[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23196-23202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9228]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS-WASO-NAGPRA-8611; 2200-1100-665]
RIN 1024-AD99
Native American Graves Protection and Repatriation Act
Regulations
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
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SUMMARY: The Secretary of the Interior (Secretary) is responsible for
implementation of the Native American Graves Protection and
Repatriation Act, including the issuance of appropriate regulations
implementing and interpreting its provisions. Minor inaccuracies or
inconsistencies in the regulations have been identified by or brought
to the attention of the Department. These proposed amendments revise
the rules implementing the Native American
[[Page 23197]]
Graves Protection and Repatriation Act for purposes of factual accuracy
and consistency.
DATES: Comments must be received by June 18, 2012.
ADDRESSES: You may submit comments, identified by the Regulation
Identifier Number (RIN) 1024-AD99, by any of the following methods:
Federal eRulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail or hand deliver to: Dr. Sherry Hutt, Manager,
National NAGPRA Program, National Park Service, 1201 Eye Street NW.,
(2253), Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Dr. Sherry Hutt, Manager, National
NAGPRA Program, National Park Service, 1201 Eye Street NW., 8th floor,
Washington, DC 20005, telephone (202) 354-1479, facsimile (202) 371-
5197.
SUPPLEMENTARY INFORMATION:
Authority
The Secretary of the Interior (Secretary) is responsible for
implementation of the Native American Graves Protection and
Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001 et seq.), including
the issuance of appropriate regulations implementing and interpreting
its provisions.
Background
NAGPRA 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. Under Section 13 of NAGPRA (25 U.S.C. 3011), the Department
of the Interior (Department) published the initial rules to implement
NAGPRA (60 FR 62158, December 4, 1995). This regulation is codified at
43 CFR Part 10. Subsequently, the Department published amendments to
the regulation concerning:
Civil penalties (68 FR 16354, April 3, 2003);
Future applicability (72 FR 13189, March 21, 2007); and
Disposition of culturally unidentifiable human remains (75
FR 12378, March 15, 2010).
Since the promulgation of the December 4, 1995, rule, minor
inaccuracies or inconsistencies in 43 CFR Part 10 have been identified
by or brought to the attention of the Department. These proposed
amendments revise the rules for purposes of factual accuracy and
consistency throughout 43 CFR part 10.
Section-by-Section Analysis
Sec. 10.2 Definitions
Paragraph (c)(1). The proposed rule would amend the definition of
Secretary to reflect Departmental delegations of the Secretary's
authority under NAGPRA. NAGPRA assigns implementation responsibilities
to the Secretary of the Interior. Secretarial Order 3261 (May 23, 2005)
delegated some of these implementation responsibilities to other
officials in the Department and the National Park Service, and the
Department amended part 10 to reflect provisions of this Order (70 FR
57177, September 30, 2005).
Under the Secretarial Order and amended rules, the Assistant
Secretary for Fish and Wildlife and Parks (Assistant Secretary) is
responsible for:
Issuing regulations to carry out NAGPRA after consultation
with the Assistant Secretary for Indian Affairs;
Granting extensions of inventory deadlines and awarding
implementation grants to Indian tribes, Native Hawaiian organizations,
and museums; and
In consultation with the Solicitor's Office, investigating
and assessing civil penalties against museums that fail to comply with
NAGPRA.
The Manager of the National NAGPRA Program (Manager), reporting to
the National Park Service Director through the Associate Director for
Cultural Resources, is responsible for managing the operations of the
National NAGPRA Program, and provides staff support to the Assistant
Secretary. The Manager's duties include:
Preparing rules for issuance by the Assistant Secretary,
reviewing and recommending disposition of requests for extensions of
inventory deadlines, and publishing notices in the Federal Register;
Serving as the Designated Federal Official for the Native
American Graves Protection and Repatriation Review Committee;
Providing technical assistance to the Department of
Justice in implementing the trafficking provisions of NAGPRA, in
consultation with the Office of the Solicitor;
Developing and issuing guidelines, technical information,
and training, and administering grants to assist Indian tribes, Native
Hawaiian organizations, and museums in meeting their NAGPRA
obligations; and
Supporting the civil penalty responsibilities of the
Assistant Secretary.
