[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Proposed Rules]
[Pages 63202-63260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22376]



[[Page 63201]]

Vol. 87

Tuesday,

No. 200

October 18, 2022

Part III





Department of the Interior





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43 CFR Part 10





Native American Graves Protection and Repatriation Act Systematic 
Process for Disposition and Repatriation of Native American Human 
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural 
Patrimony; Proposed Rule

  Federal Register / Vol. 87 , No. 200 / Tuesday, October 18, 2022 / 
Proposed Rules  

[[Page 63202]]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

[NPS-WASO-NAGPRA-33190; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19


Native American Graves Protection and Repatriation Act Systematic 
Process for Disposition and Repatriation of Native American Human 
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural 
Patrimony

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior proposes to revise regulations 
to improve implementation of the Native American Graves Protection and 
Repatriation Act of 1990. These proposed regulations would clarify and 
improve upon the systematic process for the disposition and 
repatriation of Native American human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. The proposed changes would 
provide a step-by-step roadmap for museums and Federal agencies to 
comply with requirements within specific timelines to facilitate the 
required disposition and repatriation. The proposed changes would 
describe the processes in accessible language with clear timelines and 
terms, reduce ambiguity, and improve efficiency in meeting the 
requirements. In addition, the proposed changes emphasize consultation 
in every step and defer to the customs, traditions, and Native American 
traditional knowledge of lineal descendants, Indian Tribes, and Native 
Hawaiian organizations.

DATES: Comments on the proposed rule must be received by 11:59 p.m. EDT 
on January 17, 2023.
    Federal Advisory Committee Act Meetings: The Native American Graves 
Protection and Repatriation Review Committee (Review Committee) will 
meet virtually during the comment period. The National Park Service 
will announce the exact dates and times of the Review Committee 
meetings in the Federal Register, once scheduled. These meetings will 
be open to the public and there will be time for public comment.
    Tribal Consultation Sessions: The Department of the Interior will 
conduct consultation sessions with Indian Tribes virtually during the 
comment period. The Department of the Interior will announce the exact 
meeting dates and times of the consultation sessions, once scheduled, 
on https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations and by letter to Tribal leaders.
    Native Hawaiian Consultation Sessions: The Department of the 
Interior will conduct consultation sessions with the Native Hawaiian 
Community virtually during the comment period. The Department of the 
Interior's Office of Native Hawaiian Relations will invite the Native 
Hawaiian Community to participate and provide the exact meeting dates 
and times of the consultation sessions, once scheduled.
    Public Listening Sessions: The Department of the Interior will host 
virtual listening sessions during the comment period. The National Park 
Service will announce the exact dates and times of the listening 
sessions, once scheduled, on https://www.nps.gov/orgs/1335/events.htm. 
These meetings will be open to the public.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to decide 
concerning the collection of information contained in this proposed 
rule between 30 and 60 days after publication of this proposed rule in 
the Federal Register. Therefore, comments should be submitted to OMB by 
December 19, 2022.

ADDRESSES: You may submit written comments, identified by the 
Regulation Identifier Number (RIN) 1024-AE19, by any one of the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail to: National NAGPRA Program, National Park Service, 
1849 C Street NW, Mail Stop 7360, Washington DC 20240. Attn: Melanie 
O'Brien, Manager NAGPRA Rule Comments.
    Instructions: All submissions received must include the words 
``National Park Service'' or ``NPS'' and the RIN (1024-AE19) for this 
rulemaking. Comments received may be posted without change to https://www.regulations.gov, including any personal information provided. 
Written comments will not be accepted by fax, email, or in any way 
other than those specified above. The NPS will not accept bulk comments 
in any format (hard copy or electronic) submitted on behalf of others.
    Oral Comments: Register for opportunities to make oral comments at: 
https://www.nps.gov/orgs/1335/events.htm. The consultation sessions 
listed above are for federally recognized Indian Tribes and for 
representatives of the Native Hawaiian Community. All oral comments by 
other members of the public must be made during specified sessions of 
the Review Committee meetings or public listening sessions. Oral 
comments will be recorded and submitted for the record and oral 
commenters should include a written copy of their statement prior to 
the public meeting. Time for oral comments may be limited.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted by the date specified above in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the NPS Information Collection Clearance Officer 
(ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191. Please 
include ``1024-AE19'' in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, National NAGPRA 
Program, National Park Service, (202) 354-2201, 
melanie_o'[email protected]. Questions regarding the NPS's information 
collection request may be submitted to Phadrea Ponds, NPS Information 
Collection Clearance Officer, [email protected]. Please include 
``1024-AE19'' in the subject line of your email request.

SUPPLEMENTARY INFORMATION: 
I. Background
II. Previous Federal Actions
III. Development of the Proposed Rule
    A. Cultural Affiliation
    B. Consultation
    C. Discovery on Federal or Tribal Lands
    D. Comprehensive Agreements
    E. Control
    F. Funerary Objects
    G. Stay of Repatriation for Scientific Study
    H. Summaries
    I. Acknowledged and Adjudicated Aboriginal Land
    J. Federal Lands and Boarding Schools
IV. Overview of Major Proposed Changes
V. Section-by-Section Summary of Proposed Changes
    A. Authority
    B. Section 10.1 Introduction
    C. Section 10.2 Definitions for This Part
    D. Section 10.3 Cultural and Geographical Affiliation
    E. Section 10.4 General
    F. Section 10.5 Discovery
    G. Section 10.6 Excavation
    H. Section 10.7 Disposition
    I. Section 10.8 General
    J. Section 10.9 Repatriation of Unassociated Funerary Objects, 
Sacred Objects, and Objects of Cultural Patrimony

[[Page 63203]]

    K. Section 10.10 Repatriation of Human Remains and Associated 
Funerary Objects
    L. Section 10.11 Civil Penalties
    M. Section 10.12 Review Committee
VI. Public Engagement and Request for Comments
VII. Compliance With Other Laws, Executive Orders and Department 
Policy

I. Background

    The Native American Graves Protection and Repatriation Act of 1990 
(NAGPRA or Act) (25 U.S.C. 3001 et seq.) requires the disposition and 
repatriation of Native American human remains, funerary objects, sacred 
objects, and objects of cultural patrimony to lineal descendants, 
Indian Tribes, and Native Hawaiian organizations (NHOs). The Act 
governs the disposition of human remains or cultural items removed from 
Federal or Tribal lands (25 U.S.C. 3002); requires the inventory of 
human remains and associated funerary objects in holdings or 
collections (25 U.S.C. 3003); requires a summary of unassociated 
funerary objects, sacred objects, and objects of cultural patrimony in 
holdings or collections (25 U.S.C. 3004); governs the repatriation of 
human remains or cultural items in holdings or collections (25 U.S.C. 
3005); creates a Federal advisory committee to monitor and review the 
inventory and identification process and repatriation activities (25 
U.S.C. 3006); and authorizes civil penalties for museums that fail to 
comply with the Act (25 U.S.C. 3007).

II. Previous Federal Actions

    The Secretary of the Interior (Secretary) is responsible for 
implementation of the Act, including the issuance of regulations 
implementing and interpreting its provisions (25 U.S.C. 3011). The 
regulations are codified at 43 CFR part 10. The Department of the 
Interior (Department) published the initial rule to implement NAGPRA in 
1995 at 60 FR 62134 (December 4, 1995). Subsequently, the Department 
published additional rules concerning:
     Civil penalties, at 68 FR 16354 (April 3, 2003);
     Future applicability, at 72 FR 13184 (March 21, 2007);
     Culturally unidentifiable human remains, at 75 FR 12378 
(March 15, 2010);
     Technical amendments, at 78 FR 27078 (May 9, 2013);
     The definition of ``Indian tribe,'' at 79 FR 33482 (June 
11, 2014); and
     Disposition of unclaimed cultural items, at 80 FR 68465 
(November 5, 2015).
    The Department also publishes annual adjustments to civil penalties 
for inflation under the Federal Civil Penalties Inflation Adjustment 
Act Improvements Act of 2015.

III. Development of the Proposed Rule

    As part of the Department's regulatory review in accordance with 
the Regulatory Flexibility Act and E.O. 13563, the Department regularly 
seeks public input on how we may best achieve regulatory ends. Over the 
past 12 years, parties affected by the definitions and procedures 
established in 43 CFR part 10 have commented, in various forums, that 
some of the regulatory provisions should be amended to improve 
implementation of the Act.
    The following paragraphs detail the degree of consultation, 
coordination, and collaboration in this review, and the nature of 
public comments that the Department received from lineal descendants, 
Indian Tribes, NHOs, Federal agencies, museums, national museum and 
scientific organizations, Indian Tribal historic preservation 
organizations, the Review Committee, and interested members of the 
public.
    From March to July of 2011, the Department consulted with Indian 
Tribes, NHOs, the Review Committee, Federal agencies, and the public on 
full revisions to the regulations implementing the Act. This effort 
resulted from the Department's publication of a final rule for the 
disposition of culturally unidentifiable human remains in March of 2010 
(75 FR 12378) which solicited comments on the final rule. Many of those 
comments requested broader changes to the entire regulatory process. In 
April 2012 (77 FR 12378), the Department published a proposed rule to 
revise the regulations for accuracy and consistency based on some of 
those comments. Additional comments on that proposed rule requested 
changes that went beyond the scope of accuracy and consistency.
    Since 2012, the Department has heard repeatedly from Indian Tribes, 
NHOs, museums, and Federal agencies on the implementation of the Act 
through the regulations. From 2012 to 2019 at 21 meetings of the Review 
Committee, public commenters have highlighted concerns with the 
regulations or challenges in implementing its procedures. The Review 
Committee has heard frequently that the regulations themselves pose 
barriers to successful and expedient repatriation.
    As a result of previous consultation, public comment, and input 
from the Review Committee, the Department developed a draft text of 
regulatory revisions and on July 8, 2021, provided Indian Tribes and 
NHOs with an invitation to consult on the draft text. Along with the 
draft text, the Department provided a summary of the 2011 consultation 
with Indian Tribes and NHOs and how the draft text was responsive to 
that input. The Department hosted consultation sessions with Indian 
Tribes on August 9, 13, and 16, 2021, and with NHOs on August 17, 2021. 
In addition, the Department accepted written input until September 30, 
2021. In total, we received 71 individual comment letters, which when 
combined with oral comments from consultation sessions, yielded over 
700 specific comments on sections of the draft text.
    The Department reviewed each comment provided during consultation 
and in writing and, wherever possible, adjusted the proposed 
regulations to address them. In a separate document, the Department has 
provided a summary of each comment and specific detailed responses. An 
overview of the major comments received is provided here, and specific 
adjustments made to the proposed regulations in response to comments 
are noted throughout Part V. Section-by-Section Summary of Proposed 
Changes.

A. Cultural Affiliation

    We received a total of 179 comments on the definitions in the draft 
text of ``cultural affiliation'' and ``geographical affiliation'' and 
on the section for establishing cultural affiliation. Some of these 
comments requested an alternative process be developed utilizing the 
Secretary and the Review Committee to facilitate repatriation of human 
remains currently labeled as ``culturally unidentifiable.'' These same 
comments requested we strike most of the section on cultural 
affiliation, citing to the language in the Act (25 U.S.C. 3003(d)(2)(C) 
and 3005(a)(4)). Most comments focused on clarifying that one type of 
information was sufficient for finding cultural affiliation, especially 
geographic information. Some comments requested prioritizing the list 
of information or giving more weight to certain lines of information. 
Several comments suggested adopting language from the California 
statute on deference to traditional Native American knowledge as expert 
opinion. We received many supportive comments on the addition of 
multiple cultural affiliations and closest cultural affiliation.
    In response, the Department proposes to define a new term, 
``affiliation,'' in the proposed regulations and to combine the process 
for identifying

[[Page 63204]]

cultural and geographical affiliation into a single section. The 
Department also proposes to define Native American traditional 
knowledge which is referred to throughout the proposed revision in 
identifying affiliation and cultural items and in conducting 
consultation. In response to several comments, the Department 
considered how an alternative process might work, considering the legal 
limitations on the Secretary and the Review Committee under the Act. 
The roles of the Secretary and the Review Committee are advisory only 
in this part of the repatriation process, and an alternative process 
limited by that role seems overly complicated and intrusive rather than 
helpful or expeditious.
    See Part V. Section-by-Section Summary of Proposed Changes, C. 
Section 10.2 Definitions for this part and D. Section 10.3 Cultural and 
Geographical affiliation.

B. Consultation

    We received a total of 115 comments on the term ``consultation'' 
and the related regulatory provisions. Nearly all comments appreciated 
the definition, but some comments suggested aligning it with 
definitions found in 36 CFR part 800, Executive Order 13175, or the 
U.N. Declaration on the Rights of Indigenous Peoples. Some comments 
requested the definition make clear consultation is more than a 
procedural step and that consultation must be a meaningful, responsive, 
and accountable process. Several comments questioned the requirement 
for Indian Tribes and NHOs to make written requests to consult.
    In response, the Department proposes to define ``consultation'' to 
seek consensus and to require a record of consultation that explains, 
if applicable, why consensus or agreement could not be achieved. The 
requirement for a written request to consult (which can include email) 
is necessary to establish a required timeline for responding to a 
request.
    See Part V. Section-by-Section Summary of Proposed Changes, C. 
Section 10.2 Definitions for this part, Plan of Action in E. Section 
10.4 General, and Require that Consultation Seek Consensus, in J. 
Section 10.9 Repatriation of unassociated funerary objects, sacred 
objects, and objects of cultural patrimony and K. Section 10.10 
Repatriation of human remains and associated funerary objects.

C. Discovery on Federal or Tribal Lands

    We received more than 100 comments on the draft text for 
discoveries on Federal or Tribal lands. Most of the comments were 
directed at two issues--(1) notification or consultation with Indian 
Tribes or NHOs when a discovery occurs, and (2) the timelines for 
action by the appropriate official after a discovery. The comments 
recommended that the requirements of the existing regulations at Sec.  
10.4 be reinstated, specifically, immediate telephone notification and 
written confirmation by the person who makes the discovery. Many 
comments expressed concern over the draft text paragraph on evaluating 
the potential for an excavation.
    In response, the Department proposes to require written 
documentation (which can include email but not text messages) of a 
discovery within 24 hours. The Department proposes additional timelines 
in this section to ensure adequate time for consultation, a plan of 
action, and securing, protecting, monitoring, or, if required, 
excavation of the discovery.
    See Part V. Section-by-Section Summary of Proposed Changes, F. 
Section 10.5 Discovery.

D. Comprehensive Agreements

    We received 66 comments on the draft text on comprehensive 
agreements. The majority of comments requested plans of action be 
reinstated, and many comments remarked on the utility of a plan of 
action in responding to discoveries or excavations and promoting 
consultation and coordination between land managers and Indian Tribes. 
A few comments requested changes to provide for immediate reburial of 
human remains or cultural items without any procedural requirements 
that might delay a reburial. A few comments requested tribal preference 
be incorporated into both the plan of action and comprehensive 
agreements.
    In response, the Department proposes to move the requirement for a 
plan of action in the existing regulations at Sec.  10.5 to the 
beginning of the subpart, and provide the requirements, in three 
separate steps, for a required plan of action before a planned 
activity, including an excavation, or after a discovery.
    See Part V. Section-by-Section Summary of Proposed Changes, E. 
Section 10.4 General and references in F. Section 10.5 Discovery and G. 
Section 10.6 Excavation.

E. Control

    We received a total of 68 comments on the term ``control'' as 
defined in the draft text. Many comments requested it be replaced with 
the statutory term ``possession or control.'' Other comments requested 
removing the use of ``legal interest'' from the definition, as the Act 
does not recognize a museum or Federal agency has a lawful interest in 
human remains or cultural items other than the ``right of possession.'' 
A few comments suggested museums and Federal agencies should be jointly 
and severally liable for compliance with NAGPRA's inventory, summary, 
and repatriation obligations. The same comments requested the removal 
of the new term ``custody.''
    In response, the Department proposes to define the term as 
``possession or control'' as used in the Act. Further, the Department 
has added clarifications to address how the Act did not intend for this 
term to confer any legal rights upon a Federal agency or museum, but 
instead act as an element of applicability of the Act's repatriation 
provisions. The Department also proposes other regulatory revisions to 
require Federal agencies and museums to share information and increase 
efforts to complete inventories, summaries, and repatriation of human 
remains and cultural items under loan or repository agreements to other 
entities.
    See Part V. Section-by-Section Summary of Proposed Changes, C. 
Section 10.2 Definitions for this part, and I. Section 10.8 General.

F. Funerary Object

    We received 64 comments on the definitions of ``funerary object,'' 
``associated funerary object,'' and ``unassociated funerary object.'' 
Many comments requested revisions to require consultation and include 
the authority of Indian Tribes and NHOs in the definition.
    In response, the Department proposes to clarify long-standing 
confusion over the distinction between associated and unassociated 
funerary objects. For both associated and unassociated funerary 
objects, broad categorical identifications, including everything from a 
burial site or specific area, may meet these definitions depending on 
the information available and the results of consultation.
    See Part V. Section-by-Section Summary of Proposed Changes, C. 
Section 10.2 Definitions for this part.

G. Stay of Repatriation for a Scientific Study

    We received 55 comments on the draft text carrying out the 
provision of the Act if human remains or cultural items are 
indispensable for completion of a specific scientific study the outcome 
of which would be of major benefit to the United States (25 U.S.C. 
3005(b)). Half of the comments recommended the provisions should only 
apply to human

[[Page 63205]]

remains and associated funerary objects, and not to unassociated 
funerary objects, sacred objects, and objects of cultural patrimony. 
Other comments suggested the provisions of the Act were intended to be 
limited to studies ongoing when the Act was passed in 1990. Other 
comments suggested clarifying changes.
    In response, the Department has clarified some of the provisions, 
but has retained the provisions applying to both human remains and 
cultural items as in the Act (25 U.S.C. 3005(b)). The recommendation 
that this provision apply retroactively runs counter to the prospective 
applicability of the Act and would conflict with the Act.
    See Part V. Section-by-Section Summary of Proposed Changes, J. 
Section 10.9 Repatriation of unassociated funerary objects, sacred 
objects, and objects of cultural patrimony, and K. Section 10.10 
Repatriation of human remains and associated funerary objects.

H. Summaries

    We received 54 comments on the provision in the draft text 
requiring that museums and Federal agencies prepare and submit a 
summary of unassociated funerary objects, sacred objects, and objects 
of cultural patrimony in its holding or collection. Comments pointed 
out that the summary is prepared before consultation and that Indian 
Tribes and NHOs are the best parties to determine whether any item in a 
holding or collection fits a NAGPRA category. Museums and Federal 
agencies could potentially use the draft text requirement to evade 
preparing a summary, claiming that they do not have such objects when 
they might.
    In response, the Department proposes to retain language from the 
existing regulations in both the opening paragraph to the section and 
in the paragraph on completing a summary.
    See Part V. Section-by-Section Summary of Proposed Changes, J. 
Section 10.9 Repatriation of unassociated funerary objects, sacred 
objects, and objects of cultural patrimony.

I. Acknowledged and Adjudicated Aboriginal Land

    We received 51 comments on the new terms to replace ``aboriginal 
land'' and ``aboriginal occupation.'' Several comments appreciated the 
new definition of ``acknowledged aboriginal land'' and some comments 
recommended that ``acknowledged aboriginal land'' be used not just in 
Subpart C of the regulations, but also in Subpart B, either combined 
with the definition of ``adjudicated aboriginal land,'' or instead of 
that definition. Some comments suggested further clarifying language, 
including addition of other sources or changes to the listed sources. 
For ``acknowledged aboriginal land,'' many comments suggested changing 
the first source, ``treaty sent by the President to the United States 
Senate for ratification,'' to an earlier stage in the treaty-making 
process, while another comment suggested that it be deleted, since only 
a ratified treaty is final and authoritative.
    In response, the Department proposes to add definitions of 
``adjudicated aboriginal land'' and ``acknowledged aboriginal land'' to 
distinguish the criteria for a determination of ``aboriginal land'' 
under Subpart B and the Act (25 U.S.C. 3002(a)), on the one hand, and 
under Subpart C on the other. The Department proposes to include 
intertribal treaties, diplomatic agreements, and bilateral accords 
between and among Indian Tribes. In the Act, Congress defined ``the 
aboriginal land of some Indian tribe'' as ``Federal land that is 
recognized by a final judgement of the Indian Claims Commission or the 
United States Court of Claims,'' and we have used that to define 
``adjudicated aboriginal land.'' The Department can neither add to this 
definition nor ignore it, so the comments requesting a change to the 
application or definition of adjudicated aboriginal land cannot be 
adopted.
    See Part V. Section-by-Section Summary of Proposed Changes, C. 
Section 10.2 Definitions for this part.

J. Federal Lands and Boarding Schools

    We received 39 comments on the definition for ``Federal lands.'' 
Several comments requested the addition of specific language to provide 
for protection and disposition of Native American children buried at 
Indian boarding schools, especially in circumstances where the land is 
not or was not owned or controlled by the U.S. Government, but the 
Indian boarding school was operated by or for the U.S. Government. Some 
comments asserted that the intentional excavation provisions of NAGPRA 
(25 U.S.C. 3002(c)) could be used to authorize the disinterment of 
Native children from these cemeteries on Federal or Tribal lands, and 
suggested that, for this purpose, the Department expand the statutory 
definition of ``Federal lands'' in the regulations to include any 
former Indian boarding school where any amount of Federal funding, 
government certifications, or permissions were granted, regardless of 
the current ownership of land.
    In response, as discussed in the Secretarial Memorandum 
establishing the Federal Indian Boarding School Initiative, the 
Department is committed to ``address[ing] the intergenerational impact 
of Indian Boarding Schools to shed light on the traumas of the past.'' 
The Memorandum identifies the NAGPRA process as a possible method for 
repatriation of some Native American children. While NAGPRA does not 
require a Federal agency to engage in an intentional excavation of 
possible burial sites, (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n. 
4 (D.D.C. 2010)), we agree with the comments that the intentional 
excavation provisions of NAGPRA apply to the human remains and cultural 
items disinterred from cemeteries on Federal or Tribal lands. Congress 
did not make any distinction in the Act between excavations from 
cemeteries and excavations from other burial sites on Federal or Tribal 
lands. In fact, the definition of ``burial site'' in the Act (25 U.S.C. 
3001(1)) explicitly refers to both a ``natural or prepared physical 
location.'' Furthermore, we agree with some comments that the 
excavation provisions of NAGPRA do not conflict with the opinion of the 
United States Court of Appeals for the Third Circuit in Thorpe v. 
Borough of Thorpe, 770 F.3d 255 (3d Cir. 2014), where the Court ruled 
that the repatriation provisions of NAGPRA (25 U.S.C. 3005) did not 
apply to a proposed disinterment and repatriation of human remains. The 
human remains at issue in that case, while Native American, were not 
located on Federal or Tribal lands, so the excavation provisions were 
not at issue, and were therefore not addressed by the Court of Appeals. 
Thus, on Federal or Tribal lands, any excavation must comply with the 
Act, including the requirements for consultation with (or consent from) 
the appropriate Indian Tribe or NHO (25 U.S.C. 3002(c)) and the order 
of priority for disposition of human remains (25 U.S.C. 3002(a)).
    Unfortunately, the Department cannot, however, amend the regulatory 
definition of ``Federal lands'' as the comments requested. Congress 
specifically and explicitly defined Federal lands based on ownership or 
control, not on receipt of Federal funds (as it did in the definition 
of a ``museum''). Thus, ``[w]e have here an instance where the 
Congress, presumably after due consideration, has indicated by plain 
language a preference to pursue its stated goals . . . . In such case, 
neither [a] court nor the agency is

[[Page 63206]]

free to ignore the plain meaning of the statute and to substitute its 
policy judgment for that of Congress.'' Alabama Power Co. v. United 
States EPA, 40 F.3d 450, 456 (D.C. Cir. 1994). See also, United 
Keetoowah Band of Cherokee Indians of Okla. v. United States HUD, 567 
F.3d 1235, 1243 (10th Cir. 2009) (same); Chevron U.S.A. v. Natural 
Resources Defense Council, 467 U.S. 837, 842-43 (1984) (``If the intent 
of Congress is clear, that is the end of the matter; for the court, as 
well as the agency, must give effect to the unambiguously expressed 
intent of Congress''). The Department does, however, encourage the 
custodians of records from boarding schools, whether on Federal or 
Tribal lands or not, and the current owners of those boarding schools 
and cemeteries, to fully consult with Indian Tribes and NHOs on 
identification, disinterment, and repatriation of Native American 
children. The Department stands ready to assist Indian Tribes and NHOs 
in that process to the fullest extent of its authority.
    Beginning in July 2021, the Department requested direct input from 
the Review Committee on the draft regulatory text prepared for 
consultation. The Review Committee held 14 meetings with over 50 hours 
of meeting time devoted to discussion of and development of written 
recommendations on the draft regulatory text. The Review Committee 
submitted a written recommendations to the Secretary of the Interior on 
March 14, 2022, and June 7, 2022. The Department reviewed these written 
recommendations, along with the minutes and transcripts from the 
related public meetings, in preparing the proposed regulations. The 
major comments received related to the Introductory section (see 
proposed 10.1) and the inventory update requirements in Subpart C--
Repatriation of human remains or cultural items by museums or Federal 
agencies (see proposed 10.10(d) and (e)). Additional recommendations by 
individual members of the Review Committee were also submitted. The 
Department, wherever possible, adjusted the proposed regulations to 
address the Review Committee recommendations.

IV. Overview of Major Proposed Changes

    The proposed revisions to these regulations would streamline 
requirements, clarify timelines and terms, reduce ambiguity, and 
improve efficiency in the systematic process for the disposition and 
repatriation of Native American human remains, funerary objects, sacred 
objects, and objects of cultural patrimony under the Act. The revisions 
being proposed today are intended to make the regulations more user-
friendly and would:
     Reduce the number of sections and remove duplicative 
language. Existing requirements are condensed into a clear, easy to 
follow, step-by-step process.
     Correct inaccuracies and ambiguities in the existing 
regulations by using consistent language and clearly defined terms.
     Create a consistent writing style with clear, concise 
headings that describe each specific regulatory step.
     Clarify when actions are required by lineal descendants, 
Indian Tribes, Native Hawaiian organizations, museums, and Federal 
agencies by using specific timelines and deadlines.
     Provide clear instructions to Indian Tribes, NHOs, 
museums, and Federal agencies for establishing cultural and 
geographical affiliation and resolving competing claims or requests.
    The proposed changes in Subpart B--Protection of Human Remains or 
Cultural Items on Federal or Tribal Lands would:
     Replace the requirement for Federal agencies to publish 
two notices in a newspaper of general circulation for human remains or 
cultural items removed from Federal lands with a requirement for 
Federal agencies to submit one notice to the Manager, National NAGPRA 
Program, for publication in the Federal Register.
     Require certain actions be taken by Indian Tribes, NHOs, 
and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for 
discoveries or excavations on Tribal lands, including responding to a 
discovery, certifying that an activity may resume, authorizing an 
excavation, and documenting in writing the disposition of human remains 
or cultural items.
     Require Federal agencies and DHHL on Federal lands in the 
United States and Tribal lands in Hawai`i to develop a plan of action 
or comprehensive agreement, in consultation with lineal descendants, 
Indian Tribes, and NHOs, that includes instructions for protecting, 
stabilizing, or covering human remains or cultural items in situ, if 
appropriate.
     Clarify that the jurisdiction of a Federal agency to issue 
a permit under Section 4 of the Archaeological Resources Protection Act 
(ARPA) for an excavation is no broader than it is under ARPA.
    The proposed changes in Subpart C--Museum or Federal Agency 
Holdings or Collections would:
     Remove the term ``culturally unidentifiable'' (i.e., when 
cultural affiliation cannot be determined for human remains) and 
integrate the concept of repatriation through geographic origin into 
the overall affiliation and inventory process.
     Require repatriation of associated funerary objects 
together with human remains to an Indian Tribe or NHO with cultural or 
geographical affiliation.
     Require updated inventories for human remains and 
associated funerary objects previously included in an inventory but not 
published in a notice of inventory completion. For the updated 
inventory, the proposed regulations would require a museum or Federal 
agency to initiate consultation, consult with requesting parties, and 
determine if there is a known lineal descendant or a connection between 
the human remains and associated funerary objects and Indian Tribes or 
NHOs with cultural or geographical affiliation.
     Require museums and Federal agencies to submit a notice of 
inventory completion within 6 months of completing or updating an 
inventory of human remains and associated funerary objects with a known 
lineal descendant or a connection to an Indian Tribe or NHO with 
cultural or geographical affiliation.
     Require museums and Federal agencies to send repatriation 
statements to the National NAGPRA Program. In the existing regulations, 
museums and Federal agencies are not required to report on any actions 
that occur after the publication of a notice. The proposed regulations 
would require both Federal agencies and museums to provide the Manager, 
National NAGPRA Program, with a copy of the written statement 
completing the repatriation, as recommended by the Government 
Accountability Office in a 2010 report on the implementation of the 
Act.
     Require museums to submit a statement describing holdings 
or collections in its custody to the responsible Federal agency, if 
known, and to the Manager, National NAGPRA Program. If a museum cannot 
identify a person, institution, state or local agency, or Federal 
agency that likely has possession or control of the holding or 
collection, it must submit a statement to the Manager, National NAGPRA 
Program. In the existing regulations, museums have no requirement to 
report on Federal holdings or collections. The proposed changes would 
align with the Department's response to the Government Accountability 
Office's 2010 report on the implementation of the Act.

[[Page 63207]]

V. Section-by-Section Summary of Proposed Changes

    Table 1 shows how the Department proposes to reorganize the 
existing regulatory requirements and summarizes the proposed changes.

                                      Table 1--Summary of Proposed Changes
----------------------------------------------------------------------------------------------------------------
                                                  Proposed 43
           Existing 43  CFR section               CFR section              Summary of proposed changes
----------------------------------------------------------------------------------------------------------------
10.1..........................................            10.1   Adds paragraphs on Accountability, Duty
10.15.........................................                   of care, Delivery of written documents, and
                                                                 Deadlines and timelines.
                                                                 Informs parties of the result in
                                                                 failing to claim or request human remains or
                                                                 cultural items prior to disposition or
                                                                 repatriation.
                                                                 Clarifies final agency action in a
                                                                 specific paragraph.
10.2..........................................            10.2   Revises definitions for consistency and
                                                                 to reduce ambiguities.
                                                                 Adds new terms to clarify requirements.
                                                                 Removes obsolete terms.
10.14.........................................            10.3   Implements Congressional intent by
                                                                 defining ``affiliation'' as a connection
                                                                 between human remains or cultural items and an
                                                                 Indian Tribe or NHO. Affiliation is established
                                                                 by identifying cultural or geographical
                                                                 affiliation.
                                                                 Adds new paragraphs to assist when
                                                                 there are multiple Indian Tribes or NHOs with
                                                                 affiliation.
10.2..........................................            10.4   Provides a general overview to the
10.3..........................................                   responsibilities of Indian Tribes, NHOs,
10.4..........................................                   Federal agencies, and DHHL under the Act.
10.5..........................................                   Outlines the requirements in three
                                                                 steps for a plan of action, developed in
                                                                 consultation with Indian Tribes and NHOs.
                                                                 Consolidates compliance options for
                                                                 land management activities that might result in
                                                                 a discovery or excavation of human remains or
                                                                 cultural items.
10.4..........................................            10.5   Reduces and streamlines requirements
                                                                 for discoveries.
                                                                 Provides a clear, documented process
                                                                 and timeline for resuming activities after a
                                                                 discovery.
10.3..........................................            10.6   Removes duplicative language and
10.5..........................................                   simplifies the excavation requirements.
                                                                 Clarifies and limits when a permit
                                                                 under Section 4 of ARPA is required.
10.6..........................................            10.7   Adds process for disposition to a
10.7..........................................                   lineal descendant and clarifies requirements
                                                                 for disposition on Tribal lands.
                                                                 Requires publication of notices in the
                                                                 Federal Register (rather than in newspapers) to
                                                                 improve the effectiveness of the notification
                                                                 and reduce burden on Indian Tribes and NHOs.
N/A...........................................            10.8   Provides a general overview to the
                                                                 responsibilities of museums and Federal
                                                                 agencies for holdings and collections subject
                                                                 to the Act.
                                                                 Requires museums to submit statements
                                                                 on holdings or collections in their custody but
                                                                 not in their possession or control one year
                                                                 after the effective date of the final rule.
10.8..........................................            10.9   Clarifies when and what actions are
10.9..........................................           10.10   required for repatriation of human remains or
10.10.........................................                   cultural items in a simple step-by-step
10.11.........................................                   process.
10.13.........................................                   Updates the deadlines for completing
                                                                 summaries and inventories to the effective date
                                                                 of the final rule.
                                                                 Integrates the timelines into the step-
                                                                 by-step process for any new holdings or
                                                                 collections, newly recognized Indian Tribes,
                                                                 new museums, or amendments to previous
                                                                 decisions.
                                                                 Establishes timelines, deadlines, and
                                                                 instructions for responding to requests for
                                                                 human remains or cultural items and completing
                                                                 repatriations.
10.11.........................................           10.10   Requires updated inventories two years
                                                                 after the effective date of the final rule and
                                                                 notices of inventory completion six months
                                                                 after updating or completing an inventory.
                                                                 Eliminates ``culturally
                                                                 unidentifiable'' when cultural affiliation
                                                                 cannot be determined.
                                                                 Requires repatriation of associated
                                                                 funerary objects with human remains that have a
                                                                 cultural or geographical affiliation.
10.12.........................................           10.11   Removes the limited definition of a
                                                                 failure to comply.
                                                                 Replaces the dual hearing process with
                                                                 a single hearing process to contest the failure
                                                                 to comply or the penalty assessment.
10.16.........................................           10.12   Consolidates and clarifies the
10.17.........................................                   responsibilities of and procedures for the
                                                                 Review Committee.
                                                                 Clarifies requirements and the process
                                                                 for informal dispute resolution through
                                                                 informal negotiations and request before the
                                                                 Review Committee.
----------------------------------------------------------------------------------------------------------------

A. Authority

    NAGPRA, 25 U.S.C. 3001 et seq., is the primary authority for the 
issuance of regulations implementing and interpreting the Act's 
provisions. The authority section continues to cite 25 U.S.C. 9 which 
authorizes the Secretary to make such regulations as he or she may 
think fit for carrying into effect the various provisions of any act 
relating to Indian affairs. Because the Act is Indian law (Yankton 
Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d 
1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations 
needed to implement it under the broad authority to supervise and 
manage Indian affairs given by Congress (United States v. Eberhardt, 
789 F.2d 1354, 1360 (9th Cir. 1986)). Although 43 CFR part 10 
previously cited one provision of the Archaeological Resources 
Protection Act (ARPA, 16 U.S.C. 470dd(2)) as an authority, the 
Department has determined that reliance on ARPA as authority for these 
regulations is unnecessary.

B. Section 10.1 Introduction

    This section of the proposed rule would reorganize for readability 
and restate in plain language the purpose and general requirements 
found in the existing regulations. In response to

[[Page 63208]]

consultation with Indian Tribes and NHOs, the Department proposes the 
purpose paragraph (see proposed Sec.  10.1(a)) recognize and ensure 
deference to the rights of lineal descendants, Indian Tribes, and NHOs, 
as provided under the Act. The Department is specifically seeking input 
during public comment on the proposed purpose paragraph.
    In the applicability paragraph (see proposed Sec.  10.1(b)), the 
Department proposes a revision to clarify that these regulations 
pertain to Native American human remains or cultural items and require 
certain actions for their protection in the event of a discovery or 
excavation on Federal or Tribal lands after November 16, 1990, and for 
their repatriation if in the possession or control of a museum or 
Federal agency. The Act does not provide express authority for applying 
the discovery and excavation provisions to land that does not meet the 
definition of Federal or Tribal lands (25 U.S.C. 3002). However, 
depending on other relevant state or local laws, human remains or 
cultural items discovered or excavated from private or state lands may 
be subject to the repatriation provisions under Subpart C.
    To further clarify the applicability of these regulations, the 
Department proposes to remove the existing paragraph Sec.  10.1(b)(2) 
to correct the misconception that human remains or cultural items must, 
themselves, be indigenous to Alaska, Hawai`i, and the continental 
United States. Under the Act, ``indigenous'' relates to the definition 
of ``Native American.'' Human remains or cultural items are ``Native 
American'' based on a relationship to a tribe, people, or culture that 
is indigenous to the United States.
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes new regulatory provisions to address accountability 
by museums and Federal agencies and to require a duty of care for human 
remains and cultural items (see proposed Sec.  10.1(c) and (d), 
respectively). The paragraph on duty of care was drawn from language in 
the existing regulations at Sec.  10.7(2) and (3) which includes a 
requirement for Federal agencies to consider and respect the traditions 
of potential claimants (i.e., Indian Tribes and NHOs) including, but 
not limited to, traditions regarding housing, maintenance, and 
preservation, to the maximum extent feasible (emphasis added). During 
consultation, many Indian Tribes and NHOs requested that ``to the 
maximum extent feasible'' be incorporated into the duty of care 
requirement. The Department proposes to use the phrase ``to the maximum 
extent possible'' in the duty of care requirement for both museums and 
Federal agencies. In addition, this phrase is used to describe 
implementation of a plan of action under Subpart B and in the 
definition of consultation and the related regulatory steps in both 
Subpart B and C. The Department intends this phrase, ``to the maximum 
extent possible,'' to mean museums and Federal agencies will make a 
reasonable effort to:
     seek consensus during consultation,
     provide appropriate treatment, care, or handling of human 
remains or cultural items, and
     incorporate identifications, recommendations, and Native 
American traditional knowledge (see definition below) in making 
determinations.
    Proposed Sec.  10.1(e) would: (1) consolidate and clarify those 
requirements governing the delivery of written documents that are 
currently dispersed throughout the existing regulations; and (2) 
provide for delivery of written documents by email with proof of 
receipt, and explicitly exclude delivery of written documents by text 
message or social media message.
    Proposed Sec.  10.1(f) would describe how deadlines and timelines 
for written documents are calculated based on business days, i.e., 
Monday through Friday, and that documents are deeded timely based on 
the sent date.
    The Department also proposes to relocate to this Introduction 
section existing regulatory provisions regarding (1) failure to make a 
claim or a request (see proposed Sec.  10.1(g)), (2) judicial 
jurisdiction (see proposed Sec.  10.1(h)), and (3) final agency action 
(see proposed Sec.  10.1(i)). Regarding final agency action, ``a final 
determination making the Act or this part inapplicable'' is intended to 
be construed broadly across the regulatory process, including some 
circumstances where a Federal agency's failure to comply with a 
regulatory requirement or deadline may demonstrate its determination 
that either the Act or this part is inapplicable. Regarding judicial 
jurisdiction (25 U.S.C. 3009(3)) nothing in the Act or these 
regulations is intended to abrogate any concurrent Tribal jurisdiction 
that may exist with respect to alleged violations of similar Tribal 
laws on Tribal lands.
    Table 2 shows how the Department proposes to reorganize the 
existing regulatory requirements.

