has 
been revised to omit explicit reference to attorney's fees and 
rewritten as ``expenditures by the aggrieved party to compel the museum 
to comply with the Act.'' We recognize that such activities may in fact 
include expenditures for an attorney or other staff to prepare, review, 
and file documents, but do not intend that this category include 
litigation costs.
    Two commenters considered requiring the museum to pay damages 
unreasonably punitive. Section 9 (b)(2) requires that both economic and 
non-economic damages to the aggrieved party must be taken into account 
in assessing the penalty amount. We consider this requirement a strong 
indication that Congress intended museums to comply with the Act. The 
damages component of the penalty amount is, in fact, purely 
compensatory, being explicitly based on the expenditures of the 
aggrieved parties. Punitive damages would be damages assessed over and 
above the compensatory amount, such as additional penalties based on 
the number of violations that have occurred as authorized in section 9 
(b)(3) of the Act. Two commenters requested that museums lose Federal 
funding if they are identified as failing to comply with the Act. The 
legislative history of the Act indicates that although Congress 
considered such a penalty, loss of Federal funding was not included in 
the final bill. We generally are precluded from including a provision 
in regulation that previously was considered and rejected by Congress.
    Three commenters requested clarification of the process by which an 
additional penalty amount will be assessed after the day that the final 
administrative decision takes effect if the museum continues to violate 
the Act. One commenter identified this provision as imposing 
prohibitive costs upon a museum that seeks judicial review of the final 
administrative decision. Another commenter considered the $100-per-day 
penalty insufficient to compel compliance with the Act, recommending 
instead a flexible amount ranging from $100 to $10,000 per day. Another 
commenter considered this provision to be punitive rather than serving 
to compel further compliance with the Act. The drafters agree that the 
per-day assessment is in fact a punitive damage intended to compel 
compliance with the Act, but not based on any actual damage to an 
aggrieved party. The per-day assessment will not be imposed until the 
final administrative decision, providing ample opportunity to 
participate in an agency hearing, request a hearing before an 
administrative law judge, appeal the administrative law judge's 
decision, or comply with the Act. The penalty amount has been increased 
to $1,000 maximum per day in order to provide the Secretary with some 
flexibility in tailoring a penalty to the situation.
    Paragraph 10.12 (g)(4) of this section, designated paragraph 10.12 
(d)(3) in the interim rule, outlined provisions by which the Secretary 
may reduce the penalty amount. Reasons for reducing the amount include: 
1) the failure to comply is determined to be not willful; 2) the museum 
agrees to adequately mitigate the violation; 3) the museum demonstrates 
a hardship or inability to pay; or 4) the penalty would constitute 
excessive punishment under the circumstances.
    The provision in paragraph 10.12 (g)(3)(i) of this section, 
designated paragraph 10.12 (d)(3)(i) in the interim rule, allows the 
Secretary to reduce the penalty if it is determined that the museum did 
not willfully fail to comply with the Act. Three commenters felt that 
the provisions did not go far enough. One commenter requested an 
explicit statement that a penalty must be imposed only on museums that 
willfully and knowingly fail to comply with the Act. Evidence of a good 
faith effort to comply with the Act must be considered when deciding 
whether the penalty amount should be reduced.
    The provision in paragraph 10.12 (g)(3)(ii) of this section, 
designated paragraph 10.12 (d)(3)(ii) in the interim rule, allows the 
Secretary to reduce the penalty if the museum agrees to mitigate

[[Page 16359]]

the violation by, among other things, paying restitution to the 
aggrieved party or parties. One commenter felt that the Secretary 
should pay all actual damages to the aggrieved parties. Another 
commenter recommended that the Secretary seek an amendment to the Act 
that would permit the Secretary to distribute collected penalties via 
the NAGPRA grants program. Direct payment of restitution by the United 
States to an aggrieved party generally requires explicit statutory 
authority. Absent such authority, and when appropriate, the Secretary 
may mitigate the penalty amount when the museum agrees to pay 
restitution directly to that aggrieved party. In their 1995-1997 and 
1998 reports to Congress, the Native American Graves Protection and 
Repatriation Review Committee recommended amending the Act to provide 
monies collected as civil penalties to the Secretary to further 
enforcement activities.
    One commenter requested clarification of how hardship will be 
defined in paragraph 10.12 (g)(3)(iii) of this section, designated 
paragraph 10.12 (d)(3)(iii) in the interim rule. The sentence has been 
rewritten to clarify that the Secretary may reduce the penalty amount 
if the museum is unable to pay, provided that this factor will not 
apply if the museum has previously failed to comply with these 
regulations.
    One commenter requested clarification of how excessive punishment 
will be defined in paragraph 10.12 (g)(3)(iv) of this section, 
designated paragraph 10.12 (d)(3)(iv) of this section in the interim 
rule. The eighth amendment to the Constitution of the United States 
prohibits excessive fines. A civil penalty might be considered 
excessive if it seriously impairs the museum's capacity of gaining a 
business livelihood.
    One commenter questioned how the funds collected from the fines and 
penalties would be used. Another commenter questioned whether funds 
collected from civil penalty fines could be directed towards helping to 
bring museums into compliance or channeled into an account to fund 
Federal actions pertaining to the Act. Under the current statutory 
authority, civil penalties must be paid directly to the United States 
Treasury.