Paragraph (c)(3). The proposed rule would amend the definition of
Manager, National NAGPRA Program to include the Web site listing the
Manager's correct mailing address.
Sec. 10.4 Inadvertent Discoveries
Paragraph (d)(1)(iii). This paragraph applies to inadvertent
discoveries of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony on Federal land after
November 16, 1990. It would add known lineal descendants to the list of
parties to be notified of an inadvertent discovery.
The current rule requires the responsible Federal agency official
to notify various parties to whom disposition of the human remains or
cultural items might be determined but does not include known lineal
descendants. While the current rule omits known lineal descendants from
this requirement, it requires the responsible Federal agency official
to initiate consultation with the known lineal descendants (43 CFR
10.5(a)).
In order to initiate consultation with known lineal descendants,
the Federal agency official, in fact, must notify them of the
inadvertent discovery. The proposed rule would correct this oversight
by adding known lineal descendants to the list of parties to be
notified of an inadvertent discovery.
Sec. 10.5 Consultation
Paragraph (b)(1)(i). For a sacred object removed from Federal or
tribal land after November 16, 1990, NAGPRA excludes lineal descendants
from the list of possible owners. This same exclusion applies to an
object of cultural patrimony (25 U.S.C. 3002(a)). The current
regulations, by contrast, include lineal descendants on the list of
possible owners of these objects. (See 43 CFR 10.5(b)(1)(i)). The
proposed rule would correct that list to be consistent with NAGPRA.
Sec. 10.6 Custody
Paragraph (a)(2). Section 3 of NAGPRA addresses ownership or
control of Native American cultural items removed from Federal or
tribal land after November 16, 1990 (25 U.S.C. 3002(a)). With respect
to human remains and associated funerary objects, NAGPRA provides that
ownership or control in these cases, in the first instance, is with the
lineal descendants (25 U.S.C. 3002(a)). Because ownership or control in
these situations does not depend on assertion of a claim, the proposed
rule would remove the reference to claims by lineal descendants.
Paragraph (a)(2)(iii)(B). Section 3(a)(2)(C) of NAGPRA addresses
ownership or control of human remains
[[Page 23198]]
or cultural items whose cultural affiliation cannot be ascertained (25
U.S.C. 3002(a)(2)(C)). It pertains to remains or cultural items removed
after November 16, 1990, from Federal land recognized as the aboriginal
land of an Indian tribe. NAGPRA states that an Indian tribe whose
cultural relationship with the human remains or other cultural items is
stronger than that of the Indian tribe recognized as being the
aboriginal occupant of the land must be included in the list of
potential parties to the disposition of ownership or control of those
human remains or cultural items (25 U.S.C. 3002(a)(2)(C)).
The current regulations inadvertently state that the cultural
relationship would only be to the objects. The proposed rule would
correct this omission by adding a reference to the cultural
relationship with the human remains.
Sec. 10.8 Summaries
Paragraph (e). The current regulations refer to ``individuals'',
rather than ``lineal descendants'', in regard to sacred objects in the
collection or holdings of a museum or Federal agency. NAGPRA gives the
direct lineal descendant of an individual who owned the sacred object
standing to request its repatriation, as well as a superior claim
against one from an Indian tribe or Native Hawaiian organization (25
U.S.C. 3005(a)(5)). The reference to ``individuals'' is ambiguous, and
the proposed rule replaces the term ``individuals'' with the statutory
term ``lineal descendants.''
Sec. 10.10 Repatriation
Paragraph (a)(1)(ii)(B). The proposed rule would remove the
incorrect reference to Section 7(c) of NAGPRA and replace it with a
correct reference to Section 7(a)(4) (25 U.S.C. 3005(a)(4)). The
reference pertains to establishment of cultural affiliation of
unassociated funerary objects other than through the summary,
consultation, and notification procedures in 43 CFR 10.14.
Paragraph (b)(1)(ii)(B). The proposed rule would remove the
incorrect statutory reference to Section 7(c) of NAGPRA and replace it
with a correct reference to Section 7(a)(4) (25 U.S.C. 3005(a)(4)). The
reference pertains to establishment of cultural affiliation of Native
American human remains and associated funerary objects other than
through the procedures in 43 CFR 10.9 and 10.14.