                     Table 2--Cross-Reference of Existing Provisions to Proposed Sec.   10.1
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section                Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.1(a)..............................  Purpose................  10.1(a)................  Purpose.
10.1(b)..............................  Applicability..........  10.1(b)................  Applicability.
                                       New....................  10.1(c)................  Accountability.
10.7(b)..............................  (2) Care for and manage  10.1(d)................  Duty of care.
                                        . . ..
                                       New....................  10.1(e)................  Delivery of written
                                                                                          documents.
                                                                10.1(f)................  Deadlines and
                                                                                          timelines.
10.15(a).............................  Failure to claim prior
                                        to repatriation.
                                       (1) Any person who       10.1(g)................  Failure to make a claim
                                        fails to make a timely                            or a request.
                                        claim . . .
10.11(e).............................  Disputes...............  10.1(h)................  Judicial jurisdiction.
10.17(a).............................  Formal and informal
                                        resolutions.
10.15(c).............................  Exhaustion of remedies.  10.1(i)................  Final agency action.
10.1(c)..............................  The information          10.1(j)................  Information collection.
                                        collection
                                        requirements . . ..
10.15(a).............................  Failure to claim prior   .......................  Removed.
                                        to repatriation.
                                       (2) If there is more
                                        than one
                                       (1) claimant. . . .
10.15(d).............................  Savings provisions.....  .......................  Removed in part.
----------------------------------------------------------------------------------------------------------------


[[Page 63209]]

C. Section 10.2 Definitions for This Part

    This section of the proposed rule defines terms used throughout 
this part. The Department proposes to reorganize defined terms in 
alphabetical order and remove the paragraph designations in the 
existing regulations at Sec.  10.2 in conformance with the Federal 
Register Document Drafting Handbook.
    The Department does not propose any substantive changes to the 
following 10 definitions: Act, discovery (replaces ``inadvertent 
discovery''), excavation (replaces ``intentional excavation''), Federal 
agency, Manager, National NAGPRA Program, museum, person, Review 
Committee, Secretary, and summary. The Department proposes to remove 
the following seven definitions that are no longer used in the proposed 
regulations: burial site, cultural affiliation (see affiliation), 
culturally unidentifiable, Federal agency official, Indian Tribe 
official, museum official, and Native Hawaiian (see Native Hawaiian 
organization).
    Table 3 shows how the Department proposes to add, replace, or 
revise terms for consistency, to reduce ambiguities, and to clarify 
requirements throughout this part. Except as noted in the table, all 
terms are explained in the immediate section below.

                           Table 3--Changes to Existing Terms in Proposed Sec.   10.2
----------------------------------------------------------------------------------------------------------------
                   Change                                                Defined term
----------------------------------------------------------------------------------------------------------------
New terms...................................  acknowledged aboriginal land.
                                              adjudicated aboriginal land.
                                              affiliation.
                                              ahupua`a.
                                              appropriate official *.
                                              ARPA *.
                                              ARPA Indian lands *.
                                              ARPA Public lands *.
                                              consultation.
                                              cultural item.
                                              custody.
                                              holding or collection.
                                              Indian Tribe (previously reserved).
                                              Native American traditional knowledge.
                                              `ohana.
                                              right of possession.
                                              Tribal lands of an NHO.
                                              United States.
Replace terms...............................  ``disposition'' and ``repatriation'' replace ``disposition''.
                                              ``possession or control'' replaces ``possession'' and ``control''.
Revise existing terms.......................  Federal lands.
                                              funerary object.
                                              human remains.
                                              inventory.
                                              lineal descendant.
                                              Native American.
                                              Native Hawaiian organization.
                                              object of cultural patrimony.
                                              receives Federal funds.
                                              sacred object.
                                              traditional religious leader.
                                              Tribal lands.
                                              unclaimed cultural item.
----------------------------------------------------------------------------------------------------------------
* See proposed Sec.   10.4 and Sec.   10.6 and related preamble section.

1. ``Acknowledged Aboriginal Land'' and ``Adjudicated Aboriginal Land''
    The Department proposes to add two new terms to replace 
``aboriginal lands'' and ``aboriginal occupation,'' which are not 
defined but are used in the existing regulations Sec. Sec.  10.6 and 
10.11. The new terms, ``acknowledged aboriginal land'' and 
``adjudicated aboriginal land,'' would contain the same requirements 
for ``aboriginal lands'' and ``aboriginal occupation,'' found in the 
existing regulations at Sec. Sec.  10.6(a)(2)(iii)(A) and 
10.11(b)(2)(ii) and (c)(1)(ii), but the new definitions would 
distinguish and clarify how to apply the terms.
    For ``acknowledged aboriginal land,'' the definition would 
elaborate on which treaties may be used to identify aboriginal land and 
would add other Federal, foreign, or intertribal government documents 
to the list of acceptable sources. Some examples of other Federal 
documents that provide information on aboriginal occupation by an 
Indian Tribe are ``Report to the President by the Indian Peace 
Commission, 1868,'' ``Annual Reports of the Commissioner on Indian 
Affairs,'' and ``Alaska Natives and the Land'' (by the Federal Field 
Committee for Development Planning in Alaska, October 1968). A source 
for identifying intertribal treaties, diplomatic agreements, and 
bilateral accords is David H. DeJong's book ``American Indian 
Treaties,'' which identifies 63 intertribal treaties, dating between 
1666 and 1903. The Department has intentionally declined to require 
that intertribal treaties, diplomatic agreements, or bilateral accords 
be in writing in recognition of traditional forms of documentation, 
such as two-row wampum belts.
    For ``adjudicated aboriginal land,'' the definition is drawn from 
the Act (25 U.S.C. 3002(a)(2)(C)) and clarified, based on Sections 15 
and 22 of the Indian Claims Commission Act of 1946 (Pub. L. 79-726, 60 
Stat. 1049), that a final judgment also includes a judgment concerning 
a settlement (compromise of claim) if that judgment or settlement 
either explicitly recognizes certain land

[[Page 63210]]

as the aboriginal land of an Indian Tribe or adopts findings of fact 
that do so.
2. ``Affiliation''
    The Department proposes a new term, ``affiliation,'' and to remove 
the existing definitions of ``cultural affiliation'' and ``culturally 
unidentifiable.'' This change reflects Congressional intent and focus 
on affiliation for the sole purpose of disposition or repatriation. In 
defining affiliation, Congress ``intended to ensure that the claimant 
has a reasonable connection with the materials'' (H. Rep. 101-877, at 
14, and S. Rep. 101-473, at 6). Identifying ``cultural affiliation'' 
has been a significant barrier to disposition and repatriation under 
the Act, despite the clear intent of Congress that it be used for no 
other purpose than to ensure a reasonable connection between the human 
remains and cultural items and an Indian Tribe or NHO. Defining 
``affiliation'' in these regulations without the qualifier of 
``cultural'' better aligns with Congressional intent, and addresses 
concerns raised during consultation with Indian Tribes and NHOs about 
implementing the term ``geographical affiliation'' separately from 
cultural affiliation. In response to consultation with Indian Tribes 
and NHOs, we have combined cultural and geographical affiliation into 
this definition and the section on affiliation. The definition of 
``cultural affiliation'' from the Act and the existing regulations, the 
lines of information, and the use of geographic relationships 
consistent with the existing regulation are all incorporated into the 
regulatory process by which ``affiliation'' is established in the 
proposed text at Sec.  10.3.
3. ``Ahupua`a''
    The Department proposes to add a new term, ``ahupua`a,'' to use 
when determining the Native Hawaiian organization with the closest 
affiliation to human remains or cultural items. While the term serves a 
geographic purpose, identifying a traditional land division, an 
ahupua`a may also be associated with various traditional and customary 
practices in addition to habitation and provides important cultural 
connections between its earlier occupants or traditional users and 
Native Hawaiian organizations. Traditionally, the occupants of an 
ahupua`a are its primary stewards.
4. ``Consultation''
    The Department proposes to add a new term, ``consultation,'' using 
language provided by Congress (H. Rep. 101-877, at 16). In response to 
consultation with Indian Tribes and NHOs, the Department proposes to 
require that consultation seek consensus and incorporate 
identifications, recommendations, and Native American traditional 
knowledge, to the maximum extent possible.
5. ``Cultural Item''
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to add a new term, ``cultural item,'' and 
specifically exclude human remains from that definition. Although 
Congress included human remains in defining cultural items (25 U.S.C. 
3001(3)), the Department proposes throughout these regulations to use 
the phrase ``human remains or cultural items'' rather than ``cultural 
items.'' This edit is responsive to requests from some Indian Tribes 
and NHOs who oppose any language that identifies people as items since 
this can be seen as objectifying and dehumanizing. This edit does not 
have any impact on the applicability or scope of these regulations.
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to add to the definition of cultural items (and to 
subsequent specific definitions of cultural items) that identification 
of cultural items is according to a lineal descendant, Indian Tribe, or 
NHO based on customs, traditions, or Native American traditional 
knowledge. In the Act, the identification of cultural items is 
dependent upon consultation with lineal descendants, Indian Tribes, and 
NHOs. By adding this phrase to the definition of cultural items, the 
Department seeks to emphasize that consultation, which is required 
throughout the proposed regulation, is how a lineal descendant, Indian 
Tribe, or NHO shares the information needed to identify a cultural 
item.
    The Act was enacted for the benefit of Indians, therefore the 
canons of construction for Indian law applies. The Act and these 
regulations ``are to be construed liberally in favor of the Indians, 
with ambiguous provisions interpreted to their benefit'' (Yankton Sioux 
Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d 1047, 
1056 (D.S.D. 2000)). Consistent with this principle, the Department 
proposes to require deference to lineal descendants, Indian Tribes, and 
NHOs throughout the regulations, but specifically for identification of 
cultural items. Legislative intent on the definition of cultural item, 
generally, and to each definition specifically, is clear. ``The 
Committee has made every effort to incorporate the comments and address 
the concerns of members of the scientific and museum communities with 
regard to the substantive definitions set forth in the Act, while at 
the same time recognizing that there are over 200 tribes and 200 Alaska 
Native villages and Native Hawaiian communities, each with distinct 
cultures and traditional and religious practices that are unique to 
each community. Accordingly, the definitions of sacred objects, 
funerary objects, and items of cultural patrimony will vary according 
to the tribe, village, or Native Hawaiian community.'' (Senate Rpt. 
101-473, page 4).
6. ``Custody''
    The Department proposes to add a new term, ``custody,'' that would 
indicate an obligation for human remains or cultural items that is less 
than ``possession or control.'' See discussion of ``possession or 
control'' below. This newly defined term does not have the same meaning 
as the general meaning given to the same word used throughout the 
existing regulations, especially at Sec.  10.6.
7. ``Disposition''
    The Department proposes to replace the term ``disposition'' in the 
existing regulations at Sec.  10.2(g)(5) with two separate terms: 
``disposition'' and ``repatriation.'' In the proposed revision, 
``disposition'' applies only to Subpart B. The proposed revision to 
``disposition'' would denote that an Indian Tribe, NHO, Federal agency, 
or DHHL acknowledges and recognizes that a lineal descendant, Indian 
Tribe, or NHO has control or ownership of human remains or cultural 
items removed from Federal or Tribal lands. Although the phrase, 
control or ownership, is not defined in the Act or the proposed 
regulations, it is used to refer to the rights of lineal descendants, 
Indian Tribes, and NHOs in Native American human remains or cultural 
items as acknowledged and recognized by the Act. The phrase, control or 
ownership, is used to differentiate ``disposition'' and 
``repatriation'' from terms used in other sections of the Act, such as 
the ``right of possession,'' which a museum or Federal agency may use 
to assert its lawful control or ownership, or ``possession or 
control,'' which is an element of applicability under the Act that 
itself does not determine control or ownership or a right of 
possession. In describing disposition, the Act uses the terms 
``ownership,'' ``control,'' ``right of control,'' and ``title to'' (25 
U.S.C. 3002). Of these terms, the phrase, control or ownership, is the 
most appropriate to apply to human remains as well as cultural items 
that may be subject to

[[Page 63211]]

disposition and describes the existing rights of lineal descendants, 
Indian Tribes, and NHOs more accurately. The phrase, control or 
ownership, is intended to indicate that, as in the Act, human remains 
or cultural items removed from Federal or Tribal lands belong, in the 
first instance, to lineal descendants, Indian Tribes, and NHOs and not 
to the Federal agency.
8. ``Federal Land''
    The Department proposes to revise the term ``Federal land'' to 
clarify the lands on which Federal programs or activities may be 
subject to the Act. As in the existing regulations, ``Federal land'' 
includes lands not just owned by the United States Government, but also 
lands under its control. (Note that the general term ``control'' as 
used in this discussion of Federal land is not the same as the defined 
term ``possession or control'' as used in the Act). Whether Federal 
control of the lands on which it conducts its programs or activities is 
sufficient to apply these regulations depends on the circumstances and 
scope of the Federal agency's authority, and on the nature of State and 
local jurisdiction. Because of the wide array of agency-specific 
authorities that can establish federally controlled lands, the Federal 
agency officials must make such determinations on a case-by-case basis 
and, in doing so, should consult with their legal counsel.
    While Federal agency officials must ultimately make their own 
determinations as to the lands under the control of their agency, the 
drafters note that, in general, a Federal agency will only have 
sufficient legal interest to ``control'' lands it does not own when it 
has sufficient statutory jurisdiction with respect to those lands or 
other form of property interest in the land, such as a lease, easement, 
or other agreement with terms that have indicia of control. See Yankton 
Sioux Tribe v. United States Army Corps of Eng'rs, 396 F. Supp 2d 1087 
(D.S.D. 2005); Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912 (D.C. 
Cir. 2003) (the Act still applied to lands transferred by the U.S. Army 
Corps of Engineers to South Dakota pursuant to the Water Resources 
Development Act due to a specific statutory provision applicable to 
those transferred lands). Where two or more Federal agencies share 
regulatory or management jurisdiction over federally owned or 
controlled lands, the Federal agency with primary management authority 
will generally have ``control'' for purposes of implementing these 
regulations.
    On the other hand, the drafters note that Federal agency 
participation in a regulatory or supervisory capacity does not 
necessarily rise to the level of Federal ``control.'' See, e.g., Castro 
Romero v. Becken, 256 F.3d 349 (5th Cir. 2001) (claims for violations 
of the Act with regard to human remains found on municipal land could 
not be upheld, even though a Federal agency was involved in the project 
in a supervisory role); Western Mohegan Tribe and Nation of New York v. 
New York, 100 F. Supp. 2d 122, (N.D.N.Y. 2000), aff'd in part, vacated 
in part on other grounds 246 F.3d 230 (2nd Cir. 2001) (``Plaintiffs' 
broad reading of the statute is inconsistent with the Act's plain 
meaning and its legislative history where the language `Federal lands' 
denotes a level of dominion commonly associated with ownership, not 
funding pursuant to statutory obligations or regulatory permits.''). 
For example, the fact that a Federal permit is required to undertake an 
activity on non-Federal land generally is not sufficient legal interest 
in and of itself to ``control'' the land within the meaning of the Act 
and this proposed rule.
    Indian lands outside reservation boundaries that are held in trust 
by the United States Government or are held by an Indian landowner 
subject to restrictions on alienation imposed by the United States 
Government, such as allotments, are subject to Federal control and are 
treated as Federal lands under these regulations. The control of the 
United States Government over Indian land is the same whether it is in 
trust or restricted status and whether it is within the exterior 
boundaries of a reservation or not. United States v. Ramsey, 271 U.S. 
467, 471-72 (1926). See also Cohen's Handbook of Federal Indian Law 
Sec.  16.03[1], at 1071 (Nell Jessup Newton ed., 2012). Since 
Congress's control is virtually the same for trust allotments and off-
reservation allotted lands with Federal restraints on encumbrance and 
alienation (restricted fee allotments), then Federal control of such 
lands as a matter of law meets the Western Mohegan standard noted 
above. The treatment of off-reservation Indian land as ``Federal land'' 
for purposes of the Act is consistent with the current practice of the 
Bureau of Indian Affairs.
9. ``Funerary Object''
    The Department proposes to revise the term ``funerary object'' and 
align it with the definitions in the Act for ``associated funerary 
object'' and ``unassociated funerary object.'' The portion of the 
statutory definition that is the same between the two terms has been 
used to define ``funerary object.'' As defined in the Act, the only 
difference between the definition for associated and unassociated 
funerary objects is the location of the related human remains. A single 
object may be a funerary object if the object is identified as having 
been placed with or near human remains. Therefore, determining if the 
funerary object is associated or unassociated does not require 
identifying the specific individual with which the object was placed, 
but rather, only requires identifying the location of the related human 
remains.
    For example, an authorized excavation in 1940 removed a Native 
American object from what was thought to be a village site dating 
between 2000 BCE to 500 CE. The object dates to the late pre-contact 
period, likely between 1500-1580 CE, based on materials and form. 
Fragmentary human remains were identified during the excavation and 
noted in field notes, but no human remains were removed. Based on 
information available including the results of consultation, it is 
reasonable to believe the object was placed intentionally in this 
location because of the human remains, but it is also reasonable to 
believe the object was placed there many centuries after the human 
remains. Nevertheless, the object meets the definition of a funerary 
object since it was intentionally placed near human remains.
    The funerary object does not, however, meet the definition of an 
associated funerary object. Human remains were identified, but no human 
remains were removed during the excavation. In the information 
available, there is no record of human remains being removed from the 
site at any other time. Through consultation with Indian Tribes, the 
funerary object was not identified as being the kind of object made 
exclusively for burial purposes or to contain human remains.
    When a funerary object is not an associated funerary object, it may 
be an unassociated funerary object if it meets one or more of the 
criteria in the definition (see proposed Sec.  10.2 Funerary object 
(2)). The funerary object is not related to specific individuals or 
families (see proposed Sec.  10.2 Funerary object (2)(ii)). The 
funerary object was not removed from a specific burial site or an area 
known to be a burial site (see proposed Sec.  10.2 Funerary object 
(2)(iii) and (iv)). However, the funerary object is related to known 
human remains (identified in the field notes), but those human remains 
were not removed from the site (see proposed Sec.  10.2 Funerary object 
(2)(i)). Therefore, the funerary object meets the definition of an 
unassociated funerary object.

[[Page 63212]]

    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to add to the definition of funerary object (and to 
all specific definitions of cultural items) that identification of a 
funerary object is according to a lineal descendant, Indian Tribe, or 
NHO based on customs, traditions, or Native American traditional 
knowledge. In the Act, the identification of a funerary object is 
dependent upon consultation with lineal descendants, Indian Tribes, and 
NHOs. By adding this phrase to the definition of a funerary object, the 
Department seeks to emphasize that consultation, which is required 
throughout the proposed regulation, is how a lineal descendant, Indian 
Tribe, or NHO shares the information needed to identify a funerary 
object.
10. ``Holding or Collection''
    The Department proposes to add a new term ``holding or collection'' 
which is not defined in the Act. The proposed definition is drawn from 
dictionary definitions as well as the International Council of Museums' 
2007 definition. Merriam-Webster Dictionary defines ``collection'' as 
``something collected; especially: an accumulation of objects gathered 
for study, comparison, or exhibition . . .'' and defines ``holding'' as 
``any property that is owned or possessed . . .'' The International 
Council of Museums' 2007 definition of a museum is an institution 
``which acquires, conserves, researches, communicates and exhibits . . 
. for the purposes of education, study, and enjoyment.'' Additional 
purposes in this definition are taken from Unit 34 of ``Museum Basics'' 
(1993) by Timothy Ambrose, which lists different types of museum 
collections. In response to consultation with Indian Tribes and NHOs, 
we have refrained from using offensive purposes listed in some of these 
sources such as ``enjoyment'' or ``personal benefit.'' While the 
proposed definition includes a wide variety of purposes, a holding or 
collection under this proposed rule would not be limited to only these 
purposes.
11. ``Human Remains''
    The Department proposes to revise the term ``human remains'' to 
clarify what is and what is not considered human remains for purposes 
of disposition and repatriation. The proposed revision is based on the 
explanation provided in the preamble to the 1995 final rule (60 FR 
62137, December 4, 1995). The explanation noted that the Act makes no 
distinction between fully articulated burials and isolated bones and 
teeth. The preamble then stated that the final rule added language 
excluding ``naturally shed'' human remains from consideration under the 
Act. The preamble clarified that this exclusion does not include human 
remains for which there is evidence of purposeful disposal or 
deposition. The preamble then addressed a question asked by a commenter 
who sought clarification on the status of human remains that were not 
freely given but had been incorporated into objects that are not 
cultural items as defined in the regulations. The preamble explained 
that the legislative history does not address this question and 
therefore the proper disposition of such human remains must be 
determined on a case-by-case basis.
    Consistent with the advice in 1995, identification of human remains 
must be made on a case-by-case basis. The Act requires identification 
of all human remains in a holding or collection, including human 
remains reasonably believed to be comingled with other material (such 
as soil or faunal remains). During consultation with lineal 
descendants, Indian Tribes, and NHOs, museums and Federal agencies 
should evaluate if an entire admixture can be treated as human remains. 
If such a request is made during consultation, but it is not possible 
to treat the admixture as human remains, the record of consultation 
should include the effort to identify a mutually agreeable alternative. 
The proposed definition provides two ways human remains may be 
incorporated into an object or item. For example, depending on the 
results of consultation, a scalp shirt with human remains or a flute 
made with human remains that is not a funerary object, a sacred object, 
or an object of cultural patrimony would be considered human remains 
and subject to disposition or repatriation under the Act and the 
proposed regulations. Human remains that are incorporated into a 
funerary object, sacred object, or object of cultural patrimony would 
not be treated as human remains, but as a cultural item and subject to 
disposition or repatriation under the Act and the proposed regulations.
12. ``Indian Tribe''
    The Department proposes to add a definition for the term ``Indian 
Tribe,'' currently reserved in the existing regulations at Sec.  
10.2(b)(2). The list of federally recognized Indian Tribes is the list 
of Indian Tribes for the purposes of NAGPRA. Throughout the proposed 
rule, the term is used in the singular form, but it is expected that 
multiple Indian Tribes may meet the criteria under this part for 
disposition or repatriation of the same human remains or cultural 
items. Any Indian Tribe with cultural or geographical affiliation may 
submit a claim for disposition or a request for repatriation. Two or 
more Indian Tribes may agree to joint disposition or joint repatriation 
of human remains or cultural items. Claims or requests for joint 
disposition or joint repatriation should be considered a single claim 
or request and not competing claims or requests.
13. ``Inventory''
    The Department proposes to revise the term ``inventory'' to 
accurately reflect the content as required by the Act. In response to 
consultation with Indian Tribes and NHOs, the Department is aware that 
the existing regulatory definition has been a barrier to expeditious 
repatriation as it requires an ``item-by-item description.'' In the 
Act, an inventory is defined as a ``simple itemized list.'' The 
proposed revision to the definition uses the exact language from the 
Act and includes the information required to be included in an 
inventory.
14. ``Lineal Descendant''
    The Department proposes to revise the definition and remove the 
criteria for determining lineal descent in the existing regulations at 
Sec. Sec.  10.2(b)(2) and 10.14(b). The term ``lineal descendant'' is 
not defined in the Act. The revised definition would allow for 
disposition or repatriation of human remains and associated funerary 
objects to a ``lineal descendant'' in the following cases:
     The identity of a particular deceased individual is known, 
and a specific living person is known to be the direct descendant of 
the deceased individual. For example, the human remains are of the 
great-great-grandfather of the living great-great-granddaughter.
     The identity of each deceased individual in a group of 
human remains is not known, but a specific living person is known to be 
the direct descendant of all the deceased individuals in the group. For 
example, all that is known is that the human remains of multiple 
individuals are the great-great-grandfather, great-grandfather, father, 
and maternal uncle of a specific living person, who is the direct 
descendant of them all under a traditional system of descent.
    Throughout the proposed rule, the term is used in the singular 
form, but it is expected that multiple lineal descendants may meet the 
criteria under this part for disposition or repatriation of the same 
human remains, funerary

[[Page 63213]]

objects, or sacred objects. Any lineal descendant may submit a claim 
for disposition or a request for repatriation for human remains, 
funerary objects, or sacred objects. Two or more lineal descendants may 
agree to joint disposition or joint repatriation of human remains, 
funerary objects, or sacred objects. Claims or requests for joint 
disposition or joint repatriation should be considered a single claim 
or request and not competing claims or requests.
15. ``Museum''
    The Department proposes a slight addition to the term ``museum'' to 
clarify that, consistent with the Act, the term does not include the 
Smithsonian Institution. Also consistent with the Act, the term 
``museum'' includes State or local government agencies, including 
subdivisions of State or local government agencies. Consequently, any 
of the following examples may be a museum under the Act and the 
proposed regulations if they meet all the criteria of the definition: a 
county coroner's office, a city medical examiner's office, a State 
police department or local post, a city library, or a city water 
authority.
16. ``Native American''
    The Department proposes to revise and clarify the existing 
definition of ``Native American.'' The Act applies to human remains or 
cultural items that meet the definition of ``Native American.'' 
``Native American'' human remains or cultural items are not only items 
of a tribe, people, or culture that is indigenous to the United States, 
but are also items that are related to such tribe, people, or culture. 
Because Congress did not define ``tribe,'' ``people,'' or ``culture,'' 
the proposed definition of the term ``Native American'' incorporates 
statutory and dictionary definitions to better clarify these terms.
17. ``Native American Traditional Knowledge''
    The Department proposes to add a new term, ``Native American 
traditional knowledge,'' for use in the definition of ``consultation'' 
and ``cultural item'' as well as definitions of specific kinds of 
cultural items. In response to consultation with Indian Tribes and 
NHOs, this definition is a variation on what was suggested by a 
specific Indian Tribe, but this term is rooted in the larger concept of 
indigenous ways of knowing. The proposed definition attempts to cover 
the wide variety of terminology related to this concept while remaining 
consistent with the disposition and repatriation process under the Act. 
The Department recognizes that there is different terminology used by 
and among Native American people that incorporates this concept. 
Additionally, the concept of traditional knowledge is recognized by a 
number of Federal agencies in the context of land management activities 
and the use of natural or cultural resources. In these contexts, it is 
often referred to as traditional ecological knowledge or TEK. It may 
also be referred to as indigenous knowledge or traditional cultural 
knowledge. For the limited purposes of these regulations, the term 
``Native American traditional knowledge'' is inclusive of all these 
terms and may provide information needed to identify affiliation 
(either cultural or geographical), funerary objects, lineal 
descendants, objects of cultural patrimony, and sacred objects. We 
welcome additional input on the specifics in this definition as well as 
its use in the regulatory text.
18. ``Native Hawaiian Organization''
    The Department proposes to revise the term ``Native Hawaiian 
organization'' (NHO) by incorporating the definition of ``Native 
Hawaiian'' from the Act. While the Act uses the phrase ``aboriginal 
people'' to define Native Hawaiian, the proposed regulations use the 
phrase ``indigenous people'' to better relate to the definition of 
Native American and distinguish from the use of aboriginal elsewhere in 
the Act and regulations referring to land. The proposed definition 
would include those entities that the Secretary, through the Office of 
Native Hawaiian Relations, has identified on the most current Native 
Hawaiian Organization Notification List. The Department also proposes 
to include in the definition of NHO the Hawaiian Homes Commission Act 
(HHCA) Beneficiary Associations and Homestead Associations. Although 
the Act names Hui Malama I Na Kupuna O Hawai`i Nei as a Native Hawaiian 
organization, that group ceased to exist in 2015, so the proposed 
definition does not include it.
    Throughout the proposed rule, ``Native Hawaiian organization'' is 
used in the singular form, but it is expected that multiple NHOs may 
meet the criteria under this part for disposition or repatriation of 
the same human remains or cultural items. Any NHO with affiliation may 
submit a claim for disposition or a request for repatriation under the 
proposed rule. Two or more NHOs may agree to joint disposition or joint 
repatriation of human remains or cultural items. Claims or requests for 
joint disposition or joint repatriation would be considered a single 
request and not competing claims or requests.
19. ``Object of Cultural Patrimony''
    The Department proposes to revise the definition of ``object of 
cultural patrimony'' to clarify what a Native American group or culture 
is for purposes of the definition. In response to consultation with 
Indian Tribes and NHOs and a specific suggestion from an Indian Tribe, 
the Department also proposes to add a sentence to recognize that a 
caretaker may have been entrusted with responsibility for an object and 
may have even conferred that responsibility on another caretaker, but 
the object can still be an object of cultural patrimony. In response to 
consultation with Indian Tribes and NHOs, the Department proposes to 
add to the definition (and to all specific definitions of cultural 
items) that identification of an object of cultural patrimony is 
according to an Indian Tribe or NHO based on customs, traditions, or 
Native American traditional knowledge. In the Act, the identification 
of an object of cultural patrimony is dependent upon consultation with 
lineal descendants, Indian Tribes, and NHOs. By adding this phrase to 
the definition of an object of cultural patrimony, the Department seeks 
to emphasize that consultation, which is required throughout the 
proposed regulation, is how an Indian Tribe or NHO shares the 
information needed to identify an object of cultural patrimony.
20. `` `Ohana''
    To emphasize the importance of the familial or kinship relationship 
in Hawai`i, the Department proposes to add a new term `` `ohana,'' used 
in the definition of ``Native Hawaiian organization'' and in 
determining the NHO with the closest affiliation.
21. ``Possession or Control''
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to replace the two separate terms in the existing 
regulations ``possession'' and ``control'' into one term, as used in 
the Act, ``possession or control.'' Congress used these two words as a 
single term throughout the Act except for ``right of possession'' 
(discussed later). The phrase ``possession or control'' as used in the 
Act connotes a singular interest in human remains or cultural items and 
utilizes the two elements of the phrase only to address the physical 
location of the human remains or cultural items. In the Act, having 
possession or control means a museum or Federal agency may

[[Page 63214]]

make decisions about human remains or cultural items without having to 
request permission from some other entity or person (an interest). This 
interest is present regardless of the physical location of the human 
remains or cultural items. For a similar example, a person has the same 
interest in property that is in the person's home as in property that 
same person keeps in an offsite storage unit. The person can make 
decisions about the property in the storage unit without having to 
request permission from the storage facility. Regardless of the 
physical location of the property, the person's interest in the 
property is the same whether it is in their home or in the custody of 
the storage facility.
    The Department also proposes to define a separate term, 
``custody,'' that would indicate an obligation that is less than 
``possession or control.'' Whether a Federal agency or museum has a 
sufficient interest in human remains or cultural items to establish 
possession or control is a legal determination that must be made on a 
case-by-case basis. However, when a museum with custody of human 
remains or cultural items cannot identify any person, institution, 
State or local government agency, or Federal agency with possession or 
control, the museum should presume it has possession or control for 
purposes of repatriation under the Act. When a Federal agency cannot 
determine if human remains or cultural items came into its possession 
or control before or after November 16, 1990, or cannot identify the 
type of land the human remains or cultural items were removed from, the 
Federal agency should presume it has possession or control for purposes 
of repatriation under the Act. This determination alone does not create 
any legal rights or indicate that a museum or Federal agency has a 
``right of possession'' to human remains or cultural items; it is 
merely a jurisdictional requirement for application of the Act to human 
remains or cultural items subject to repatriation by the appropriate 
museum or Federal agency.
    The Department received several comments through consultation with 
Indian Tribes and NHOs requesting that it expand the scope of the term 
``possession or control'' to include both those entities that have 
possession or control as defined in the existing regulations and those 
entities that merely have custody as defined in this proposed rule. In 
some cases, this request would make multiple entities concurrently 
responsible for fulfilling the Act's inventory, summary, and 
repatriation processes. The Department has declined to make this change 
as such an interpretation is inconsistent with the framework and 
legislative history of the Act. Congress provided no indication in the 
Act or its legislative history that such an expansive interpretation 
was its intent, and various features of the Act, including civil 
penalties, right of possession, and museum obligations, presume that a 
single museum or Federal agency would be responsible for compliance 
with the Act. However, the Department acknowledges the underlying 
intent of this request to ensure repatriation of all holdings or 
collections subject to the Act and has proposed other revisions that 
seek to address this issue by directing museums and Federal agencies to 
share greater information and increase efforts to complete inventories, 
summaries, and repatriation of human remains and cultural items in the 
custody of other entities.
22. ``Receives Federal Funds''
    The Department proposes to revise the term ``receives Federal 
funds'' to clarify that any recipient of Federal financial assistance 
would be deemed to receive Federal funds under this part. The 
definition is drawn from the interpretation of comparable terms from 
the Rehabilitation Act of 1973, Title IX of the Education Amendments of 
1972, as amended, implementing regulations, and OMB's Requirements, 
Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 
200). The ``Receives Federal funds'' requirement may be satisfied by 
direct or indirect receipt of funds from the Federal government. 
Satisfaction of the requirement through indirect funding is permissible 
and consistent with the Supreme Court's decision in Grove City College 
v. Bell, 465 U.S. 555 (1982).
    For example, an educational institution that accepts no direct 
Federal financial assistance is deemed to receive Federal financial 
assistance when it enrolls students who receive Federal grants that 
must be used for educational purposes (34 CFR part 106). A Tribal 
museum receives Federal funds for purposes of repatriation if the 
Indian Tribe of which the museum is a part receives Federal financial 
assistance. A county library receives Federal funds for purposes of 
repatriation if its State government or other agency provides a 
subaward to the library as part of a Federal grant or award. The term 
also underscores that the U.S. Government's payments that are 
compensatory, such as payments in lieu of taxes paid under the Payments 
in Lieu of Taxes Act, as amended (31 U.S.C. 6901 et seq.) are not 
considered Federal financial assistance (and see McMullen v. Wakulla 
County Board of County Commissioners, 650 Fed. Appx. 703 (11th Cir. 
2016)).
23. ``Repatriation''
    The Department proposes to replace the term ``disposition'' in the 
existing regulations at Sec.  10.2(g)(5) with two separate terms: 
``disposition'' and ``repatriation'' used consistently throughout the 
regulations. In the proposed revision, ``repatriation'' applies only to 
Subpart C and has been incorporated into the title of that subpart. The 
proposed revision would denote that a museum or Federal agency 
acknowledges and recognizes that a lineal descendant, Indian Tribe, or 
NHO has control or ownership of human remains or cultural items in a 
holding or collection. Although the phrase, control or ownership, is 
not defined in the Act or the regulations, it is used to refer to the 
rights of lineal descendants, Indian Tribes, and NHOs in Native 
American human remains or cultural items acknowledged and recognized by 
the Act. The phrase, control or ownership, is used to differentiate 
``disposition'' and ``repatriation'' from terms used in other sections 
of the Act, such as the ``right of possession,'' which a museum or 
Federal agency may use to assert its lawful control or ownership, or 
``possession or control,'' which is an element of applicability under 
the Act that itself does not determine control or ownership or a right 
of possession. In describing repatriation, the Act uses the terms 
``return,'' ``owned,'' and ``owned or controlled'' (25 U.S.C. 3005). Of 
these terms, the phrase, control or ownership, is the most appropriate 
to apply to human remains as well as cultural items that may be subject 
to repatriation and describes the existing rights of lineal 
descendants, Indian Tribes, and NHOs more accurately. The phrase, 
control or ownership, is intended to indicate that, as in the Act, 
human remains and cultural items in holdings or collections belong, in 
the first instance, to lineal descendants, Indian Tribes, and NHOs and 
not to the museum or Federal agency unless the museum or Federal agency 
is able to prove a ``right of possession.'' By using ``right of 
possession'' as a standard of repatriation, the Act establishes that 
museums and Federal agencies do not have a rightful legal interest in 
human remains or cultural items unless the museum or Federal agency can 
prove an authoritative transfer of that ``right of possession.''
24. ``Right of Possession''
    The Department proposes a new defined term ``right of possession'' 
by

[[Page 63215]]

moving the text from the existing regulations at Sec.  10.10(a)(2). The 
Act recognizes a ``right of possession'' to cultural items; however, 
Congress acknowledged that this right is qualified with respect to 
human remains and associated funerary objects. The Act utilizes the 
concept of right of possession first as a defense against criminal 
sanctions for the sale, purchase, use, or transport for profit of human 
remains (18 U.S.C. 1170); and again, where museums and Federal agencies 
are permitted to assert a right of possession to unassociated funerary 
objects, sacred objects, and objects of cultural patrimony with 
evidence (25 U.S.C. 3005).
    Congress did not provide a process for a museum or Federal agency 
to assert a right of possession to human remains and associated 
funerary objects. This approach is consistent with Congress' intent to 
distinguish human remains and associated funerary objects from cultural 
items as quasi-property. Applicable common law in the United States 
generally accepts that human remains and associated burial items cannot 
be ``owned'' in the same manner as conventional property. The Act (25 
U.S.C. 3001 (13)) follows the common law by distinguishing between the 
property attributes of Native American unassociated funerary objects, 
sacred objects, or objects of cultural patrimony, and the quasi-
property attributes of Native American human remains and associated 
funerary objects.
    Congress acknowledged that the right of possession to unassociated 
funerary objects, sacred objects, or object of cultural patrimony, as 
defined in the Act, may be subject to a Fifth Amendment takings 
analysis, and that these objects may potentially be considered 
property. A right of possession for prehistoric cultural items fitting 
these categories might be shown through a written authorization from a 
competent authority to excavate, remove, and curate such items from a 
particular area or site. Although Congress also determined that the 
original acquisition of Native American human remains and associated 
funerary objects which were exhumed, removed, or otherwise obtained 
with full knowledge and consent of the next of kin or the official 
governing body of the appropriate Indian Tribe or NHO is deemed to give 
right of possession to those human remains and associated funerary 
objects, Congress chose not to make that right of possession to human 
remains and associated funerary objects subject to a Fifth amendment 
takings analysis. Congress was clear that it did not intend to 
categorize human remains and associated funerary objects as property 
under the Act, as had been its approach for unassociated funerary 
objects, sacred objects, or object of cultural patrimony. Thus, a Fifth 
Amendment taking does not result from the repatriation of human remains 
and associated funerary objects.
    In the proposed revision, the Department interprets ``voluntary 
consent'' and ``full knowledge and consent'' considering the history of 
Indian country and recognizes that ``voluntary consent'' and ``full 
knowledge and consent'' does not include ``consent'' given under duress 
or as a result of bribery, blackmail, fraud, misrepresentation, or 
duplicity on the part of the recipient. As such, consent in this 
definition must be shown to have been fully free, prior, and informed 
consent.
25. ``Sacred Object''
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to revise that a sacred object is, in the words of 
the Act, ``needed'' for a traditional Native American religious 
practice. Such practice could include the need to ritually inter the 
object. The Department proposes to add to the definition of sacred 
object (and to all specific definitions of cultural items) that 
identification of a sacred object is according to a lineal descendant, 
Indian Tribe, or NHO based on customs, traditions, or Native American 
traditional knowledge. In the Act, the identification of a sacred 
object is dependent upon consultation with lineal descendants, Indian 
Tribes, and NHOs. By adding this phrase to the definition of a sacred 
object, the Department seeks to emphasize that consultation, which is 
required throughout the proposed regulation, is how a lineal 
descendant, Indian Tribe, or NHO shares the information needed to 
identify a sacred object.
26. ``Traditional Religious Leader''
    The Department proposes to revise the term ``traditional religious 
leader'' in response to consultation with Indian Tribes and NHOs. The 
term is not defined in the Act and the proposed revisions are intended 
to clarify and simplify the definition. The proposed revisions intend 
to place the authority for identifying a traditional religious leader 
in the hands of an Indian Tribe or NHO. There is no requirement for an 
Indian Tribe or NHO to disclose information about the cultural, 
ceremonial, or religious practices or cultural duties or leadership 
role used to identify a traditional religious leader.
27. ``Tribal Lands''
    The Department proposes to revise the term ``Tribal lands'' by 
removing the provision in the existing regulations related to a taking 
of property without compensation within the meaning of the Fifth 
Amendment of the United States Constitution (25 U.S.C. 3001(13)). 
Comments to the 1995 final rule sought clarification regarding the 
application of NAGPRA to privately owned lands within the exterior 
boundaries of an Indian reservation. To address any potential conflict, 
the final rule codified language stating that the regulations will not 
apply to Tribal lands to the extent that any particular action 
authorized or required will result in such a taking of property. A 
review of the legislative history for the Act shows this concept does 
not apply to the statute as enacted and therefore is removed from the 
definition of Tribal lands.
28. ``Tribal Lands of an NHO''
    The Department proposes to add a new term ``Tribal lands of an 
NHO'' to more accurately describe a subset of Tribal lands in 
Hawai[revaps]i so it can be applied in the regulatory process in 
Subpart B. In the Act, priority for disposition of human remains or 
cultural items from Tribal lands is in the Indian Tribe or NHO on whose 
Tribal lands the human remains or cultural items were removed. While 
the Tribal lands of an Indian Tribe is clearly identified by the 
definition of Tribal lands, the application of this priority on Tribal 
lands in Hawai[revaps]i is not clear from the definition of Tribal 
lands alone. This definition provides for an NHO to take on 
responsibility for the provisions of the Act from the State of 
Hawai[revaps]i DHHL. When an NHO has a lease or license from DHHL 
pursuant to the Hawaiian Homes Commission Act (HHCA), that NHO can 
elect to take on any of the responsibilities under Subpart B of the 
proposed regulations on its Tribal lands (see proposed Sec. Sec.  
10.5(c), 10.6(a), and 10.7(c)).
29. ``Unclaimed Cultural Items''
    The Department proposes to revise the term ``unclaimed cultural 
items'' for clarity. The proposed revision retains the same central 
requirement of the existing definition but removes the more regulatory 
process part of the existing regulation to the regulatory text (see 
proposed Sec.  10.7(e)).
30. ``United States''
    The Department proposes to add a new term ``United States'' to 
provide a geographical descriptor throughout this part.