Paragraph 10.12 (h)

    This paragraph, designated paragraph 10.12 (g) in the interim rule, 
explains how the Secretary assesses the penalty.
    One commenter recommended text acknowledging that ongoing legal 
proceedings would be sufficient to delay a museum's response to a 
notice of failure to comply. A museum may have recourse to the Federal 
courts regarding the Secretary's issuance of a notice of failure to 
comply. However, the Secretary is not bound by the status of ongoing 
litigation when assessing a civil penalty on a museum for failing to 
comply with the Act.
    One commenter recommended that written notice be required if the 
Secretary concludes that the museum has not failed to comply. The 
phrase ``in writing'' has been added after the phrase ``the Secretary 
notified you'' in paragraph10.12 (h)(3) of this section.

Paragraph 10.12 (j)

    This paragraph, combining two paragraphs in the interim rule 
designated as 10.12 (h) and (i), describes how the museum may request a 
hearing regarding a notice of failure to comply or a notice of 
assessment.
    One commenter recommended adding a provision that would allow for 
the involvement of lineal descendants, culturally affiliated tribes, 
and/or the complaining party or parties in the hearing process where 
appropriate. The involvement of lineal descendants, tribal 
representatives, or the complaining person may be necessary as 
determined by the parties in the hearing. Participation of these and 
other persons can be compelled by means of a subpoena [25 U.S.C. 3007 
(d)]. Agency hearings generally are open to the public.
    Paragraph 10.12 (h)(4)(iv) of the interim rule, which dealt with 
the amount of the civil penalty assessment, has been deleted.

Paragraph 10.12 (k)

    This paragraph, designated paragraph 10.12 (j) in this interim 
rule, explains how a hearing decision may be appealed.

Paragraph 10.12 (l)

    This paragraph, designated paragraph 10.12 (k) in this interim 
rule, explains what constitutes a final administrative action regarding 
a notice of assessment.

Paragraph 10.12 (m)

    This paragraph, designated paragraph 10.12 (l) in this interim 
rule, explains how a museum pays the civil penalty. The sentence 
authorizing the Secretary to start civil penalty action in U.S. 
District Court without the authorization of the Attorney General of the 
United States has been deleted. In Mehle v. American Management 
Systems, Inc., [01-1544 (JR), D. D.C. Nov 30, 2001] the district court 
ruled that the Attorney General must represent the United States, an 
agency, or officer thereof in litigation, unless Congress has expressly 
directed otherwise. NAGPRA does not confer independent litigating 
authority on the Secretary.

Drafting Information

    This final rule was prepared by Dr. C. Timothy McKeown in 
consultation with the Native American Graves Protection and 
Repatriation Review Committee as directed by section 8 (c)(7) of the 
Act.

Compliance with Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Order 12866)

    This rule has been reviewed by the Office of Management and Budget 
under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. We expect to assess civil penalties on a small number of 
museums that have failed to comply with the Act. The Secretary may 
exercise discretion to reduce the penalty amount if it seriously 
impairs the museum's capacity of gaining a business livelihood.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Section 9 
of the Act delegates exclusive responsibility for implementing the 
civil penalty provisions to the Secretary. This rule has been reviewed 
by the U.S. Department of the Interior, Office of the Solicitor and the 
Office of Hearings and Appeals, and the U.S. Department of Justice.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs, or the rights or obligations of 
their recipients. Assessment of civil penalties under this rule is 
limited to museums that fail to comply with the requirements of the 
Act. Consistent with the legislative history of the Act, museums that 
have failed to comply continue to be eligible for Federal funds.
    (4) This rule does not raise novel legal or policy issues. All 
substantive comments received on the interim rule have been addressed 
in the preamble and changes made in the regulatory text if necessary.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities

[[Page 16360]]