Paragraph (c)(2). The proposed rule would clarify that the
exception to the requirements for repatriation applies where:
There are multiple competing requests for repatriation;
and
The museum or Federal agency, after complying with the
regulations, cannot determine by a preponderance of the evidence which
competing requesting party is the most appropriate claimant.
Paragraph (g). Section 10.11 governs disposition of culturally
unidentifiable human remains to tribes and Native Hawaiian
organizations from whose tribal or aboriginal land the remains were
excavated. The proposed rule would clarify that the Review Committee
still is responsible for recommending a process for disposition of
culturally unidentifiable human remains not now covered by 43 CFR
10.11.
Sec. 10.11 Disposition of Culturally Unidentifiable Human Remains
Paragraph (b)(2)(ii). The proposed rule would clarify that, for
purposes of Section 10.11, aboriginal occupation may be recognized by a
treaty, Act of Congress, or Executive Order, in addition to a final
judgment of the Indian Claims Commission or the United States Court of
Claims. Section 10.11 implements Section 8(c)(5) of NAGPRA (25 U.S.C.
3006(c)(5)) with respect to disposition of culturally unidentifiable
human remains to tribes and Native Hawaiian organizations from whose
tribal or aboriginal land the remains were excavated.
Section 10.11 contrasts with the regulations (43 CFR 10.6)
implementing Section 3(a) of NAGPRA, where recognition of aboriginal
land is only by a final judgment of the Indian Claims Commission or the
United States Court of Claims (25 U.S.C. 3002(a)(2)(C)).
Sec. 10.12 Civil Penalties
Paragraph (c). The proposed rule would clarify that written
allegations of a museum's failure to comply with the requirements of
NAGPRA are to be sent to the NAGPRA Civil Penalties Coordinator, in the
National NAGPRA Program. NAGPRA assigns implementation responsibilities
to the Secretary, who has delegated some of these implementation
responsibilities to other officials, as reflected in this part. (See
Secretarial Order 3261 of May 23, 2005.)
Under the Secretarial Order and this part, the Assistant Secretary,
in consultation with the Office of the Solicitor, executes the
provisions for civil penalties against museums that fail to comply with
NAGPRA, investigates allegations of failure to comply with NAGPRA
requirements, and develops and assesses civil penalties (Secretarial
Order 3261, Section 4a). The Secretarial Order also directs the
Manager, National NAGPRA Program to provide staff, who reports directly
to the Assistant Secretary in the performance of these duties, to
support the civil penalty responsibilities of the Assistant Secretary.
The proposed rule would clarify that written allegations of a museum's
failure to comply with the requirements of NAGPRA are to be sent to the
NAGPRA Civil Penalties Coordinator, in the National NAGPRA Program.
Paragraph (i)(3). The Manager, National NAGPRA Program provides
staff to support the civil penalty responsibilities of the Assistant
Secretary (Secretarial Order 3261, Section 4c, May 23, 2005). The
proposed rule would clarify that a petition for relief should therefore
be sent to the NAGPRA Civil Penalties Coordinator in the National
NAGPRA Program.
Paragraph (j)(1). The address for filing a written, dated request
for a hearing on a notice of failure to comply or notice of assessment
has changed since the rule was promulgated. The proposed rule would
correct the mailing address. The proposed rule would also move the
final sentence of this paragraph to paragraph (j)(6).
Paragraph (j)(6)(i). The proposed rule would move the final
sentence of paragraph (j)(1) to this location, which is more logical.
The sentence reads, ``Hearings must take place following the procedures
in 43 CFR part 4, Subparts A and B.''
Paragraph (k)(1). The address for filing a ``Notice of Appeal'' has
changed since the rule was promulgated. The proposed rule would correct
the mailing address.
Paragraph (k)(3). The address for obtaining copies of decisions in
civil penalty proceedings under NAGPRA has changed since the rule was
promulgated. The proposed rule would correct the mailing address.
Sec. 10.13 Future Applicability
Paragraph (c)(2). Section 104 of the Federally Recognized Indian
Tribe List Act of 1994, codified at 25 U.S.C. 479a-1 (2006), requires
publication of the list of Indian Entities Recognized and Eligible to
Receive Services from the United States Bureau of Indian Affairs. The
proposed rule would correct the citation of that legal authority.