[[Page 63216]]

D. Section 10.3 Cultural and Geographical Affiliation

    This section of the proposed rule would improve the organizational 
structure of the existing regulations and better align the requirements 
with Congressional intent. The Department proposes to relocate existing 
regulatory provisions at Sec.  10.14 to Subpart A-General.
    The proposed revisions would remove the criteria for determining 
lineal descent in the existing regulations at Sec.  10.14(b), as it is 
repetitive of the definition for lineal descendant and not necessary. 
In conjunction with the defined term ``affiliation,'' the proposed 
revisions reflect the intent of Congress that for purposes of 
disposition or repatriation, all that is required is a reasonable 
connection between human remains or cultural items and an Indian Tribe 
or NHO (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). The 
proposed revisions identify two kinds of affiliation for purposes of 
disposition or repatriation: cultural or geographical.
1. Cultural Affiliation
    For cultural affiliation, the proposed revisions clarify the 
existing requirements by moving ``cultural affiliation'' to this 
section to include not only what it is, but also how it is established 
and what it does not require. The proposed revisions simplify the 
information and criteria needed to identify cultural affiliation by 
removing extraneous or duplicative language that has often been a 
barrier to repatriation. The proposed revisions also clearly explain 
that more than one Indian Tribe or NHO may have a cultural affiliation 
to human remains or cultural items.
    For example, assume that the only information available for 
individual human remains shows that the human remains were removed from 
a particular site and that the human remains have a date range spanning 
1,000 years. Indian Tribe A has a relationship of shared group identity 
to an earlier group who occupied the site at some point during that 
1,000-year span. Similarly, Indian Tribe B has a shared group identity 
with a different earlier group that also occupied the site at different 
point during that 1,000-year span. Even though Indian Tribe A and 
Indian Tribe B do not themselves have a relationship of shared group 
identity, both Indian Tribe A and Indian Tribe B have a cultural 
affiliation with the human remains from that site.
    In response to consultation with Indian Tribes and NHOs, the 
Department emphasizes that ``a preponderance of the evidence'' is a 
similar standard to a ``reasonableness'' requirement, both of which are 
common legal concepts. In both standards, a ``more likely than not'' 
assessment is required, such that the reasonableness requirement for 
tracing cultural affiliation is satisfied by a preponderance of the 
evidence establishing cultural affiliation. Congressional report 
language states cultural affiliation ``shall be established by a simple 
preponderance of the evidence,'' and that phrase is used in the 
proposed revisions.
2. Geographical Affiliation
    For geographical affiliation, the proposed revisions draw on 
language in the Act requiring the identification of ``the geographical 
and cultural affiliation'' (25 U.S.C. 3003(a)) and include the 
information and criteria needed to establish geographical affiliation. 
The proposed revisions clarify, as under the existing regulations at 
Sec.  10.11, ``geographical affiliation'' is identified by tracing a 
relationship between an Indian Tribe or NHO and a geographic area 
connected to the human remains or cultural items. While cultural 
affiliation requires a simple preponderance of the evidence given the 
information available, geographical affiliation only requires that the 
information be available. The proposed revisions also clearly explain 
that more than one Indian Tribe or NHO may have a geographical 
affiliation to human remains or cultural items.
    For example, assume that the geographic area connected to human 
remains and associated funerary objects is the Tribal lands of Indian 
Tribe L, the adjudicated aboriginal land of Indian Tribe N, and the 
acknowledged aboriginal land of Indian Tribes M, N, O, and P. All the 
Indian Tribes (L, M, N, O, and P) have a geographical affiliation with 
the human remains. Any information beyond the geographic area, for 
example when the human remains or cultural items were removed or types 
of associated funerary objects, may provide information sufficient to 
identify a more specific cultural affiliation to one or more of the 
Indian Tribes but must not be used to limit the geographical 
affiliation to all the Indian Tribes.
    The proposed revision states (in response to consultation with 
Indian Tribes and NHOs) that the information used to identify 
geographical affiliation may provide information sufficient to also 
establish cultural affiliation. Because geographical information is one 
line of information that may be used for cultural affiliation, that 
information alone may be sufficient to establish cultural affiliation 
as well as geographical affiliation.
3. Multiple Affiliations and Closest Affiliations
    The proposed revisions provide clear instructions to Indian Tribes, 
NHOs, museums, and Federal agencies for making and considering single 
claims or requests and for resolving competing claims or requests by 
identifying the Indian Tribe or NHO with the closest affiliation (see 
proposed Sec.  10.3(c) and (d)). The proposed revisions clearly explain 
that two or more Indian Tribes or Native Hawaiian organization may 
submit a claim for disposition or a request for repatriation and may 
claim joint disposition or request joint repatriation of human remains 
or cultural items. Joint claims or requests are considered a single 
claim or request and not competing claims or requests.
    In rare cases when there are competing claims or requests, museums 
and Federal agencies must identify the ``closest cultural affiliation'' 
(25 U.S.C. 3002(a)(2)(B)) and the ``most appropriate claimant'' (25 
U.S.C. 3005 (e)). The Act provides no process for making these 
identifications, but in the inventory and notification provisions of 
the Act (25 U.S.C. 3003(d)(2)(B) and (C)), there is a distinction made 
between two types of cultural affiliation: clearly identifiable as to 
tribal origin and not clearly identifiable as being culturally 
affiliated but determined by a reasonable belief. The Department 
proposes to use this language to inform how a museum or Federal agency 
might resolve competing claims for disposition or requests for 
repatriation. The standard for establishing cultural affiliation in the 
first instance is always a preponderance of the evidence, but when 
multiple Indian Tribes or NHOs meet that standard and have submitted 
competing claims or requests, these paragraphs provide a priority order 
to differentiate between culturally affiliated Indian Tribes. In 
resolving competing claims or requests, a museum or Federal agency may 
identify one or more Indian Tribes or NHOs with the closest 
affiliation.
    Table 4 shows how the Department proposes to reorganize the 
existing regulatory requirements regarding cultural or geographical 
affiliation.

[[Page 63217]]



                     Table 4--Cross-Reference of Existing Provisions to Proposed Sec.   10.3
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section                        Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.14(c).....................  Criteria for determining  .............................  Cultural affiliation.
                                cultural affiliation.                                    (1) Information. (2)
                                                                                         Criteria. (3) Multiple
                                                                                         cultural affiliations.
10.14(f).....................  Standard of proof.......  10.3(a)......................
10.14(d).....................  A finding of cultural
                                affiliation . . .
10.14(e).....................  Evidence................
10.11(c).....................  Disposition of            10.3(b)......................  Geographical
                                culturally                                               affiliation. (1)
                                unidentifiable human                                     Information. (2)
                                remains and associated                                   Criteria. (3) Multiple
                                funerary objects.                                        geographical
                                                                                         affiliations.
                               New.....................  10.3(c)......................  Multiple affiliations.
                               New.....................  10.3(d)......................  Closest affiliation.
10.14(a).....................  General.................  .............................  Removed.
10.14(b).....................  Criteria for determining  10.2.........................  Lineal descendant means.
                                lineal descent.
----------------------------------------------------------------------------------------------------------------

E. Section 10.4 General

    This section of the proposed rule would provide a general overview 
to Subpart B and clarify the responsibilities of Indian Tribes, NHOs, 
Federal agencies, and the State of Hawai`i Department of Hawaiian Home 
Lands (DHHL) for human remains or cultural items on Federal or Tribal 
lands. This section would consolidate general information in the 
existing regulations at Sec. Sec.  10.3, 10.4, and 10.5. The Department 
proposes to revise the title of Subpart B (in response to consultation 
with Indian Tribes and NHOs) to better reflect the intent of Congress 
for this section of the Act (25 U.S.C. 3002).
1. Appropriate Official
    The Department proposes to employ a new term, ``appropriate 
official,'' to denote the person or persons responsible for completing 
the regulatory requirements related to a discovery, excavation, and 
disposition of human remains or cultural items on Federal or Tribal 
lands. The revision would improve consistency with the Act by requiring 
certain actions be taken by the appropriate official for an Indian 
Tribe, NHO, Federal agency, and DHHL concerning discoveries, 
excavations, and disposition on Federal or Tribal lands.
2. Plan of Action
    On all Federal lands in the United States or on some Tribal lands 
in Hawai`i, the Department proposes (in response to consultation with 
Indian Tribes and NHOs) to move the existing regulatory requirement for 
a plan of action to the beginning of the subpart. In the existing 
regulations, Sec.  10.5(e) requires Federal agency officials to 
prepare, approve, and sign a written plan of action after consultation 
and before a planned activity that may result in the excavation of 
human remains or cultural items. The proposed revisions would require a 
plan of action before for any planned activity that may result in the 
discovery or excavation of human remains or cultural items as well as 
after a discovery of human remains or cultural items and before 
authorizing an excavation that may result in the discovery or 
excavation of human remains or cultural items. The Department proposes 
to simplify the plan of action in three separate steps (see proposed 
Sec.  10.4(b)): (1) Step 1--Initiate consultation; (2) Step 2--Consult 
with requesting parties; and (3) Step 3--Approve and sign the plan of 
action. Consulting parties listed in Sec.  10.4(b)(1) would not be 
considered the same as consulting parties under other applicable law, 
specifically under 36 CFR part 800. The Department proposes to use 
specific terms to clarify the distinction between a consulting party 
(as defined in Sec.  10.4(b)(1)(i)) and a requesting party (any 
consulting party that submits a written request to consult).
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to require that consultation seek consensus, to the 
maximum extent possible, on the content of the plan of action. In 
addition, a record of consultation must include the effort made to seek 
consensus or describe efforts to identify a mutually agreeable 
alternative. The consultation record must note the concurrence, 
disagreement, or nonresponse of the requesting parties to the plan of 
action. These requirements are used throughout the proposed regulations 
whenever consultation with requesting parties is required. The 
Department proposes to remove some of the existing requirements for a 
plan of action that are not necessary and overly intrusive. Depending 
on the results of consultation, any of these elements may be included 
in a plan of action but are no longer the minimum requirement for a 
plan of action. Specifically, the Department proposes to remove the 
following items from a plan of action in the existing regulations at 
Sec.  10.5(e):
    (1) The kinds of objects considered as cultural items;
    (2) The specific information used to determine disposition;
    (4) The planned archaeological recording;
    (5) The kinds of analysis planned for each kind of object; and
    (8) The nature of reports to be prepared.
    The Department proposes to include in a plan of action the 
preference of requesting parties for stabilizing and covering human 
remains or cultural items in situ, protecting and relocating human 
remains or cultural items, if removed, or providing appropriate 
treatment, care, or handling of human remains or cultural items. For 
example, under the proposed regulations, a plan of action might 
indicate that requesting parties prefer protection of human remains or 
cultural items in situ, but when that is not possible, the plan of 
action may require that the appropriate official protect and relocate 
the human remains or cultural items by burying them in a nearby 
location. Once disposition under Sec.  10.7 is complete (including any 
required notice publication and claim), the claimants may determine the 
care, custody, or physical transfer of the human remains or cultural 
items, including deciding to leave the human remains or cultural items 
buried in the nearby location.
    In response to consultation with Indian Tribes and NHOs and based 
the experience of Federal agencies with these requirements since 1990, 
the Department is aware of a preference by some Indian Tribes for 
allowing natural exposure or erosion of human remains or cultural items 
to continue, without covering or removing human remains or cultural 
items. In those cases, a plan of action may indicate that requesting 
parties prefer the appropriate official take no action upon the 
discovery of human remains or cultural items that

[[Page 63218]]

are naturally exposed. The plan of action should also indicate what the 
appropriate official will do if the human remains or cultural items 
cannot be left in place. If disposition under Sec.  10.7 is required 
because the human remains or cultural items could not be left in place, 
the claimants (after notice publication and claim, if required) may 
determine the care, custody, or physical transfer of the human remains 
or cultural items, including returning them to a safe location to 
continue a natural process.
3. Comprehensive Agreement
    The Department proposes to retain the option for Federal agencies 
or DHHL to enter into a comprehensive agreement for all land managing 
activities on Federal or Tribal lands under its responsibility. The 
proposed regulations would require a comprehensive agreement be 
consented to by a majority of requesting parties and include, at 
minimum, the information required in a plan of action.
    Table 5 shows how the Department proposes to reorganize the 
existing regulatory requirements on Federal or Tribal lands after 
November 16, 1990.

                     Table 5--Cross-Reference of Existing Provisions to Proposed Sec.   10.4
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section                        Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(c)......................  Procedures..............  10.4.........................  To ensure compliance
                               (1) . . . determine                                       with the Act, any
                                whether a planned                                        permit, license, lease
                                activity may result . .                                  . . .
                                ..
10.4(g)......................  Notification requirement
                                in authorizations.
                               New.....................  10.4(a)......................  Appropriate official.
10.5(b)......................  Initiation of             10.4(b)......................  Plan of action.
10.5(a)......................   consultation.                                           (1) Step 1: Initiate
10.5(c)......................  Consulting parties......                                  consultation
                               Provision of information
10.5(d)......................  Requests for information                                 (2) Step 2: Consult with
                                                                                         requesting parties.
10.5(e)......................  Written plan of action..                                 (3) Step 3: Approve and
                                                                                         sign the plan of
                                                                                         action.
10.5(f)......................  Comprehensive agreements  10.4(c)......................  Comprehensive agreement.
10.3(c)......................  Procedures..............  10.4(d)......................  Federal agency
                               (3) planned activity                                      coordination with other
                                subject to NHPA.                                         laws.
10.4(f)......................  Federal agency
                                officials.
10.5(g)......................  Traditional religious     .............................  Removed. See Sec.  Sec.
                                leaders.                                                  10.2 and 10.4(b)(2).
----------------------------------------------------------------------------------------------------------------

F. Section 10.5 Discovery

    This section of the proposed rule would implement the requirements 
of the Act regarding a discovery of human remains or cultural items on 
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(d)). 
This section would include and clarify the requirements in the existing 
regulations at Sec.  10.4(b) through (e) regarding discoveries.
1. Reporting and Documentation Requirements Upon Discovery
    The proposed language in Sec.  10.5(a) and (b) would prescribe 
specific reporting and documentation procedures that any person who 
knows or has reason to know of a discovery must take upon discovery of 
human remains or cultural items. Specifically, the proposed language 
would:
     Establish reporting timeframes (immediately with written 
documentation in 24 hours), requirements to secure and protect the 
discovery, and documentation requirements to include the location and 
contents of the discovery.
     Provide clear instructions for reporting the discovery in 
Table 1 to Sec.  10.5, which identifies the appropriate official and 
the additional point of contact who must be informed of a discovery, 
based on the location of the discovery.
2. Timeframes To Respond to Discovery
    The Department also proposes to require the appropriate official 
respond to any discovery on Federal or Tribal lands and keep the 
existing regulations' timeline of three days. On Tribal lands, the 
existing regulations only recommend actions by an appropriate official 
by using the verb ``may'' in the existing regulation at Sec.  10.4(e). 
The Department proposes to change this to ``require,'' on Tribal lands 
in Alaska and the continental United States, that the appropriate 
official for an Indian Tribe respond to a discovery and certify that an 
activity may resume (see proposed Sec.  10.5(c) and (e)), with an 
option to delegate this responsibility to the Bureau of Indian Affairs 
or another Federal agency. On Tribal lands of an NHO, the NHO may 
accept responsibility for discoveries on its Tribal lands; otherwise 
DHHL is responsible for discoveries on Tribal lands in Hawai`i. Table 6 
shows the name of each requirement and a shortened version of the 
deadline in the proposed revisions.

                           Table 6--Discovery
------------------------------------------------------------------------
              Requirement                    Deadline (no later than)
------------------------------------------------------------------------
Report a discovery.....................  24 hours after a discovery.
Cease any nearby activity..............  Immediately.
Respond to a discovery.................  3 days after a report of a
                                          discovery.
Approve and sign a plan of action......  30 days after a report of a
                                          discovery.
Certify an activity may resume.........  35 days after a report of a
                                          discovery.
Resume an activity.....................  30 days after certification.
------------------------------------------------------------------------

3. Plan of Action
    On all Federal lands in the United States or on Tribal lands in 
Hawai`i, the Department proposes (in response to consultation with 
Indian Tribes and NHOs) to revise the existing notification and 
consultation requirements for discoveries under Sec.  10.4(d)(iii) and 
(iv) by requiring a plan of action. Although

[[Page 63219]]

the Act does not require consultation on a discovery, the Department 
proposes to require the appropriate official, in consultation with 
Indian Tribes or NHOs, prepare, approve, and sign a plan of action 
within 30 days of a discovery. The Department hopes that by requiring a 
plan of action after a discovery, Federal agencies and DHHL will be 
encouraged to engage in consultation earlier and develop a plan of 
action prior to a discovery. The requirement for a plan of action is 
waived if, prior to the discovery, the appropriate official approved 
and signed a comprehensive agreement or plan of action, or if an NHO 
agreed to be responsible for discoveries on its Tribal lands.
4. Certification and Resumption of Activity
    The Department proposes to provide additional time for the 
appropriate official to certify an activity related to a discovery may 
resume. In the existing regulations at Sec.  10.4(d) and (e), the 
appropriate official on Federal or Tribal lands must certify receipt of 
a notification of a discovery within three days and the activity 
related to the discovery may resume 30 days later. The existing 
regulations do not allow for any additional time and do not provide a 
mechanism for the appropriate official to prevent an activity from 
resuming 33 days after a discovery.
    The Department proposes to build in an additional 35 days, if 
needed, for consultation with Indian Tribes and NHOs, evaluation of the 
discovery, and to carry out a plan of action (see proposed Sec.  
10.5(e)). The Department is specifically seeking input during public 
comment on this timeline. The Act requires that an activity may resume 
30 days after the appropriate official certifies that notification of a 
discovery was received (25 U.S.C. 3002(d)(1), last sentence). The 
legislative history clearly indicates that reporting a discovery is not 
meant to be an impediment to resuming a lawful activity on Federal or 
Tribal lands. However, the Department proposes to allow an additional 
35 days in the timeline by separating the requirements for responding 
to a discovery within 3 days from the requirements for certifying that 
an activity may resume within 30 days. This would allow a maximum of 65 
business days (35 business days to certify and 30 business days later 
resume the activity) after a discovery on Federal or Tribal lands 
before an activity could resume. If the appropriate official determines 
an earlier date for resuming the activity is acceptable, there is no 
restriction against certifying the activity may resume within less than 
65 days. The proposed change would allow the appropriate official more 
time, if needed, to consult with Indian Tribes and NHOs, evaluate the 
potential need for an excavation, and carry out the steps in a plan of 
action.
    Table 7 shows how the Department proposes to reorganize the 
existing regulatory requirements regarding a discovery.

                     Table 7--Cross-Reference of Existing Provisions to Proposed Sec.   10.5
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section                  (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.4(b)......................  Discovery...............  10.5(a)......................  Report any discovery.
10.4(c)......................  Ceasing activity........  10.5(b)......................  Cease any nearby
                                                                                         activity.
10.4(d)......................  (1) As soon as possible,  10.5(c)......................  Respond to a discovery.
10.4(e)......................   but no later than three
                                (3) working days . ..
10.4(d)......................  (1) (iv) Initiate         10.5(d)......................  Approve and sign a plan
                                consultation.                                            of action.
10.4(d)......................  (2) Resumption of         10.5(e)......................  Certify that an activity
10.4(e)......................   activity.                                                may resume.
10.4(a)......................  General.................  .............................  Removed.
----------------------------------------------------------------------------------------------------------------

G. Section 10.6 Excavation

    This section of the proposed rule would implement the requirements 
of the Act regarding excavation of human remains or cultural items on 
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(c)). 
This section would include and clarify the requirements in the existing 
regulations at Sec.  10.3(b) and (c) regarding excavations.
1. Jurisdiction to Issue ARPA Permit
    The Department proposes to revise the existing regulations to 
clarify the jurisdiction of a Federal agency to issue a permit under 
Section 4 of the Archaeological Resources Protection Act (ARPA) for an 
excavation. This proposed change, based on the legislative history of 
NAGPRA, would address requests from Federal agencies and DHHL to 
correct the scope of jurisdiction in the existing regulations at Sec.  
10.3(b)(1), which requires the Bureau of Indian Affairs to take certain 
actions on private lands for which they do not have jurisdictional 
authority. The Department proposes that an excavation on Federal or 
Tribal lands would only require a permit under the ARPA (16 U.S.C. 
470cc) if the excavation would occur on ``Indian lands'' or ``public 
lands'' under ARPA (referred to and defined as ``ARPA Indian lands'' 
and ``ARPA public lands''), subject to the exemptions in the ARPA 
Uniform Regulations. ARPA's definition of ``Indian lands'' and ``public 
lands'' is narrower than ``Tribal lands'' and ``Federal lands'' under 
NAGPRA, which is why the Department proposes to include the ARPA 
definitions in these proposed regulations. The legislative history of 
NAGPRA makes clear that Congress intended to protect human remains and 
cultural items by requiring ARPA permits be issued for NAGPRA 
excavations when a permit is also required under ARPA.
2. Requirement for Consent to Excavation
    Consistent with the Act, the proposed language in Sec.  10.6(a) 
would require, on Tribal lands, an Indian Tribe or NHO to consent in 
writing to an excavation. On Tribal lands in Alaska and the continental 
United States, an Indian Tribe may delegate this responsibility to the 
Bureau of Indian Affairs or another Federal agency. On Tribal lands of 
an NHO, the NHO may accept responsibility for excavations on its Tribal 
lands; otherwise DHHL is responsible for excavations on Tribal lands in 
Hawai`i.
3. Requirement for Plan of Action Prior To Authorizing Excavation
    On all Federal lands in the United States or on Tribal lands in 
Hawai`i, the Department proposes (in response to consultation with 
Indian Tribes and NHOs) to revise the notification and consultation 
requirements for excavations under existing Sec.  10.3(c)(1)

[[Page 63220]]

by requiring a plan of action prior to authorizing an excavation of 
human remains or cultural items. The Act requires consultation with the 
appropriate Indian Tribe or NHO prior to permitting an excavation, and 
the Department proposes to require the appropriate official, in 
consultation with Indian Tribes and NHOs, prepare, approve, and sign a 
plan of action prior to authorizing an excavation of human remains or 
cultural items as proof of consultation. The Department hopes that by 
requiring a plan of action before authorizing an excavation, Federal 
agencies and DHHL will be encouraged to engage in consultation earlier 
and develop a plan of action prior to any need for an excavation. The 
requirement for a plan of action is waived if, prior to authorizing the 
excavation of human remains or cultural items, the appropriate official 
approved and signed a comprehensive agreement or plan of action, or if 
an NHO agreed to be responsible for excavations on its Tribal lands.
    Table 8 shows how the Department proposes to reorganize the 
existing regulatory requirements regarding excavation and consultation.

                     Table 8--Cross-Reference of Existing Provisions to Proposed Sec.   10.6
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section                  (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(b)......................  Specific Requirements.    10.6.........................  A permit under Section 4
                                (1) . . . following the                                  of ARPA is required
                                requirements of ARPA .                                   when . . .
                                . .
10.3(b)......................  (2) . . . in the case of  10.6(a)......................  On Tribal lands.
                                tribal lands, consent
                                of, the appropriate . .
                                .
                               (4) Proof of the
                                consultation or consent
                                is shown . . ..
10.3(c)......................  Procedures.
                               (4) . . . on tribal
                                lands, the Indian tribe
                                or NHO may . . ..
10.3(c)......................  Procedures..............  10.6(b)......................  On Federal lands in the
                               (1) . . . the Federal                                     United States or on
                                agency official must                                     Tribal lands in
                                notify in writing . . ..                                 Hawai`i.
                               (2) . . . must complete
                                a written plan of
                                action . . ..
10.3(a)......................  General.................  .............................  Removed.
10.3(b)......................  (3) The disposition of    .............................  Removed.
                                the objects . . ..
----------------------------------------------------------------------------------------------------------------

H. Section 10.7 Disposition

    This section of the proposed rule would implement the requirements 
of the Act regarding the disposition of human remains or cultural items 
removed from Federal or Tribal lands after November 16, 1990 (25 U.S.C. 
3002(a) and (b)). This section would include and clarify the 
requirements in the existing regulations at Sec. Sec.  10.6 and 10.7 
regarding dispositions.
1. Consistent Use of the Term ``Disposition''
    The Department proposes to replace the term ``disposition'' in the 
existing regulations with two separate terms: ``disposition'' and 
``repatriation.'' In the proposed revision, ``disposition'' applies 
consistently throughout but only to Subpart B. In the existing 
regulations, ``disposition'' and the undefined word custody are used 
interchangeably at times while ``disposition'' is also used as a catch-
all term for any transfer of human remains or cultural items under the 
regulations. The Act uses the terms ``ownership,'' ``right of control 
of the disposition,'' and ``disposition of and control over'' in 
describing this process (25 U.S.C. 3002). In the proposed revision, 
``disposition'' is the title of this section and means the appropriate 
official acknowledges and recognizes a lineal descendant, Indian Tribe, 
or Native Hawaiian organization has control or ownership of human 
remains or cultural items removed from Federal or Tribal lands.
2. Timeline for Disposition
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to require that disposition occur as soon as 
possible, but no later than one year, after the discovery or excavation 
of human remains or cultural items on Federal or Tribal lands. In the 
existing regulations, there is no deadline for disposition, and the 
Department is aware of many instances where human remains or cultural 
items have not completed the regulatory process for years or even 
decades after discovery or excavation. This timeline will ensure that, 
on all Federal lands in the United States or on Tribal lands in 
Hawai`i, when disposition cannot be completed within one year, the 
Federal agency or DHHL reports the human remains or cultural items to 
the Manager, National NAGPRA Program.
    The Department proposes to clarify the requisite steps for 
disposition by establishing a step-by-step process with corresponding 
deadlines. Table 9 shows the name of each step and a shortened version 
of the deadline in the proposed revisions.

              Table 9--Step-by-Step Process for Disposition
------------------------------------------------------------------------
          Step number and name               Deadline (no later than)
------------------------------------------------------------------------
Step 1--Inform consulting parties......  6 months after a discovery or
                                          excavation.
Step 2--Submit a notice of intended      6 months after Step 1.
 disposition.
Step 3--Receive and consider a claim     Any time after notice
 for disposition.                         publication.
Step 4--Respond to a claim for           30 days after Step 3.
 disposition.
Step 5--Disposition of the human         90 days after Step 4.
 remains or cultural items.
------------------------------------------------------------------------


[[Page 63221]]

3. Priority for Disposition
    The Department proposes to simplify and clarify information 
contained in the existing regulations at Sec.  10.6(a). The proposed 
revisions are consistent with the Act and the existing regulations in 
establishing the priority for disposition (see proposed Sec.  10.7(a)), 
which can be simplified to be:
    (1) Lineal descendants,
    (2) Tribal lands Indian Tribe or NHO,
    (3) Indian Tribe or NHO with clear cultural affiliation,
    (4) Indian Tribe or NHO with reasonably identified cultural 
affiliation,
    (5)(i) Adjudicated aboriginal land Indian Tribe, and
    (5)(ii) Indian Tribe with a stronger cultural relationship than 
(5)(i).
4. Align Disposition to a Lineal Descendant or on Tribal Lands to the 
Act
    The Department proposes to remove the requirement in the existing 
regulations at Sec.  10.6(c) for publishing notices or requiring claims 
for disposition to a lineal descendant. The existing regulations do not 
provide any requirements for disposition of human remains or cultural 
items from Tribal lands. The Department proposes to require written 
documentation for disposition to a lineal descendant or on Tribal lands 
to better align with the Act (25 U.S.C. 3002(a)(1) and (2)(A); note the 
lack of a requirement for a notice or claim). On Tribal lands in Alaska 
and the continental United States, an Indian Tribe may delegate its 
responsibilities for disposition to the Bureau of Indian Affairs or 
another Federal agency. On Tribal lands of an NHO, the NHO may accept 
responsibility for dispositions on its Tribal lands; otherwise DHHL is 
responsible for dispositions on Tribal lands in Hawai`i.
5. Revise Requirements for Notices and Claims for Disposition
    The Department proposes to revise language in the existing 
regulations at Sec.  10.6(c) describing the requirements for Federal 
agencies to publish notices, receive claims, and complete dispositions 
in one paragraph with long, complex sentences. On all Federal lands in 
the United States and on Tribal lands in Hawai`i, the proposed 
revisions would provide five clearly written steps to complete the 
disposition of human remains or cultural items and establish deadlines 
and timelines.
    The Department proposes to change the notice publication 
requirement in the existing regulations at Sec.  10.6(c) that requires 
two publications of a notice in local area newspapers at least one week 
apart. This requirement has become increasingly burdensome given the 
general changes in newspaper publications since 1995. The Department 
proposes to require only one publication in the Federal Register by the 
Manager, National NAGPRA Program.
    The Department proposes a new requirement for completing 
dispositions by sending claimants and the Manager, National NAGPRA 
Program, a written disposition statement. In the case of joint claims 
for disposition, the disposition statement would identify and be sent 
to all claimants. In the case of competing claims for disposition, the 
proposed revisions give guidance and timelines for identifying the most 
appropriate claimant and completing the disposition. The Act requires 
that the Federal agency apply the priority order and determine the 
``closest cultural affiliation'' based on the evidence before it (25 
U.S.C. 3002(a)(2)(B)) and does not provide for a stay of disposition to 
acquire further evidence or information.
6. Unclaimed Human Remains or Cultural Items
    The Department proposes to move the existing section at Sec.  10.7 
to be a paragraph under the larger disposition section and modify the 
existing timeline. On all Federal lands in the United States or on 
Tribal lands in Hawai`i, when disposition cannot be completed within 
one year of a discovery, excavation, or notice of intended disposition, 
the proposed revisions require that the Federal agency or DHHL must 
report the human remains or cultural items to the Manager, National 
NAGPRA Program. These provisions would apply to any human remains or 
cultural items that were discovered or excavated on Federal lands in 
the United States or on Tribal lands in Hawai`i after November 16, 
1990, even if it has been more than one year since the discovery, 
excavation, or notice of intended disposition. Federal agencies and 
DHHL should submit a list of all unclaimed human remains or cultural 
items removed from Federal or Tribal lands. As in the existing 
regulations at Sec.  10.7(c) through (e), the proposed revisions would 
provide a process whereby a Federal agency or DHHL may transfer or 
reinter unclaimed human remains or cultural items, after it publishes a 
notice of proposed transfer or reinterment.
    The Department proposes to clarify the requisite steps for 
unclaimed human remains or cultural items by establishing a step-by-
step process with corresponding deadlines. Table 10 shows the name of 
each step and a shortened version of the deadline in the proposed 
revisions.

 Table 10--Step-by-Step Process for Unclaimed Human Remains or Cultural
                                  Items
------------------------------------------------------------------------
          Step number and name               Deadline (no later than)
------------------------------------------------------------------------
Step 1--Submit a list of unclaimed       1 year after effective date,
 cultural items.                          update by Dec 31 each year.
Step 2--Agree to transfer or decide to   Any time after Step 1.
 reinter human remains or cultural
 items.
Step 3--Submit a notice of proposed      30 days after Step 2.
 transfer or reinterment.
Step 4--Transfer or reinter the human    90 days after Step 3.
 remains or cultural items.
------------------------------------------------------------------------

    Table 11 shows how the Department proposes to reorganize and revise 
the existing regulatory requirements regarding disposition.

                    Table 11--Cross-Reference of Existing Provisions to Proposed Sec.   10.7
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section                    Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.6(a)......................  Priority of custody.....  10.7(a)......................  Priority for
                                                                                         disposition.
                               New.....................  10.7(b)......................  To a lineal descendant.
10.15(d).....................  Savings provisions......                                 (3) After the
                                                                                         disposition statement
                                                                                         is sent . . .

[[Page 63222]]

 
                               New.....................  10.7(c)......................  On Tribal lands.
10.15(d).....................  Savings provisions......                                 (4) After the
                                                                                         disposition statement
10.10(c).....................  (3) . . . from expressly
                                relinquishing title to
                                . .
10.6(c)......................  Final notice, claims and  10.7(d)......................  On Federal lands in the
                                disposition with                                         United States or on
                                respect to Federal                                       Tribal lands in
                                lands.                                                   Hawai`i.
                                                                                        (1) Step 1: Inform
                                                                                         consulting parties.
                                                                                        (2) Step 2: Submit a
                                                                                         notice of intended
                                                                                         disposition.
                                                                                        (3) Step 3: Receive and
                                                                                         consider a claim for
                                                                                         disposition.
                                                                                        (4) Step 4: Respond to a
                                                                                         claim for disposition.
                                                                                        (5) Step 5: Disposition
                                                                                         of the human remains or
                                                                                         cultural items.
10.15(d).....................  Savings provisions......                                 (5)(iii) After the
                                                                                         disposition statement .
                                                                                         . .
10.10(c).....................  (3) . . .from expressly                                  ........................
                                relinquishing title to
                                . . .
10.7.........................  Disposition of unclaimed  10.7(e)......................  Unclaimed human remains
                                . . ..                                                   or cultural items . . .
10.7(b)......................  (1) Submit a list of                                     (1) Step 1: Submit a
                                items . . .                                              list of unclaimed human
                                                                                         remains or cultural
                                                                                         items.
10.7(c)......................  . . . upon request,                                      (2) Step 2: Agree to
                                transfer . . .                                           transfer or decide to
                                                                                         reinter human remains
                                                                                         or cultural items.
                                                                                        (3) Step 3: Submit a
                                                                                         notice of proposed
                                                                                         transfer or
                                                                                         reinterment.
                                                                                        (4) Step 4: Transfer or
                                                                                         reinter the human
                                                                                         remains or cultural
                                                                                         items.
                                                                                        (4)(ii) After transfer
                                                                                         or reinterment occurs .
                                                                                         . .
10.7(d)......................  . . . reinter . . .
10.7(e)......................  (2) Publish a notice of
                                the proposed transfer
                                or reinterment . . .
                               New.....................
10.15(d).....................  Savings provisions.
10.10(c).....................  (3) . . . from expressly                                 ........................
                                relinquishing title to
                                . . .
10.6(b)......................  Custody of human remains                                 Removed.
                                . . ..
10.7(b)......................  (2) Care for and manage   10.1(d)......................  Duty of care.
                                . . ..
                               (3) To the maximum
                                extent feasible . . ..
10.7(a)......................  This section carries out                                 Removed.
                                . . ..
10.7(e)......................  (1) Submit the list                                      ........................
                                required . . ..
                               (3) Send to the Manager,
                                National NAGPRA Program
                                . . .
----------------------------------------------------------------------------------------------------------------

    I. Section 10.8 General
    This section of the proposed rule would provide a general overview 
to Subpart C and clarify the requirements for museums and Federal 
agency with possession or control of holdings or collections. The 
section would consolidate general information in the existing 
regulations at Sec. Sec.  10.8(a), 10.9(a), 10.11(e), and 10.17(a). The 
Department proposes to revise the title of Subpart C (in response to 
consultation with Indian Tribes and NHOs) to better reflect the intent 
of Congress for these sections of the Act (25 U.S.C. 3003-3005).
1. Clarify Who Has Responsibility for Holdings or Collections
    The Department proposes to clarify, regardless of the physical 
location of a holding or collection, who is responsible for carrying 
out the requirements of the Act. The proposed revisions would provide 
both museums and Federal agencies with instructions on determining 
possession or control of holdings or collections. As discussed in the 
definition section, whether a museum or Federal agency has possession 
or control is a legal determination that must be made on a case-by-case 
basis. However, when a museum with custody of human remains or cultural 
items cannot identify any person, institution, State or local 
government agency, or Federal agency with possession or control, the 
museum should presume it has possession or control for purposes of 
Subpart C. When a Federal agency cannot determine if human remains or 
cultural items came into its possession or control before or after 
November 16, 1990, or cannot identify the type of land the human 
remains or cultural items were removed from, the Federal agency should 
presume it has possession or control for purposes of Subpart C.
2. Museums With Custody of a Federal Agency Holding or Collection
    The Department proposes two new requirements aimed at locating 
Federal collections in non-Federal museums (see proposed Sec.  
10.8(c)). Specifically, the proposed language would require that:
     A museum must submit a statement describing Federal 
holdings or collections in its custody to the responsible Federal 
agency and to the Manager, National NAGPRA Program, no later than one 
year after the effective date of the final rule; and
     Within 120 days of receiving such a statement, the Federal 
agency must acknowledge its possession or control of a holding or 
collection, acknowledge that it does not have possession or control of 
a holding or collection, or acknowledge it has joint possession or 
control with the museum.
    These new requirements are a direct response to requests from 
Federal agencies and Indian Tribes who struggle to locate Federal 
collections in non-Federal museums. In 2010, the Government 
Accountability Office commented on this issue in its report on Federal 
agency compliance with the Act. Addressing this issue, the Department's 
detailed response to the Government Accountability Office's

[[Page 63223]]

report stated, ``These instances illustrate the importance of 
repositories notifying agencies upon discovery of Federal collections 
in their possession.'' This requirement is consistent with the 
conditions for repositories holding Federal collections under 36 CFR 
part 79, its referenced Federal property management authorities, and 
the Secretary's authority to prescribe regulations relating to Indian 
affairs under 25 U.S.C 9 (United States v. Eberhardt, 780 F.2d 1354, 
1360 (9th Cir.1986)).
    If a museum has custody of a holding or collection from multiple 
agencies or is unsure which Federal agency has possession or control of 
the holding or collection, the museum must send information on the 
holding or collection to any Federal agency that might have an interest 
and to the Manager, National NAGPRA Program. If a museum is unsure of 
who the appropriate point of contact is for a Federal agency, the 
Department recommends contacting the Federal Preservation Officer to 
assist in identifying the appropriate agency contact. The Advisory 
Council on Historic Preservation keeps an updated list at https://www.achp.gov/protecting-historic-properties/fpo-list. In responding to 
such statement, a Federal agency need not perform exhaustive research 
to determine whether it has possession or control of the collection, 
but it must merely assess the museum's statement on possession or 
control based on the information available to the Federal agency.
3. Museums With Custody of Other Holdings or Collections
    The Department proposes a new requirement for museums with custody 
of holdings or collections for which the museum cannot identify who has 
possession or control. The museum would be required to submit a 
statement describing holdings or collections in its custody for which 
it cannot identify any person, institution, State or local government 
agency, or Federal agency with possession or control. The statement 
would be sent to the Manager, National NAGPRA Program, no later than 
one year after the effective date of the final rule. This new 
requirement is a direct response to requests from Indian Tribes who 
struggle to determine their rights to holdings or collections in the 
custody, but not in the possession or control, of a museum. The 
Manager, National NAGPRA Program, would share this information with 
appropriate parties to determine possession and control and proceed 
with the inventory, summary, and repatriation processes.
    Table 12 shows how the Department proposes to reorganize and add to 
the existing regulatory requirements for museum or Federal agency 
holdings or collections.

