99–010

Calendar No. 575

107TH CONGRESS REPORT

2d Session " ! SENATE 107–258

ENHANCED PROTECTION OF OUR CULTURAL HERITAGE

ACT OF 2002

SEPTEMBER 9, 2002.—Ordered to be printed

Mr. BINGAMAN, from the Committee on Energy and Natural

Resources, submitted the following

R E P O R T

[To accompany S. 2598]

The Committee on Energy and Natural Resources, to which was

referred the bill (S. 2598) to enhance the criminal penalties for illegal trafficking of archaeological resources, and for other purposes,

having considered the same, reports favorably thereon with an

amendment and recommends that the bill, as amended, do pass.

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof

the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Enhanced Protection of Our Cultural Heritage Act

of 2002’’.

SEC. 2. ENHANCED PENALTIES FOR CULTURAL HERITAGE CRIMES.

(a) ENHANCED PENALTY FOR ARCHAEOLOGICAL RESOURCES.—Section 6(d) of the

Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ee(d)) is amended by

striking ‘‘not more than 10,000’’ and all that follows through the end of the subsection and inserting ‘‘in accordance with title 18, United Codes, or imprisoned not

more than ten years or both; but if the sum of the commercial and archaeological

value of the archaeological resources involved and the cost of restoration and repair

of such resources does not exceed $500, such person shall be fined in accordance

with title 18, United States Code, or imprisoned not more than one year, or both.’’

(b) ENHANCED PENALTY FOR EMBEZZLEMENT AND THEFT FROM INDIAN TRIBAL ORGANIZATIONS.—Section 1163 of title 18, United States Code, is amended by striking

‘‘five years’’ and inserting ‘‘10 years’’.

(c) ENHANCED PENALTY FOR ILLEGAL TRAFFICKING IN NATIVE AMERICAN HUMAN

REMAINS AND CULTURAL ITEMS.—Section 1170 of title 18, United States Code is

amended—

(1) in subsection (a), by striking ‘‘or imprisoned not more than 12 months, or

both, and in the case of a second or subsequent violation, be fined in accordance

with this title, or imprisoned not more than 5 years’’ and inserting ‘‘imprisoned

not more than 10 years’’; and

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(2) in subsection (b), by striking ‘‘imprisoned not more than one year’’ and all

that follows through the end of the subsection and inserting ‘‘imprisoned not

more than 10 years, or both; but if the sum of the commercial archaeological

value of the cultural items involved and the cost of restoration and repair of

such items does not exceed $500, such person shall be fined in accordance with

this title, imprisoned not more than one year, or both.’’

PURPOSE

The purpose of S. 2598 is to enhance the penalties for illegal trafficking of archaeological resources.

BACKGROUND AND NEED

S. 2598 will increase the maximum penalties for violations of

three statutes that protect the cultural and archaeological history

of the American people, particularly Native Americans. The statutes amended are the Archaeological Resources Protection Act

(‘‘ARPA’’), 16 U.S.C. 470ee; the Native American Graves Protection

and Repatriation Act (‘‘NAGPRA’’), 18 U.S.C. 1170; and the statute

prohibiting theft from Indian Tribal Organizations, 18 U.S.C. 1163.

The United States Sentencing Commission (‘‘Commission’’) has

unanimously recommended amendment of these statutes to

strengthen their maximum sentences. Following a two-year review

of cultural heritage resource crimes, the Commission recently approved a separate sentencing guideline. This guideline recognizes

that offenses against cultural heritage resources are more serious

due to the essentially irreplaceable nature of the resources involved. Because individuals, communities, and nations identify

themselves through emotional and spiritual connections to places

and objects, the effect of cultural heritage resource crimes transcends mere monetary considerations. In addition to the serious nature of the offenses, the conduct of many of the offenders, professional looters who are dangerous to law enforcement and innocent

passers-by, requires increased proportional punishment.

While the serious nature of cultural heritage crimes merits correspondingly severe punishment, the purpose of this legislation is

not to increase sentences for these crimes across the board. Instead, the legislation seeks to eliminate three significant disparities

among the statutory maximum sentences for various crimes

against property and cultural heritage resources. The Commission

concluded that the three sentencing disparities frustrate Congress’s

objectives of proportionality and the elimination of unwarranted

disparity, as set forth in the Sentencing Reform Act of 1984.

First, NAGPRA and ARPA limit sentences for the first offense to

one or two years, respectively, regardless of the amount of harm

caused by the offender’s conduct. In contrast, general property

crime statutes, such as Theft and Destruction of Government Property at 18 U.S.C. 641 and 1361, do not limit sentences for the first

offense.