Sec. 10.15 Limitations and Remedies
Paragraph (c)(1). The proposed rule would clarify, consistent with
the Administrative Procedure Act (5 U.S.C. 704), that administrative
remedies relate
[[Page 23199]]
only to Federal agencies and not to museums.
Paragraph (c)(1)(ii). The proposed rule would clarify, consistent
with NAGPRA, that Federal collections, rather than Federal lands, are
subject to 43 CFR part 10, Subpart C.
Appendix A to Part 10--Sample Summary and Appendix B to Part 10--Sample
Notice of Inventory Completion
Since the publication of the initial rules, new templates have been
developed that address specific actions that museums and Federal
agencies must take to comply with NAGPRA and satisfy the requirements
of due process. These templates are published by the Manager, National
NAGPRA Program, at www.nps.gov/nagpra, and include:
Notice of Inventory Completion Template for culturally
affiliated inventories of Native American human remains and associated
funerary objects and disposition with approval from the Secretary in
situations not covered by 43 CFR 10.11;
Notice of Inventory Completion Template for culturally
unidentifiable inventories of Native American human remains from tribal
or aboriginal land to tribal/aboriginal land Indian tribes, 43 CFR
10.11(c)(1);
Notice of Inventory Completion Template for culturally
unidentifiable inventories of Native American human remains from tribal
or aboriginal land to Indian tribes that are not the tribal or
aboriginal land Indian tribe, 43 CFR 10.11(c)(2)(i);
Notice of Inventory Completion Template for culturally
unidentifiable inventories of Native American human remains from tribal
or aboriginal land with the recommendation of the Secretary to
disposition to Indian groups that are non-federally recognized or for
reinterment under state law, 43 CFR 10.11(c)(2)(ii);
Notice of Intent to Repatriate Template for culturally
affiliated unassociated funerary objects, sacred objects, and/or
objects of cultural patrimony;
Correction Template (used to correct a previously
published notice); and
Notice of Intended Disposition Template for Native
American human remains and cultural items removed from Federal or
tribal land after November 16, 1990.
As museums, Federal agencies, Indian tribes, and Native Hawaiian
organizations can easily access these and other templates
electronically, and as the current templates likely will be
supplemented by others in the future, the proposed rule would delete
these appendices from this part.
Compliance With Other Laws and Executive Orders; Regulatory Planning
and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local or tribal
government agencies, or geographic regions.
c. 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.
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)
Under the criteria in Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. No taking of personal property will occur as a result of
this rule.
Federalism (Executive Order 13132)
Under the criteria in Executive Order 13132, the rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism summary impact statement. A Federalism summary impact
statement is not required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (Executive Order 13175)
In accordance with the Presidential Memorandum entitled
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951, April 29, 1994); Executive Order 13175,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, Nov. 9, 2000); the President's Memorandum for the Heads of
Executive Departments and Agencies on the Implementation of Executive
Order 13175 (Nov. 5, 2009); and the Secretary of the Interior's Order
No. 3317--Department of the Interior Policy on Consultation With Indian
Tribes (Dec. 1, 2011); we have evaluated this rule and determined that
it has no substantial direct effects on federally recognized Indian
tribes because it amends the regulations to correct only minor
inaccuracies or inconsistencies in 43 CFR part 10.
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission under the Paperwork Reduction Act is not required.
[[Page 23200]]
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required
because the rule is covered by a categorical exclusion under 43 CFR
46.210(i): ``Policies, directives, regulations, and guidelines: that
are of an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case.'' We
have also determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under the National Environmental Policy Act.
Effects on the Energy Supply (Executive Order 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A statement of Energy Effects is not
required.
Clarity of This Rule
We are required by Executive Orders 12866 and 12988, and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, or the sections where you feel lists or tables would be
useful.
Drafting Information
This proposed rule was prepared by staff of the National NAGPRA
Program and of the Office of the Solicitor, Division of Parks and
Wildlife and Division of Indian Affairs.
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 proposed rule by one of the methods listed in
the ADDRESSES section.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment, including your personal identifying
information, may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Hawaiian Natives, Historic
preservation, Indians--claims, Indians--lands, Museums, Penalties,
Public lands, Reporting and recordkeeping requirements.
In consideration of the foregoing, the NPS proposes to amend 43 CFR
part 10 as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
1. The authority for part 10 continues to read as follows:
Authority: 25 U.S.C. 3001 et seq.