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). We expect 
to assess civil penalties on a small number of museums that have failed 
to comply with the Act. The Secretary may exercise discretion to reduce 
the penalty amount if it seriously impairs the museum's capacity of 
gaining a business livelihood.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804 (2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (1) Does not have an annual effect on the economy of $100 million 
or more.
    (2) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local or tribal 
government agencies, or geographic regions;.
    (3) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. We 
expect to assess civil penalties on a small number of museums that have 
failed to comply with the Act. The Secretary may exercise discretion to 
reduce the penalty amount if it seriously impairs the museum's capacity 
of gaining a business livelihood.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments, or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. Museums are only required to 
repatriate human remains, funerary objects, sacred objects, or objects 
of cultural patrimony for which they can not prove right of possession 
[25 U.S.C. 3005 (c)]. This rule applies to museums that fail to comply 
with the administrative provisions of the Act.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3 (a) 
and 3 (b) of the order.

Paperwork Reduction Act

    This final rule does not require an information collection of 10 or 
more parties and a submission under the Paperwork Reduction Act is not 
required. An OMB form 83-I is not required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

Government-to-Government Relationship with Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249), the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), and 
512 DM 2 we have evaluated potential effects on Federally recognized 
Indian tribes and have determined that there are no potential effects. 
NAGPRA makes provisions for the return to lineal descendants, Indian 
tribes and Native Hawaiian organizations of Native American human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony. Native American organizations participated in the drafting 
of this rule.

List of Subjects in 43 CFR Part 10

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

0
In consideration of the forgoing, 43 CFR Subpart A is amended as 
follows:

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

0
1. The authority citation for Part 10 continues to read as follows:

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

0
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 Paragraph, ``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 
Paragraph ``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 contrary to provisions of the Act, including, but not limited 
to, an unlawful sale or transfer 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 6 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, absent any of the exemptions specified in Sec.  
10.10(c) of this part, 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; or
    (vi) Repatriates a human remains, funerary object, sacred object, 
or object of cultural patrimony before publishing the required notice 
in the Federal Register;
    (vii) Does not consult with lineal descendants, Indian tribe 
officials, and traditional religious leaders as required; or
    (viii) Does not inform the recipients of repatriations of any 
presently known treatment of the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony with pesticides, 
preservatives, or other substances that represent a potential hazard to 
the objects or to persons handling the objects.
    (2) Each instance of failure to comply will constitute a separate 
violation.
    (c) How to Notify the Secretary of a Failure to Comply. Any person 
may bring an allegation of failure to comply to the attention of the 
Secretary. Allegations must be in writing, and should include 
documentation

[[Page 16361]]

identifying the provision of the Act with which there has been a 
failure to comply and supporting facts of the alleged failure to 
comply. Documentation should include evidence that the museum has 
possession or control of Native American cultural items, receives 
Federal funds, and has failed to comply with specific provisions of the 
Act. Written allegations should be sent to the attention of the 
Director, National Park Service, 1849 C Street, NW, Washington, D.C. 
20240.
    (d) Steps the Secretary may take upon receiving such an allegation. 
(1) The Secretary must acknowledge receipt of the allegation in 
writing.
    (2) The Secretary also may:
    (i) Compile and review information relevant to the alleged failure 
to comply. The Secretary may request additional information, such as 
declarations and relevant papers, books, and documents, from the person 
making the allegation, the museum, and other parties;
    (ii) Identify the specific provisions of the Act with which you 
have allegedly failed to comply; and
    (iii) Determine if the institution of a civil penalty action is an 
appropriate remedy.
    (3) The Secretary must provide written notification to the person 
making the allegation and the museum if the review of the evidence does 
not show a failure comply.
    (e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary must serve you with a 
written notice of failure to comply either by personal delivery or by 
registered or certified mail (return receipt requested). The notice of 
failure to comply must include:
    (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 these 
regulations with which you allegedly have not complied; and
    (iii) Notification of the right to request an informal discussion 
with the Secretary or a designee, to request a hearing, as provided 
below, or to await the Secretary's notice of assessment. The notice of 
failure to comply also must inform you of your right to seek judicial 
review of any final administrative decision assessing a civil penalty.
    (2) With your consent, the Secretary may combine the notice of 
failure to comply with the notice of assessment described in paragraph 
(h) of this section.
    (3) The Secretary also must send a copy of the notice of failure to 
comply to:
    (i) Any lineal descendant of a known Native American individual 
whose human remains, funerary objects, or sacred objects 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, 
funerary objects, sacred objects, or objects of cultural patrimony in 
question.
    (f) Actions you may take upon receipt of a notice of failure to 
comply. If you are served with a notice of failure to comply, you may:
    (1) Seek informal discussions with the Secretary;
    (2) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process. Where the Secretary has issued a combined notice of 
failure to comply and notice of assessment, the hearing and appeal 
processes will also be combined.
    (3) Take no action and await the Secretary's notice of assessment.
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[[Page 16362]]