The second disparity is that both ARPA and NAGPRA, together

with the Federal statute concerning theft from tribal organizations,

have five-year maximum sentences, whereas the theft and destruction of government property statutes have ten-year limits. The

third disparity is that even statutes specifically protecting cultural

resources have different maximum sentences. While the ARPA and

NAGPRA maximum sentences are five years, the 1994 Federal law

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proscribing museum theft has a ten-year maximum sentence, similar to general property crimes.

In order to address these disparities, the Commission has recommended two changes: (1) eliminating the sentencing limits in

ARPA and NAGPRA for first violations, and (2) raising the maximum sentences for ARPA, NAGPRA, and theft from tribal organizations to ten years, consistent with other statutes for crimes

against property and cultural resources. By making these changes,

S. 2598 would authorize punishment for serious cultural resources

crimes in proportion to the severity of the crimes involved.

LEGISLATIVE HISTORY

At the business meeting on July 31, 2002, the Committee on Energy and Natural Resources ordered S. 2598, as amended, favorably reported.

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on July 31, 2002, by a unanimous vote of a quorum

present, recommends that the Senate pass S. 2598, if amended as

described herein.

COMMITTEE AMENDMENT

During the consideration of S. 2598, the Committee adopted an

amendment in the nature of a substitute. The substitute amendment ensures that maximum penalties are increased under the Archaeological Resources Protection Act (ARPA), 16 U.S.C. 470ee(d),

and for cultural items under the Native American Graves Protection and Repatriation Act (NAGPRA), 18 U.S.C. 1170, but that misdemeanor offenses are retained, so that relatively minor offenses

will continue to be prosecuted while more significant crimes will receive more appropriate felony penalties.

The substitute amendment is explained in detail in the sectionby-section analysis, below.

SECTION-BY-SECTION ANALYSIS

Section 1 entitles the Act the ‘‘Enhanced Protection of Our Cultural Heritage Act of 2002.’’

Section 2(a) amends section 6(d) of the Archaeological Resources

Protection Act of 1979 (16 U.S.C. 470ee(d)) by increasing maximum

criminal penalties to a $100,000 fine and 10 years imprisonment.

The existing maximum criminal penalties are a $100,000 fine and

five years imprisonment, with a lower maximum fine and sentence

for the first offense. The amendment also provides that if the sum

of the commerical and archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources does not exceed $500, maximum sentences shall be fines in

accordance with title 18, United States Code, imprisonment not

more than one year, or both.

Subsection (b) amends the statute governing embezzlement and

theft from tribal organizations, 18 U.S.C. 1163, by increasing the

maximum sentence from five to ten years.

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Subsection (c) amends 18 U.S.C. 1170, the Native American

Graves and Repatriation Act. This subsection increases the maximum sentence for trafficking in the human remains of Native

Americans in violation of NAGPRA to 10 years imprisonment. The

existing maximum is just one year for a first offense, and five years

for subsequent convictions. This subsection likewise increases the

maximum sentence for trafficking in Native American cultural

items in violation of NAGPRA to 10 years imprisonment. For these

crimes as well, the existing maximum is just one year for a first

offense, and five years for subsequent convictions. Finally, for violations involving Native American cultural items, this subsection provides that if the sum of the commerical and archaeological value

of the cultural items involved and the cost of restoration and repair

of such items does not exceed $500, maximum sentences shall be

fines in accordance with title 18, imprisonment not more than one

year, or both.

COST AND BUDGETARY CONSIDERATIONS

The following estimate of the cost of this measure has been provided by the Congressional Budget Office:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, August 15, 2002.

Hon. JEFF BINGAMAN,

Chairman, Committee on Energy and Natural Resources,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2598, the Enhanced Protection of Our Cultural Heritage Act of 2002.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Megan Carroll.

Sincerely,

ROBERT A. SUNSHINE

(For Dan L. Crippen, Director).

Enclosure.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

S. 2598—Enhanced Protection of Our Cultural Heritage Act of 2002

CBO estimates that implementing S.2598 would not significantly

affect the federal budget. The bill could affect direct spending and

receipts; therefore, pay-as-you-go procedures would apply, but we

estimate that any such effects would total less than $500,000 a

year. S. 2598 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would

impose no costs on state, local, or tribal governments.

S. 2598 would increase maximum fines and imprisonment terms

for certain crimes against Indian tribes and for illegal trafficking

under the Archaeological Resources Protection Act and the Native

American Graves Protection and Repatriation Act. Based on information from the U.S. Sentencing Commission, CBO estimates that

the bill’s provisions probably would affect fewer than 50 cases each

year. Because the new penalties would apply to a small number of

offenders, we estimate that any increase in costs for prison operVerDate 11-MAY-2000 07:38 Sep 11, 2002 Jkt 099010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR258.XXX pfrm12 PsN: SR258
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ations would not be significant and would be subject to the availability of appropriated funds.