2. Amend Sec. 10.2 by revising paragraphs (c)(1) and (3) to read
as follows:
Sec. 10.2 Definitions.
* * * * *
(c) * * *
(1) Secretary means the Secretary of the Interior or a designee.
* * * * *
(3) Manager, National NAGPRA Program means the official of the
Department of the Interior designated by the Secretary as responsible
for administration of matters relating to this part. Communications to
the Manager, National NAGPRA Program should be sent to the mailing
address listed on the National NAGRPA Contact Information Web site,
http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.
* * * * *
2. Amend Sec. 10.4 by revising paragraph (d)(1)(iii) to read as
follows:
Sec. 10.4 Inadvertent discoveries.
* * * * *
(d) * * *
(1) * * *
(iii) Notify any known lineal descendants, Indian tribes, or Native
Hawaiian organizations likely to be culturally affiliated with the
remains or objects, the Indian tribe or Native Hawaiian organization
that aboriginally occupied the area, and any other Indian tribe or
Native Hawaiian organization known to have a cultural relationship to
the remains or objects. This notification must be by telephone with
written confirmation and must include information about the kinds of
remains or objects, their condition, and the circumstances of their
discovery;
* * * * *
3. Amend Sec. 10.5 by revising paragraph (b)(1)(i) to read as
follows:
Sec. 10.5 Consultation.
* * * * *
(b) * * *
(1) * * *
(i) Any known lineal descendants of the individual whose remains
and associated funerary objects have been or are likely to be excavated
intentionally or discovered inadvertently; and
* * * * *
4. Amend Sec. 10.6 by revising paragraphs (a)(2) introductory text
and (a)(2)(iii)(B) to read as follows:
Sec. 10.6 Custody.
(a) * * *
(2) When a lineal descendant cannot be ascertained, and with
respect to unassociated funerary objects, sacred objects, and objects
of cultural patrimony:
(iii) * * *
(B) If a preponderance of the evidence shows that a different
Indian tribe or Native Hawaiian organization has a stronger cultural
relationship with the remains or objects, in the Indian tribe or Native
Hawaiian organization that has the strongest demonstrated relationship
with the remains or objects.
* * * * *
5. Amend Sec. 10.8 by revising paragraph (e) introductory text to
read as follows:
Sec. 10.8 Summaries.
* * * * *
(e) Using summaries to determine affiliation. Museum and Federal
agency officials must document in the summary the following information
and must use this information in determining the lineal descendants,
Indian tribes, and Native Hawaiian organizations with which objects are
affiliated:
* * * * *
6. Amend Sec. 10.10 by revising paragraphs (a)(1)(ii)(B),
(b)(1)(ii)(B), (c)(2), and (g) to read as follows:
[[Page 23201]]
Sec. 10.10 Repatriation.
(a) * * *
(1) * * *
(ii) * * *
(B) By presentation of a preponderance of the evidence by a
requesting Indian tribe or Native Hawaiian organization under section
7(a)(4) of the Act; and
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(B) Has been shown by a preponderance of the evidence presented by
a requesting Indian tribe or Native Hawaiian organization under section
7(a)(4) of the Act; and
* * * * *
(c) * * *
(2) Circumstances where there are multiple requests for
repatriation of remains or objects and the museum or Federal agency,
after complying with this part, cannot determine by a preponderance of
the evidence which competing requesting party is the most appropriate
claimant. In these circumstances, the museum or Federal agency may
retain the remains or objects until the competing requesting parties
agree upon the appropriate recipient or the dispute is otherwise
resolved pursuant to these regulations or by a court of competent
jurisdiction; or
* * * * *
(g) Culturally unidentifiable human remains. If the cultural
affiliation of human remains cannot be established under this part, the
human remains must be considered culturally unidentifiable.
(1) Museum and Federal agency officials must report the inventory
information regarding these human remains in their holdings to the
Manager, National NAGPRA Program, who will send this information to the
Review Committee.
(2) The Review Committee will:
(i) Compile an inventory of culturally unidentifiable human remains
in the possession or control of each museum and Federal agency; and
(ii) Recommend to the Secretary specific actions for disposition of
any human remains not already addressed in Sec. 10.11.