                    Table 12--Cross-Reference of Existing Provisions to Proposed Sec.   10.8
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section  (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(a)....................  General....................  10.8(a)...................  Museum holding or
                                                                                       collection.
10.9(a)                                                   10.8(b)...................  Federal agency holding or
                                                                                       collection
                             New........................  10.8(c)...................  Museums with custody of a
                                                                                       Federal agency holding or
                                                                                       collection.
                                                          10.8(d)...................  Museums with custody of
                                                                                       other holdings or
                                                                                       collections.
10.11(e)...................  Disputes...................  10.8(e)...................  Contesting actions on
                                                                                       repatriation.
10.17(a)...................  Formal and informal
                              resolutions.
----------------------------------------------------------------------------------------------------------------

J. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred 
Objects, and Objects of Cultural Patrimony

    This section of the proposed rule would implement the requirements 
of the Act regarding summaries of holdings or collections to facilitate 
the repatriation of unassociated funerary objects, sacred objects, or 
objects of cultural patrimony (25 U.S.C. 3004 and 3005). In response to 
consultation with Indian Tribes and NHOs, the Department proposes to 
retain the existing requirement that a museum or Federal agency prepare 
a summary for any holding or collection that may contain unassociated 
funerary objects, sacred objects, or objects of cultural patrimony. 
NAGPRA requires ``Each Federal agency or museum which has possession or 
control over holdings or collections of Native American unassociated 
funerary objects, sacred objects, or objects of cultural patrimony 
shall provide a written summary of such objects based upon available 
information held by such agency or museum'' (25 U.S.C. 3004(a)). The 
statutory language is unclear whether summaries should include only the 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony, or the entire collection which may include these cultural 
items. The Act was enacted for the benefit of Indians and therefore the 
canon of construction applies that statutes ``are to be construed 
liberally in favor of the Indians, with ambiguous provisions 
interpreted to their benefit'' (Yankton Sioux Tribe v. United States 
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). The 
legislative history and statutory language are clear that the summary 
is intended as an initial step in bringing an Indian Tribe and Native 
Hawaiian organization into consultation with a museum or Federal 
agency. As Indian Tribes and NHOs noted during consultation, 
identification of specific sacred objects or objects of cultural 
patrimony must be done in consultation with Indian Tribe or NHO 
representatives and traditional religious leaders since few, if any, 
museums or Federal agencies have the necessary personnel to make such 
identifications. Further, identification of specific unassociated 
funerary objects, sacred objects, and objects of cultural patrimony 
would require a museum or Federal agency to complete an item-by item 
listing first. That would be directly contrary to Congress's admonition 
that a summary should not be an object-by-object listing (25 U.S.C. 
3004(b)(1)(A)).
    The Department proposes to consolidate the requirements for 
repatriation of unassociated funerary objects, sacred objects, and 
objects of cultural patrimony into a seven-step process in a single 
section. These same requirements are currently spread out among the 
existing regulations at Sec. Sec.  10.8, 10.10, and 10.13. In addition, 
the Department proposes to add more detailed instructions for 
evaluating multiple requests for repatriation and resolving stays of 
repatriation than currently in the existing regulations at Sec.  
10.10(c).

[[Page 63224]]

1. Establish a Step-by-Step Process for Repatriation
    The Department proposes to clarify the requisite steps for 
repatriation by establishing a step-by-step process with corresponding 
deadlines. Table 13 shows the name of each step and a shortened version 
of the deadline in the proposed revisions.

             Table 13--Step-by-Step Process for Repatriation
------------------------------------------------------------------------
          Step number and name               Deadline (no later than)
------------------------------------------------------------------------
Step 1--Complete a summary . . ........  6 months for a new collection.
Step 2--Initiate consultation..........  30 days after Step 1.
Step 3--Consult with requesting parties  10 days after a request,
                                          propose a timeline for
                                          consultation.
Step 4--Receive and consider a request   Any time after a summary is
 for repatriation.                        complete.
Step 5--Respond to a request for         60 days after Step 4.
 repatriation.
Step 6--Submit a notice of intended      30 days after Step 5.
 repatriation.
Step 7--Repatriation of the              90 days after notice
 unassociated funerary object, sacred     publication.
 object, or objects of cultural
 patrimony.
------------------------------------------------------------------------

    The intent of these proposed revisions is to correct inaccuracies 
and ambiguities in the existing regulations by using a clear, easy to 
follow, step-by-step process, and ensure a timely resolution of any 
requests for repatriation. For example, the proposed revisions would 
clarify, consistent with the Act, that invitations to consult follow 
the completion of a summary. In the existing regulations at Sec.  
10.8(d)(2), consultation is initiated ``no later than the completion of 
the summary process.''
    The proposed revisions would also directly address a required step 
that lacks explanation or deadlines in the existing regulations. The 
Department proposes in Step 5 to require a museum or Federal agency to 
respond no later than 60 days after receiving a request for 
repatriation. The Department also proposes four specific options for 
the response, summarized as follows:
    (1) Accept the request and agree to the repatriation.
    (2) Reject the request, explain why, and ask for more information.
    (3) Assert and prove a right of possession and refuse repatriation.
    (4) Determine the most appropriate requestor among competing 
requests.
2. Update Deadlines, Establish New Timelines, and Clarify Procedures
    To update deadlines for completing a summary, the proposed 
revisions integrate all the deadlines for completing a summary in the 
first paragraph (see proposed Sec.  10.9(a), Table 1 to Sec.  10.9). 
The proposed revisions would identify the past required deadlines for 
completing a summary (i.e., November 16, 1993). The Act does not 
clearly indicate when museums or Federal agencies must complete a 
summary after the statutory deadline for reporting had passed. The 
existing regulations at Sec.  10.13 provide these requirements for 
newly acquired or newly regulated holdings or collections beginning in 
2007. The proposed revisions use the same deadlines as the existing 
regulations.
    To establish new timelines, the proposed revisions would require in 
Step 2 a written request to consult. This new requirement for a written 
request to consult (which can include email) is necessary to then 
require a museum or Federal agency to respond to the request within 10 
days. In this same subparagraph, the proposed revisions require 
requests to consult be submitted prior to a notice publication. This 
requirement ensures the repatriation process moves forward by certain 
deadlines in later steps. After publication of a notice, any party, 
even if they have not requested to consult, can make a request for 
repatriation as a competing claim (see proposed Sec.  10.9(f)(4)).
    To clarify procedures, the proposed revisions would require in Step 
4 that any party wishing to make a request for repatriation must do so 
in writing. In the existing regulations at Sec. Sec.  10.8 and 10.10, 
there are references to making requests for repatriation, but not until 
the very end of the process under notification in the existing 
regulations at Sec.  10.10(a)(3) is it clear that such a request must 
be in writing. The Department is specifically seeking input during 
public comment on the deadlines for responding to a request for 
repatriation and sending a repatriation statement.
3. Require That Consultation Seek Consensus
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to require that consultation seek consensus, to the 
maximum extent possible. In addition, a record of consultation must 
include the effort made to seek consensus or describe efforts to 
identify a mutually agreeable alternative. For any determination 
considered during the consultation process, the consultation record 
must note the concurrence, disagreement, or nonresponse of the 
requesting parties. These requirements are used throughout the proposed 
regulations whenever consultation with requesting parties is required.
4. Protect Sensitive Information and Disclose Hazardous Substances
    The Department proposes to remove the existing regulations at Sec.  
10.8(d)(4)(iii) because it requires Indian Tribes and NHOs to provide 
information about funerary objects, sacred objects, or objects of 
cultural patrimony. This kind of information is often very sensitive 
and providing it in writing or in the absence of qualified persons 
within the Indian Tribe or NHO might be inappropriate. The proposed 
language would still provide for an exchange of information about the 
types of objects that might be unassociated funerary objects, sacred 
objects, or objects of cultural patrimony, but would do so in a way to 
allow for sensitive information to be protected.
    In the existing regulations at Sec.  10.10(e), museums and Federal 
agencies must inform Indian Tribes and NHOs about any potentially 
hazardous substances used to treat any of the objects only after 
repatriation has occurred. The proposed revisions would require a 
museum or Federal agency to disclose information about the presence of 
any potentially hazardous substances first in the summary (see proposed 
Sec.  10.9(a)(1)(v)) and second in the notice of intended repatriation 
(see proposed Sec.  10.9(f)(1)(vi)).
5. Clarify Requirements for Notices
    The proposed revisions clearly outline informational requirements 
for a Federal Register notice and do so with greater detail than the 
existing

[[Page 63225]]

regulations at Sec.  10.8(f). To protect potentially sensitive 
information, the only location information that would be required is 
the county and State where the unassociated funerary object, sacred 
object, or object of cultural patrimony were removed, if known. Other 
informational requirements of a Federal Register notice would include: 
(1) the identification of the cultural item specifically as an 
unassociated funerary object, a sacred object, an object of cultural 
patrimony, or both a sacred object and an object of cultural patrimony; 
(2) the requestor, with no requirement that other lineal descendants or 
Indian Tribes or NHOs with cultural affiliation be listed in the 
notice; and (3) a brief abstract of the information showing the 
requestor is a lineal descendant or an Indian Tribe or NHO with 
cultural affiliation.
    In enumerating the unassociated funerary objects, sacred objects, 
or objects of cultural patrimony in a notice, museums and Federal 
agencies would be encouraged to count in a way that reduces the chances 
of having to issue a correction notice. For example, identifying 3 lots 
of shell beads means that no matter the exact number of beads present, 
the count would stand, whereas identifying exactly 1,960 shell beads in 
a notice would mean that if additional (or fewer) beads were located 
before repatriation occurs, a correction notice would be required 
because the number of objects would have changed.
6. Written Repatriation Statement
    The Department proposes to require a new document to complete the 
repatriation of an unassociated funerary object, sacred object, or 
object of cultural patrimony to a requestor. A written repatriation 
statement would be sent to and would identify all requestors in the 
case of joint requests. In accordance with the recommendation by the 
Government Accountability Office in a 2010 report on the implementation 
of the Act, a copy of the repatriation statement would also be sent to 
the Manager, National NAGPRA Program. Table 14 shows how the Department 
proposes to reorganize the existing regulatory requirements for 
repatriation of unassociated funerary objects, sacred objects, and 
objects of cultural patrimony.

                    Table 14--Cross-Reference of Existing Provisions to Proposed Sec.   10.9
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section                        Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(b)......................  Contents of summaries...  10.9(a)......................  Step 1: Complete a
                                                                                         summary of . . .
10.8(e)......................  Using summaries to                                       (1) A summary must
                                determine affiliation.                                   include . . .
10.10(e).....................  . . . inform recipients                                  (1)(v) The presence of
                                of repatriation . . .                                    any potentially
                                treatment with                                           hazardous substances .
                                potentially hazardous                                    . .
                                substances.
10.13(b).....................  New holdings or                                          (2) After [effective
                                collections.                                             date of final rule], .
                                                                                         . . must submit a
                                                                                         summary . . .
10.13(d).....................  New Federal funds.......
10.8(c)......................  Completion..............                                 (3) Prior to [effective
                                                                                         date of final rule], .
                                                                                         . . must have submitted
                                                                                         a summary . . .
10.13(b).....................  (3) Previously prepared                                  (4) After [effective
                                summary or inventory..                                   date of final rule], .
                                                                                         . . acquires possession
                                                                                         or control of a holding
                                                                                         or collection that
                                                                                         contains . . .
10.8(d)......................  Consultation............  10.9(b)......................  Step 2: Initiate
                               (1) Consulting parties..                                  consultation.
                                                                                        (1) Consulting parties
                                                                                         are . . .
                               (2) Initiation of                                        (2) An invitation to
                                consultation.                                            consult must . . .
                               New.....................                                 (3) Any consulting party
                                                                                         . . . must . . .
                                                                                        (4) . . . identifies a
                                                                                         new consulting party .
                                                                                         . .
10.13(c).....................  New Indian Tribes.......                                 (4)(ii) . . . after the
                                                                                         addition of a Tribal
                                                                                         entity to the list of
                                                                                         federally recognized
                                                                                         Indian Tribes . . .
10.8(d)......................  (4) Requests for          10.9(c)......................  Step 3: Consult with
                                information.                                             requesting parties
                                                                                        (1) . . . a museum or
                                                                                         Federal agency must ask
                                                                                         for the following
                                                                                         information . . .
                               New.....................                                 (2) The consultation
                                                                                         process must . . .
                                                                                        (3) The museum or
                                                                                         Federal agency must
                                                                                         prepare a record of
                                                                                         consultation . . .
10.8(d)......................  (3) Provision of                                         (4) . . . A museum or
                                information.                                             Federal agency must
                                                                                         provide access to the
                                                                                         additional information
                                                                                         . . .
                               New.....................  10.9(d)......................  Step 4: Receive and
                                                                                         consider a request for
                                                                                         repatriation.
                                                                                        (1) A request for
                                                                                         repatriation . . . must
                                                                                         be received . . .
                                                                                        (2) Requests from two or
                                                                                         more . . .
10.10(a).....................  (1) Criteria............                                 (3) A request for
                                                                                         repatriation must
                                                                                         satisfy . . .
                               New.....................  10.9(e)......................  Step 5: Respond to a
                                                                                         request for
                                                                                         repatriation.
10.8(f)......................  Notification............  10.9(f)......................  Step 6: Submit a notice
                                                                                         of intended
                                                                                         repatriation
10.10(e).....................   . . . treatment with                                    (1)(vi) . . . the
                                potentially hazardous                                    presence of any
                                substances.                                              potentially hazardous
10.13(b).....................  (2) Additional pieces or                                 (3) If the number or
                                fragments..                                              identity . . . changes
                                                                                         . . .
10.13(e).....................  Amendment of previous
                                decision.
10.10(a).....................  (3) Notification........  10.9(g)......................  Step 7: Repatriation of
10.10(d).....................  Place and manner of                                       the unassociated
                                repatriation..                                           funerary object, sacred
                                                                                         object, or object of
                                                                                         cultural patrimony.
10.10(f).....................  Record of repatriation..
10.15(d).....................  Savings provisions......
10.10(c).....................  (2) Circumstances where   10.9(h)......................  Evaluating competing
                                there are multiple                                       requests for
                                requests for                                             repatriation.
                                repatriation.
10.10(c).....................  Exceptions..............  10.9(i)......................  Stay of repatriation.

[[Page 63226]]

 
10.8(d)......................  (4)(iii) Kinds of                                        Removed.
                                cultural items.
----------------------------------------------------------------------------------------------------------------

K. Section 10.10 Repatriation of Human Remains and Associated Funerary 
Objects

    This section of the proposed rule would implement the requirements 
of the Act regarding inventories of holdings or collections to 
facilitate the repatriation of human remains and associated funerary 
objects (25 U.S.C. 3003 and 3005). The Department proposes to 
consolidate the requirements for repatriation of human remains and 
associated funerary objects into an eight-step process in a single 
section. These same requirements are currently spread out among the 
existing regulations at Sec. Sec.  10.9, 10.10, 10.11, and 10.13. In 
addition, the Department proposes to add more detailed instructions for 
evaluating multiple requests for repatriation and resolving stays of 
repatriation than currently in the existing provisions at Sec.  
10.10(c).
1. Eliminate ``Culturally Unidentifiable''
    On March 15, 2010, the Department issued a final rule with request 
for comment that codified procedures for the disposition of culturally 
unidentifiable Native American human remains in the possession or 
control of museums or Federal agencies (75 FR 12378, March 15, 2010). 
These procedures require museums and Federal agencies to consult with, 
and transfer control of, culturally unidentifiable human remains to the 
Indian Tribes and NHOs from whose Tribal lands or from whose aboriginal 
lands the human remains were removed.
    Comments on the March 15, 2010, final rule raised concerns that the 
financial burden on museums of consultation and disposition of 
culturally unidentifiable human remains would be ``tremendous,'' 
``onerous,'' ``overwhelming,'' ``ruinous,'' or ``significant.'' 
However, since the Act became law in 1990, museums and Federal agencies 
have accounted for over 84,000 Native American human remains in 
notices, including over 21,000 culturally unidentifiable human remains, 
with no indication that a single museum has suffered overwhelming or 
ruinous consequences from compliance with the Act. Every year since 
1994, Congress has provided approximately $2 million dollars in grant 
funds for consultation and repatriation activities to assist in 
compliance with the Act.
    Comments for the March 15, 2010, final rule also raised questions 
about what types of relationships were required for disposition of 
culturally unidentifiable human remains. Using a geographic 
relationship between an Indian Tribe or NHO and human remains and 
associated funerary objects for the purpose of repatriation aligns with 
the Act's requirements for museums and Federal agencies to ``identify 
the geographical and cultural affiliation of such items'' and with the 
general intent of repatriation under the Act. As noted in the response 
to comments for the March 15, 2010, final rule, the disposition of 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony to Indian Tribes and NHOs based on criteria other 
than cultural affiliation was clearly anticipated by Congress.
    Section 3002(a)(2) of the Act which was used as the model for the 
March 15, 2010, final rule specifically authorizes disposition of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony removed from Federal or Tribal lands after November 16, 1990 
to the Indian Tribe or NHO on whose Tribal lands the human remains or 
cultural items were removed, to the Indian Tribe or NHO with cultural 
affiliation to the human remains or cultural items, or to the Indian 
Tribe having aboriginally occupied the Federal land where the human 
remains or cultural items were removed. Significantly, under the Act, 
ownership or control of human remains or cultural items based on Tribal 
lands origin is given a higher priority than cultural affiliation. 
Consistent with the terms of the Act, the 2010 rule codified a process 
for disposition of culturally unidentifiable human remains to the 
Indian Tribe or NHO from whose Tribal lands, at the time of excavation 
or removal, or from whose aboriginal land the human remains were 
removed. In addition to the Act, the implementing regulations rely on 
the specific recommendations from the Review Committee for disposition 
of culturally unidentifiable human remains and additional information 
gleaned from culturally unidentifiable inventories. The existing 
regulations are consistent with the Department's determination that it 
was reasonable and appropriate for the disposition of culturally 
unidentifiable human remains to be based on geographical information 
given that the designation of ``culturally unidentifiable'' is often 
due to a lack of information occasioned by some collection practices 
rather than a lack of geographical information.
    To streamline the existing regulations at Sec.  10.11 regarding 
disposition of human remains and associated funerary objects currently 
referred to as culturally unidentifiable, the Department proposes to 
incorporate the concepts underlying the existing regulations more 
logically into the overall inventory and repatriation process. As a 
result, the Department also proposes to generally remove the term 
``culturally unidentifiable'' as the streamlining of these concepts 
would make this term no longer serve a useful regulatory purpose. 
Further, this proposed change is intended to more accurately reflect 
the geographically focused analysis required for an inventory of human 
remains and associated funerary objects. As discussed above, the 
proposed revisions identify two kinds of affiliation for purposes of 
repatriation: cultural or geographical. As discussed in more detail 
below, the proposed revisions would require that an inventory of human 
remains and associated funerary objects include determinations of both 
cultural and geographical affiliation or an explanation why no 
affiliation could be identified.
    2. Require Repatriation of Associated Funerary Objects
    While the existing regulations at Sec.  10.11 mandate the 
disposition of certain categories of culturally unidentifiable human 
remains by museums and Federal agencies upon receipt of a claim, the 
transfer of culturally unidentifiable associated funerary objects under 
the existing regulations is at the discretion of the museum or Federal 
agency. Following publication of the 2007 proposed rule (72 FR 58582, 
October 16, 2007), the Department received numerous comments on the 
voluntary transfer of culturally unidentifiable associated funerary 
objects. Most of the comments stated that transfer of such objects 
should also be mandatory. These comments were carefully considered,

[[Page 63227]]

but the Department determined that this area of law was not clearly 
resolved at that time and needed further consideration. The March 15, 
2010, final rule retained the voluntary transfer provision. After the 
publication of the final rule, the Department received additional 
comments on this issue, which have been reviewed in the development of 
the proposed revisions.
    The Department proposes to require repatriation of associated 
funerary objects whenever repatriation of the related human remains 
occurs. In the Act, Congress differentiated human remains and 
associated funerary objects from unassociated funerary objects, sacred 
objects, and objects of cultural patrimony. Congress did this both in 
its treatment of these items throughout the Act and in its assessment 
of the potential legal interests at stake for those items, for example, 
by differentiating the use and analysis of right of possession for 
human remains and associated funerary objects from a right of 
possession for cultural items. With respect to the Act, Congress 
acknowledged that no general property interest exists either in human 
remains or in the funerary objects associated with them in a burial. 
This follows common law principles indicating that the next-of-kin of a 
deceased individual have a quasi-property right of control over the 
lawful disposition of the decedent's remains. For these reasons, the 
proposed revision would require repatriation of associated funerary 
objects whenever the repatriation of human remains is required. Such an 
action, based on this guidance from Congress, would not result in a 
taking of property within the meaning of the Fifth Amendment of the 
United States Constitution.
    3. Establish a Step-By-Step Process for Repatriation
    The Department proposes to clarify the requisite steps for 
repatriation of human remains and associated funerary objects by 
establishing a step-by-step process with corresponding deadlines. Table 
15 shows the name of each step and a shortened version of the deadline 
in the proposed revisions.

             Table 15: Step-by-Step Process for Repatriation
------------------------------------------------------------------------
          Step number and name               Deadline (no later than)
------------------------------------------------------------------------
Step 1--Compile an itemized list of      Before deadline in Step 4.
 human remains and associated funerary
 objects.
Step 2--Initiate consultation..........  Before deadline in Step 4.
Step 3--Consult with requesting parties  10 days after a request,
                                          propose a timeline for
                                          consultation.
Step 4--Complete/update an inventory...  2 years for a new collection/2
                                          years after effective date for
                                          update.
Step 5--Submit a notice of inventory     6 months after Step 4.
 completion.
Step 6--Receive and consider a request   Any time after notice
 for repatriation.                        publication.
Step 7--Respond to a request for         30 days after Step 6.
 repatriation.
Step 8--Repatriation of the human        90 days after Step 7.
 remains and associated funerary
 objects.
------------------------------------------------------------------------

    The intent of these proposed revisions is to correct inaccuracies 
and ambiguities in the existing regulations by using a clear, easy to 
follow, step-by-step process, and ensures a timely resolution of any 
requests for repatriation. For example, the proposed revisions would 
clarify, consistent with the Act, that invitations to consult are 
required before completing an inventory. In the existing regulations at 
Sec.  10.9(b)(2), consultation is initiated ``as early as possible, no 
later in the inventory process than the time at which investigation 
into the cultural affiliation . . . is being conducted.''
    The proposed revision would also directly address a required step 
that lacks explanation or deadlines in the existing regulations. The 
Department proposes in Step 7 to require a museum or Federal agency to 
respond no later than 30 days after receiving a request for 
repatriation. The Department also proposes three specific options for 
the response, summarized as follows:
    (1) Accept the request and agree to the repatriation.
    (2) Reject the request, explain why, and ask for more information.
    (3) Determine the most appropriate requestor among competing 
requests.
4. Update Deadlines, Establish New Timelines, and Clarify Procedures
    To update deadlines for completing an inventory, the proposed 
revisions integrate all the deadlines in Step 4 (see proposed Sec.  
10.10(d), Table 1 to Sec.  10.10). The proposed revisions would 
identify the past required deadlines for completing an inventory (i.e., 
November 16, 1995). The Act does not clearly indicate when museums or 
Federal agencies must complete an inventory after the statutory 
deadline for reporting. The existing regulations at Sec.  10.13 
provided these requirements for newly acquired or newly regulated 
holdings or collections beginning in 2007. The proposed revisions use 
the same deadlines as the existing regulations.
    To establish new timelines, the proposed revisions would require in 
Step 2 a written request to consult. This new requirement for a written 
request to consult (which can include email) is necessary to then 
require a museum or Federal agency to respond to the request within 10 
days. In this same subparagraph, the proposed revisions require 
requests to consult be submitted prior to a notice publication. This 
requirement ensures the repatriation process moves forward by certain 
deadlines in later steps. After publication of a notice, any party, 
even if they have not consulted, can make a request for repatriation as 
a competing request (see proposed Sec.  10.10(g)(2)).
    To clarify procedures, the proposed revisions would require in Step 
6 that any party wishing to make a request for repatriation must do so 
in writing. In the existing regulations at Sec. Sec.  10.9, 10.10, and 
10.11, there are references to making requests for repatriation, but 
not until the very end of the process under notification in the 
existing regulations at Sec.  10.10(b)(2) is it clear that such a 
request must be in writing. The Department is specifically seeking 
input during public comment on the deadlines for responding to a 
request for repatriation and sending a repatriation statement.
5. Require That Consultation Seek Consensus
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to require that consultation seek consensus, to the 
maximum extent possible. In addition, a record of consultation must 
include the effort made to seek consensus or describe efforts to 
identify a mutually agreeable alternative. For any determination 
considered during the

[[Page 63228]]

consultation process, the consultation record must note the 
concurrence, disagreement, or nonresponse of the requesting parties. 
These requirements are used throughout the proposed regulations 
whenever consultation with requesting parties is required.
6. Require Inventory Determinations and Updates
    The proposed revisions would require that an inventory include 
specific determinations for human remains and associated funerary 
objects. In the existing regulations at Sec.  10.9(d), two separate 
lists of human remains and associated funerary objects comprise the 
inventory: (1) those with cultural affiliation and (2) those with no 
cultural affiliation. The Department proposes to revise this 
requirement to require, for each entry in the itemized list of human 
remains and associated funerary objects, a determination of one or more 
of the following:
    (1) There is a known lineal descendant;
    (2) There is a connection between the human remains and associated 
funerary objects and an Indian Tribe or NHO through cultural 
affiliation;
    (3) There is a connection between the human remains and associated 
funerary objects and an Indian Tribe or NHO through geographical 
affiliation; or
    (4) There is no connection between the human remains and associated 
funerary objects and any Indian Tribe or NHO.
    The Department proposes to require museums and Federal agencies 
update an inventory for any human remains and associated funerary 
objects previously included in an inventory but not published in a 
notice of inventory completion by the effective date of the final rule. 
To update an inventory, a museum or Federal agency would be required to 
initiate consultation, consult with requesting parties, and determine 
if there is a connection between the human remains and associated 
funerary objects and an Indian Tribe or NHO through cultural or 
geographical affiliation. The updated inventory would be sent to all 
identified consulting parties and the Manager, National NAGPRA Program, 
no later than 2 years after the effective date of the final rule. Any 
museum may request an extension to update its inventory. Consistent 
with the Act (25 U.S.C. 3003(c)) and the existing regulations at Sec.  
10.9(f), only museums may request extension to update an inventory. 
Federal agencies may not request extensions.
7. Protect Sensitive Information and Disclose Hazardous Substances
    The Department proposes to remove the existing regulations at Sec.  
10.9(b)(4)(iii) because it requires Indian Tribes and NHOs to provide 
information about the kinds of objects they consider to be funerary 
objects. This kind of information is often very sensitive and providing 
it in writing or in the absence of qualified persons within the Indian 
Tribe or NHO might be inappropriate. The proposed language would still 
provide for an exchange of information about the types of objects that 
might be funerary objects but would do so in a way to allow for 
sensitive information to be protected.
    In the existing regulations at Sec.  10.10(e), museums and Federal 
agencies must inform Indian Tribes and NHOs about any potentially 
hazardous substances used to treat human remains or funerary objects 
only after repatriation has occurred. The proposed revisions would 
require a museum or Federal agency to disclose information about the 
presence of any potentially hazardous substances first in the itemized 
list (see proposed Sec.  10.10(a)(6)) and second in the notice of 
inventory completion (see proposed Sec.  10.10(e)(2)(vii)).
8. Clarify Requirements for Notices
    The proposed revisions clearly outline informational requirements 
for a Federal Register notice and reduce the information required in 
the existing regulations at Sec.  10.9(e)(2). To protect potentially 
sensitive information, the only location information that would be 
required is the county and State where the human remains and associated 
funerary objects were removed, if known. To facilitate requests for 
repatriation, any lineal descendant or Indian Tribe or NHO with 
cultural or geographical affiliation would be identified in the notice. 
The notice would require only a brief abstract of the information used 
to identify the lineal descendant or Indian Tribe or NHO with cultural 
or geographical affiliation.
    In enumerating the associated funerary objects in a notice, museums 
and Federal agencies would be encouraged to count in a way that reduces 
the chances of having to issue a correction notice. For example, 
identifying 3 lots of shell beads means that no matter the exact number 
of beads present, the count would stand, whereas identifying exactly 
1,960 shell beads in a notice would mean that if additional (or fewer) 
beads were located before repatriation occurs, a correction notice 
would be required because the number of objects would have changed.
9. Written Repatriation Statement
    The Department proposes to require a new document to complete the 
repatriation of human remains and associated funerary objects to a 
requestor. A written repatriation statement would be sent to and would 
identify all requestors in the case of joint requests. In accordance 
with the recommendation by the Government Accountability Office in a 
2010 report on the implementation of the Act, a copy of the 
repatriation statement would also be sent to the Manager, National 
NAGPRA Program.
10. Transfer or Reinterment of Human Remains and Associated Funerary 
Objects
    The Department proposes a new process for transfer or reinterment 
of human remains and associated funerary objects. This provision would 
apply in limited circumstances where there is no connection between the 
human remains and associated funerary objects and any Indian Tribe or 
NHO. Under such circumstances, a museum or Federal agency would have 
the discretion to agree to transfer the human remains and associated 
funerary objects to an Indian Tribe, NHO, or Indian group, or to 
reinter the human remains and associated funerary objects. In the 
existing regulations at Sec.  10.10(g)(2)(ii), this same process is 
available to museums and Federal agencies but requires a recommendation 
from the Review Committee and the concurrence of the Secretary. The new 
provision would require publication of a notice and a repatriation 
statement but would eliminate the costly and burdensome process of 
making a request to the Review Committee.
    Table 16 shows how the Department proposes to reorganize the 
existing regulatory requirements for an inventory of human remains and 
associated funerary object.

[[Page 63229]]



                    Table 16--Cross-Reference of Existing Provisions to Proposed Sec.   10.10
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section                        Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.9(c)......................  Required Information....  10.10(a).....................  Step 1: Compile an
                                                                                         itemized list of human
                                                                                         remains . . .
10.10(e).....................  . . . inform recipients                                  (6) The presence of any
                                of repatriation . . .                                    potentially hazardous
                                treatment with                                           substances . . .
                                potentially hazardous
                                substances.
10.9(b)......................  Consultation............  10.10(b).....................  Step 2: Initiate
                               (1) Consulting parties..                                  consultation.
                               (2) Initiation of                                        (1) Consulting parties
                                consultation..                                           are . . .
                               (3) Provision of                                         (2) An invitation to
                                information..                                            consult must . . .
                               New.....................                                 (3) Any consulting party
                                                                                         . . . must . . .
                                                                                        (4) . . . identifies a
                                                                                         new consulting party .
                                                                                         . .
10.13(c).....................  New Indian Tribes.......                                 (ii) . . . after the
                                                                                         addition of a Tribal
                                                                                         entity to the list of
                                                                                         federally recognized
                                                                                         Indian Tribes . . .
10.9(b)......................  (4) Requests for          10.10(c).....................  Step 3: Consult with
                                information.                                             requesting parties.
                                                                                        (1) . . . a museum or
                                                                                         Federal agency must ask
                                                                                         for the following
                                                                                         information . . .
                               New.....................                                 (2) The consultation
                                                                                         process must . . .
                                                                                        (3) The museum or
                                                                                         Federal agency must
                                                                                         prepare a record of
                                                                                         consultation . . .
10.9(e)......................  (5) . . . upon request,                                  (4) A museum or Federal
                                additional                                               agency must provide
                                documentation . . ..                                     access to the
                                                                                         additional information
                                                                                         . . .
10.9(d)......................  Documents. Two separate   10.10(d).....................  Step 4: Complete an
                                documents comprise the                                   inventory of human
                                inventory:                                               remains . . .
                                                                                        (1) An inventory must
                                                                                         include:
                               (1) a listing of                                         (iii) For each entry . .
                                culturally affiliated .                                  . a determination of
                                . ..                                                     one or more . . .
                                                                                        (A) . . . a known lineal
                                                                                         descendant,
                                                                                        (B) . . . through
                                                                                         cultural affiliation .
                                                                                         . .
                               (2) a listing of                                         (C) . . . through
                                culturally                                               geographical
                                unidentifiable . . ..                                    affiliation . . .
                                                                                        (D) There is no
                                                                                         connection . . .
10.9(c)......................  (4) A summary of the                                     (iv) An abstract of the
                                evidence, including                                      information supporting
                                consultation . . ..                                      the determination . . .
10.13(b).....................  (1) New holdings or       10.10(d).....................  (2) After [effective
                                collections.                                             date of final rule], .
                                                                                         . . must submit an
                                                                                         inventory . . .
10.13(d).....................  New Federal funds         .............................
10.9(f)......................  Completion..............                                 (3) Prior to [effective
                                                                                         date of final rule] . .
                                                                                         . must have submitted
                                                                                         an inventory . . .
10.11(b).....................  Consultation............                                 (4) No later than [2
10.11(c).....................  Disposition of                                            years after the
                                culturally                                               effective date of final
                                unidentifiable human                                     rule], for any . . .
                                remains and associated                                   listed in an inventory
                                funerary objects..                                       but not published in a
                               (1) . . . must offer to                                   notice of inventory
                                transfer control . . ..                                  completion prior to
                                                                                         [effective date of
                                                                                         final rule] . . .
                                                                                         submit an updated
                                                                                         inventory . . .
10.9(f)......................  Completion..............                                 (5) Any museum may
                                                                                         request an extension to
                                                                                         complete or update its
                                                                                         inventory . . .
10.13(b).....................  (3) Previously prepared                                  (6) After [effective
                                summary or inventory .                                   date of final rule] . .
                                . ..                                                     . acquires possession
                                                                                         or control of human
                                                                                         remains . . .
10.9(e)......................  Notification............  10.10(e).....................  Step 5: Submit a notice
10.11(d).....................  Notification............                                  of inventory
                                                                                         completion.
10.10(e).....................   . . . treatment with                                    (2) (vii) . . . the
                                potentially hazardous                                    presence of any
                                substances.                                              potentially hazardous
10.13(b).....................  (2) Additional pieces or                                 (4) If the number . . .
                                fragments . . ..                                         changes . . .
10.13(e).....................  Amendment of previous
                                decision.
                               New.....................  10.10(f).....................  Step 6: Receive and
                                                                                         consider a request for
                                                                                         repatriation.
                                                                                        (1) A request for
                                                                                         repatriation . . . must
                                                                                         be received . . .
                                                                                        (2) Requests from two or
                                                                                         more . . .
10.10(b).....................  (1) Criteria............                                 (3) A request for
                                                                                         repatriation must
                                                                                         satisfy . . .
                               New.....................  10.10(g).....................  Step 7: Respond to a
                                                                                         request for
                                                                                         repatriation.
10.10(b).....................  (2) Notification........  10.10(h).....................  Step 8: Repatriation of
                                                                                         the human remains and
                                                                                         associated funerary
                                                                                         objects.
10.10(d).....................  Place and manner of
                                repatriation.
10.10(f).....................  Record of repatriation.
10.15(d).....................  Savings provisions.
10.10(c).....................  (2) Circumstances where   10.10(i).....................  Evaluating competing
                                there are multiple                                       requests for
                                requests for                                             repatriation.
                                repatriation . . ..
10.10(c).....................  Exceptions..............  10.10(j).....................  Stay of repatriation.
10.11(c).....................  (5) The exceptions
                                listed at Sec.
                                10.10(c) apply . . ..
10.15(b).....................  Failure to claim where    10.10(k).....................  Transfer or reinter
                                no repatriation has                                      human remains and
                                occurred. [Reserved].                                    associated funerary
                                                                                         objects.
10.10(g).....................  (2)(ii) Recommend to the
                                Secretary specific
                                actions . . .
10.9(b)......................  (4) (iii) kinds of        .............................  Removed.
                                cultural items . . ..
10.9(c)......................  (1) Accession and
                                catalogue entries . . .

[[Page 63230]]

 
                               (3) A description . . .
                                including dimensions,
                                materials . . .
10.9(e)......................  (6) This paragraph
                                applies when a the
                                [sic] museum . . .
10.10(g).....................  Culturally
                                unidentifiable human
                                remains.
10.11(a).....................  General.................
10.11(c).....................  (2) If none of the
                                Indian Tribes or NHOs
                                agree to accept . . .
                               (3) The Secretary may
                                make a recommendation .
                                . .
                               (4) . . . may also
                                transfer control of
                                funerary objects . . .
                               (6) Any disposition of
                                human remains from
                                Indian lands . . .
10.11(d).....................  (2) Within 30 days . . .
                                Manager, National
                                NAGPRA . . .
----------------------------------------------------------------------------------------------------------------

L. Section 10.11 Civil Penalties

    This section of the proposed rule would implement the requirements 
of the Act regarding the process for the Secretary to assess civil 
penalties against any museum that fails to comply with the requirements 
of the Act (25 U.S.C. 3007). The Department proposes several revisions 
to the existing regulations at Sec.  10.12 to clarify and streamline 
the process for assessing civil penalties. As noted in the proposed 
rule, Federal agencies are not subject to the assessment of civil 
penalties. Federal law does include, however, ways to allege that a 
Federal agency has failed to comply with the requirements of the Act or 
the regulations (or any other Federal law or regulation). The most 
broadly applicable way to allege that a Federal agency has failed to 
comply is to send an allegation to the head of the appropriate Federal 
agency or to the Federal agency's Office of the Inspector General. 
Assuming that the alleged failure to comply is a final agency action 
(see proposed Sec.  10.1(i)), the failure to comply could also be the 
subject of a lawsuit under the Administrative Procedure Act (5 U.S.C. 
704).
1. Broaden the Options for a Failure To Comply
    The Department proposes to remove from the existing regulations at 
Sec.  10.12(b) the definition of ``failure to comply.'' Consistent with 
the Act, the proposed revisions would provide that a museum that fails 
to comply with any provision of the Act or Subpart C of the regulations 
has failed to comply. As under the existing regulations, each instance 
of failure to comply would constitute a separate violation. The 
proposed revisions include what factors would be relevant for 
determining the number of separate violations.
    For example, if a museum fails to include information regarding the 
known presence of a potentially hazardous substance used to treat the 
human remains or associated funerary objects in an itemized list, the 
number of separate violations committed by the museum may be calculated 
by determining the number of lineal descendants, Indian Tribes, or NHOs 
named in an allegation and determined to be aggrieved by this failure 
to comply. Alternatively, if a museum completes the repatriation of 
human remains and associated funerary objects without submitting a 
notice of inventory completion, the number of separate violations may 
be calculated by determining the number of human remains and associated 
funerary objects involved in this failure to comply.
2. Allowing for a Single Hearing To Contest
    The Department proposes to consolidate the dual hearing process in 
the existing regulations--which involve an opportunity to contest both 
a substantiated failure to comply and a penalty assessment in separate 
hearings--into one single hearing. The bifurcated hearing process 
adopted in 2003 (68 FR 16354, April 3, 2003) is not legally required. 
The Act uses identical language (25 U.S.C. 3007(a)) to the 
Administrative Procedure Act (APA) (5 U.S.C. 554(a)). This reflects 
Congressional intent that civil penalties be adjudicated under similar 
procedural requirements to the APA and not a unique approach. Numerous 
government agencies have complied with Section 554(a) by conducting 
single hearing adjudications, which have withstood legal challenges for 
procedural due process. Not only does the single hearing process 
satisfy the Administrative Procedure Act's identical procedural 
requirements (5 U.S.C. 554(a)), but it would also provide greater 
efficiencies for all parties and quicker resolution of cases.
3. Calculation of Base Penalty Amount
    The Department proposes to change the calculation of the base 
penalty amount for each instance of failure to comply. Under the 
existing regulations, the base penalty amount for each separate 
violation is calculated as the lesser of two amounts: 0.25 percent of 
the museum's annual budget or $7,475 (adjusted annually for inflation 
under the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 (Pub. L. 114-74)). The proposed revision would require that 
the penalty amount be calculated using only $7,475 (adjusted annually 
for inflation) as the base penalty amount.
    The Act, the existing regulations, and the proposed revisions 
permit the Secretary to increase the penalty amount after considering 
different factors, including an aggrieved party's economic and non-
economic damages. For example, economic damages could be an Indian 
Tribe's expenditures for an attorney or other staff to prepare, review, 
and file documents to compel the museum to comply. For another example, 
non-economic damages could be a traditional religious leader's 
inability to conduct a certain ceremony because of the museum's failure 
to comply.
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to include an additional factor for increasing the 
penalty amount based on ceremonial or cultural value of the human 
remains or cultural items involved, as identified by any aggrieved 
lineal descendant, Indian Tribe, or NHO. The Secretary also may reduce 
the penalty amount if the

[[Page 63231]]

museum agrees to mitigate the violation. For example, mitigation could 
be a museum's payment to an NHO for the cost of a ceremony associated 
with the repatriation of human remains or cultural items, or the value 
of land that a museum provides for the reinterment of human remains and 
associated funerary objects. Another appropriate factor that may 
justify reducing a penalty would include the museum, through its chief 
executive, self-reporting the museum's failure to comply, by sending a 
written report of the violation to the Manager, National NAGPRA 
Program.
4. Options Upon Receipt of Notice
    The proposed revisions describe the actions a museum may take upon 
receipt of a notice of failure to comply and include the option for a 
museum to file a petition for relief in the existing regulations at 
Sec.  10.12(i)(3). The proposed revisions also describe the actions a 
museum may take upon receipt of a notice of assessment and include the 
option for a museum to request a hearing to contest the failure to 
comply or the penalty assessment in the existing regulations at 
Sec. Sec.  10.12(f)(2) and (i)(4).
5. Exhaustion of Administrative Remedies
    The proposed revisions would require a museum to exhaust all 
administrative remedies under this section prior to seeking judicial 
review of the final administrative decision of the Secretary. This 
section would also make clear that no decision would be considered to 
constitute final agency action subject to judicial review during the 
time the decision is subject to review under this section of the 
regulations. The proposed revisions contain provisions that would allow 
for the assessment of an additional daily penalty amount of $1,496 per 
day, subject to annual adjustments based on inflation, and would 
include the Department's options of instituting legal action to recover 
penalties and pursuing other available legal or administrative 
remedies.
    Table 17 shows how the Department proposes to reorganize the 
existing regulatory requirements for the assessment of civil penalties 
on any museum that fails to comply with the requirements of the Act.