Because those prosecuted and convicted under S. 2598 might be

subject to increased criminal fines, the federal government might

collect additional finds under the bill. Collections of such fines are

recorded in the budget as governmental receipts (revenues), which

are deposited in the Crime Victims Fund and later spent. CBO expects that any increased receipts and direct spending would be negligible because of the small number of cases involved.

The CBO staff contact for this estimate is Megan Carroll. This

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing

Rules of the Senate, the Committee makes the following evaluation

of the regulatory impact which would be incurred in carrying out

S. 2598. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant responsibilities or private individuals and businesses.

No personal information would be collected in administering the

program. Therefore, there would be no impact on personal privacy.

Little, if any, additional paperwork would result from the enactment of S. 2598.

EXECUTIVE COMMUNICATIONS

The pertinent legislative report received by the Committee from

the Department of the Interior setting forth Executive agency recommendations relating to S. 2598 is set forth below. Also set forth

below is a May 20, 2002 letter from the United States Sentencing

Commission to the Chairman and Ranking Member of the Committee, setting forth the Commission’s views on the subject matter

of S. 2598.

U.S. DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

Washington, DC, July 25, 2002.

Hon. JEFF BINGAMAN,

Chairman, Committee on Energy and Natural Resources,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: This letter sets forth the views of the Department of the Interior on S. 2598, Enhanced Protection of Our

Cultural Heritage Act of 2002.

The Department generally supports the enhancement of statutory penalties for cultural resource crimes, however, it is unclear

whether this bill will, in all instances, strengthen cultural heritage

protection.

S. 2598 would propose to change the statutory penalties for illegal trafficking under the Archaeological Resources Protection Act

(ARPA; 16 U.S.C. 470ee), for embezzlement and theft from Indian

tribal organizations (18 U.S.C. 1163), and for illegal trafficking in

Native American human remains and cultural items under the Native American Graves Protection and Repatriation Act (NAGPRA;

18 U.S.C. 1170).

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It is unclear whether S. 2598 would strengthen ARPA. Currently,

ARPA, as read in conjunction with 18 U.S.C. 3571, provides for a

graduated system that allows for citation of a Class A misdemeanor as well as a Class D or E felony, depending on the value

of the resource and whether or not the offense is a first or subsequent offense. As currently drafted, S. 2598 would eliminate such

a graduated system, and instead provided only the option to charge

an ARPA offense as a Class C felony. Although increasing maximum fines and imprisonment terms would seem to strengthen

ARPA eliminating the option to charge a crime as a misdemeanor,

in fact, may result in fewer prosecutions. U.S. Attorneys Offices

may be reluctant to prosecute a case if the defendant’s conduct was

not so egregious as to normally warrant felony prosecution. Similarly, juries may be reluctant to hold a defendant responsible if a

felony conviction appears overly harsh in a particular case. Thus,

the Department supports strengthening, the maximum penalties,

while retaining a graduated system that will provide the U.S. Attorneys Office with the discretion to charge a defendant with an offense that more appropriately fits the conduct involved. In addition,

it is unclear what type of violations the ARPA provision in S. 2598

intends to address. Although the heading appears to apply only to

illegal trafficking under ARPA, the subsection amended would actually cover other crimes under ARPA as well. We would like an

opportunity to further review the bill and to work with the Committee and the U.S. Department of Justice to craft appropriate language that would more clearly accomplish our mutual goals.

Earlier this year, the Department expressed its support for the

establishment of a sentencing guideline for the protection of cultural heritage resources. After a two-year review, the United States

Sentencing Commission had found that existing sentencing guidelines inadequately covered a variety of offenses involving the theft

of, damage to, destruction of, or illicit trafficking in cultural resources, including national memorials, archeological resources, national parks, and national historic landmarks. Because individuals,

communities, and nations identify themselves through intellectual,

emotional, and spiritual connections to places and objects, the effect of cultural resources crimes sometimes transcends mere monetary considerations. Consequently, the Commission transmitted to

Congress on May 1, 2002 a proposed guideline amendment that

takes into account the transcendent value of these irreplaceable resources, and punishes in a proportionate way the particular offense

characteristics associated with the range of cultural resources

crimes. These amendments will take effect on November 1, 2002,

unless Congress passes legislation disapproving them.