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BILLING CODE 4310-70-C

[[Page 16363]]

    (g) How the Secretary determines the penalty amount.
    (1) The penalty amount must be determined on the record;
    (2) The penalty amount must be .25 percent of your museum's annual 
budget, or $5,000, 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; and
    (ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, expenditures 
by the aggrieved party to compel the museum to comply with the Act; and
    (iii) The number of violations that have occurred at your museum.
    (3) An additional penalty of up to $1,000 per day after the date 
that the final administrative decision takes effect may be assessed if 
your museum continues to violate the Act.
    (4) 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 determination that you are unable to pay, provided that 
this factor may not apply if you have been previously found to have 
failed to comply with these regulations; or,
    (iv) A determination that the penalty constitutes excessive 
punishment under the circumstances.
    (h) How the Secretary assesses the penalty. (1) The Secretary 
considers all available information, including information provided 
during the process of assessing civil penalties or furnished upon 
further request by the Secretary.
    (2) The Secretary may assess the civil penalty upon completing 
informal discussions or when the period for requesting a hearing 
expires, whichever is later.
    (3) The Secretary notifies you in writing 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 basis for determining the penalty amount assessed and/or 
any offer to mitigate or remit the penalty; and
    (ii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision that assesses a civil penalty.
    (i) Actions that you may take upon receipt of a notice of 
assessment. If you are served with a notice of assessment, you may do 
one of the following:
    (1) Accept in writing or by payment of the proposed penalty, or any 
mitigation or remission offered in the notice of assessment. If you 
accept the proposed penalty, mitigation, or remission, you waive the 
right to request a hearing.
    (2) Seek informal discussions with the Secretary.
    (3) File a petition for relief. You may file a petition for relief 
with the Secretary within 45 calendar days of receiving the notice of 
assessment. 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.
    (4) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process.
    (i) In addition to the documentation required in paragraph (g) of 
this section, your request must include a copy of the notice of 
assessment and must identify the basis for challenging the assessment.
    (ii) In this hearing, the amount of the civil penalty assessed must 
be determined in accordance with paragraph (h) of this section, and 
will not be limited to the amount assessed by the Secretary or any 
offer of mitigation or remission made by the Secretary.
    (j) How you request a hearing. (1) You may file a written, dated 
request for a hearing on a notice of failure to comply or notice of 
assessment with the Hearings Division, Office of Hearings and Appeals, 
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 
22203-1923. You must enclose a copy of the notice of failure to comply 
or 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 or fixing the assessment, and your preference of 
the place and date for a hearing. You must serve a copy of the request 
on 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 failure to comply or notice of assessment. 
Hearings must 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 failure to comply or notice 
of assessment waives your right to a hearing.
    (3) 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.
    (4) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative or by counsel, and may participate fully in the 
proceedings. If you fail to appear and the administrative law judge 
determines that 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.
    (5) Departmental counsel, designated by the Solicitor of the 
Department of the Interior, 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 must file all petitions and 
correspondence exchanges by the Secretary and the respondent that 
become part of the hearing record. Thereafter, you must serve all 
documents for the Secretary on his/her counsel.
    (6) 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.
    (iii) Unless you file a notice of appeal described in these 
regulations, 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.
    (k) 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 Interior Board of Indian Appeals, U.S. Department 
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954, 
within 30 calendar days of the date of the

[[Page 16364]]

administrative law judge's decision. This notice must be accompanied by 
proof of service on the administrative law judge and the opposing 
party.
    (2) To the extent they are not inconsistent with these regulations, 
the provisions of the Department of the Interior Hearings and Appeals 
Procedures in 43 CFR part 4, subpart D, 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 that the decision 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 Interior Board of 
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954. Fees for 
this service are established by the director of that office.
    (l) The final administrative decision. (1) When you have been 
served with a notice of assessment and have accepted the penalty as 
provided in these regulations, 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 these 
regulations, 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, 
the decision resulting from the hearing or any applicable 
administrative appeal from it constitutes the final administrative 
decision.
    (m) 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 of the United States to collect the penalty by 
instituting a civil action in the U.S. District Court for the district 
in which your museum is located. In these actions, the validity and 
amount of the penalty is not 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: December 16, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-7947 Filed 4-2-03; 8:45 am]
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