                    Table 17--Cross-Reference of Existing Provisions to Proposed Sec.   10.11
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section        Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.12(c).....................  How to notify the         10.11(a).....................  File an allegation.
                                Secretary . . ..
10.12(d).....................  Steps the Secretary may   10.11(b).....................  Respond to an
                                take . . ..                                              allegation.
10.12(g).....................  How the Secretary         10.11(c).....................  Calculate the penalty
                                determines the penalty                                   amount.
                                amount..
10.12(e).....................  How the Secretary         10.11(d).....................  Notify a museum of a
                                notifies . . ..                                          failure to comply.
10.12(f).....................  Actions you may take      10.11(e).....................  Respond to a notice of
                                upon receipt of a                                        failure to comply.
                                notice . . ..
                               (1) Seek informal
                                discussions . . ..
10.12(i).....................  Actions that you may
                                take upon receipt of a
                                notice . . .
                               (1) Accept in writing .
                                . ..
                               (3) File a petition for
                                relief..
10.12(h).....................  How the Secretary         10.11(f).....................  Assess the civil
                                assesses the penalty .                                   penalty.
                                . ..
10.12(h).....................  (3) The Secretary         10.11(g).....................  Notify the museum of an
                                notifies you in writing                                  assessment.
                                . . ..
10.12(i).....................  Actions that you may      10.11(h).....................  Respond to an
                                take upon receipt of a                                   assessment.
                                notice . . .
                               (1) Accept in writing or
                                by payment of the
                                proposed penalty . . ..
10.12(f).....................  (2) Request a hearing .                                  (2) File a written
                                . ..                                                     request for a hearing
                                                                                         to contest
10.12(i).....................  (4) Request a hearing .
                                . ..
10.12(j).....................  How you request a         10.11(i).....................  Request a hearing.
                                hearing.                 10.11(j).....................  Hearings.
10.12(k).....................  How you appeal a          10.11(k).....................  Appealing the
                                decision..                                               administrative law
                                                                                         judge's decision.
10.12(l).....................  The final administrative  10.11(l).....................  Exhaustion of
                                decision.                                                administrative
                                                                                         remedies.
10.12(g).....................  (3) An additional         10.11(m).....................  Failure to pay penalty
                                penalty of up to.                                        or continuing failure
                                                                                         to comply . . .
10.12(m).....................  (2) If you fail to pay
                                the penalty
10.12(m).....................  (3) Assessing a penalty   10.11(n).....................  Additional remedies.
                                . . ..
10.12(a).....................  The Secretary's                                          Removed.
                                authority . . ..
10.12(b).....................  Definition of failure to
                                comply
10.12(f).....................  (3) Take no action and
                                await . . .
10.12(i).....................  (2) Seek informal
                                discussion with the
                                Secretary (on the
                                assessment).
10.12(m).....................  (1) If you are assessed
                                a civil penalty, you
                                have . . .
----------------------------------------------------------------------------------------------------------------

M. Section 10.12 Review Committee

    This section of the proposed rule would implement the requirements 
of the Act regarding the Federal Advisory Review Committee (25 U.S.C. 
3006). The Department proposes to clarify the existing provisions at 
Sec. Sec.  10.16 and 10.17 and add new provisions to clarify the 
responsibilities of the Review Committee.
1. Deadline for Publishing Findings or Recommendations
    In response to consultation with Indian Tribes and NHOs, the 
Department proposes to add a requirement that recommendations made by 
the Review Committee will be published in the Federal Register within 
90 days of the making the finding or recommendation. This is the same 
requirement under the Federal Advisory Committee Act (FACA) for 
completing minutes of the Review Committee meeting.
2. Add Requirements for Nominations to the Review Committee
    The Department proposes to add new provisions to clarify which 
entities may make nominations to the Secretary.

[[Page 63232]]

Under the Act (25 U.S.C. 3006(b)(1)(A)), Congress explicitly identified 
who is eligible to nominate a person to three specified slots on the 
Review Committee and who is eligible to serve in two of those slots. 
Only Indian Tribes, NHOs, and ``traditional Native American religious 
leaders'' are eligible to be the nominators, and only ``traditional 
Indian religious leaders'' are eligible to serve in two of the three 
specified slots. When Congress expressly identified traditional Indian 
religious leaders as being eligible to serve in two of the three 
specified slots, it excluded traditional Native Hawaiian religious 
leaders.
    Under the Act (25 U.S.C. 3006(b)(1)(B)), Congress did not provide 
any additional requirements for nominators beyond ``national museum 
organizations and scientific organizations. The proposed addition seeks 
to clarify these requirements by defining what national museum 
organizations and national scientific organizations are, as recommended 
by the Government Accountability Office in a 2010 report on the 
implementation of the Act. As many national organizations have an 
abundance of subsidiary organizations, the proposed addition requires 
nominations be submitted only through a parent organization.
3. Add Definitions and Provisions for Findings of Fact or Disputes
    The proposed revisions describe the finding of fact or dispute 
function of the Review Committee and remove the references in the 
existing regulations to informal and formal dispute resolution. The 
proposed definition of ``an affected party'' was drawn from the Review 
Committee's Dispute Procedures. The proposed revisions seek to clarify 
the distinction between findings of fact and disputes as well as to 
provide the options for the Review Committee's recommendation.
    Table 18 shows how the Department proposes to reorganize the 
existing regulatory requirements for the Review Committee.

                    Table 18--Cross-Reference of Existing Provisions to Proposed Sec.   10.12
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section                Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.16(b).............................  Recommendations........  10.12(a)...............  Recommendations.
                                       New....................  10.12(b)...............  Nominations.
10.17................................  Dispute resolutions....  10.12(c)...............  Findings of fact or
                                                                                          disputes on
                                                                                          repatriation.
----------------------------------------------------------------------------------------------------------------

VI. Public Engagement and Request for Comments

A. Public Engagement

    The Department will conduct consultation sessions with Indian 
Tribes virtually during the comment period. The Department will 
announce the exact meeting dates and times of the consultation 
sessions, once scheduled, on https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations and by letter to Tribal 
leaders. The Department will also conduct consultation sessions with 
the Native Hawaiian Community virtually during the comment period. The 
Department of the Interior's Office of Native Hawaiian Relations will 
invite the Native Hawaiian Community to participate and provide the 
exact meeting dates and times of the consultation sessions, once 
scheduled. Upon request, the Department will consider additional 
consultation sessions with Indian Tribes or the Native Hawaiian 
Community to ensure sufficient opportunity to engage and comment in 
advance of a final rule and to respond to the previous requests 
received for additional consultation sessions.
    One goal of the proposed regulatory revisions is to provide 
specific timelines for museums and Federal agencies to facilitate the 
required repatriation. The Department does not intend to impose 
timeframes on lineal descendants, Indian Tribes, or NHOs to request 
disposition or repatriation. The Department requests feedback from 
Indian Tribes and NHOs on whether this goal has been achieved and how 
to further allow Indian Tribes and NHOs flexibility and discretion with 
regard to the proposed regulatory revisions and, in particular, the new 
responsibilities under Subpart B and the proposed deadlines under 
Subpart C.
    The Department will also proactively contact and consult with a 
subset of smaller Indian Tribes and NHOs to ensure that they anticipate 
sufficient opportunity under the proposed regulatory changes in Subpart 
C to submit requests for repatriation of the human remains or cultural 
items anticipated to become available within three years of a final 
rule. Specifically, Indian Tribes and NHOs are currently responsible 
for submitting a request to consult, consulting, submitting a request 
for repatriation, and, in some cases, requesting transfer of human 
remains or cultural items. Under the proposed regulations, Indian 
Tribes and NHOs have the same responsibilities, but are likely to 
increase the number of annual responses for each responsibility, 
especially in submitting requests for repatriation. As stated in Sec.  
10.1(g), failure to make a claim for disposition or a request for 
repatriation of human remains or cultural items is deemed an 
irrevocable waiver of any right to make a claim or a request.
    The Department will also proactively contact and consult with 
Indian Tribes and NHOs to ensure that they anticipate sufficient 
opportunity under the proposed regulatory changes to take on new 
responsibilities under Subpart B. Specifically, Indian Tribes and NHOs 
are currently responsible for responding to a discovery on their Tribal 
lands, consenting to an excavation on Tribal lands, and submitting a 
claim for disposition on Federal lands. Under the proposed regulations, 
Indian Tribes and NHOs will also be responsible for delegating or 
accepting responsibilities on Tribal lands, submitting a request to 
consult on Federal lands, sending or completing a disposition statement 
on Tribal lands, and requesting transfer of unclaimed human remains or 
cultural items on Federal lands.
    Another goal of the proposed regulatory revisions is to improve 
efficiency in meeting the requirements of the systematic process for 
repatriation under Subpart C. The Department requests feedback from 
Indian Tribes, NHOs, museums, and Federal agencies on whether this goal 
has been achieved and how to ensure the step-by-step process for 
repatriation is streamlined and simplified by the proposed regulatory 
revisions under Subpart C.
    The Department will proactively contact and engage with a subset of 
affected entities, which will include Indian Tribes, NHOs, museums, and 
Federal agencies, during the comment period to understand if the 
proposed regulatory revisions could impact these entities' capacity and 
resources. Under

[[Page 63233]]

the proposed regulatory revisions, museums and Federal agencies would 
be required to update inventories for any human remains and associated 
funerary objects previously included in an inventory but not published 
in a notice of inventory completion within two years of a final rule. 
Based on information available to it, a museum or Federal agency would 
be required to initiate consultation, consult with requesting parties, 
and determine if there is a known lineal descendant or a cultural or 
geographical affiliation. Museums would also be able to request 
extensions to update an inventory if it has made a good faith effort 
but will be unable to do so by the appropriate deadline. Indian Tribes 
and NHOs would be required to submit requests to consult and engage in 
consultation. Museums and Federal agencies would also be required to 
publish notices of inventory completion within six months of updating 
the inventory.
    In particular, the Department anticipates that the human remains of 
117,000 Native American individuals currently unable to be repatriated 
would become available for repatriation within two and a half years of 
the effective date of a final rule, a substantial increase from the 
84,000 individuals repatriated in the almost 32 years since the passage 
of NAGPRA. At this time, the Department is not aware of any capacity 
and resource limitations that would prevent these entities from 
completing the new requirement to update inventories, submit requests 
to consult, engage in consultation, and publish notices following the 
effective date of a final rule.

B. Requests for Comments

    In addition to the public engagement and outreach discussed above, 
the Department solicits comment from the public on the entirety of this 
proposed rule. The Department is interested in receiving comments from 
the public on the cost-benefit and regulatory flexibility analyses, 
including the conclusions about the expected costs of complying with 
the proposed rule. In particular, the Department is interested in 
responses to the following questions:
    a. For each regulatory requirement, does the estimated time per 
response seem reasonable? If not, what range of time per response would 
be more reasonable for a specific regulatory requirement? For example, 
Federal agencies and museums are required to initiate and conduct 
consultation under both the existing regulations and the proposed 
regulations. We estimate the time per response ranges from ten hours to 
300 hours, depending on the size and complexity of the consultation, 
for a median of 155 hours.
    b. For Subpart B, is the estimated number of annual discoveries on 
Federal or Tribal lands reasonable? We used the average number of 
notices on Federal lands over the last three years, but we have no data 
on the number of discoveries on Tribal lands to inform this estimate.
    c. For Subpart C, is the estimated number of museums and Federal 
agencies required to update inventory data under the proposed 
regulations reasonable? We estimate 414 museums and 19 Federal agencies 
will be required to update inventories within three years after 
promulgation of a final rule. We estimate that 33% of those museums and 
Federal agencies will submit inventory updates each year for three 
years. We assume fewer inventory records will require less time to 
update. We assume museums previously prepared and submitted inventories 
in accordance with the existing regulations and an update to that 
inventory requires less time than submission of a new inventory. We 
estimate the time per response will range from less than one hour to 
100 hours, depending on the size and complexity of the update, for a 
median of 50.25 hours.
    d. For Subpart C, many museums and Federal agencies update 
inventories at their own discretion, going beyond what is required by 
the Act and the existing regulations, which only requires use of 
``information possessed by such museum or Federal agency'' (25 U.S.C. 
3003(a)). Given the potential expense of more extensive studies not 
required by the Act or the revised regulations, how should the 
Department account for these costs in this rulemaking? We also request 
public data about the potential costs of updating inventories under the 
revised regulations.
    e. For Subpart C, is the estimated number of museums required to 
report on Federal holdings or collections reasonable? We estimate the 
number of museums required to submit statements is 5% of all museums 
that previously submitted information under the existing regulations.
    f. Is the estimated number of competing claims for disposition or 
competing requests for repatriation reasonable?
    g. Using data on implementation since 2012, we estimate it will 
take an additional 26 years to complete the consultation and 
notification process for all 117,000 Native American human remains 
currently pending in the existing regulatory framework. Is this 26-year 
time horizon reasonable? Will the proposed regulatory requirements 
result in a change in consultation activities per year, and if so, how 
should the Department account for the change in costs to Indian Tribes 
or NHOs for engaging in consultation?

C. Use of Received Feedback

    The Department will use all received feedback to inform a final 
rule and may make changes to a final rule based on received feedback 
that is within the scope of this proposed rule.

VII. Compliance With Other Laws, Executive Orders and Department Policy

A. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in OMB will review all significant regulatory 
actions. OIRA has determined that this rule is a significant regulatory 
action.
    Executive Order 13563 reaffirms the principles of Executive 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. Executive Order 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.

B. Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government (Executive Order 13985)

    This proposed rule is expected to advance racial equity in agency 
actions and programs, in accordance with the Executive Order 13985.

C. Regulatory Flexibility Act

    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.). This certification is based on the cost-
benefit and regulatory flexibility analyses found in the report 
entitled ``Benefit-Cost and Regulatory Flexibility Threshold Analyses: 
Native American Graves Protection and Repatriation Act Regulations'' 
that may be viewed online at on https://www.regulations.gov.

[[Page 63234]]

D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under the Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 804(2)). 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.

E. 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.

F. Takings (Executive Order 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

G. Federalism (Executive Order 13132)

    Under the criteria in Section 1 of Executive Order 13132, this 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.

H. Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of Sec.  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 Sec.  3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

I. Consultation With Indian Tribes (Executive Order 13175 and 
Department Policy)

    The Department strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and tribal sovereignty. We have evaluated this rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have identified direct Tribal implications. 
Accordingly, we have developed this proposed rule after consulting with 
federally recognized Indian Tribes as detailed in this preamble. In 
addition, we developed this proposed rule in consultation with the 
Native American Graves Protection and Repatriation Review Committee, 
which includes members nominated by Indian Tribes.

J. Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)

1. Overview
    The Paperwork Reduction Act (PRA) provides that an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
``collection of information,'' unless it displays a currently valid OMB 
control number. Collections of information include any request or 
requirement that persons obtain, maintain, retain, or report 
information to an agency, or disclose information to a third party or 
to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).These proposed 
regulations contains existing and new information collection 
requirements that are subject to review by OMB under the PRA. OMB 
previously reviewed and approved information collection related to 43 
CFR part 10 and assigned the following OMB control number 1024-0144 
(expires 4/30/2025).
    The information collection activities in this proposed rule are 
described below along with estimates of the annual burdens. These 
activities, along with annual burden estimates, do not include 
activities that are considered usual and customary industry practices. 
Included in the burden estimates are the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing each 
component of the proposed information collection requirements.
    The Department of the Interior requests comment on any aspect of 
this information collection, including:
    a. Whether the collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility;
    b. The accuracy of the estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    c. Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    d. How the agency might minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of response.
2. Summary of Proposed Information Collection Requirements
    Title of Collection: Native American Graves Protection and 
Repatriation Regulations.
    OMB Control Number: 1024-0144.
    Form Number: None.
    Type of Review: Revision of a currently approved collection.
    Respondents/Affected Public: Any person, any affected party, lineal 
descendants, Indian Tribes, Native Hawaiian organizations, and State 
and local governments, universities, and museums, that receive Federal 
funds and have possession or control of Native American human remains 
and cultural items.
    Respondent's Obligation: Mandatory, voluntary, and required to 
obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Number of Annual Responses: 2,212
    Estimated Completion Time per Response: Varies from 1 hour to 300 
hours depending on respondent and/or activity.
    Total Estimated Number of Annual Burden Hours: 35,878.
    Total Estimated Annual Non Hour Burden Cost: None.

             Summary by Subpart of the Proposed Regulations
------------------------------------------------------------------------
                                    Information
             Subpart                collections         Respondents
------------------------------------------------------------------------
Subpart A--General..............               0  None.

[[Page 63235]]

 
Subpart B--Protection of Human                 1  Any person.
 Remains or Cultural Items on                  5  Indian Tribes or NHOs.
 Federal or Tribal Lands.
Subpart C--Repatriation of Human               1  Any person.
 Remains or Cultural Items by                  1  Indian Tribes or NHOs.
 Museums or Federal Agencies.                  1  Lineal descendants.
                                              16  Museums.
Subpart D--Review Committee.....               1  Any affected party.
------------------------------------------------------------------------

    Subpart A--General does not contain any information collection 
requirements subject to the PRA. References to written documents in 
this Subpart refer to the specific information collection requirements 
in the three subparts below.
    Subpart B--Protection of Human Remains or Cultural Items on Federal 
or Tribal Lands contains six information collection requirements 
subject to the PRA. On Federal or Tribal lands, any person who knows or 
has reason to know of the discovery of human remains or cultural items 
must provide specified information to third parties. On Federal lands, 
an Indian Tribe or NHO may submit a claim for disposition by disclosing 
specified information to third parties. On Tribal lands, an Indian 
Tribe or NHO must maintain specified records and in one instance, 
disclose specified information to third parties.
    Subpart C--Repatriation of Human Remains or Cultural Items by 
Museums or Federal Agencies contains 19 information collection 
requirements subject to the PRA. State and local governments, 
universities, and museums that receive Federal funds and have 
possession or control of Native American human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must submit 
information to the Federal government, maintain specified records, and 
disclose specified information to third parties. Lineal descendants, 
Indian Tribes, or NHOs may submit a request for repatriation by 
disclosing specified information to third parties. Any person alleging 
a failure to comply may voluntarily submit information to the Federal 
government. Museums may respond to a civil penalty action by submitting 
information to the Federal government.
    In the proposed regulations, Subpart D--Review Committee contains 
one information collection requirements subject to the PRA. Any 
affected party may voluntarily submit information to the Federal 
government.

------------------------------------------------------------------------
      Information collection requirement             Proposed rule
------------------------------------------------------------------------
      Proposed New Information Collection Requirements in Subpart B
------------------------------------------------------------------------
Report a discovery on Federal or Tribal lands  Sec.   10.5(a)-(b)
Respond to a discovery.......................  Sec.   10.5(c)(1) and
                                                Sec.   10.5(e)
Consent to an excavation.....................  Sec.   10.6(a)
Submit a claim for disposition...............  Sec.   10.7(d)(3)
Delegate or accept responsibility on Tribal    Sec.   10.5(c)(2)-(3);
 land.                                          Sec.   10.6(a)(2)-(3)
                                                and Sec.   10.7(c)(2)-
                                                (3)
Send or complete a disposition statement.....  Sec.   10.7(b) and Sec.
                                                10.7(c)
------------------------------------------------------------------------
  Currently Approved Information Collections Requirements in Subpart C
------------------------------------------------------------------------
New Summary/Inventory (private and state or    Sec.   10.9(a) and Sec.
 local museums).                                10.10(d)
Updated Summary/Inventory Data (private and    Sec.   10.9(a) and Sec.
 state or local museums).                       10.10(d)
Notices for publication in the Federal         Sec.   10.9(f) and Sec.
 Register (private and state or local           10.10(e)
 museums).
Initiate Consultation and Request Information  Sec.   10.10(b)-(c)
 (private and state or local museums)
 (previously Notify Tribes).
Response to requests for information (state    Removed
 or local museums).
------------------------------------------------------------------------
      Proposed New Information Collection Requirements in Subpart C
------------------------------------------------------------------------
Conduct consultation.........................  Sec.   10.9(c) and Sec.
                                                10.10(c)
Submit a request for repatriation............  Sec.   10.9(d) and Sec.
                                                10.10(f)
Document physical transfer...................  Sec.   10.9(g)(2) and
                                                Sec.   10.10(h)(2)
File an allegation of failure to comply......  Sec.   10.11(a)
Respond to a civil penalty action............  Sec.   10.11(e), (h),
                                                (i), and (k)
Submit statements describing holdings or       Sec.   10.8(c)-(d)
 collection.
Make a record of consultation................  Sec.   10.9(c)(3) and
                                                Sec.   10.10(c)(3)
Respond to a request for repatriation........  Sec.   10.9(e) and Sec.
                                                10.10(g)
Send a repatriation statement................  Sec.   10.9(g) and Sec.
                                                10.10(h)
Evaluate competing requests and resolve stays  Sec.   10.9(h)-(i) and
 of repatriation.                               Sec.   10.10(i)-(j)
Transfer or reinter human remains and          Sec.   10.10(k)
 associated funerary objects.
------------------------------------------------------------------------
      Proposed New Information Collection Requirements in Subpart D
------------------------------------------------------------------------
Request assistance of the Review Committee...  Sec.   10.12(c)
------------------------------------------------------------------------


[[Page 63236]]

3. Information That Is Not an Information Collection Subject to the PRA
    Lineal descendants, Indian Tribes, and Native Hawaiian 
organizations may take certain actions that are not information 
collections subject to the PRA. Written documents requesting to consult 
are acknowledgements that entail no burden other than that necessary to 
identify the respondent, the date, the respondent's address, and the 
nature of the consultation.
    Federal agencies and the Department of Hawaiian Home Lands (DHHL) 
must take certain actions that are not information collections subject 
to the PRA. The Hawaiian Homes Commission Act, 1920 (HHCA), 42 Stat. 
108, is a cooperative federalism statute, a compound of interdependent 
Federal and State law that establishes a Federal law framework but also 
provides for implementation through State law (see 81 FR 29777 and 
29787, May 13, 2016, 43 CFR 47 and 48, Land Exchange Procedures and 
Procedures to Amend the Hawaiian Homes Commission Act, 1920). These 
written documents are required by employees of the Federal government 
or DHHL when acting within the scope of their employment.
    Indian Tribes, Native Hawaiian organizations, and Indian groups 
that are not federally recognized may take certain actions to request 
transfer of human remains or cultural items that are not information 
collections subject to the PRA. These actions impact fewer than ten 
persons and occur less often than annually.
    Indian Tribes, Native Hawaiian organizations, traditional religious 
leaders, national museum organizations, and national scientific 
organizations may take certain actions that are not information 
collections subject to the PRA. These actions are generally solicited 
through a notice in the Federal Register, impact fewer than ten 
persons, and occur less often than annually.
4. Burden Estimates
    The Department has identified 26 information collections in the 
proposed regulations. In total, we estimate that we will receive, 
annually, 2,212 responses totaling 35,878 annual hour burden. We 
estimate the annual dollar value is $2,304,481 (rounded). We estimate 
the frequency of response for each of the information collections is 
once per year, but the number of respondents may not be the same as the 
number of responses, depending on the type of information collected. In 
our estimate, we have only used the number of responses to simplify our 
estimate and remain consistent across the types of information 
collected. For some information collections, the time per response 
varies widely because of differences in activity, size, and complexity.
5. Written Comments or Additional Information
    Written comments and suggestions on the information collection 
requirements should be submitted by the date specified above in DATES 
to https://www.reginfo.gov/public/do/PRAMain. Find this particular 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to the NPS Information Collection Clearance 
Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, (MS-242) Reston, VA 
20191 (mail); or [email protected] (email). Please include OMB 
Control Number 1024-0144 in the subject line of your comments.
    To request additional information about this ICR, contact Melanie 
O'Brien, Manager, National NAGPRA Program by email at 
melanie_o'[email protected], or by telephone at (202) 354-2204. Individuals 
in the United States who are deaf, deafblind, hard of hearing, or have 
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States. 
You may also view the ICR at https://www.reginfo.gov/public/do/PRAMain.

K. National Environmental Policy Act (NEPA)

    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.

L. Effects on the Energy Supply (Executive Order 13211)

    This rulemaking is not a significant energy action under the 
definition in Executive Order 13211; the rule is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, and the rule has not otherwise been designated by the 
Administrator of OIRA as a significant energy action. A Statement of 
Energy Effects in not required.

M. Clarity of This Rule

    We are required by Executive Orders 12866 (Sec.  1(b)(12)) and 
13563 (Sec.  1(a)), 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 proposed 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, the sections where you feel lists or tables 
would be useful, etc.

N. 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 may 
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.
    For access to the docket to read background documents or comments 
received, go to https://www.regulations.gov and enter RIN 1024-AE19 in 
the search box.

Drafting Information

    This proposed rule was prepared by staff of the National NAGPRA 
Program, National Park Service; Office of Regulations and Special Park 
Uses, National Park Service; Office of Native Hawaiian Relations; 
Office of Regulatory Affairs & Collaborative Action, Office of the 
Assistant Secretary--Indian Affairs;

[[Page 63237]]

and Office of the Solicitor, Division of Parks and Wildlife and 
Division of Indian Affairs, Department of the Interior. This proposed 
rule was prepared in consultation with the Native American Graves 
Protection and Repatriation Review Committee under the Act (25 U.S.C. 
3006(c)(7)).

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Alaska, Cemeteries, 
Citizenship and naturalization, Colleges and universities, Hawaiian 
Natives, Historic preservation, Human remains, Indians, Indians-claims, 
Indians-law, Indians-lands, Museums, Penalties, Public lands, Reporting 
and recordkeeping requirements, Treaties.


0
In consideration of the foregoing, the Department of the Interior 
proposes to revise 43 CFR Part 10 as follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

Subpart A--GENERAL
Sec.
10.1 Introduction.
10.2 Definitions for this part.
10.3 Cultural and geographical affiliation.
Subpart B--Protection of Human Remains or Cultural Items on Federal or 
Tribal Lands
10.4 General.
10.5 Discovery.
10.6 Excavation.
10.7 Disposition.
Subpart C--REPATRIATION OF HUMAN REMAINS OR CULTURAL ITEMS BY MUSEUMS 
OR FEDERAL AGENCIES
10.8 General.
10.9 Repatriation of unassociated funerary objects, sacred objects, 
and objects of cultural patrimony.
10.10 Repatriation of human remains and associated funerary objects.
10.11 Civil penalties.
Subpart D--REVIEW COMMITTEE
10.12 Review Committee.

    Authority: 25 U.S.C. 3001 et seq. and 25 U.S.C. 9.

Subpart A--General


Sec.  10.1  Introduction.

    (a) Purpose. These regulations provide a systematic process for the 
disposition and repatriation of Native American human remains, funerary 
objects, sacred objects, and objects of cultural patrimony under the 
Native American Graves Protection and Repatriation Act (Act) of 
November 16, 1990. The Act recognized the rights of lineal descendants, 
Indian Tribes, and Native Hawaiian organizations in Native American 
human remains or cultural items subject to this part. Consistent with 
the Act's express language and Congress's intent in enacting the 
statute, these regulations require museums and Federal agencies to 
complete timely dispositions and repatriations through consultation and 
collaboration with lineal descendants, Indian Tribes, and Native 
Hawaiian organizations. In implementing this systematic process, 
museums and Federal agencies must defer to the customs, traditions, and 
Native American traditional knowledge of lineal descendants, Indian 
Tribes, and Native Hawaiian organizations.
    (b) Applicability. These regulations pertain to Native American 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony and require certain actions to:
    (1) Protect Human Remains or Cultural Items on Federal or Tribal 
Lands in the event of a discovery or excavation after November 16, 
1990; and
    (2) Repatriate Human Remains or Cultural Items in the possession or 
control of:
    (i) Any Federal agency, regardless of the physical location of the 
holding or collection; or
    (ii) Any institution or State or local government agency (including 
any institution of higher learning) within the United States that 
receives Federal funds, regardless of the physical location of the 
holding or collection.
    (c) Accountability. These regulations are applicable to and binding 
on all museums and Federal agencies for implementing the systematic 
process for the disposition and repatriation of human remains or 
cultural items under this part.
    (d) Duty of care. Prior to disposition or repatriation, these 
regulations require a museum or Federal agency to care for, safeguard, 
and preserve all human remains or cultural items in its custody or in 
its possession or control. Upon request of a lineal descendant, Indian 
Tribe, or Native Hawaiian organization, a museum or Federal agency 
must, to the maximum extent possible:
    (1) Consult, collaborate, and obtain consent on the appropriate 
treatment, care, or handling of human remains or cultural items;
    (2) Incorporate and accommodate customs, traditions, and Native 
American traditional knowledge in practices or treatments of human 
remains or cultural items; and
    (3) Limit access to and research on human remains or cultural 
items.
    (e) Delivery of written documents. These regulations require 
written documents to be sent or delivered, such as requests for 
repatriation, claims for disposition, invitations or requests to 
consult, or notices for publication.
    (1) The written documents must be sent by:
    (i) Email, with proof of receipt,
    (ii) Personal delivery with proof of delivery date,
    (iii) Private delivery service with proof of date sent, or
    (iv) Certified mail.
    (2) Communication to the Manager, National NAGPRA Program, should 
be sent electronically to [email protected]. If electronic submission 
is not possible, physical delivery may be sent to 1849 C Street NW, 
Mail Stop 7360, Washington, DC 20240. If either of these addresses 
change, a notice with the new address must be published in the Federal 
Register within 5 days of the change.
    (f) Deadlines and timelines. These regulations require certain 
actions be taken by a specific date. Unless stated otherwise in these 
regulations:
    (1) Days mean business days, i.e., Monday through Friday. For any 
action by an Indian Tribe, Native Hawaiian organization, Federal 
agency, or the Manager, National NAGPRA Program, business days do not 
include days during which the Federal government is closed because of a 
Federal holiday, lapse in appropriations, or other reasons.
    (2) Written documents are deemed timely based on the date sent, not 
the date received.
    (3) Parties sending or receiving written documents under these 
regulations must document the date sent or date received, as 
appropriate, when these regulations require those parties to act based 
on the date sent or date received.
    (g) Failure to make a claim or a request. Failure to make a claim 
for disposition or a request for repatriation before the disposition, 
repatriation, transfer, or reinterment of human remains or cultural 
items under this part is deemed an irrevocable waiver of any right to 
make a claim or a request for the human remains or cultural items once 
the disposition, repatriation, transfer, or reinterment of the human 
remains or cultural items has occurred.
    (h) Judicial jurisdiction. The United States district courts have 
jurisdiction over any action by any person alleging a violation of the 
Act or this part.
    (i) Final agency action. For purposes of the Administrative 
Procedure Act (5 U.S.C. 704), any of the following actions by a Federal 
agency constitutes a final agency action under this part:
    (1) A final determination making the Act or this part inapplicable;

[[Page 63238]]

    (2) A final denial of a claim for disposition or a request for 
repatriation; and
    (3) A final disposition or repatriation determination.
    (j) Information collection. The information collection requirements 
contained in this part have been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq. and assigned control number 
1024-0144. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, the collection of information under this part 
unless the Federal agency provides a currently valid OMB control 
number.


Sec.  10.2  Definitions for this part.

    Act means the Native American Graves Protection and Repatriation 
Act.
    Acknowledged aboriginal land means land whose occupation by an 
Indian Tribe has been recognized in any of the following sources:
    (1) A treaty sent by the President to the United States Senate for 
ratification;
    (2) An Act passed by Congress;
    (3) An Executive Order;
    (4) A treaty between a foreign or colonial government and an Indian 
Tribe signed before the establishment of the United States Government 
or prior to the land becoming incorporated in the United States;
    (5) Another Federal document or foreign government document 
providing information that reasonably shows aboriginal occupation; or
    (6) Intertribal treaties, diplomatic agreements, and bilateral 
accords between and among Indian Tribes.
    Adjudicated aboriginal land means land whose occupation by an 
Indian Tribe has been recognized by a final judgment of the Indian 
Claims Commission or the United States Court of Claims. A final 
judgment also includes a judgment concerning a settlement as long as 
that judgment or settlement either explicitly recognizes certain land 
as the aboriginal land of an Indian Tribe or adopts findings of fact 
that do so.
    Affiliation means a connection between human remains or cultural 
items and an Indian Tribe or Native Hawaiian organization.
    Ahupua`a (singular and plural) means a land division in Hawai`i 
usually extending from the uplands to the sea which traditionally was, 
and in some cases remains, self-sustaining or whose occupants were or 
are permitted access to or trade resources with the neighboring 
ahupua`a.
    Appropriate official means any representative authorized by a 
delegation of authority within an Indian Tribe, Native Hawaiian 
organization, Federal agency, or Department of Hawaiian Home Lands 
(DHHL) that has responsibility for human remains or cultural items on 
Federal or Tribal lands.
    ARPA means the Archaeological Resources Protection Act of 1979, as 
amended (16 U.S.C. 470aa-mm) and the relevant Federal agency 
regulations implementing that statute.
    ARPA Indian lands means lands of Indian Tribes, or individual 
Indians, which are either held in trust by the United States Government 
or subject to a restriction against alienation imposed by the United 
States Government, except for any subsurface interests in lands not 
owned or controlled by an Indian Tribe or an individual Indian.
    ARPA Public lands means lands owned and administered by the United 
States Government as part of:
    (1) The national park system,
    (2) The national wildlife refuge system,
    (3) The national forest system, and
    (4) All other lands the fee title to which is held by the United 
States Government, other than lands on the Outer Continental Shelf and 
lands which are under the jurisdiction of the Smithsonian Institution.
    Consultation means a process to seek consensus through the exchange 
of information, open discussion, and joint deliberations and by 
incorporating identifications, recommendations, and Native American 
traditional knowledge, to the maximum extent possible.
    Cultural items means a funerary object, sacred object, or object of 
cultural patrimony according to a lineal descendant, Indian Tribe, or 
Native Hawaiian organization based on customs, traditions, or Native 
American traditional knowledge.
    Custody means having an obligation to care for the object or item 
but not a sufficient interest in the object or item to constitute 
possession or control. In general, custody through a loan, lease, 
license, bailment, or other similar arrangement is not a sufficient 
interest to constitute possession or control, which resides with the 
loaning, leasing, licensing, bailing, or otherwise transferring museum 
or Federal agency.
    Discovery means exposing, finding, or removing human remains or 
cultural items whether intentionally or inadvertently on Federal or 
Tribal lands without a written authorization for an excavation under 
Sec.  10.6.
    Disposition means an appropriate official acknowledges and 
recognizes a lineal descendant, Indian Tribe, or Native Hawaiian 
organization has control or ownership of human remains or cultural 
items removed from Federal or Tribal lands.
    Excavation means intentionally exposing, finding, or removing human 
remains or cultural items on Federal or Tribal lands with a written 
authorization under Sec.  10.6.
    Federal agency means any department, agency, or instrumentality of 
the United States Government. This term does not include the 
Smithsonian Institution.
    Federal lands means any lands other than Tribal lands that is 
controlled or owned by the United States Government. For purposes of 
this definition, control refers to lands not owned by the United States 
Government, but in which the United States Government has a sufficient 
legal interest to permit it to apply these regulations without 
abrogating a person's existing legal rights. Whether the United States 
Government has a sufficient legal interest to control lands it does not 
own is a legal determination that a Federal agency must make on a case-
by-case basis. Federal lands include:
    (1) Any lands selected by, but not yet conveyed to, an Alaska 
Native Corporation or group organized under the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.);
    (2) Any lands other than Tribal lands that are held by the United 
States Government in trust for an individual Indian or lands owned by 
an individual Indian and subject to a restriction on alienation by the 
United States Government; and
    (3) Any lands subject to a statutory restriction, lease, easement, 
agreement, or similar arrangement containing terms that grant to the 
United States Government indicia of control over those lands.
    Funerary object means any object reasonably believed to have been 
placed intentionally with or near human remains. A funerary object is 
any object connected, either at the time of death or later, to a death 
rite or ceremony of a Native American culture according to a lineal 
descendant, Indian Tribe, or Native Hawaiian organization based on 
customs, traditions, or Native American traditional knowledge. This 
term does not include any object returned or distributed to living 
persons according to traditional custom after it has been displayed as 
part of a death rite or ceremony of a Native American culture. Funerary 
objects are either associated funerary objects or unassociated funerary 
objects.
    (1) Associated funerary object means the human remains related to 
the funerary object are, or were after

[[Page 63239]]