7. Amend Sec. 10.11 by revising paragraph (b)(2)(ii) to read as
follows:
Sec. 10.11 Disposition of culturally unidentifiable human remains.
* * * * *
(b) * * *
(2) * * *
(ii) From whose aboriginal lands the human remains and associated
funerary objects were removed. Aboriginal occupation for purposes of
this section may be recognized by a final judgment of the Indian Claims
Commission or the United States Court of Claims, or by a treaty, Act of
Congress, or Executive Order.
* * * * *
8. Amend Sec. 10.12 by:
A. Revising paragraph (c).
B. Revising paragraph (i)(3).
C. Adding introductory text to paragraph (j).
D. Revising paragraphs (j)(1) and (j)(6)(i).
E. Revising paragraphs (k)(1) and (k)(3).
The revisions to read as follows:
Sec. 10.12 Civil penalties.
* * * * *
(c) How to notify the Secretary of a failure to comply. Any person
may file an allegation of failure to comply. Allegations are to be sent
to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at
the mailing address listed on the National NAGPRA Contact Information
Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation
must be in writing, and should:
(1) Identify each provision of the Act with which there has been a
failure to comply by a museum;
(2) Include facts supporting the allegation;
(3) Include evidence that the museum has possession or control of
Native American cultural items; and
(4) Include evidence that the museum receives Federal funds.
* * * * *
(i) * * *
(3) File a petition for relief. You may file a petition for relief
within 45 calendar days of receiving the notice of assessment. A
petition for relief is to be sent to the NAGPRA Civil Penalties
Coordinator, National NAGPRA Program, at the mailing address listed on
the National NAGPRA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. Your petition may ask the Secretary not to
assess a penalty or to reduce the penalty amount. Your petition must:
(i) Be in writing and signed by an official authorized to sign such
documents; and
(ii) Fully explain the legal or factual basis for the requested
relief.
* * * * *
(j) How you request a hearing. You may file a written, dated
request for a hearing on a notice of failure to comply or notice of
assessment with the Departmental Cases Hearings Division, Office of
Hearings and Appeals, U.S. Department of the Interior, 405 South Main
Street, Suite 400, Salt Lake City, UT 84111. You must also 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.
(1) Your request for a hearing must:
(i) Include a copy of the notice of failure to comply or the notice
of assessment;
(ii) State the relief sought;
(iii) State the basis for challenging the facts used as the basis
for determining the failure to comply or fixing the assessment; and
(iv) State your preferred place and date for a hearing.
* * * * *
(6) * * *
(i) Hearings must take place following the procedures in 43 CFR
part 4, subparts A and B. 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.
* * * * *
(k) * * *
(1) Either you or the Secretary may appeal the decision of an
administrative law judge by filing a Notice of Appeal. Send your Notice
of Appeal to the Interior Board of Indian Appeals, Office of Hearings
and Appeals, U.S. Department of the Interior, 800 North Quincy Street,
Suite 300, Arlington, VA 22203, within 30 calendar days of the date of
the administrative law judge's decision. The notice must be accompanied
by proof of service on the administrative law judge and the opposing
party.
* * * * *
(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, 800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees
for this service are established by the director of that office.
* * * * *
9. Amend Sec. 10.13 by revising paragraph (c)(2) to read as
follows:
Sec. 10.13 Future applicability.
* * * * *
(c) * * *
(2) The list of Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau
[[Page 23202]]
of Indian Affairs is published in the Federal Register as required by
section 104 of the Federally Recognized Indian Tribe List Act of 1994
(25 U.S.C. 479a-1 (2006)).
* * * * *
10. In Sec. 10.15, revise paragraph (c)(1) to read as follows:
Sec. 10.15 Limitations and remedies.
* * * * *
(c) * * *
(1) A person's administrative remedies are exhausted only when the
person has filed a written claim with the responsible Federal agency
and the claim has been duly denied under this part. This paragraph
applies to both:
(i) Human remains, funerary objects, sacred objects, or objects of
cultural patrimony subject to subpart B of this part; and
(ii) Federal collections subject to subpart C of this part.
* * * * *
Appendices A and B [Removed]
11. Remove Appendices A and B.
Dated: March 30, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-9228 Filed 4-17-12; 8:45 am]
BILLING CODE 4312-50-P