November 16, 1990, in the possession or control of any museum or 
Federal agency or removed from Federal or Tribal lands. Any object made 
exclusively for burial purposes or to contain human remains is always 
an associated funerary object regardless of the location or existence 
of any related human remains.
    (2) Unassociated funerary object means any funerary object that is 
not an associated funerary object and is identified by a preponderance 
of the evidence as one or more of the following:
    (i) Related to human remains but the human remains were not removed 
or the location of the human remain is unknown,
    (ii) Related to specific individuals or families,
    (iii) Removed from a specific burial site of an individual or 
individuals with cultural affiliation to an Indian Tribe or Native 
Hawaiian organization, or
    (iv) Removed from a specific area where a burial site of an 
individual or individuals with cultural affiliation to an Indian Tribe 
or Native Hawaiian organization is known to have existed, but the 
burial site is no longer extant.
    Holding or collection means an accumulation of one or more objects, 
items, or human remains for any temporary or permanent purpose, 
including:
    (1) Academic interest;
    (2) Accession;
    (3) Catalog;
    (4) Comparison;
    (5) Conservation;
    (6) Education;
    (7) Examination;
    (8) Exhibition;
    (9) Forensic purposes;
    (10) Interpretation;
    (11) Preservation;
    (12) Public benefit;
    (13) Research;
    (14) Scientific interest; or
    (15) Study.
    Human remains means the physical remains of the body of a Native 
American individual. This term does not include human remains or 
portions of human remains that may reasonably be determined to have 
been freely given or naturally shed by the individual from whose body 
they were obtained. When human remains are reasonably believed to be 
comingled with other material (such as soil or faunal remains), the 
entire admixture may be treated as human remains.
    (1) Human remains incorporated into a funerary object, sacred 
object, or object of cultural patrimony are considered part of the 
cultural item rather than human remains.
    (2) Human remains incorporated into an object or item that is not a 
funerary object, sacred object, or object of cultural patrimony are 
considered human remains.
    Indian Tribe means any tribe, band, nation, or other organized 
group or community of Indians, including any Alaska Native village (as 
defined in, or established pursuant to, the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for 
the special programs and services provided by the United States 
Government to Indians because of their status as Indians by its 
inclusion on the list of recognized Indian Tribes published by the 
Secretary under the Act of November 2, 1994 (25 U.S.C. 5131).
    Inventory means a simple itemized list of human remains and 
associated funerary objects in a holding or collection that includes 
the results of consultation and determinations about cultural and 
geographical affiliation.
    Lineal descendant means:
    (1) A living person tracing his or her ancestry, either by means of 
traditional Native American kinship systems, or by the common-law 
system of descent, to a known individual whose human remains, funerary 
objects, or sacred objects are subject to this part; or
    (2) A living person tracing his or her ancestry, either by means of 
traditional Native American kinship systems, or by the common-law 
system of descent, to all the known individuals represented by 
comingled human remains (example: the human remains of two individuals 
have been comingled, and a living person may trace his or her ancestry 
directly to both of the deceased individuals).
    Manager, National NAGPRA Program, means the official of the 
Department of the Interior designated by the Secretary as responsible 
for administration of the Act and this part.
    Museum means any institution or State or local government agency 
(including any institution of higher learning) that has possession or 
control of human remains or cultural items and receives Federal funds. 
The term does not include the Smithsonian Institution.
    Native American means of, or relating to, a tribe, people, or 
culture that is indigenous to the United States. To be considered 
Native American under this part, human remains or cultural items must 
bear some relationship to a tribe, people, or culture indigenous to the 
United States.
    (1) A tribe is an Indian Tribe.
    (2) A people comprise the entire body of persons who constitute a 
community, tribe, nation, or other group by virtue of a common culture, 
history, religion, language, race, ethnicity, or similar feature. The 
Native Hawaiian Community is a ``people.''
    (3) A culture comprises the characteristic features of everyday 
existence shared by people in a place or time.
    Native American traditional knowledge means knowledge, 
philosophies, beliefs, traditions, skills, and practices that are 
developed, embedded, and often safeguarded by Native Americans. Native 
American traditional knowledge contextualizes relationships between and 
among people, the places they inhabit, and the broader world around 
them, covering a wide variety of information, including, but not 
limited to, cultural, ecological, religious, scientific, societal, 
spiritual, and technical knowledge. Native American traditional 
knowledge may be, but is not required to be, developed, sustained, and 
passed through time, often forming part of a cultural or spiritual 
identity.
    Native Hawaiian organization means any organization that:
    (1) Serves and represents the interests of Native Hawaiians, who 
are descendants of the indigenous people who, before 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawai`i;
    (2) Has as a primary and stated purpose the provision of services 
to Native Hawaiians; and
    (3) Has expertise in Native Hawaiian affairs, and includes but is 
not limited to:
    (i) The Office of Hawaiian Affairs established by the constitution 
of the State of Hawai`i;
    (ii) Native Hawaiian organizations (including `ohana) who are 
registered with the Secretary's Office of Native Hawaiian Relations; 
and
    (iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations 
and Homestead Associations as defined under 43 CFR 47.10.
    Object of cultural patrimony means an object that has ongoing 
historical, traditional, or cultural importance central to a Native 
American group, including any constituent sub-group (such as a band, 
clan, lineage, ceremonial society, or other subdivision), according to 
an Indian Tribe or Native Hawaiian organization based on customs, 
traditions, or Native American traditional knowledge. An object of 
cultural patrimony may have been entrusted to a caretaker, along with 
the authority to confer that responsibility to another caretaker. The 
object must be reasonably identified as

[[Page 63240]]

being of such importance central to the group that it:
    (1) Cannot or could not be alienated, appropriated, or conveyed by 
any person, including its caretaker, regardless of whether the person 
is a member of the group, and
    (2) Must have been considered inalienable by the group at the time 
the object was separated from the group.
    `Ohana (family) means a group of people who are not lineal 
descendants but comprise a Native Hawaiian organization whose members 
have a familial or kinship relationship with each other.
    Person means:
    (1) An individual, partnership, corporation, trust, institution, 
association, or any other private entity; or
    (2) Any representative, official, employee, agent, department, or 
instrumentality of the United States Government or of any Indian Tribe 
or Native Hawaiian organization, or of any State or subdivision of a 
State.
    Possession or control means having a sufficient interest in an 
object or item to independently direct, manage, oversee, or restrict 
the use of the object or item. A museum or Federal agency may have 
possession or control regardless of whether the object or item is in 
its physical custody. In general, custody through a loan, lease, 
license, bailment, or other similar arrangement is not a sufficient 
interest to constitute possession or control, which resides with the 
loaning, leasing, licensing, bailing, or otherwise transferring museum 
or Federal agency.
    Receives Federal funds means an institution or agency of a State or 
local government (including an institution of higher learning) directly 
or indirectly receives Federal financial assistance after November 16, 
1990, including any grant; cooperative agreement; loan; contract; use 
of Federal facilities, property, or services; or other arrangement 
involving the transfer of anything of value for a public purpose 
authorized by a law of the United States Government. This term includes 
Federal financial assistance provided for any purpose that is received 
by a larger entity of which the institution or agency is a part. For 
example, if an institution or agency is a part of a State or local 
government or a private university, and the State or local government 
or private university receives Federal financial assistance for any 
purpose, then the institution or agency receives Federal funds for the 
purpose of these regulations. This term does not include procurement of 
property or services by and for the direct benefit or use of the United 
States Government or Federal payments that are compensatory.
    Repatriation means a museum or Federal agency acknowledges and 
recognizes a lineal descendant, Indian Tribe, or Native Hawaiian 
organization has control or ownership of human remains or cultural 
items in a holding or collection.
    Review Committee means the advisory committee established under the 
Act.
    Right of possession means possession or control obtained with the 
voluntary consent of a person or group that had authority of 
alienation. Right of possession is given through the original 
acquisition of:
    (1) An unassociated funerary object, a sacred object, or an object 
of cultural patrimony from an Indian Tribe or Native Hawaiian 
organization with the voluntary consent of a person or group with 
authority to alienate the object; or
    (2) Human remains and associated funerary objects which were 
exhumed, removed, or otherwise obtained with full knowledge and consent 
of the next of kin or, when no next of kin is ascertainable, the 
official governing body of the appropriate Indian Tribe or Native 
Hawaiian organization.
    Sacred object means an object that is a specific ceremonial object 
needed by a traditional religious leader for the practice of 
traditional Native American religion by present-day adherents, 
according to a lineal descendant, Indian Tribe, or Native Hawaiian 
organization based on customs, traditions, or Native American 
traditional knowledge. While many items might be imbued with sacredness 
in a culture, this term is specifically limited to objects needed for 
the observance or renewal of Native American religious ceremonies.
    Secretary means the Secretary of the Interior or a designee.
    Summary means a written description of a holding or collection that 
may contain an unassociated funerary object, sacred object, or object 
of cultural patrimony.
    Traditional religious leader means a person who, based on cultural, 
ceremonial, or religious practices, is considered by an Indian Tribe or 
Native Hawaiian organization as being responsible for performing 
cultural ceremonies or exercising a leadership role.
    Tribal lands means:
    (1) All lands that are within the exterior boundaries of any Indian 
reservation;
    (2) All lands that are dependent Indian communities; and
    (3) All lands administered by the Department of Hawaiian Home Lands 
(DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 
108) and Section 4 of the Act to Provide for the Admission of the State 
of Hawai`i into the Union (73 Stat. 4), including ``available lands'' 
and ``Hawaiian home lands.''
    Tribal lands of an NHO means Tribal lands in Hawai`i that are under 
the stewardship of a Native Hawaiian organization that has been issued 
a lease or license under HHCA section 204(a)(2), second paragraph, 
second proviso, or section 207(c)(1)(B).
    Unclaimed human remains or cultural items means human remains or 
cultural items removed from Federal lands in the United States or from 
Tribal lands in Hawai`i whose disposition has not occurred under this 
part.
    United States means the 50 States and the District of Columbia.


Sec.  10.3   Cultural and Geographical Affiliation.

    Throughout this part, affiliation ensures that disposition or 
repatriation of human remains or cultural items is based on a 
reasonable connection to an Indian Tribe or Native Hawaiian 
organization. Affiliation is established by identifying the cultural 
and geographical affiliation of the human remains or cultural items 
using this section.
    (a) Cultural affiliation. Cultural affiliation is identified by 
reasonably tracing a relationship of shared group identity between an 
Indian Tribe or Native Hawaiian organization and an identifiable 
earlier group connected to the human remains or cultural items. 
Cultural affiliation is established by a simple preponderance of the 
evidence given the information available, including the results of 
consultation. Cultural affiliation does not require exhaustive studies 
of the human remains or cultural items or continuity through time. 
Cultural affiliation is not precluded solely because of reasonable gaps 
in the information.
    (1) Information. One or more of the following equally relevant 
types of information may be used to identify cultural affiliation:
    (i) Anthropological;
    (ii) Archaeological;
    (iii) Biological;
    (iv) Folkloric;
    (v) Geographical;
    (vi) Historical;
    (vii) Kinship;
    (viii) Linguistic;
    (ix) Oral Traditional; or
    (x) Other relevant information or expert opinion, including Native 
American traditional knowledge which alone may be sufficient to 
identify cultural affiliation.

[[Page 63241]]

    (2) Criteria. Using the information available, each of the 
following criteria for cultural affiliation must be identified:
    (i) One or more earlier groups connected to the human remains or 
cultural items;
    (ii) One or more Indian Tribes or Native Hawaiian organizations; 
and
    (iii) A relationship of shared group identity between the earlier 
group and the Indian Tribe or Native Hawaiian organization reasonably 
traced through time.
    (3) Multiple cultural affiliations. An identifiable earlier group 
may have a relationship to more than one Indian Tribe or Native 
Hawaiian organization. As two or more earlier groups may be connected 
to human remains or cultural items, a relationship may be reasonably 
traced to two or more Indian Tribes or Native Hawaiian organizations 
that do not themselves have a shared group identity.
    (b) Geographical affiliation. Geographical affiliation is 
identified by reasonably tracing a relationship between an Indian Tribe 
or Native Hawaiian organization and a geographic area connected to the 
human remains or cultural items. Geographical affiliation is 
established by the information available, including the results of 
consultation.
    (1) Information. Existing records, inventories, catalogues, 
relevant studies, or other pertinent data may be used to identify the:
    (i) Geographic origin of the human remains or cultural items and
    (ii) Basic facts surrounding the acquisition and accession of the 
human remains or cultural items.
    (2) Criteria. Using the information available, each of the 
following criteria for geographical affiliation must be identified:
    (i) A geographic area connected to the human remains or cultural 
items;
    (ii) One or more Indian Tribes or Native Hawaiian organizations; 
and
    (iii) A relationship between the geographic area and the Indian 
Tribe or Native Hawaiian organization, based on the identification of 
the geographic area as:
    (A) The Tribal lands of the Indian Tribe or Native Hawaiian 
organization,
    (B) The adjudicated aboriginal land of the Indian Tribe, or
    (C) The acknowledged aboriginal land of the Indian Tribe.
    (3) Multiple geographical affiliations. A geographic area may have 
a relationship to more than one Indian Tribe or Native Hawaiian 
organization. Information used for geographical affiliation may provide 
information sufficient to identify cultural affiliation under paragraph 
(a) of this section but must not be used to limit geographical 
affiliation.
    (c) Multiple affiliations. When affiliation of human remains or 
cultural items is established with two or more Indian Tribes or Native 
Hawaiian organizations, any of the Indian Tribes or Native Hawaiian 
organizations may submit a claim for disposition or a request for 
repatriation. Two or more Indian Tribes or Native Hawaiian 
organizations with affiliation may agree to joint disposition or joint 
repatriation of the human remains or cultural items.
    (1) Single claims or requests. Claims or requests for joint 
disposition or joint repatriation of human remains or cultural items 
are considered a single claim or request and not competing claims or 
requests. Notices and statements for joint disposition or joint 
repatriation of human remains or cultural items required under this 
part must identify all joint requestors.
    (2) Competing claims or requests. Under Sec. Sec.  10.7, 10.9, and 
10.10, when there are competing claims for disposition or competing 
requests for repatriation of human remains or cultural items, it may be 
necessary to determine the Indian Tribe or Native Hawaiian organization 
with the closest affiliation under paragraph (d) of this section.
    (d) Closest affiliation. (1) The Indian Tribe with the closest 
affiliation, in the following order, is:
    (i) The Indian Tribe whose cultural affiliation is clearly 
identified.
    (ii) The Indian Tribe whose cultural affiliation is not clearly 
identified but is reasonably identified by the information available, 
including the circumstances surrounding the acquisition of the human 
remains or cultural items.
    (iii) The Indian Tribe whose geographical affiliation is based on 
the Tribal lands of the Indian Tribe.
    (iv) The Indian Tribe whose geographical affiliation is based on 
the adjudicated aboriginal land of the Indian Tribe.
    (v) The Indian Tribe whose geographical affiliation is based on the 
acknowledged aboriginal land of the Indian Tribe.
    (2) The Native Hawaiian organization with the closest cultural 
affiliation, in the following order, is:
    (i) An `ohana that can trace an unbroken connection of named 
individuals to one or more of the human remains or cultural items, but 
not necessarily to all of the human remains or cultural items from a 
specific site.
    (ii) An `ohana that can trace a relationship to the ahupua`a where 
the human remains or cultural items were removed and a direct kinship 
to one or more of the human remains or cultural items, but not 
necessarily an unbroken connection of named individuals.
    (iii) An organization with affiliation only to the earlier 
occupants of the ahupua`a where the human remains or cultural items 
were removed, and not to the earlier occupants of any other ahupua`a.
    (iv) An organization with affiliation to either:
    (A) The earlier occupants of the ahupua`a where the human remains 
or cultural items were removed, as well as to the earlier occupants of 
other ahupua`a on the same island, but not to the earlier occupants of 
all ahupua`a on that island, or to the earlier occupants of any other 
island of the Hawaiian archipelago, or
    (B) The earlier occupants of another island who accessed the 
ahupua`a where the human remains or cultural items were removed for 
traditional or customary practices and were buried there.
    (v) An organization with affiliation to the earlier occupants of 
all ahupua`a on the island where the human remains or cultural items 
were removed, but not to the earlier occupants of any other island of 
the Hawaiian archipelago.
    (vi) An organization with affiliation to the earlier occupants of 
more than one island in the Hawaiian archipelago that has been in 
continuous existence from a date prior to 1893.
    (vii) Any other Native Hawaiian organization with affiliation.

Subpart B--Protection of Human Remains or Cultural Items on Federal 
or Tribal Lands


Sec.  10.4  General.

    Whenever an Indian Tribe, Native Hawaiian organization, Federal 
agency, or the State of Hawai`i Department of Hawaiian Home Lands 
(DHHL) has responsibility for human remains or cultural items on 
Federal or Tribal lands, it must comply with the requirements of this 
subpart. To ensure compliance with the Act, any permit, license, lease, 
right-of-way, or other authorization issued by an Indian Tribe, Native 
Hawaiian organization, Federal agency, or DHHL for an activity on 
Federal or Tribal lands must include a requirement that the person 
responsible for the activity comply with Sec.  10.5 upon the discovery 
of human remains or cultural items. Prior to any excavation of human 
remains or cultural items on Federal or Tribal lands, an Indian Tribe, 
Native Hawaiian organization, Federal

[[Page 63242]]

agency, or DHHL must comply with Sec.  10.6.
    (a) Appropriate official. To ensure compliance with the Act, the 
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL 
that has responsibility for human remains or cultural items on Federal 
or Tribal lands must designate one or more appropriate officials, as 
shown in Table 1 of this section. The appropriate official is 
responsible for carrying out the requirements of this subpart.
    (b) Plan of action. On Federal lands in the United States or on 
Tribal lands in Hawai`i, a plan of action is required for any planned 
activity (including an excavation authorized under Sec.  10.6) that is 
likely to result in a discovery or excavation of human remains or 
cultural items. Determining the likelihood of discovery or excavation 
must be based upon previous studies, discoveries, or excavations in the 
general proximity of the planned activity. Information from and the 
expertise of Native American cultural practitioners, while not 
required, may assist in determining the likelihood of discovery or 
excavation. In consultation with any lineal descendants, Indian Tribes, 
or Native Hawaiian organizations, the appropriate official must 
prepare, approve, and sign a plan of action.
    (1) Step 1--Initiate consultation. Before the planned activity 
begins, the appropriate official must identify consulting parties and 
make a good-faith effort to invite the parties to consult.
    (i) Consulting parties are any lineal descendant and any Indian 
Tribe or Native Hawaiian organization with potential affiliation.
    (ii) An invitation to consult must be in writing and must include:
    (A) A description of the planned activity and its general location;
    (B) The names of all identified consulting parties; and
    (C) A proposed timeline and method for consultation.
    (iii) Any consulting party, regardless of whether the party has 
received an invitation to consult, must submit a written request to 
consult. A written request to consult may be submitted to the 
appropriate official at any time.
    (2) Step 2--Consult with requesting parties. No later than 10 days 
after receiving a written request to consult, the appropriate official 
must respond in writing with a proposed timeline for consultation. The 
proposed timeline must allow for consultation to occur before the 
planned activity begins.
    (i) In the response to the requesting party, the appropriate 
official must ask a requesting party for the following information, if 
not already provided:
    (A) Recommendations on the proposed timeline and method for 
consultation; and
    (B) The name, phone number, email address, or mailing address for 
any authorized representative, traditional religious leaders, and known 
lineal descendant who should participate in consultation.
    (ii) The consultation process must seek consensus, to the maximum 
extent possible, on the content of the plan of action.
    (iii) The appropriate official must prepare a record of 
consultation that includes the effort made to seek consensus. If 
recommendations by requesting parties are not possible, the record of 
consultation must describe efforts to identify a mutually agreeable 
alternative. The appropriate official must record the concurrence, 
disagreement, or nonresponse of the requesting parties to the plan of 
action.
    (3) Step 3--Approve and sign the plan of action. Before the planned 
activity begins, the appropriate official must approve and sign a plan 
of action and must provide a copy to all consulting parties. At a 
minimum, the written plan of action must include:
    (i) A description of the planned activity and its general location;
    (ii) A list of all consulting parties identified under paragraph 
(b)(1) of this section;
    (iii) A record of consultation under paragraph (b)(2) of this 
section;
    (iv) The preference of requesting parties for:
    (A) Stabilizing and covering human remains or cultural items in 
situ;
    (B) Protecting and relocating human remains or cultural items, if 
removed; or
    (C) Providing the appropriate treatment, care, or handling of human 
remains or cultural items; and
    (v) The timeline and method for:
    (A) Informing all identified consulting parties of a discovery;
    (B) Evaluating the potential need for an excavation; and
    (C) Completing the disposition, to include publication of a notice 
of intended disposition, under Sec.  10.7.
    (c) Comprehensive agreement. To facilitate compliance with the Act, 
a Federal agency or DHHL may develop a written comprehensive agreement 
for all land managing activities on Federal or Tribal lands, or 
portions thereof, under its responsibility. The written comprehensive 
agreement must:
    (1) Be developed in consultation with any Indian Tribe or Native 
Hawaiian organization identified under paragraph (b)(1) of this section 
and requesting to consult under paragraph (b)(2) of this section;
    (2) Include, at minimum, a plan of action under paragraph (b)(3) of 
this section;
    (3) Be consented to by a majority of requesting parties or lineal 
descendants identified under paragraph (b)(2) of this section. Evidence 
of consent will be by the authorized representative's signature on the 
agreement or by official correspondence to the Federal agency or DHHL; 
and
    (4) Be signed by the appropriate official for the Federal agency or 
DHHL.
    (d) Federal agency coordination with other laws. To manage 
compliance with the Act, a Federal agency may coordinate its 
responsibility under this subpart with its responsibilities under other 
relevant Federal laws. Compliance with this subpart does not relieve a 
Federal agency of the responsibility for compliance with the National 
Historic Preservation Act (54 U.S.C. 306108, commonly known as Section 
106) or the Archeological and Historic Preservation Act (54 U.S.C. 
312501-312508).

              Table 1 to Sec.   10.4--Appropriate Official
------------------------------------------------------------------------
                                             The appropriate official is
For human remains or cultural items on . .  a representative for the . .
                     .                                    .
------------------------------------------------------------------------
Federal lands in the United States........  Federal agency with primary
                                             management authority.
Tribal lands in Alaska and the continental  Indian Tribe.
 United States.
Tribal lands in Hawai`i...................  DHHL.
------------------------------------------------------------------------

Sec.  10.5  Discovery.

    When a discovery of human remains or cultural items on Federal or 
Tribal lands occurs, any person who knows or has reason to know of the 
discovery must inform the appropriate official for the responsible 
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL. 
For any planned activity on Federal lands in the United States or on 
Tribal lands in Hawai`i that is likely to result in a discovery of 
human remains or cultural items, the appropriate official must, in 
consultation with Indian Tribes and Native Hawaiian organizations, 
prepare, approve, and sign a plan of action under Sec.  10.4(b), unless 
the discovery is already covered by a signed comprehensive agreement 
under Sec.  10.4(c).
    (a) Report any discovery. Any person who knows or has reason to 
know of a discovery of human remains or cultural items on Federal or 
Tribal lands must immediately report the discovery to the appropriate 
official and any additional point of contact shown in Table 1 of this 
section. The person making the

[[Page 63243]]

discovery must make a reasonable effort to secure and protect the human 
remains or cultural items, including, as appropriate, stabilizing or 
covering the human remains or cultural items. No later than 24 hours 
after the discovery, the person making the discovery must send written 
documentation of the discovery, including the steps taken to secure and 
protect the human remains or cultural items, to the appropriate 
official and the additional point of contact shown in Table 1 of this 
section.
    (b) Cease any nearby activity. To ensure compliance with the Act, 
any permit, license, lease, right-of-way, or other authorization issued 
by an Indian Tribe, Native Hawaiian organization, Federal agency, or 
DHHL for an activity on Federal or Tribal lands must include a 
requirement that the person responsible for the activity comply with 
this paragraph upon the discovery of human remains or cultural items. 
If a discovery is related to any such activity (including but not 
limited to construction, mining, logging, or agriculture), the person 
responsible for the activity must:
    (1) Immediately stop all activity around the discovery;
    (2) Immediately report the discovery to the appropriate official 
and any additional point of contact shown in Table 1 of this section;
    (3) Make a reasonable effort to secure and protect the human 
remains or cultural items, including, as appropriate, stabilizing and 
covering the human remains or cultural items;
    (4) No later than 24 hours after the discovery, send written 
documentation of the discovery to the appropriate official and any 
additional point of contact stating:
    (i) The general location and contents of the discovery,
    (ii) The activity related to the discovery,
    (iii) The steps taken to secure and protect the human remains or 
cultural items, and
    (iv) Confirmation that all activity around the discovery has 
stopped and will not resume until the date in a written certification 
issued under paragraph (e) of this section.
    (c) Respond to a discovery. No later than three days after 
receiving written documentation of a discovery, the appropriate 
official must respond to a discovery. The appropriate official must 
comply with the requirements of this section immediately upon learning 
of the discovery even if the discovery has not been properly reported.
    (1) The appropriate official must make a written record showing a 
reasonable effort to:
    (i) Take steps to secure and protect the human remains or cultural 
items;
    (ii) Verify that any activity around the discovery has stopped; and
    (iii) Report the discovery to any additional point of contact shown 
in Table 1 of this section.
    (2) On Tribal lands in Alaska and the continental United States, 
the Indian Tribe may delegate its responsibility for the discovery to 
the appropriate official for the Bureau of Indian Affairs or the 
Federal agency with primary management authority. If both the Federal 
agency and the Indian Tribe consent in writing, the appropriate 
official for the Bureau of Indian Affairs or the Federal agency with 
primary management authority is responsible for completing the 
requirements in paragraph (d) of this section.
    (3) On Tribal lands of an NHO, the Native Hawaiian organization may 
agree in writing to be responsible for discoveries on its Tribal lands 
and then must respond to any discovery under this paragraph. If the 
Native Hawaiian organization has not agreed in writing to be 
responsible for discoveries, the appropriate official for DHHL is 
responsible for completing the requirements in paragraph (d) of this 
section for any discoveries on those Tribal lands of an NHO.
    (d) Approve and sign a plan of action. On Federal lands in the 
United States or on Tribal lands in Hawai`i, the appropriate official, 
in consultation with Indian Tribes and Native Hawaiian organizations, 
must prepare, approve, and sign a plan of action under Sec.  10.4(b) no 
later than 30 days after receiving written documentation of a 
discovery. To the maximum extent possible, the appropriate official 
must carry out the plan of action for any human remains or cultural 
items. This requirement does not apply if, before receiving written 
documentation of the discovery:
    (1) The appropriate official signed a plan of action under Sec.  
10.4(b);
    (2) The appropriate official signed a comprehensive agreement under 
Sec.  10.4(c); or
    (3) A Native Hawaiian organization agreed in writing to be 
responsible for discoveries on its Tribal lands under paragraph (c)(3) 
of this section.
    (e) Certify that an activity may resume. No later than 35 days 
after receiving written documentation of a discovery, the appropriate 
official must send a written certification to the person responsible 
for the activity that the activity may resume. The written 
certification must provide:
    (1) A copy of the signed plan of action or comprehensive agreement 
with redaction of any confidential or sensitive information to the 
extent of applicable law;
    (2) Instructions for protecting, stabilizing, or covering the human 
remains or cultural items, if appropriate;
    (3) A proposed timeline and method for evaluating the potential 
need for and authorization of an excavation of the human remains or 
cultural items, if applicable; and
    (4) The date (no later than 30 days after the date of the written 
certification) on which lawful activity may resume around the 
discovery.

  Table 1 to Sec.   10.5--Report a Discovery on Federal or Tribal Lands
------------------------------------------------------------------------
                                    The appropriate   And the additional
                                    official is the    point of contact
 Where the discovery is on . . .  representative for     is the . . .
                                       the . . .
------------------------------------------------------------------------
Federal lands in the United       Federal agency      Any Indian Tribe
 States *.                         with primary        or Native
                                   management          Hawaiian
                                   authority.          organization with
                                                       potential
                                                       affiliation, if
                                                       known.
Tribal lands in Alaska and the    Indian Tribe......  Bureau of Indian
 continental United States.                            Affairs or the
                                                       Federal agency
                                                       with primary
                                                       management
                                                       authority, if
                                                       any.
Tribal lands in Hawai`i.........  DHHL..............  Any Native
                                                       Hawaiian
                                                       organization with
                                                       potential
                                                       affiliation, if
                                                       known.
* Federal lands in Alaska         Bureau of Land      Alaska Native
 selected but not yet conveyed     Management or       Corporation or
 under the Alaska Native Claims    Federal agency      group organized
 Settlement Act (ANCSA, 43         with primary        under ANCSA.
 U.S.C. 1601).                     management
                                   authority.
------------------------------------------------------------------------


[[Page 63244]]

Sec.  10.6  Excavation.

    When an excavation of human remains or cultural items on Federal or 
Tribal lands is needed, the appropriate official may authorize the 
excavation only after complying with this section. The appropriate 
official must take reasonable steps to evaluate the potential need for 
an excavation of human remains or cultural items. A permit under 
Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is 
on Federal or Tribal lands that are also ARPA Indian lands or ARPA 
Public lands, and there is no applicable permit exception or exemption 
under the ARPA uniform regulations at 18 CFR 1312, 32 CFR 229, 36 CFR 
296, or 43 CFR 7.
    (a) On Tribal lands. Before an excavation of human remains or 
cultural items may occur, the appropriate official must consent in 
writing by providing a written authorization for the excavation.
    (1) At minimum, the written authorization must document:
    (i) The reasonable steps taken to evaluate the potential need for 
an excavation of human remains or cultural items; and
    (ii) Any permit that the Indian Tribe or Native Hawaiian 
organization legally requires.
    (2) On Tribal lands in Alaska and the continental United States, 
the Indian Tribe may delegate its responsibility for authorizing the 
excavation to the appropriate official for the Bureau of Indian Affairs 
or the Federal agency with primary management authority. If both the 
Federal agency and the Indian Tribe consent in writing, the appropriate 
official for the Bureau of Indian Affairs or the Federal agency with 
primary management authority is responsible for completing the 
requirements in paragraph (b) of this section.
    (3) On Tribal lands of an NHO, the Native Hawaiian organization may 
agree in writing to be responsible for excavations on its Tribal lands 
and then must provide written authorizations under this paragraph. If 
the Native Hawaiian organization has not agreed in writing to be 
responsible for excavations, the appropriate official for DHHL is 
responsible for completing the requirements in paragraph (b) of this 
section for any excavations on those Tribal lands of an NHO.
    (b) On Federal lands in the United States or on Tribal lands in 
Hawai`i. Before an excavation of human remains or cultural items may 
occur, the appropriate official, must prepare, approve, and sign a plan 
of action under Sec.  10.4(b) and must provide a written authorization 
for the excavation.
    (1) Prior to authorizing an excavation, the appropriate official, 
in consultation with Indian Tribes and Native Hawaiian organizations, 
must prepare, approve, and sign a plan of action under Sec.  10.4(b). 
To the maximum extent possible, the appropriate official must carry out 
the plan of action for any human remains or cultural items. This 
requirement does not apply if prior to authorizing the excavation:
    (i) The appropriate official signed a plan of action under Sec.  
10.4(b);
    (ii) The appropriate official signed a comprehensive agreement 
under Sec.  10.4(c); or
    (iii) A Native Hawaiian organization agreed in writing to be 
responsible for excavations on its Tribal lands under paragraph (a)(3) 
of this section.
    (2) At minimum, the written authorization must document:
    (i) The reasonable steps taken to evaluate the potential need for 
an excavation of human remains or cultural items; and
    (ii) Any permit that the Federal agency or DHHL legally requires.


Sec.  10.7  Disposition.

    When human remains or cultural items are removed from Federal or 
Tribal lands, as soon as possible (but no later than one year) after 
the discovery or excavation of the human remains or cultural items, the 
appropriate official must determine the lineal descendant, Indian 
Tribe, or Native Hawaiian organization that has priority for 
disposition of human remains or cultural items using this section. On 
Federal lands in the United States or on Tribal lands in Hawai`i, when 
the appropriate official cannot reasonably determine any Indian Tribe 
or Native Hawaiian organization with priority for disposition of human 
remains or cultural items, the appropriate official must report the 
human remains or cultural items as unclaimed under paragraph (e) of 
this section.
    (a) Priority for disposition. The disposition of human remains or 
cultural items removed from Federal or Tribal lands is determined in 
the following priority order:
    (1) The known lineal descendants, if any, for human remains and 
associated funerary objects;
    (2) The Indian Tribe or Native Hawaiian organization from whose 
Tribal lands the human remains or cultural items originated;
    (3) The Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(d); or
    (4) For human remains or cultural items from adjudicated aboriginal 
land, the Indian Tribe with the strongest relationship to the human 
remains or cultural items who makes a claim for disposition, which is:
    (i) The adjudicated aboriginal land Indian Tribe who claims the 
human remains or cultural items, or
    (ii) A different Indian Tribe who claims the human remains or 
cultural items and shows, by a preponderance of the evidence, a 
stronger cultural relationship to the human remains or cultural items 
than the adjudicated aboriginal land Indian Tribe.
    (b) To a lineal descendant. When a lineal descendant is determined 
for human remains and associated funerary objects removed from Federal 
or Tribal lands, the appropriate official for the Indian Tribe, Native 
Hawaiian organization, Federal agency, or DHHL must send a written 
disposition statement to the lineal descendant. The disposition 
statement must acknowledge and recognize the lineal descendant has 
ownership or control of the human remains and associated funerary 
objects.
    (1) Before sending the disposition statement, the appropriate 
official must consult with the lineal descendant on the care, custody, 
and physical transfer of the human remains and associated funerary 
objects.
    (2) After sending the disposition statement, the appropriate 
official must:
    (i) Document any physical transfer by recording the contents, 
recipient, and method of delivery; and
    (ii) Protect sensitive information, as identified by the lineal 
descendant, from disclosure to the general public to the extent 
consistent with applicable law;
    (3) After the disposition statement is sent, nothing in the Act or 
this part:
    (i) Limits the authority of the Indian Tribe, Native Hawaiian 
organization, Federal agency, or DHHL to enter into any agreement with 
the lineal descendant concerning the care or custody of the human 
remains and associated funerary objects, or
    (ii) Limits any procedural or substantive right which may otherwise 
be secured to the lineal descendant.
    (c) On Tribal lands. When a lineal descendant cannot be determined 
for human remains and associated funerary objects, or in the case of 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony, the appropriate official for the Indian Tribe or Native 
Hawaiian organization from whose Tribal lands the human remains or 
cultural items were removed must complete a written disposition 
statement.

[[Page 63245]]

    (1) The written disposition statement must acknowledge and 
recognize:
    (i) A lineal descendant could not be ascertained and
    (ii) The Indian Tribe or Native Hawaiian organization has control 
or ownership of the human remains or cultural items.
    (2) On Tribal lands in Alaska and the continental United States, 
the Indian Tribe may delegate its responsibility for disposition of 
human remains or cultural items to the appropriate official for the 
Bureau of Indian Affairs or the Federal agency with primary management 
authority. If both the Federal agency and the Indian Tribe consent in 
writing, the appropriate official for the Bureau of Indian Affairs or 
the Federal agency with primary management authority is responsible for 
completing the requirements in paragraph (d) of this section.
    (3) On Tribal lands of an NHO, the Native Hawaiian organization may 
agree in writing to be responsible for disposition of human remains or 
cultural items from its Tribal lands and then must provide written 
disposition statements under this paragraph. If the Native Hawaiian 
organization has not agreed in writing to be responsible for 
dispositions, the appropriate official for DHHL is responsible for 
completing the requirements in paragraph (d) of this section for any 
dispositions from those Tribal lands of an NHO.
    (4) After the disposition statement is complete, nothing in the Act 
or this part:
    (i) Limits the authority of a Federal agency to enter into any 
agreement with the Indian Tribe or Native Hawaiian organization 
concerning the care or custody of the human remains or cultural items,
    (ii) Limits any procedural or substantive right which may otherwise 
be secured to the Indian Tribe or Native Hawaiian organization, or
    (iii) Prevents the governing body of an Indian Tribe or Native 
Hawaiian organization from expressly relinquishing its control or 
ownership of human remains, funerary objects, or sacred objects.
    (d) On Federal lands in the United States or on Tribal lands in 
Hawai`i. When a lineal descendant cannot be determined for human 
remains and associated funerary objects, or in the case of unassociated 
funerary objects, sacred objects, or objects of cultural patrimony, the 
appropriate official for the Federal agency or DHHL must determine the 
Indian Tribe or Native Hawaiian organization with priority for 
disposition under paragraph (a) of this section. When the appropriate 
official cannot reasonably determine any Indian Tribe or Native 
Hawaiian organization with priority for disposition of human remains or 
cultural items, the Federal agency or DHHL must report the human 
remains or cultural items as unclaimed under paragraph (e) of this 
section. On Tribal lands in Hawai`i, this requirement is waived if the 
Native Hawaiian organization agreed in writing to be responsible for 
disposition of human remains or cultural items from its Tribal lands 
under paragraph (c)(3) of this section.
    (1) Step 1--Inform consulting parties. As soon as possible but no 
later than six months after a discovery or excavation of human remains 
or cultural items, the appropriate official must send a written 
document informing all consulting parties identified in the plan of 
action under Sec.  10.4(b)(1). Consultation on the disposition of human 
remains or cultural items may continue until publication of a notice of 
intended disposition under paragraph (d)(2) of this section. The 
appropriate official must send a written document to the consulting 
parties that includes:
    (i) A description of the human remains or cultural items including 
the general location and date of discovery or excavation;
    (ii) The name of each Indian Tribe or Native Hawaiian organization 
identified as having priority for disposition of the human remains or 
cultural items and a brief abstract of the information used to make 
that identification; and
    (iii) A request that if the Indian Tribe or Native Hawaiian 
organization wishes to submit a claim for disposition of the human 
remains or cultural items, it should do so in writing no later than 30 
days after publication of a notice in the Federal Register.
    (2) Step 2--Submit a notice of intended disposition. No earlier 
than 30 days and no later than six months after informing consulting 
parties, the appropriate official must submit a notice of intended 
disposition to the Manager, National NAGPRA Program, for publication in 
the Federal Register. If the human remains or cultural items are 
evidence in an ongoing civil or criminal action under ARPA, the 
deadline for the notice is extended until the conclusion of the ARPA 
case.
    (i) A notice of intended disposition must conform to the mandatory 
format of the Federal Register and include:
    (A) A brief description of the human remains or cultural items, 
including the county and state where the human remains or cultural 
items were removed;
    (B) The identity of the human remains or cultural items 
specifically as human remains, associated funerary objects, 
unassociated funerary objects, sacred objects, objects of cultural 
patrimony, or both sacred objects and objects of cultural patrimony, 
and a brief abstract of the information used to make that 
identification;
    (C) The name of each Indian Tribe or Native Hawaiian organization 
with priority for disposition of the human remains or cultural items 
and a brief abstract of the information used to make that 
identification;
    (D) The name, phone number, email address, and mailing address for 
the appropriate official who is responsible for receiving written 
claims for disposition of the human remains or cultural items;
    (E) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the appropriate official may send 
a disposition statement to a claimant; and
    (F) The date (to be calculated by the Federal Register one year 
from the date of publication) on which the human remains or cultural 
items will become unclaimed human remains or cultural items if no 
written claim is received from an Indian Tribe or Native Hawaiian 
organization.
    (ii) No later than 15 days after receiving a notice of intended 
disposition, the Manager, National NAGPRA Program, will:
    (A) Approve for publication in the Federal Register a notice of 
intended disposition that conforms to the requirements under paragraph 
(d)(2)(i) of this section; or
    (B) Return to the Federal agency or DHHL any submission that does 
not meet the requirements under paragraph (d)(2)(i) of this section.
    (3) Step 3--Receive and consider a claim for disposition. After 
publication of a notice of intended disposition in the Federal 
Register, any Indian Tribe or Native Hawaiian organization may submit 
to the appropriate official a written claim for disposition of human 
remains or cultural items.
    (i) A claim for disposition of human remains or cultural items must 
be received by the appropriate official before the appropriate official 
sends a disposition statement for the human remains or cultural items 
to a claimant under paragraph (d)(5) of this section or the transfer or 
reinterment of the human remains or cultural items under paragraph 
(e)(4) of this section. Any claim for disposition received by the 
appropriate official no later than 30 days after publication of a 
notice must be considered. A claim for disposition received by the 
appropriate official before the publication of the notice of

[[Page 63246]]

intended disposition is dated the same date the notice was published.
    (ii) Claims from two or more Indian Tribes or Native Hawaiian 
organizations who agree to joint disposition of the human remains or 
cultural items are considered a single claim and not competing claims.
    (iii) A claim for disposition must satisfy one of the following 
criteria:
    (A) The claim is from an Indian Tribe or Native Hawaiian 
organization identified in the notice of intended disposition with 
priority for disposition, or
    (B) The claim is not from an Indian Tribe or Native Hawaiian 
organization identified in the notice of intended disposition, and 
shows that the claimant is a lineal descendant, Indian Tribe, or Native 
Hawaiian organization having priority for disposition under paragraph 
(a) of this section.
    (4) Step 4--Respond to a claim for disposition. No earlier than 30 
days after publication of a notice of intended disposition but no later 
than 30 days after receiving a claim for disposition, the appropriate 
official must send a written response to the claimant with a copy to 
any other party identified in the notice with priority for disposition.
    (i) In the written response, the appropriate official must state 
one of the following:
    (A) The claim meets the criteria under paragraph (d)(3) of this 
section. The appropriate official will send a disposition statement to 
the claimant under paragraph (d)(5) of this section, unless the 
appropriate official receives additional, competing claims for 
disposition of human remains or cultural items.
    (B) The claim does not meet the criteria under paragraph (d)(3) of 
this section. The appropriate official must provide a detailed 
explanation why the claim does not meet the criteria and an opportunity 
for the claimant to provide additional information to meet the 
criteria.
    (C) The appropriate official has received competing claims for 
disposition of the human remains or cultural items that meet the 
criteria and must determine the most appropriate claimant using the 
procedures and timelines under paragraph (d)(4)(ii) of this section.
    (ii) At any time before sending a disposition statement for human 
remains or cultural items under paragraph (d)(5) of this section, the 
appropriate official may receive additional, competing claims for 
disposition of the human remains or cultural items that meet the 
criteria under paragraph (d)(3) of this section. The appropriate 
official must determine the most appropriate claimant using the 
priority for disposition under paragraph (a) of this section.
    (A) No later than 10 days after receiving a competing claim, the 
appropriate official must send a written letter to each claimant 
identifying all claimants and the date each claim was received,
    (B) No later than 120 days after informing the claimants of 
competing claims, the appropriate official must send a written 
determination to each claimant identifying the most appropriate 
claimant(s), and
    (C) No earlier than 30 days but no later than 90 days after sending 
a determination of the most appropriate claimant(s), the appropriate 
official must send a disposition statement to the most appropriate 
claimant(s) under paragraph (d)(5) of this section.
    (5) Step 5--Disposition of the human remains or cultural items. No 
later than 90 days after responding to a claim for disposition that 
meets the criteria, the appropriate official must send a written 
disposition statement to the claimant(s) and a copy to the Manager, 
National NAGPRA Program. The disposition statement must acknowledge and 
recognize the claimant(s) has control or ownership of the human remains 
or cultural items. Disposition must be in a manner that, to the maximum 
extent possible, respects the traditions of the lineal descendant, 
Indian Tribe, or Native Hawaiian organization. In the case of joint 
claims for disposition, the disposition statement must be sent to and 
must identify all claimants.
    (i) Before sending the disposition statement, the appropriate 
official must consult with the claimant(s) on the care, custody, and 
physical transfer of the human remains or cultural items.
    (ii) After sending the disposition statement, the appropriate 
official must:
    (A) Document any physical transfer by recording the contents, 
recipient(s), and method of delivery and
    (B) Protect sensitive information, as identified by the 
claimant(s), from disclosure to the general public to the extent 
consistent with applicable law.
    (iii) After the disposition statement is sent, nothing in the Act 
or this part:
    (A) Limits the authority of the Federal agency or DHHL to enter 
into any agreement with the Indian Tribe or Native Hawaiian 
organization concerning the care or custody of the human remains or 
cultural items,
    (B) Limits any procedural or substantive right which may otherwise 
be secured to the Indian Tribe or Native Hawaiian organization, or
    (C) Prevents the governing body of an Indian Tribe or Native 
Hawaiian organization from expressly relinquishing its control or 
ownership of human remains, funerary objects, or sacred objects.
    (e) Unclaimed human remains or cultural items removed from Federal 
lands in the United States or from Tribal lands in Hawai`i. When the 
appropriate official cannot complete the disposition of human remains 
or cultural items under paragraph (d) of this section, the Federal 
agency or DHHL must report the human remains or cultural items as 
unclaimed. The appropriate official must, to the maximum extent 
possible, respect the traditions of the Indian Tribe or Native Hawaiian 
organization that may have priority for disposition under paragraph (a) 
of this section.
    (1) Step 1--Submit a list of unclaimed cultural items. No later 
than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER], the Federal agency or DHHL must submit to the 
Manager, National NAGPRA Program, a list of all unclaimed cultural 
items in its custody. The Federal agency or DHHL must submit updates to 
its list of unclaimed cultural items by December 31 each year.
    (i) Human remains or cultural items are unclaimed when:
    (A) One year after publishing a notice of intended disposition 
under paragraph (d)(2) of this section, no Indian Tribe or Native 
Hawaiian organization submits a written claim for disposition, or
    (B) One year after discovery or excavation of the human remains or 
cultural items, the appropriate official could not reasonably identify 
any lineal descendant, Indian Tribe, or Native Hawaiian organization 
with priority for disposition under paragraph (a) of this section.
    (ii) A list of unclaimed human remains or cultural items must 
include:
    (A) A brief description of the human remains or cultural items, 
including the county and state where the human remains or cultural 
items were removed;
    (B) The names of all consulting parties and an abstract of the 
results of consultation;
    (C) If known, the identity of the human remains or cultural items 
specifically as human remains, associated funerary objects, 
unassociated funerary objects, sacred objects, objects of cultural 
patrimony, or both sacred objects and objects of cultural patrimony, 
and a brief abstract of the information used to make that 
identification; and
    (D) If known, the name of each Indian Tribe or Native Hawaiian 
organization

[[Page 63247]]

with priority for disposition under paragraph (a) of this section and a 
brief abstract of the information used to make that identification.
    (iii) At any time before transferring or reinterring human remains 
or cultural items under paragraph (e)(4) of this section, the 
appropriate official may receive a claim for disposition of the human 
remains or cultural items and must evaluate whether the claim meets the 
criteria under paragraph (d)(3) of this section. Any agreement to 
transfer or decision to reinter the human remains or cultural items 
under this paragraph is stayed until the claim for disposition is 
resolved under paragraph (d) of this section. No later than 10 days 
after receiving a claim for disposition, the appropriate official must 
send a written letter to each claimant or requestor identifying all 
claimants and requestors and the date each claim or request was 
received.
    (A) If the claim meets the criteria under paragraph (d)(3) of this 
section and a notice of intended disposition was published under 
paragraph (d)(2) of this section, the appropriate official must respond 
in writing under paragraph (d)(4) and proceed with disposition under 
(d)(5) of this section.
    (B) If the claim meets the criteria under paragraph (d)(3) of this 
section but no notice of intended disposition was published, the 
appropriate official must submit a notice of intended disposition under 
paragraph (d)(2), respond in writing under paragraph (d)(4), and 
proceed with disposition under (d)(5) of this section.
    (C) No later than 90 days after responding to a claim for 
disposition that meets the criteria, the appropriate official must send 
a written letter to each claimant or requestor identifying the claimant 
that has control or ownership of the human remains or cultural items.
    (D) If the claim does not meet the criteria under paragraph (d)(3) 
of this section, the appropriate official must respond in writing under 
paragraph (d)(4) and may proceed with transfer or reinterment under 
paragraph (e)(2) of this section.
    (2) Step 2--Agree to transfer or decide to reinter human remains or 
cultural items. Subject to the requirements in paragraph (e)(3) of this 
section, and at the discretion of the Federal agency or DHHL, a Federal 
agency or DHHL may:
    (i) Agree in writing to transfer unclaimed cultural items to a 
requestor that agrees to treat the human remains or cultural items 
according to the requestor's laws and customs. Unclaimed cultural items 
must be requested in writing and may only be requested by:
    (A) An Indian Tribe or Native Hawaiian organization, or
    (B) An Indian group that is not federally recognized but has a 
relationship to unclaimed human remains or associated funerary objects.
    (ii) Decide in writing to reinter unclaimed human remains or 
funerary objects according to applicable laws and policies.
    (3) Step 3--Submit a notice of proposed transfer or reinterment. No 
later than 30 days after agreeing to transfer or deciding to reinter 
the human remains or cultural items, the Federal agency or DHHL must 
submit a notice of proposed transfer or reinterment to the Manager, 
National NAGPRA Program for publication in the Federal Register. The 
Federal agency or DHHL must send a copy of the published notice to any 
Indian Tribe or Native Hawaiian organization identified as having a 
priority for disposition under paragraph (a) of this section.
    (i) A notice of proposed transfer or reinterment must conform to 
the mandatory format of the Federal Register and include:
    (A) The details provided in the list of unclaimed cultural items 
under paragraph (e)(1) of this section;
    (B) The name of each Indian Tribe, Native Hawaiian organization, or 
Indian group requesting the human remains or cultural items or a 
statement that the Federal agency or DHHL will reinter the human 
remains or funerary objects;
    (C) The name, phone number, email address, and mailing address for 
the appropriate official who is responsible for receiving written 
claims for disposition of the human remains or cultural items; and
    (D) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the Federal agency or DHHL may 
proceed with the transfer or reinterment of the human remains or 
cultural items.
    (ii) No later than 15 days after receiving a notice of proposed 
transfer or reinterment, the Manager, National NAGPRA Program, will:
    (A) Approve for publication in the Federal Register a notice of 
proposed transfer or reinterment that conforms to the requirements 
under paragraph (e)(3)(i) of this section; or
    (B) Return to the Federal agency or DHHL any submission that does 
not meet the requirements under paragraph (e)(3)(i) of this section.
    (4) Step 4--Transfer or reinter the human remains or cultural 
items. No earlier than 30 days and no later than 90 days after 
publication of a notice of proposed transfer or reinterment, the 
appropriate official must transfer or reinter the human remains or 
cultural items.
    (i) After transferring or reinterring, the appropriate official 
must:
    (A) Document the transfer by recording the contents, recipient, and 
method of delivery,
    (B) Document the reinterment by recording the contents of the 
reinterment,
    (C) Protect sensitive information about the human remains or 
cultural items from disclosure to the general public to the extent 
consistent with applicable law.
    (ii) After transfer or reinterment occurs, nothing in the Act or 
this part:
    (A) Limits the authority of the Federal agency or DHHL to enter 
into any agreement with the requestor concerning the care or custody of 
the human remains or cultural items,
    (B) Limits any procedural or substantive right which may otherwise 
be secured to the Indian Tribe or Native Hawaiian organization, or
    (C) Prevents the governing body of an Indian Tribe or Native 
Hawaiian organization from expressly relinquishing its control or 
ownership of human remains, funerary objects, or sacred objects.

Subpart C--Repatriation of Human Remains or Cultural Items by 
Museums or Federal Agencies


Sec.  10.8  General.

    Each museum and Federal agency that has possession or control of a 
holding or collection that may contain human remains, funerary objects, 
sacred objects, or objects of cultural patrimony must comply with the 
requirements of this subpart, regardless of the physical location of 
the holding or collection. Each museum and Federal agency must identify 
one or more authorized representatives who are responsible for carrying 
out the requirements of this subpart.
    (a) Museum holding or collection. A museum must comply with this 
subpart for all holdings or collections under its possession or control 
that contain human remains or cultural items, including a new holding 
or collection or a previously lost or previously unknown holding or 
collection.
    (1) A museum must determine whether it has sufficient interest in a 
holding or collection to constitute possession or control on a case-by-
case basis given the relevant information about the holding or 
collection.
    (i) A museum may have custody of a holding or collection but not 
possession

[[Page 63248]]

or control. In general, custody through a loan, lease, license, 
bailment, or other similar arrangement is not sufficient interest to 
constitute possession or control, which resides with the loaning, 
leasing, licensing, bailing, or otherwise transferring museum or 
Federal agency.
    (ii) If a museum has custody of a holding or collection, the museum 
may be required to report the holding or collection under paragraphs 
(c) or (d) of this section.
    (2) Any museum that completes repatriation of human remains and 
cultural items or transfers or reinters human remains and associated 
funerary objects in good faith under this subpart shall not be liable 
for claims by an aggrieved party or for claims of breach of fiduciary 
duty, public trust, or violations of state law that are inconsistent 
with the provisions of the Act or this part.
    (b) Federal agency holding or collection. A Federal agency must 
comply with this subpart for all holdings or collections in its 
possession or control that contain human remains and cultural items, 
including a previously lost or previously unknown holding or 
collection. A Federal agency must determine if a holding or collection:
    (1) Was in its possession or control on or before November 16, 
1990; or
    (2) Came into its possession or control after November 16, 1990, 
and was removed from:
    (i) An unknown location, or
    (ii) Lands that are neither Federal nor Tribal lands as defined in 
this part.
    (c) Museums with custody of a Federal agency holding or collection. 
No later than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL 
RULE IN THE FEDERAL REGISTER], each museum that has custody of a 
Federal agency holding or collection that contains Native American 
human remains or cultural items must submit a statement describing that 
holding or collection to the authorized representatives of the Federal 
agency most likely to have possession or control and to the Manager, 
National NAGPRA Program.
    (1) No later than 120 days following receipt of a museum's 
statement, the Federal agency must respond to the museum and the 
Manager, National NAGPRA program, with a written acknowledgement of one 
of the following:
    (i) The Federal agency has possession or control of the holding or 
collection;
    (ii) The Federal agency does not have possession or control of the 
holding or collection; or
    (iii) The Federal agency and the museum have joint possession or 
control of the holding or collection.
    (2) Failure to issue such a determination by the deadline will 
constitute acknowledgement that the Federal agency has possession or 
control. The Federal agency is ultimately responsible for the 
requirements of this subpart for all holdings or collections under its 
possession or control, regardless of the physical location of the 
holdings or collection.
    (d) Museums with custody of other holdings or collections. No later 
than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER], each museum that has custody of a holding or 
collection that contains Native American human remains or cultural 
items and for which it cannot identify any person, institution, State 
or local government agency, or Federal agency with possession or 
control of the holding or collection, must submit a statement 
describing that holding or collection to the Manager, National NAGPRA 
Program.
    (e) Contesting actions on repatriation. An affected party under 
Sec.  10.12(c)(1) who wishes to contest actions made by museums or 
Federal agencies under this subpart is encouraged to do so through 
informal negotiations to achieve a fair resolution of the matter. 
Informal negotiations may include requesting the assistance of the 
Manager, National NAGPRA Program, or the Review Committee under Sec.  
10.12.


Sec.  10.9  Repatriation of unassociated funerary objects, sacred 
objects, and objects of cultural patrimony.

    Each museum and Federal agency that has possession or control of a 
holding or collection that may contain an unassociated funerary object, 
sacred object, or object of cultural patrimony must follow the steps in 
this section. The purpose of this section is to provide general 
information about a holding or collection to lineal descendants, Indian 
Tribes, and Native Hawaiian organizations to facilitate repatriation.
    (a) Step 1--Complete a summary of a holding or collection. Based on 
the information available, a museum or Federal agency must submit to 
the Manager, National NAGPRA Program, a summary describing its holding 
or collection that may contain unassociated funerary objects, sacred 
objects, and objects of cultural patrimony. Depending on the scope of 
the holding or collection, a museum or Federal agency may organize its 
summary into sections based on geographic area, accession or catalog 
name or number, or other defining attributes. A museum or Federal 
agency must ensure the summary is comprehensive and covers all holdings 
or collections relevant to this section.
    (1) A summary must include:
    (i) The estimated number and a general description of the holding 
or collection, including any potential unassociated funerary objects, 
sacred objects, and objects of cultural patrimony;
    (ii) The county and state where the potential unassociated funerary 
objects, sacred objects, and objects of cultural patrimony were 
removed;
    (iii) The acquisition history (provenance) of the potential 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony;
    (iv) Other information relevant for identifying:
    (A) A lineal descendant or an Indian Tribe or Native Hawaiian 
organization with cultural affiliation;
    (B) Any object or item as an unassociated funerary object, sacred 
object, or object of cultural patrimony; and
    (v) The presence of any potentially hazardous substances used to 
treat any of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony, if known.
    (2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE 
IN THE FEDERAL REGISTER], a museum or Federal agency must submit a 
summary to the Manager, National NAGPRA Program, by the deadline in 
Table 1 of this section.
    (3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL 
RULE IN THE FEDERAL REGISTER], a museum or Federal agency must have 
submitted a summary to the Manager, National NAGPRA Program:
    (i) By November 16, 1993, for unassociated funerary objects, sacred 
objects, and objects of cultural patrimony subject to the Act;
    (ii) By October 20, 2007, for unassociated funerary objects, sacred 
objects, and objects of cultural patrimony acquired or located after 
November 16, 1993;
    (iii) By April 20, 2010, for unassociated funerary objects, sacred 
objects, and objects of cultural patrimony in the possession or control 
of a museum that received Federal funds for the first time after 
November 16, 1993;
    (iv) Within six months of acquiring or locating unassociated 
funerary objects,

[[Page 63249]]

sacred objects, and objects of cultural patrimony after October 20, 
2007; or
    (v) Within three years of receiving Federal funds for the first 
time after April 20, 2010.
    (4) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE 
IN THE FEDERAL REGISTER], when a holding or collection previously 
included in a summary is transferred to a museum or Federal agency, The 
museum or Federal agency acquiring possession or control of the holding 
or collection may rely on the previously completed summary. The museum 
or Federal agency must submit the previously completed summary to the 
Manager, National NAGPRA Program, no later than 30 days after acquiring 
the holding or collection. The museum or Federal agency must submit a 
summary to the Manager, National NAGPRA Program, no later than the 
deadline in Table 1 of this section and must initiate consultation 
under paragraph (b) of this section.
    (b) Step 2--Initiate consultation. No later than 30 days after 
completing a summary, a museum or Federal agency must identify 
consulting parties based on information available and make a good-faith 
effort to invite the parties to consult.
    (1) Consulting parties are any lineal descendant and any Indian 
Tribe or Native Hawaiian organization with potential affiliation.
    (2) An invitation to consult must be in writing and must include:
    (i) The summary described in paragraph (a)(1) of this section;
    (ii) The names of all identified consulting parties; and
    (iii) A proposed timeline and method for consultation.
    (3) Any consulting party, regardless of whether the party has 
received an invitation to consult, must submit a written request to 
consult. A written request to consult may be submitted at any time 
before the publication of a notice of intended repatriation under 
paragraph (f) of this section.
    (4) When a museum or Federal agency identifies a new consulting 
party under paragraph (b)(1) of this section, the museum or Federal 
agency must make a good-faith effort to invite the party to consult and 
must send an invitation to consult under paragraph (b)(2) of this 
section. An invitation to consult must be sent to new consulting 
parties:
    (i) No later than 10 days after identifying a new consulting party 
based on new information; or
    (ii) No later than six months after the addition of a Tribal entity 
to the list of federally recognized Indian Tribes published in the 
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 
5131).
    (c) Step 3--Consult with requesting parties. No later than 10 days 
after receiving a written request to consult, a museum or Federal 
agency must respond in writing with a proposed timeline for 
consultation. Consultation on an unassociated funerary object, sacred 
object, or object of cultural patrimony may continue until the museum 
or Federal agency sends a repatriation statement for that object to a 
requestor under paragraph (g) of this section.
    (1) In the response to the requesting party, a museum or Federal 
agency must ask a requesting party for the following information, if 
not already provided:
    (i) Recommendations on the proposed timeline and method for 
consultation; and
    (ii) The name, phone number, email address, or mailing address for 
any authorized representative, traditional religious leader, and known 
lineal descendant who should participate in consultation.
    (2) The consultation process must seek consensus, to the maximum 
extent possible, on determining:
    (i) Lineal descendants;
    (ii) Indian Tribes or Native Hawaiian organizations with cultural 
affiliation;
    (iii) The types of objects that might be unassociated funerary 
objects, sacred objects, or objects of cultural patrimony; and
    (iv) The appropriate treatment, care, and handling of unassociated 
funerary objects, sacred objects, or objects of cultural patrimony.
    (3) The museum or Federal agency must prepare a record of 
consultation that includes the effort made to seek consensus. If 
recommendations by requesting parties are not possible, the record of 
consultation must describe efforts to identify a mutually agreeable 
alternative. For any determination considered during the consultation 
process, the museum or Federal agency must record the concurrence, 
disagreement, or nonresponse of the requesting parties.
    (4) At any time before a museum or Federal agency sends a 
repatriation statement for an unassociated funerary object, sacred 
object, or object of cultural patrimony to a requestor under paragraph 
(g) of this section, the museum or Federal agency may receive a request 
from a consulting party for access to records, catalogues, relevant 
studies, or other pertinent data related to the holding or collection. 
A museum or Federal agency must provide access to the additional 
information in a reasonable manner and for the limited purpose of 
determining affiliation and acquisition history of the unassociated 
funerary object, sacred object, or object of cultural patrimony.
    (d) Step 4--Receive and consider a request for repatriation. After 
a summary is complete, any lineal descendant, Indian Tribe, or Native 
Hawaiian organization may submit to the museum or Federal agency a 
written request for repatriation of an unassociated funerary object, 
sacred object, or object of cultural patrimony.
    (1) A request for repatriation of an unassociated funerary object, 
sacred object, or object of cultural patrimony must be received by the 
museum or Federal agency before the museum or Federal agency sends a 
repatriation statement for that unassociated funerary object, sacred 
object, or object of cultural patrimony to a requestor under paragraph 
(g) of this section. A request for repatriation received by the museum 
or Federal agency before the deadline for completing a summary is dated 
the same date as the deadline for completing the summary.
    (2) Requests from two or more lineal descendants, Indian Tribes, or 
Native Hawaiian organizations who agree to joint repatriation of the 
unassociated funerary object, sacred object, or object of cultural 
patrimony are considered a single request and not competing requests.
    (3) A request for repatriation must satisfy all the following 
criteria:
    (i) Each unassociated funerary object, sacred object, or object of 
cultural patrimony being requested meets the definition of an 
unassociated funerary object, a sacred object, or an object of cultural 
patrimony;
    (ii) The request is from a lineal descendant or an Indian Tribe or 
Native Hawaiian organization with cultural affiliation; and
    (iii) The request includes information to support a finding that 
the museum or Federal agency does not have right of possession to the 
unassociated funerary object, sacred object, or object of cultural 
patrimony.
    (e) Step 5--Respond to a request for repatriation. No later than 60 
days after receiving a request for repatriation, a museum or Federal 
agency must send a written response to the requestor. Using all 
information available, including relevant records, catalogs, existing 
studies, and the results of consultation, a museum or Federal agency 
must determine if the request for repatriation satisfies the criteria 
under paragraph (d) of this section. In the written response, the 
museum or Federal agency must state one of the following:

[[Page 63250]]

    (1) The request meets the criteria under paragraph (d) of this 
section. The museum or Federal agency will submit a notice of intended 
repatriation under paragraph (f) of this section.
    (2) The request does not meet the criteria under paragraph (d) of 
this section. The museum or Federal agency must provide a detailed 
explanation why the request does not meet the criteria and an 
opportunity for the requestor to provide additional information to meet 
the criteria.
    (3) The request meets the criteria under paragraph (d)(3)(i) and 
(ii) of this section, but the museum or Federal agency asserts a right 
of possession to the unassociated funerary object, sacred object, or 
object of cultural patrimony and refuses to complete repatriation of 
the requested object to the requestor. The museum or Federal agency 
must provide information to prove that the museum or Federal agency has 
a right of possession to the unassociated funerary object, sacred 
object, or object of cultural patrimony.
    (4) The museum or Federal agency has received competing requests 
for repatriation of the unassociated funerary object, sacred object, or 
object of cultural patrimony that meet the criteria and must determine 
the most appropriate requestor using the procedures and timelines under 
paragraph (h) of this section.
    (f) Step 6--Submit a notice of intended repatriation. No later than 
30 days after responding to a request for repatriation that meets the 
criteria, a museum or Federal agency must submit a notice of intended 
repatriation to the Manager, National NAGPRA Program, for publication 
in the Federal Register. The museum or Federal agency may include in a 
single notice all unassociated funerary objects, sacred objects, or 
objects of cultural patrimony with the same requestor.
    (1) A notice of intended repatriation must conform to the mandatory 
format of the Federal Register and include:
    (i) The number of unassociated funerary object, sacred object, or 
object of cultural patrimony and a brief description of each object 
(counted separately or by lot);
    (ii) The county and state where the unassociated funerary object, 
sacred object, or object of cultural patrimony were removed;
    (iii) The acquisition history (provenance) of the unassociated 
funerary object, sacred object, or object of cultural patrimony, 
including the circumstances surrounding its acquisition;
    (iv) The identity of each unassociated funerary object, sacred 
object, or object of cultural patrimony specifically as an unassociated 
funerary object, a sacred object, an object of cultural patrimony, or 
both a sacred object and an object of cultural patrimony, and a brief 
abstract of the information used to make that identification;
    (v) The lineal descendant, Indian Tribe, or Native Hawaiian 
organization requesting repatriation of the unassociated funerary 
object, sacred object, or object of cultural patrimony and a brief 
abstract of the information showing the requestor is a lineal 
descendant or an Indian Tribe or Native Hawaiian organization with 
cultural affiliation;
    (vi) Information about the presence of any potentially hazardous 
substances used to treat the unassociated funerary object, sacred 
object, or object of cultural patrimony, if known;
    (vii) The name, phone number, email address, and mailing address 
for the authorized representative of the museum or Federal agency who 
is responsible for receiving requests for repatriation; and
    (viii) The date (to be calculated by the Federal Register 30 days 
from the date of publication) after which the museum or Federal agency 
may send a repatriation statement to the requestor.
    (2) No later than 15 days after receiving a notice of intended 
repatriation, the Manager, National NAGPRA Program, will:
    (i) Approve for publication in the Federal Register a notice of 
intended repatriation that conforms to the requirements under paragraph 
(f)(1) of this section; or
    (ii) Return to the museum or Federal agency any submission that 
does not meet the requirements under paragraph (f)(1) of this section.
    (3) If the number or identity of unassociated funerary objects, 
sacred objects, or objects of cultural patrimony stated in a published 
notice of intended repatriation changes before the museum or Federal 
agency sends a repatriation statement under paragraph (g) of this 
section, the museum or Federal agency must submit a correction notice 
to the Manager, National NAGPRA Program. A museum or Federal agency is 
not required to submit a correction notice if there are additional 
pieces belonging to an unassociated funerary object, sacred object, or 
object of cultural patrimony previously identified in a notice and 
repatriation is to the same requestor. No later than 10 days after 
determining the new number or new identity of the unassociated funerary 
object, sacred object, or object of cultural patrimony, the museum or 
Federal agency must submit a correction notice containing, as 
applicable:
    (i) The corrected number of unassociated funerary object, sacred 
object, or object of cultural patrimony and corrected brief description 
of each object;
    (ii) The corrected identity of the unassociated funerary objects, 
sacred objects, or objects of cultural patrimony specifically as an 
unassociated funerary object, a sacred object, an object of cultural 
patrimony, or both a sacred object and an object of cultural patrimony, 
and corrected brief abstract of the information used to make that 
identification;
    (iii) The name, phone number, email address, and mailing address 
for the authorized representative of the museum or Federal agency who 
is responsible for receiving requests for repatriation; and
    (iv) The date (to be calculated by the Federal Register 30 days 
from the date of publication) after which the museum or Federal agency 
may send a repatriation statement to the requestor.
    (4) At any time before sending a repatriation statement for an 
unassociated funerary object, sacred object, or object of cultural 
patrimony under paragraph (g) of this section, the museum or Federal 
agency may receive additional, competing requests for repatriation of 
that object that meet the criteria under paragraph (d) of this section. 
The museum or Federal agency must determine the most appropriate 
requestor the procedures and timelines under paragraph (h) of this 
section.
    (g) Step 7--Repatriation of the unassociated funerary object, 
sacred object, or object of cultural patrimony. No earlier than 30 days 
and no later than 90 days after publication of a notice of intended 
repatriation, a museum or Federal agency must send a written 
repatriation statement to the requestor and a copy to the Manager, 
National NAGPRA Program. The repatriation statement must acknowledge 
and recognize the requestor has control or ownership of the requested 
unassociated funerary object, sacred object, or object of cultural 
patrimony. In the case of joint requests for repatriation, the 
repatriation statement must be sent to and must identify all 
requestors.
    (1) Before sending the repatriation statement, the museum or 
Federal agency must consult with the requestor on the care, custody, 
and physical transfer of the unassociated funerary object, sacred 
object, or object of cultural patrimony,

[[Page 63251]]

    (2) After sending the repatriation statement, the museum or Federal 
agency must:
    (i) Document any physical transfer of the unassociated funerary 
object, sacred object, or object of cultural patrimony by recording the 
contents, recipient, and method of delivery, and
    (ii) Protect sensitive information, as identified by the requestor, 
from disclosure to the general public to the extent consistent with 
applicable law.
    (3) After the repatriation statement is sent, nothing in the Act or 
this part limits the authority of the museum or Federal agency to enter 
into any agreement with the requestor concerning the care or custody of 
the unassociated funerary object, sacred object, or object of cultural 
patrimony.
    (h) Evaluating competing requests for repatriation. At any time 
before sending a repatriation statement for an unassociated funerary 
object, sacred object, or object of cultural patrimony under paragraph 
(g) of this section, a museum or Federal agency may receive additional, 
competing requests for repatriation of that object that meet the 
criteria under paragraph (d) of this section. The museum or Federal 
agency must determine the most appropriate requestor using this 
paragraph.
    (1) For an unassociated funerary object or sacred object, in the 
following priority order, the most appropriate requestor is:
    (i) The lineal descendant, if any, or
    (ii) The Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(d).
    (2) For an object of cultural patrimony, the most appropriate 
requestor is the Indian Tribe or Native Hawaiian organization with the 
closest cultural affiliation according to the priority order at Sec.  
10.3(d).
    (3) No later than 10 days after receiving a competing request, a 
museum or Federal agency must send a written letter to each requestor 
identifying all requestors and the date each request was received.
    (4) No later than 120 days after informing the requestors of 
competing requests, a museum or Federal agency must send a written 
determination to each requestor and the Manager, National NAGPRA 
Program. The determination must be one of the following:
    (i) The most appropriate requestor has been determined and the 
competing requests were received before the publication of a notice of 
intended repatriation. The museum or Federal agency must:
    (A) Identify the most appropriate requestor and explain how the 
determination was made,
    (B) Submit a notice of intended repatriation in accordance with 
paragraph (f) of this section no later than 30 days after sending the 
determination, and
    (C) No earlier than 30 days and no later than 90 days after 
publication of the notice of intended repatriation, the museum or 
Federal agency must send a repatriation statement to the most 
appropriate requestor under paragraph (g) of this section.
    (ii) The most appropriate requestor has been determined and a 
notice of intended repatriation was previously published. The museum or 
Federal agency must:
    (A) Identify the most appropriate requestor and explain how the 
determination was made,
    (B) No earlier than 30 days and no later than 90 days after sending 
a determination of the most appropriate requestor, the museum or 
Federal agency must send a repatriation statement to the most 
appropriate requestor under paragraph (g) of this section.
    (iii) The most appropriate requestor cannot be determined, and the 
repatriation is stayed under paragraph (i) of this section. The museum 
or Federal agency must explain why the most appropriate requestor could 
not be determined.
    (i) Stay of repatriation. Repatriation under paragraph (g) of this 
section is stayed if:
    (1) A court of competent jurisdiction has enjoined the 
repatriation. When there is a final resolution of the legal case or 
controversy in favor of a requestor, the museum or Federal agency must:
    (i) No later than 10 days after a resolution, send a written 
statement of the resolution to each requestor and the Manager, National 
NAGPRA Program,
    (ii) No earlier than 30 days and no later than 90 days after 
sending the written statement, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (g) of this 
section, unless a court of competent jurisdiction directs otherwise.
    (2) The museum or Federal agency has received competing requests 
for repatriation and, after complying with paragraph (h) of this 
section, cannot determine the most appropriate requestor. When a most 
appropriate requestor is determined by an agreement between the 
parties, binding arbitration, or means of resolution other than through 
a court of competent jurisdiction, the museum or Federal agency must:
    (i) No later than 10 days after a resolution, send a written 
determination to each requestor and the Manager, National NAGPRA 
Program,
    (ii) No earlier than 30 days and no later than 90 days after 
sending the determination, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (g) of this 
section.
    (3) Before the publication of a notice of intended repatriation 
under paragraph (f) of this section, the museum or Federal agency has 
both requested and received the Secretary's written concurrence that 
the unassociated funerary object, sacred object, or object of cultural 
patrimony is indispensable for completion of a specific scientific 
study, the outcome of which would be of major benefit to the people of 
the United States.
    (i) To request the Secretary's concurrence, the museum or Federal 
agency must send to the Manager, National NAGPRA Program, a written 
request of no more than 10 double-spaced pages. The written request 
must:
    (A) Be on the letterhead of the requesting museum or Federal agency 
and be signed by an authorized representative;
    (B) Describe the specific scientific study, the date on which the 
study commenced, and how the study would be of major benefit to the 
people of the United States;
    (C) Explain why retention of the unassociated funerary object, 
sacred object, or object of cultural patrimony is indispensable for 
completion of the study;
    (D) Describe the steps required to complete the study, including 
any destructive analysis, and provide a completion schedule and 
completion date;
    (E) Provide the position titles of the persons responsible for each 
step in the schedule; and
    (F) Affirm that the study has in place the requisite funding.
    (ii) If the Secretary concurs with the request, the Secretary will 
send a written concurrence and specify the date by which the scientific 
study must be completed.
    (iii) No later than 30 days after the completion date in the 
Secretary's concurrence, the museum or Federal agency must submit a 
notice of intended repatriation in accordance with paragraph (f) of 
this section.
    (iv) No earlier than 30 days and no later than 90 days after 
publication of the notice of intended repatriation, the museum or 
Federal agency must send a

[[Page 63252]]

repatriation statement to the requestor under paragraph (g) of this 
section.

       Table 1 to Sec.   10.9--Deadlines for Completing a Summary
------------------------------------------------------------------------
                                             . . . a summary must be
  If a museum or Federal agency . . .            submitted . . .
------------------------------------------------------------------------
acquires possession or control of        6 months after acquiring
 unassociated funerary objects, sacred    possession or control of the
 objects, or objects of cultural          unassociated funerary objects,
 patrimony.                               sacred objects, or objects of
                                          cultural patrimony.
locates previously lost or unknown       6 months after locating the
 unassociated funerary objects, sacred    unassociated funerary objects,
 objects, or objects of cultural          sacred objects, or objects of
 patrimony.                               cultural patrimony.
receives Federal funds for the first     3 years after receiving Federal
 time after [DATE 30 DAYS AFTER DATE OF   funds for the first time after
 PUBLICATION OF THE FINAL RULE IN THE     [DATE 30 DAYS AFTER DATE OF
 FEDERAL REGISTER], and has possession    PUBLICATION OF THE FINAL RULE
 or control of unassociated funerary      IN THE FEDERAL REGISTER].
 objects, sacred objects, or objects of
 cultural patrimony.
------------------------------------------------------------------------

Sec.  10.10  Repatriation of human remains and associated funerary 
objects.

    Each museum and Federal agency that has possession or control of a 
holding or collection that contains human remains or associated 
funerary objects must follow the steps in this section. The purpose of 
this section is to provide determinations, following consultation, 
about human remains and associated funerary objects to lineal 
descendants, Indian Tribes, and Native Hawaiian organizations to 
facilitate repatriation.
    (a) Step 1--Compile an itemized list of human remains and 
associated funerary objects. Based on information available, a museum 
or Federal agency must compile a simple itemized list of the human 
remains and associated funerary objects in its holding or collection. 
Depending on the scope of the holding or collection, a museum or 
Federal agency may organize its inventory into sections based on 
geographic area, accession or catalog name or number, or other defining 
attributes. A museum or Federal agency must ensure the itemized list is 
comprehensive and covers all holdings or collections relevant to this 
section. The itemized list must include:
    (1) The number of individuals determined in a reasonable manner 
based on the information available. No additional study or analysis is 
required to determine the number of individuals. If human remains are 
in a holding or collection, the number of individuals is at least one;
    (2) The number of associated funerary objects and types of objects 
(counted separately or by lot);
    (3) The county and state where the human remains and associated 
funerary objects were removed;
    (4) The acquisition history (provenance) of the human remains and 
associated funerary objects;
    (5) Other information relevant for identifying a lineal descendant 
or an Indian Tribe or Native Hawaiian organization with cultural or 
geographical affiliation; and
    (6) The presence of any potentially hazardous substances used to 
treat any of the human remains or associated funerary objects, if 
known.
    (b) Step 2--Initiate consultation. Based on information available, 
a museum or Federal agency must identify consulting parties and make a 
good-faith effort to invite the parties to consult.
    (1) Consulting parties are any lineal descendant and any Indian 
Tribe or Native Hawaiian organization with potential affiliation.
    (2) An invitation to consult must be in writing and must include:
    (i) The simple itemized list described in paragraph (a) of this 
section;
    (ii) The names of all identified consulting parties; and
    (iii) A proposed timeline and method for consultation.
    (3) Any consulting party, regardless of whether the party has 
received an invitation to consult, must submit a written request to 
consult. A written request to consult may be submitted at any time 
before the publication of a notice of inventory completion under 
paragraph (e) of this section.
    (4) When a museum or Federal agency identifies a new consulting 
party under paragraph (b)(1) of this section, the museum or Federal 
agency must make a good-faith effort to invite the party to consult and 
must send an invitation to consult under paragraph (b)(2) of this 
section. An invitation to consult must be sent to new consulting 
parties:
    (i) No later than 10 days after identifying a new consulting party 
based on new information; or
    (ii) No later than two years after the addition of a Tribal entity 
to the list of federally recognized Indian Tribes published in the 
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 
5131).
    (c) Step 3--Consult with requesting parties. No later than 10 days 
after receiving a written request to consult, a museum or Federal 
agency must respond in writing with a proposed timeline for 
consultation. Consultation on human remains and associated funerary 
objects may continue until the museum or Federal agency sends a 
repatriation statement for those human remains and associated funerary 
objects to a requestor under paragraph (h) of this section.
    (1) In the response to the requesting party, a museum or Federal 
agency must ask a requesting party for the following information, if 
not already provided:
    (i) Recommendations on the proposed timeline and method for 
consultation; and
    (ii) The name, phone number, email address, or mailing address for 
any authorized representative, traditional religious leaders, and known 
lineal descendant who should participate in consultation.
    (2) The consultation process must seek consensus, to the maximum 
extent possible, on determining:
    (i) Lineal descendants;
    (ii) Indian Tribes or Native Hawaiian organizations with cultural 
or geographical affiliation;
    (iii) The types of objects that might be associated funerary 
objects, including any objects that were made exclusively for burial 
purposes or to contain human remains; and
    (iv) The appropriate treatment, care, and handling of human remains 
and associated funerary objects.
    (3) The museum or Federal agency must prepare a record of 
consultation that includes the effort made to seek consensus. If 
recommendations by requesting parties are not possible, the record of 
consultation must describe efforts to identify a mutually agreeable 
alternative. For any determination considered during the consultation 
process, the museum or Federal agency must record the concurrence, 
disagreement, or nonresponse of the requesting parties.
    (4) At any time before the museum or Federal agency sends a 
repatriation statement for human remains and associated funerary 
objects to a

[[Page 63253]]

requestor under paragraph (h) of this section, a museum or Federal 
agency may receive a request from a consulting party for access to 
records, catalogues, relevant studies, or other pertinent data related 
to those human remains and associated funerary objects. A museum or 
Federal agency must provide access to the additional information in a 
reasonable manner and for the limited purpose of determining 
affiliation and acquisition history of the human remains and associated 
funerary objects.
    (d) Step 4--Complete an inventory of human remains and associated 
funerary objects. Based on information available and the results of 
consultation, a museum or Federal agency must submit to all consulting 
parties and the Manager, National NAGPRA Program, an inventory of all 
human remains and associated funerary objects in its holding or 
collection.
    (1) An inventory must include:
    (i) The names of all consulting parties and an abstract of the 
results of consultation;
    (ii) The information from the simple itemized list compiled under 
paragraph (a) of this section;
    (iii) For each entry in the itemized list, a determination of one 
or more of the following:
    (A) There is a known lineal descendant,
    (B) There is a connection between the human remains and associated 
funerary objects and an Indian Tribe or Native Hawaiian organization 
through cultural affiliation,
    (C) There is a connection between the human remains and associated 
funerary objects and an Indian Tribe or Native Hawaiian organization 
through geographical affiliation, or
    (D) There is no connection between the human remains and associated 
funerary objects and any Indian Tribe or Native Hawaiian organization; 
and
    (iv) An abstract of the information supporting that determination 
including:
    (A) The lineal descendant or the Indian Tribe or Native Hawaiian 
organization with cultural or geographical affiliation, or
    (B) An explanation why no Indian Tribes or Native Hawaiian 
organizations with cultural or geographical affiliation could be 
reasonably identified.
    (2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE 
IN THE FEDERAL REGISTER], a museum or Federal agency must submit an 
inventory to all consulting parties and the Manager, National NAGPRA 
Program, by the deadline in Table 1 of this section.
    (3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL 
RULE IN THE FEDERAL REGISTER], a museum or Federal agency must have 
submitted an inventory to all consulting parties and the Manager, 
National NAGPRA Program:
    (i) By November 16, 1995, for human remains or associated funerary 
objects subject to the Act;
    (ii) By April 20, 2009, for human remains or associated funerary 
objects acquired or located after November 16, 1995;
    (iii) By April 20, 2012, for human remains or associated funerary 
objects in the possession or control of a museum that received Federal 
funds for the first time after November 16, 1995;
    (iv) Within two years of acquiring or locating the human remains or 
associated funerary objects after April 20, 2009; or
    (v) Within five years of receiving Federal funds for the first time 
after April 20, 2012.
    (4) No later than [DATE 760 DAYS AFTER DATE OF PUBLICATION OF THE 
FINAL RULE IN THE FEDERAL REGISTER], for any human remains or 
associated funerary objects listed in an inventory but not published in 
a notice of inventory completion prior to [DATE 30 DAYS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], a museum or 
Federal agency must:
    (i) Initiate consultation as described under paragraph (b) of this 
section;
    (ii) Consult with requesting parties as described under paragraph 
(c) of this section;
    (iii) Update its inventory to include the requirements described 
under paragraph (d)(1) of this section and ensure the inventory is 
comprehensive and covers all holdings or collections relevant to this 
section; and
    (iv) Submit an updated inventory to all consulting parties and the 
Manager, National NAGPRA Program.
    (5) Any museum may request an extension to complete or update its 
inventory if it has made a good faith effort but will be unable to do 
so by the appropriate deadline. A request for an extension must be 
submitted to the Manager, National NAGPRA Program, before the 
appropriate deadline. The Manager, National NAGPRA Program will publish 
in the Federal Register a list of all museums who request an extension 
and the Secretary's determination on the request. A request for an 
extension must include:
    (i) Information showing the initiation of consultation and any 
requests to consult;
    (ii) The names of all consulting parties and an abstract of the 
results of consultation;
    (iii) The estimated number of the human remains and associated 
funerary objects in the holding or collection; and
    (iv) A written plan for completing or updating the inventory, which 
includes, at minimum:
    (A) The specific steps required to complete or update the 
inventory;
    (B) A schedule for completing each step and estimated inventory 
completion or update date;
    (C) Position titles of the persons responsible for each step in the 
schedule; and
    (D) A proposal to obtain any requisite funding needed to complete 
or update the inventory.
    (6) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE 
IN THE FEDERAL REGISTER], when a holding or collection previously 
included in an inventory is transferred to a museum or Federal Agency, 
subject to the limitations in 18 U.S.C. 1170 (a), the museum or Federal 
agency acquiring possession or control of the holding or collection may 
rely on the previously completed or updated inventory. The museum or 
Federal agency must submit the previously completed or updated 
inventory to the Manager, National NAGPRA Program no later than 30 days 
after acquiring the holding or collection and must initiate 
consultation under paragraph (b) of this section. The museum or Federal 
agency must submit an inventory to all consulting parties and the 
Manager, National NAGPRA Program, no later than the deadline in Table 1 
of this section.
    (e) Step 5--Submit a notice of inventory completion. No later than 
six months after completing or updating an inventory under paragraph 
(d) of this section, a museum or Federal agency must submit a notice of 
inventory completion for human remains and associated funerary objects 
with a known lineal descendant or a connection to an Indian Tribe or 
Native Hawaiian organization with cultural or geographical affiliation. 
The museum or Federal agency may include in a single notice all human 
remains and associated funerary objects having the same lineal 
descendant or the same Indian Tribes or Native Hawaiian organizations 
with cultural or geographical affiliation.
    (1) The notice of inventory completion must be sent to the:
    (i) Lineal descendants and Indian Tribes or Native Hawaiian 
organizations identified in the inventory, and

[[Page 63254]]

    (ii) Manager, National NAGPRA Program, for publication in the 
Federal Register.
    (2) A notice of inventory completion must conform to the mandatory 
format of the Federal Register and include:
    (i) The number of individuals determined in a reasonable manner 
based on the information available. No additional study or analysis is 
required to determine the number of individuals. If human remains are 
in a holding or collection, the number of individuals is at least one.
    (ii) The number of associated funerary objects and types of objects 
(counted separately or by lot);
    (iii) The county and state where the human remains and associated 
funerary objects were removed;
    (iv) The acquisition history (provenance) of the human remains and 
associated funerary objects, including the circumstances surrounding 
their acquisition;
    (v) The lineal descendant or an Indian Tribe or Native Hawaiian 
organization with cultural or geographical affiliation and a brief 
abstract of the information used to make that identification;
    (vi) When cultural affiliation has been determined, a statement 
whether cultural affiliation was clearly identified or was based on the 
totality of the circumstances surrounding acquisition history of the 
human remains and associated funerary objects;
    (vii) Information about the presence of any potentially hazardous 
substances used to treat the human remains or associated funerary 
objects, if known;
    (viii) The name, phone number, email address, and mailing address 
for the authorized representative of the museum or Federal agency who 
is responsible for receiving requests for repatriation; and
    (ix) The date (to be calculated by the Federal Register 30 days 
from the date of publication) after which the museum or Federal agency 
may send a repatriation statement to a requestor.
    (3) No later than 15 days after receiving a notice of inventory 
completion, the Manager, National NAGPRA Program, will:
    (i) Approve for publication in the Federal Register a notice of 
inventory completion that conforms to the requirements under paragraph 
(e)(2) of this section; or
    (ii) Return to the museum or Federal agency any submission that 
does not meet the requirements under paragraph (e)(2) of this section.
    (4) If the number of individuals or the number of associated 
funerary objects stated in a published notice of inventory completion 
changes before the museum or Federal agency sends a repatriation 
statement under paragraph (h) of this section, the museum or Federal 
agency must submit a correction notice to the Manager, National NAGPRA 
Program. A museum or Federal agency is not required to publish a 
correction notice if there are additional pieces belonging to human 
remains or associated funerary objects previously identified in a 
notice and repatriation is to the same requestor. No later than 10 days 
after determining the new number of individuals or associated funerary 
objects, the museum or Federal agency must submit a correction notice 
containing, as applicable:
    (i) The corrected number of individuals;
    (ii) The corrected number of associated funerary objects and types 
of objects,
    (iii) The name, phone number, email address, and mailing address 
for the authorized representative of the museum or Federal agency who 
is responsible for receiving requests for repatriation, and
    (iv) The date (to be calculated by the Federal Register 30 days 
from the date of publication) after which the museum or Federal agency 
may send a repatriation statement to the requestor.
    (f) Step 6--Receive and consider a request for repatriation. After 
publication of a notice of inventory completion in the Federal 
Register, any lineal descendant, Indian Tribe, or Native Hawaiian 
organization may submit to the museum or Federal agency a written 
request for repatriation of human remains and associated funerary 
objects.
    (1) A request for repatriation of human remains and associated 
funerary objects must be received by the museum or Federal agency 
before the museum or Federal agency sends a repatriation statement for 
those human remains and associated funerary objects under paragraph (h) 
of this section. Any request for repatriation received by the museum or 
Federal agency no later than 30 days after publication of a notice must 
be considered. A request for repatriation received by the museum or 
Federal agency before the publication of the notice of inventory 
completion is dated the same date the notice was published.
    (2) Requests from two or more lineal descendants, Indian Tribes, or 
Native Hawaiian organizations who agree to joint repatriation of the 
human remains and associated funerary objects are considered a single 
request and not competing requests.
    (3) A request for repatriation must satisfy one of the following 
criteria:
    (i) The request is from a lineal descendant, Indian Tribe, or 
Native Hawaiian organization identified in the notice of inventory 
completion, or
    (ii) The request is not from a lineal descendant, Indian Tribe, or 
Native Hawaiian organization identified in the notice of inventory 
completion, and shows, by a preponderance of the evidence, that the 
requestor is a lineal descendant or an Indian Tribe or Native Hawaiian 
organization with cultural or geographical affiliation.
    (g) Step 7--Respond to a request for repatriation. No earlier than 
30 days after publication of a notice of inventory completion but no 
later than 30 days after receiving a request for repatriation, a museum 
or Federal agency must send a written response to the requestor with a 
copy to any other party identified in the notice of inventory 
completion. Using all information available, including relevant 
records, catalogs, existing studies, and the results of consultation, a 
museum or Federal agency must determine if the request satisfies the 
criteria under paragraph (f) of this section.
    (1) In the written response, the museum or Federal agency must 
state one of the following:
    (i) The request meets the criteria under paragraph (f) of this 
section. The museum or Federal agency will send a repatriation 
statement to the requestor under paragraph (h) of this section, unless 
the museum or Federal agency receives additional, competing requests 
for repatriation.
    (ii) The request does not meet the criteria under paragraph (f) of 
this section. The museum or Federal agency must provide a detailed 
explanation why the request does not meet the criteria, and an 
opportunity for the requestor to provide additional information to meet 
the criteria.
    (iii) The museum or Federal agency has received competing requests 
for repatriation that meet the criteria and must determine the most 
appropriate requestor using the procedures and timelines under 
paragraph (i) of this section.
    (2) At any time before sending a repatriation statement for human 
remains and associated funerary objects under paragraph (h) of this 
section, the museum or Federal agency may receive additional, competing 
requests for repatriation of those human remains and associated 
funerary objects that meet the criteria under paragraph (f) of this 
section. The museum or Federal agency must determine the most 
appropriate requestor the procedures and timelines under paragraph (i) 
of this section.

[[Page 63255]]

    (h) Step 8--Repatriation of the human remains and associated 
funerary objects. No later than 90 days after responding to a request 
for repatriation that meets the criteria, a museum or Federal agency 
must send a written repatriation statement to the requestor and a copy 
to the Manager, National NAGPRA Program. The repatriation statement 
must acknowledge and recognize the requestor has control or ownership 
of the requested human remains and associated funerary objects. In the 
case of joint requests for repatriation, the repatriation statement 
must be sent to and must identify all requestors.
    (1) Before sending the repatriation statement, the museum or 
Federal agency must consult with the requestor on the care, custody, 
and physical transfer of the human remains and associated funerary 
objects.
    (2) After sending the repatriation statement, the museum or Federal 
agency must:
    (i) Document any physical transfer of the human remains and 
associated funerary objects by recording the contents, recipient, and 
method of delivery, and
    (ii) Protect sensitive information, as identified by the requestor, 
from disclosure to the general public to the extent consistent with 
applicable law.
    (3) After the repatriation statement is sent, nothing in the Act or 
this part limits the authority of the museum or Federal agency to enter 
into any agreement with the requestor concerning the care or custody of 
the human remains and associated funerary objects.
    (i) Evaluating competing requests for repatriation. At any time 
before sending a repatriation statement for human remains and 
associated funerary objects under paragraph (h) of this section, a 
museum or Federal agency may receive additional, competing requests for 
repatriation of those human remains and associated funerary objects 
that meets the criteria under paragraph (f) of this section. The museum 
or Federal agency must determine the most appropriate requestor using 
this paragraph.
    (1) In the following priority order, the most appropriate requestor 
is:
    (i) The known lineal descendant, if any; or
    (ii) The Indian Tribe or Native Hawaiian organization with the 
closest affiliation according to the priority order at Sec.  10.3(d).
    (2) No later than 10 days after receiving a competing request, a 
museum or Federal agency must send a written letter to each requestor 
identifying all requestors and the date each request for repatriation 
was received.
    (3) No later than 120 days after informing the requestors of 
competing requests, a museum or Federal agency must send a written 
determination to each requestor and the Manager, National NAGPRA 
Program. The determination must be one of the following:
    (i) The most appropriate requestor has been determined. The museum 
or Federal agency must:
    (A) Identify the most appropriate requestor and explain how the 
determination was made,
    (B) No earlier than 30 days and no later than 90 days after sending 
a determination of the most appropriate requestor, the museum or 
Federal agency must send a repatriation statement to the most 
appropriate requestor under paragraph (h) of this section.
    (ii) The most appropriate requestor cannot be determined, and the 
repatriation is stayed under paragraph (j) of this section. The museum 
or Federal agency must explain why the most appropriate requestor could 
not be determined.
    (j) Stay of repatriation. Repatriation under paragraph (h) of this 
section is stayed if:
    (1) A court of competent jurisdiction has enjoined the 
repatriation. When there is a final resolution of the legal case or 
controversy in favor of a requestor, the museum or Federal agency must:
    (i) No later than 10 days after a resolution, send a written 
statement of the resolution to each requestor and the Manager, National 
NAGPRA Program,
    (ii) No earlier than 30 days and no later than 90 days after 
sending the written statement, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (h) of this 
section, unless a court of competent jurisdiction directs otherwise.
    (2) The museum or Federal agency has received competing requests 
for repatriation and, after complying with paragraph (i) of this 
section, cannot determine the most appropriate requestor. When a most 
appropriate requestor is determined by an agreement between the 
parties, binding arbitration, or means of resolution other than through 
a court of competent jurisdiction, the museum or Federal agency must:
    (i) No later than 10 days after a resolution, send a written 
determination to each requestor and the Manager, National NAGPRA 
Program,
    (ii) No earlier than 30 days and no later than 90 days after 
sending the determination, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (h) of this 
section.
    (3) Before the publication of a notice of inventory completion 
under paragraph (e) of this section, the museum or Federal agency has 
both requested and received the Secretary's written concurrence that 
the human remains and associated funerary objects are indispensable for 
completion of a specific scientific study, the outcome of which would 
be of major benefit to the people of the United States.
    (i) To request the Secretary's concurrence, the museum or Federal 
agency must send to the Manager, National NAGPRA Program, a written 
request of no more than 10 double-spaced pages. The written request 
must:
    (A) Be on the letterhead of the requesting museum or Federal agency 
and be signed by an authorized representative;
    (B) Describe the specific scientific study, the date on which the 
study commenced, and how the study would be of major benefit to the 
people of the United States;
    (C) Explain why retention of the human remains and associated 
funerary objects is indispensable for completion of the study;
    (D) Describe the steps required to complete the study, including 
any destructive analysis, and provide a completion schedule and 
completion date;
    (E) Provide the position titles of the persons responsible for each 
step in the schedule; and
    (F) Affirm that the study has in place the requisite funding.
    (ii) If the Secretary concurs with the request, the Secretary will 
send a written concurrence and specify the date by which the scientific 
study must be completed.
    (iii) No later than 30 days after the completion date in the 
Secretary's concurrence, the museum or Federal agency must submit a 
notice of intended repatriation in accordance with paragraph (e) of 
this section.
    (iv) No earlier than 30 days after publication of the notice of 
inventory completion and no later than 90 days after responding to a 
request for repatriation, the museum or Federal agency must send a 
repatriation statement to the requestor under paragraph (h) of this 
section.
    (k) Transfer or reinter human remains and associated funerary 
objects. For human remains and associated funerary objects with no 
connection to an Indian

[[Page 63256]]

Tribe or Native Hawaiian organization determined in the inventory, a 
museum or Federal agency, at its discretion, may agree to transfer or 
decide to reinter the human remains and associated funerary objects. 
The museum or Federal agency must ensure it has initiated consultation 
under paragraph (b) of this section, if any.
    (1) Step 1--Agree to transfer or decide to reinter. Subject to the 
requirements in paragraph (k)(2) of this section, a museum or Federal 
agency may:
    (i) Agree in writing to transfer the human remains and associated 
funerary objects to a requestor that agrees to treat the human remains 
and associated funerary objects according to the requestor's laws and 
customs. Human remains and associated funerary objects must be 
requested in writing and may only be requested by:
    (A) An Indian Tribe or Native Hawaiian organization, or
    (B) An Indian group that is not federally recognized but has a 
relationship to the human remains and associated funerary objects.
    (ii) Decide in writing to reinter the human remains and associated 
funerary objects according to applicable laws and policies.
    (2) Step 2--Submit a notice of proposed transfer or reinterment. No 
later than 30 days after agreeing to transfer or deciding to reinter 
the human remains and associated funerary objects, the museum or 
Federal agency must submit a notice of proposed transfer or reinterment 
to the Manager, National NAGPRA Program, for publication in the Federal 
Register.
    (i) A notice of proposed transfer or reinterment must conform to 
the mandatory format of the Federal Register and include:
    (A) The number of individuals determined in a reasonable manner 
based on the information available. No additional study or analysis is 
required to determine the number of individuals. If human remains are 
in a holding or collection, the number of individuals is at least one.;
    (B) The number of associated funerary objects and type of objects 
(counted separately or by lot);
    (C) The county and state where the human remains and associated 
funerary objects were removed, if known;
    (D) The acquisition history (provenance) of the human remains and 
associated funerary objects, including the circumstances surround their 
acquisition;
    (E) The names of all consulting parties and an abstract of the 
results of consultation;
    (F) A brief abstract of the information that explains why no Indian 
Tribes or Native Hawaiian organizations with cultural or geographical 
affiliation could be reasonably identified;
    (G) Information about the presence of any potentially hazardous 
substances used to treat the human remains and associated funerary 
objects, if known;
    (H) The Indian Tribe, Native Hawaiian organization, or Indian group 
requesting the human remains and associated funerary objects or a 
statement that the museum or Federal agency will reinter the human 
remains and associated funerary objects;
    (I) The name, phone number, email address, and mailing address for 
the authorized representative of the museum or Federal agency who is 
responsible for receiving requests for repatriation; and
    (J) The date (to be calculated by the Federal Register 30 days from 
the date of publication) after which the museum or Federal agency may 
proceed with the transfer or reinterment of the human remains and 
associated funerary objects.
    (ii) No later than 15 days after receiving a notice of proposed 
transfer or reinterment, the Manager, National NAGPRA Program, will:
    (A) Approve for publication in the Federal Register a notice of 
proposed transfer or reinterment that conforms to the requirements 
under paragraph (k)(2)(i) of this section; or
    (B) Return to the museum or Federal agency any submission that does 
not meet the requirements under paragraph (k)(2)(i) of this section.
    (iii) After publication of a notice, if the museum or Federal 
agency receives a request for repatriation of the human remains and 
associated funerary objects before transfer or reinterment, the museum 
or Federal agency must evaluate whether the request meets the criteria 
under paragraph (f) of this section.
    (A) If the request for repatriation meets the criteria under 
paragraph (f) of this section, the museum or Federal agency must 
respond in writing under paragraph (g) of this section and proceed with 
repatriation under paragraph (h) of this section.
    (B) If the request does not meet the criteria under paragraph (f) 
of this section, the museum or Federal agency must respond in writing 
under paragraph (g) of this section and proceed with transfer or 
reinterment under paragraph (k)(3) of this section.
    (3) Step 3--Transfer or reinter the human remains and associated 
funerary objects. No earlier than 30 days and no later than 90 days 
after publication of a notice of proposed transfer or reinterment, the 
museum or Federal agency must transfer or reinter the human remains and 
associated funerary objects. After transferring or reinterring, the 
museum or Federal agency must:
    (i) Document the transfer of the human remains and associated 
funerary objects by recording the contents, recipient, and method of 
delivery,
    (ii) Document the reinterment by recording the contents of the 
reinterment,
    (iii) Protect sensitive information from disclosure to the general 
public to the extent consistent with applicable law.
    (4) After transfer or reinterment occurs, nothing in the Act or 
this part limits the authority of the museum or Federal agency to enter 
into any agreement with the requestor concerning the care or custody of 
the human remains and associated funerary objects.

     Table 1 to Sec.   10.10--Deadlines for Completing an Inventory
------------------------------------------------------------------------
                                          an inventory must be submitted
  If a museum or Federal agency . . .                 . . .
------------------------------------------------------------------------
acquires possession or control of human  2 years after acquiring
 remains or associated funerary objects.  possession or control of human
                                          remains or associated funerary
                                          objects.
locates previously lost or unknown       2 years after locating the
 human remains or associated funerary     human remains or associated
 objects.                                 funerary objects.
receives Federal funds for the first     5 years after receiving Federal
 time after [DATE 30 DAYS AFTER DATE OF   funds for the first time after
 PUBLICATION OF THE FINAL RULE IN THE     [DATE 30 DAYS AFTER DATE OF
 FEDERAL REGISTER], and has possession    PUBLICATION OF THE FINAL RULE
 or control of human remains or           IN THE FEDERAL REGISTER].
 associated funerary objects.
------------------------------------------------------------------------


[[Page 63257]]

Sec.  10.11  Civil penalties.

    Any museum that fails to comply with the requirements of the Act or 
this subpart may be assessed a civil penalty by the Secretary. This 
section does not apply to Federal agencies, but a Federal agency's 
failure to comply with the requirements of the Act or this part may be 
subject to other remedies under Federal law. Each instance of failure 
to comply will constitute a separate violation. The Secretary must 
serve the museum with a written notice of failure to comply under 
paragraph (d) of this section or a notice of assessment under paragraph 
(g) of this section by personal delivery with proof of delivery date, 
certified mail with return receipt, or private delivery service with 
proof of delivery date.
    (a) File an allegation. Any person may file an allegation of 
failure to comply by sending a written allegation to the Manager, 
National NAGPRA Program. Each allegation:
    (1) Must include the full name, mailing address, telephone number, 
and (if available) email address of the person alleging the failure to 
comply;
    (2) Must identify the specific provision or provisions of the Act 
or this subpart that the museum is alleged to have violated;
    (3) Must enumerate the separate violations alleged, including facts 
to support the number of separate violations. The number of separate 
violations is determined by establishing relevant factors such as:
    (i) The number of lineal descendants, Indian Tribes, or Native 
Hawaiian organizations named in the allegation and determined to be 
aggrieved by the failure to comply; or
    (ii) The number of individuals or the number of funerary objects, 
sacred objects, or objects of cultural patrimony involved in the 
failure to comply;
    (4) Should include information showing that the museum has 
possession or control of the Native American cultural items involved in 
the alleged failure to comply; and
    (5) Should include information showing that the museum receives 
Federal funds.
    (b) Respond to an allegation. Within 90 days of receiving an 
allegation, the Secretary must review the allegation and determine if 
the allegation meets the requirements of paragraph (a) of this section. 
After review, the Secretary may investigate the facts in an allegation 
to ensure all relevant information is available.
    (1) The Secretary may request any additional relevant information 
from the person making the allegation, the museum, or other parties. 
The Secretary may conduct any investigation that is necessary to 
determine whether an alleged failure to comply is substantiated. The 
Secretary may also investigate appropriate factors for justifying an 
increase or reduction to any penalty amount that may be calculated.
    (2) The Secretary, after reviewing all relevant information, must 
determine one of the following for each alleged failure to comply:
    (i) The alleged failure to comply is substantiated, the number of 
separate violations is identified, and a civil penalty is an 
appropriate remedy. The Secretary will calculate the proposed penalty 
amount under paragraph (c) of this section and notify the museum under 
paragraph (d) of this section;
    (ii) The alleged failure to comply is substantiated, the number of 
separate violations is identified, but a civil penalty is not an 
appropriate remedy. The Secretary will notify the museum under 
paragraph (d) of this section; or
    (iii) The alleged failure to comply is unsubstantiated. The 
Secretary will send a written determination to the person making the 
allegation and to the museum.
    (c) Calculate the penalty amount. If the Secretary determines under 
paragraph (b)(2)(i) of this section that a civil penalty is an 
appropriate remedy for a substantiated failure to comply, the Secretary 
will calculate the amount of the penalty in accordance with this 
paragraph. The penalty for each separate violation will be calculated 
as follows:
    (1) The base penalty amount is $7,475, subject to annual 
adjustments based on inflation under the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74).
    (2) The base penalty amount may be increased after considering:
    (i) The ceremonial or cultural value of the human remains or 
cultural items involved, as identified by any aggrieved lineal 
descendant, Indian Tribe, or Native Hawaiian organization;
    (ii) The archaeological, historical, or commercial value of the 
human remains or cultural items involved;
    (iii) The economic and non-economic damages suffered by any 
aggrieved lineal descendant, Indian Tribe, or Native Hawaiian 
organization, including expenditures by the aggrieved party to compel 
the museum to comply with the Act or this subpart;
    (iv) The number of prior violations by the museum that have 
occurred; or
    (v) Any other appropriate factor justifying an increase.
    (3) The base penalty amount may be reduced if:
    (i) The museum comes into compliance;
    (ii) The museum agrees to mitigate the violation in the form of an 
actual or an in-kind payment to an aggrieved lineal descendant, Indian 
Tribe, or Native Hawaiian organization;
    (iii) The penalty constitutes excessive punishment under the 
circumstances;
    (iv) The museum is unable to pay the full penalty and the museum 
has not previously been found to have failed to comply with the Act or 
this subpart. The museum has the burden of proving it is unable to pay 
by providing verifiable, complete, and accurate financial information 
to the Secretary. The Secretary may request that the museum provide 
such financial information that is adequate and relevant to evaluate 
the museum's financial condition, including the value of the museum's 
cash and liquid assets; ability to borrow; net worth; liabilities; 
income tax returns; past, present, and future income; prior and 
anticipated profits; expected cash flow; and the museum's ability to 
pay in installments over time. If the museum does not submit the 
requested financial information, the museum will be presumed to have 
the ability to pay the civil penalty; or
    (v) Any other appropriate factor justifies a reduction.
    (d) Notify a museum of a failure to comply. If the Secretary 
determines under paragraph (b)(2)(i) or (b)(2)(ii) of this section that 
an alleged failure to comply is substantiated, the Secretary must serve 
the museum with a written notice of failure to comply and send a copy 
of the notice to each person alleging the failure to comply and any 
lineal descendant, Indian Tribe, or Native Hawaiian organization named 
in the notice of failure to comply. The notice of failure to comply 
must:
    (1) Provide a concise statement of the facts believed to show a 
failure to comply;
    (2) Specifically reference the provisions of the Act and this 
subpart with which the museum has failed to comply;
    (3) Include the proposed penalty amount calculated under paragraph 
(c) of this section;
    (4) Include, where appropriate, any initial proposal to reduce or 
increase the penalty amount or an explanation for why the Secretary has 
determined that a penalty is not an appropriate remedy;
    (5) Identify the options for responding to the notice of failure to 
comply under paragraph (e) of this section; and
    (6) Inform the museum that the Secretary may assess a daily penalty 
amount under paragraph (m)(1) of this

[[Page 63258]]

section if the failure to comply continues after the date the final 
administrative decision of the Secretary takes effect.
    (e) Respond to a notice of failure to comply. Within 45 days of 
receiving a notice of failure to comply, a museum may take no action 
and await service of a notice of assessment under paragraph (g) of this 
section, or a museum may file a written response to the notice of 
failure to comply. A response which is not timely filed will not be 
considered. Any written response must be signed by an authorized 
representative of the museum and must be sent to the Secretary. In the 
written response, a museum may:
    (1) Seek an informal discussion of the failure to comply;
    (2) Request either or both of the following forms of relief, with a 
full explanation of the legal or factual basis for the requested 
relief:
    (i) That the Secretary reconsider the determination of a failure to 
comply, or
    (ii) That the Secretary reduce the proposed penalty amount; or
    (3) Accept the determination of a failure to comply and agree in 
writing that the museum will do the following, which will constitute an 
agreement between the Secretary and the museum:
    (i) Pay the proposed penalty amount, if any,
    (ii) Complete the mitigation required to reduce the penalty, if 
offered in the notice, and
    (iii) Waive any right to receive notice of assessment under 
paragraph (g) of this section and to request a hearing under paragraph 
(i) of this section.
    (f) Assess the civil penalty. After serving a notice of failure to 
comply, the Secretary may assess a civil penalty and must consider all 
available, relevant information related to the failure to comply, 
including information timely provided by the museum during any informal 
discussion or request for relief, furnished by another party, or 
produced upon the Secretary's request.
    (1) The assessment of a civil penalty is made after the latter of:
    (i) The 45-day period for a response has expired and the museum has 
taken no action;
    (ii) Conclusion of informal discussion, if any;
    (iii) Review and consideration of a petition for relief, if any; or
    (iv) Failure to meet the terms of an agreement established under 
paragraph (e)(3) of this section.
    (2) If a petition for relief or informal discussion warrants a 
conclusion that no failure to comply has occurred, the Secretary must 
send written notification to the museum revoking the notice of failure 
to comply. No penalty is assessed.
    (g) Notify the museum of an assessment. If the Secretary determines 
to assess a civil penalty, the Secretary will serve the museum with a 
notice of assessment. Unless the museum seeks further administrative 
remedies under this section, the notice of assessment is the final 
administrative decision of the Secretary. The notice of assessment 
must:
    (1) Specifically reference the provisions of the Act or this 
subpart with which the museum has not complied;
    (2) Include the final amount of any penalty calculated under 
paragraph (c) of this section and the basis for determining the penalty 
amount;
    (3) Include, where appropriate, any increase or reduction to the 
penalty amount or an explanation for why the Secretary has determined 
that a penalty is not an appropriate remedy;
    (4) Include the daily penalty amount that the Secretary may assess 
under paragraph (m)(1) of this section if the failure to comply 
continues after the date the final administrative decision of the 
Secretary takes effect. The daily penalty amount for each continuing 
violation shall not exceed $1,496 per day, subject to annual 
adjustments based on inflation under the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74);
    (5) Identify the options for responding to the notice of assessment 
under paragraph (h) of this section; and
    (6) Notify the museum that it has the right to seek judicial review 
of the final administrative decision of the Secretary only if it has 
exhausted all administrative remedies under this section, as set forth 
in paragraph (l) of this section.
    (h) Respond to an assessment. Within 45 days of receiving a notice 
of assessment, a museum must do one of the following:
    (1) Accept the assessment and pay the penalty amount by means of a 
certified check made payable to the U.S. Treasurer, Washington, DC, 
sent to the Secretary. By paying the penalty amount, the museum waives 
the right to request a hearing under paragraph (i) of this section.
    (2) File a written request for a hearing under paragraph (i) of 
this section to contest the failure to comply, the penalty assessment, 
or both. If the museum does not file a written request for a hearing 
within 45 days, the museum waives the right to request a hearing under 
paragraph (i) of this section.
    (i) Request a hearing. The museum may file a written request for a 
hearing with the Departmental Cases Hearings Division (DCHD), Office of 
Hearings and Appeals (OHA), U.S. Department of the Interior, at the 
mailing address specified in the notice of assessment, or by electronic 
means in accordance with an OHA Standing Order which is available on 
OHA's website at the web address specified in the notice of assessment. 
A copy of the request must be served on the Solicitor of the Department 
of the Interior at the address specified in the notice of assessment. 
The request for hearing and any document filed thereafter with the DCHD 
under paragraphs (i) or (j) of this section are subject to the rules 
that govern the method and effective date of filing under 43 CFR 4.22 
and 4.422(a). The request for a hearing must:
    (1) Include a copy of the notice of failure to comply and the 
notice of assessment;
    (2) State the relief sought by the museum; and
    (3) Include the basis for challenging the facts used to determine 
the failure to comply or the penalty assessment.
    (j) Hearings. Upon receiving a request for a hearing, DCHD will 
assign an administrative law judge to the case and promptly give notice 
of the assignment to the parties. Thereafter, each filing must be 
addressed to the administrative law judge and a copy served on each 
opposing party or its counsel.
    (1) To the extent they are not inconsistent with this section, the 
general rules in 43 CFR part 4, subparts A and B apply to the hearing 
process.
    (2) Subject to the provisions of 43 CFR 1.3, a museum may appear by 
authorized representative or by counsel and may participate fully in 
the proceedings. If the museum does not appear and the administrative 
law judge determines that this absence is without good cause, the 
administrative law judge may, at his or her discretion, determine that 
the museum has waived the right to a hearing and consents to the making 
of a decision on the record.
    (3) The Department of the Interior counsel, designated by the 
Solicitor of the Department of the Interior, represents the Secretary 
in the proceedings. Within 20 days of receipt of its copy of the 
written request for hearing, Departmental counsel must file with the 
DCHD an entry of appearance on behalf of the Secretary and the 
following:
    (i) Any written communications between the Secretary and the museum 
during any informal discussions under paragraph (e)(1) of this section;

[[Page 63259]]

    (ii) Any petition for relief submitted under paragraph (e)(2); and
    (iii) Any other information considered by the Secretary in reaching 
the decision being challenged. Thereafter, the museum must serve each 
document filed with the administrative law judge on Departmental 
counsel.
    (4) In a hearing on the penalty assessment, the amount of the 
penalty assessment must be determined in accordance with paragraph 
(c)(2) of this section and will not be limited to the amount originally 
assessed or by any previous reduction, increase, or offer of 
mitigation.
    (5) The administrative law judge has all powers necessary to 
conduct a fair, orderly, expeditious, and impartial hearing process, 
and to render a decision under 5 U.S.C. 554-557.
    (6) The administrative law judge will render a written decision 
based upon the hearing record. The decision must set forth the findings 
of fact and conclusions of law, and the reasons and basis for them.
    (7) The administrative law judge's decision takes effect as the 
final administrative decision of the Secretary 31 days from the date of 
the decision unless the museum files a notice of appeal as described in 
paragraph (k) of this section.
    (k) Appealing the administrative law judge's decision. Any party 
who is adversely affected by the decision of the administrative law 
judge may appeal the decision by filing a written notice of appeal 
within 30 days of the date of the decision. The notice of appeal must 
be filed with the Interior Board of Indian Appeals (IBIA), Office of 
Hearings and Appeals, U.S. Department of the Interior, at the mailing 
address specified in the administrative law judge's decision, or by 
electronic means in accordance with an OHA Standing Order which is 
available on OHA's website at the web address specified in the 
administrative law judge's decision. The notice of appeal must be 
accompanied by proof of service on the administrative law judge and the 
opposing party. The notice of appeal and any document filed thereafter 
with the IBIA is subject to the rules that govern the method and 
effective date of filing in 43 CFR 4.310.
    (1) To the extent they are not inconsistent with this section, the 
provisions of 43 CFR part 4, subpart D, apply to the appeal process. 
The appeal board's decision must be in writing and takes effect as the 
final penalty assessment and the final administrative decision of the 
Secretary on the date that the appeal board's decision is rendered, 
unless otherwise specified in the appeal board's decision.
    (2) OHA decisions in proceedings instituted under this section are 
posted on OHA's website.
    (l) Exhaustion of administrative remedies. A museum has the right 
to seek judicial review, under 5 U.S.C. 704, of the final 
administrative decision of the Secretary only if it has exhausted all 
administrative remedies under this section. No decision, which at the 
time of its rendition is subject to appeal under this section, shall be 
considered final so as to constitute agency action subject to judicial 
review. The decision being appealed shall not be effective during the 
pendency of the appeal.
    (m) Failure to pay penalty or continuing failure to comply. (1) If 
the failure to comply continues after the date the final administrative 
decision of the Secretary takes effect, as described in paragraphs (g), 
(j)(6), or (k)(1) of this section, or after a date identified in an 
agreement under paragraph (e)(3) of this section, the Secretary may 
assess an additional daily penalty amount for each continuing violation 
not to exceed $1,496 per day, subject to annual adjustments based on 
inflation under the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (Pub. L. 114-74). In determining the daily 
penalty amount, the Secretary will consider the factors in paragraph 
(c)(2) of this section. This penalty will start to accrue on the day 
after the effective date of the final administrative decision of the 
Secretary or on the date identified in an agreement under paragraph 
(e)(3) of this section.
    (2) If the museum fails to pay the penalty, the Attorney General of 
the United States may institute a civil action to collect the penalty 
in an appropriate U.S. District Court. In such action, the validity and 
amount of the penalty are not subject to review by the court.
    (n) Additional remedies. The assessment of a penalty under this 
section is not deemed a waiver by the Department of the Interior of the 
right to pursue other available legal or administrative remedies.

Subpart D--REVIEW COMMITTEE


Sec.  10.12  Review Committee.

    The Review Committee advises the Secretary and Congress on matters 
relating to sections 5, 6, and 7 of the Act and other matters as 
specified in section 8 of the Act. The Review Committee is subject to 
the Federal Advisory Committee Act (FACA, 5 U.S.C. App.)
    (a) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by the Review Committee may be 
admissible as evidence in actions brought by persons alleging a 
violation of the Act. Findings and recommendations made by the Review 
Committee will be published in the Federal Register within 90 days of 
making the finding or recommendation.
    (b) Nominations. The Review Committee consists of seven members 
appointed by the Secretary of the Interior.
    (1) Three members are appointed from nominations submitted by 
Indian Tribes, Native Hawaiian organizations, and traditional religious 
leaders. At least two of these members must be traditional Indian 
religious leaders. A traditional Indian religious leader is a person 
who, based on cultural, ceremonial, or religious practices, is 
recognized by an Indian Tribe as being responsible for performing 
cultural ceremonies or exercising a leadership role.
    (2) Three members are appointed from nominations submitted by 
national museum organizations or national scientific organizations. An 
organization that is created by, is a part of, and is governed in any 
way by a parent national museum or scientific organization must submit 
a nomination through the parent organization. National museum 
organizations and national scientific organizations are organizations 
that:
    (i) Focus on the interests of museums and science disciplines 
throughout the United States, as opposed to a lesser geographic scope;
    (ii) Offer membership throughout the United States, although such 
membership need not be exclusive to the United States; and
    (iii) Are organized under the laws of the United States Government.
    (3) One member is appointed from a list of more than one person 
developed and consented to by all other appointed members specified in 
paragraphs (b)(1) and (b)(2) of this section.
    (c) Findings of fact or disputes on repatriation. The Review 
Committee may assist any affected party through consideration of 
findings of fact or disputes related to the inventory, summary, or 
repatriation provisions of the Act. One or more of the affected parties 
may request the assistance of the Review Committee or the Secretary may 
direct the Review Committee to consider a finding of fact or dispute. 
Requests for assistance must be made before repatriation of the human 
remains or cultural items has occurred.

[[Page 63260]]

    (1) An affected party is either a:
    (i) Museum or Federal agency that has possession or control of the 
human remains or cultural items, or
    (ii) Lineal descendant, or an Indian Tribe or Native Hawaiian 
organization with potential affiliation to the human remains or 
cultural items.
    (2) The Review Committee may make an advisory finding of fact on 
questions related to:
    (i) The identity of an object as human remains or cultural items,
    (ii) The cultural or geographical affiliation of human remains or 
cultural items, or
    (iii) The repatriation of human remains or cultural items.
    (3) The Review Committee may make an advisory recommendation on 
disputes between affected parties. To facilitate the resolution of 
disputes, the Review Committee may:
    (i) Consider disputes between an affected party identified in 
paragraph (c)(1)(i) of this section and an affected party identified in 
paragraph (c)(1)(ii) of this section;
    (ii) Not consider disputes among lineal descendants, Indian Tribes 
and Native Hawaiian organizations;
    (iii) Not consider disputes among museums and Federal agencies;
    (iv) Request information or presentations from any affected party; 
and
    (v) Make advisory recommendations directly to the affected parties 
or to the Secretary.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-22376 Filed 10-13-22; 8:45 am]
BILLING CODE 4312-52-P