Though most Americans may think of looting as a crime that

takes place during times of civil unrest, the Department has come

to know better. Surprisingly, cultural resource crimes occur frequently and have been occurring with increased frequency on our

federal lands. One Bureau of Land Management archeologist in

Utah estimates that 80 percent of the surface artifacts at one site

have disappeared within the last two to three years. We have seen

a shift in the type of looter who commits these crimes. Countless

magazine and newspaper articles and television shows discussing

cultural resources has led to a dramatic drop in offenses committed

by ‘‘the casual looter,’’ a recreationist who picks up an artifact

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while hiking or damages an archeological site. Although this type

of theft and damage still occurs, these incidents are uncommon. A

more recent trend is the theft and damage of cultural resources by

‘‘professional looters,’’ hard-core looters who sell the resources for

monetary gain and often have criminal histories, usually drug-related or violence related. Professional looters educate themselves

about the locations of archeological sites and the kinds of artifacts

and grave goods that may be found at those sites. Many of them

are technologically savvy, using Global Positioning Systems (GPS)

and conducting extensive computer research to locate specific sites.

In order to maximize the impact of our law enforcement efforts,

we have joined forces with other federal agencies to educate law

enforcement officers regarding the pervasive criminal activity.

Until we are able to completely deter such criminal conduct, we

must work hard to use the criminal and civil enforcement tools at

our disposal to diminish the looting of our national and Indian

treasures. In working closely with the Department of Justice,

United States Attorneys, and federal law enforcement officials, we

have found that effective prosecutions under ARPA and NAGPRA

receive positive publicity and raise the public awareness of the seriousness of these crimes. We believe that such prosecutions can

have a positive deterrent effect.

The Office of Management and Budget advises that there is no

objection to the presentation of this report from the standpoint of

the Administration’s program.

Sincerely,

PATRICIA LYNN SCARLETT, Assistant Secretary for Policy,

Management and Budget.

U.S. SENTENCING COMMISSION, Washington, DC, May 20, 2002.

Re: Penalties for Cultural Heritage Resource Crimes

Hon. JEFF BINGAMAN,

Chairman, Senate Committee on Energy and Natural Resources,

Dirksen Senate Office Building, Washington, DC.

Hon. FRANK MURKOWSKI, Ranking Member, Senate Committee on Energy and Natural Resources, Dirksen Senate Office Building, Washington, DC.

DEAR SENATORS BINGAMAN AND MURKOWSKI: On behalf of the

Sentencing Commission, and pursuant to the Commission’s statutory charge under 28 U.S.C. §§ 994(r) and 995(a)(20), I am writing

to recommend that Congress consider enacting legislation to increase the maximum statutory penalties for three federal crimes

involving cultural heritage resources. These changes are warranted

because the offenses are serious and the proposed increases would

correspond to the punishment levels in the Commission’s new

guideline for cultural heritage resource offenses.

These three statutes—the Archaeological Resources Protection

Act (ARPA), 16 U.S.C. § 470ee; the Native American Graves Protection and Repatriation Act (NAGPRA), 18 U.S.C. § 1170; and Theft

from Indian Tribal Organizations, 18 U.S.C. § 1163, are basic tools

of federal prosecution for offenses involving cultural heritage reVerDate 11-MAY-2000 07:38 Sep 11, 2002 Jkt 099010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR258.XXX pfrm12 PsN: SR258
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The criminal provisions of ARPA, enacted in 1979, prohibit: (1) the unlawful excavation, removal, damage or defacement of archaeological resources located on public or Indian lands; (2)

the sale, receipt, exchange, or purchase of archaeological resources unlawfully obtained from

public or Indian lands; and, (3) the interstate or foreign sale, receipt, purchase, exchange, or

transportation of archaeological resources removed or obtained in violation of State or local law.

The criminal provisions of NAGPRA, enacted in 1990, prohibit the sale, purchase, use or

transportation for sale or profit of Native American Human Remains and Native American cultural items obtained from public or Indian lands. The crime of Theft from Tribal Organizations,

18 U.S.C. § 1163, prohibits, among other things, the theft or conversion of goods, assets, or other

property belonging or entrusted to the custody or care of an Indian tribal organization or its

officers, employees, or agents.

sources.4 Increased statutory maxima for these offenses will give

full effect to the operation of the new sentencing guideline for cultural heritage resource offenses that the Commission will send to

Congress on May 1, 2002. We therefore recommend elimination of

the 12- and 24-month ceiling for first offenses under NAGPRA and

ARPA, respectively, and adoption of a ten year statutory maximum

for all three statutes (currently five years).

The Commission recently completed a two year examination of

cultural heritage resource crimes and found that existing sentencing guidelines are inadequate for the wide variety of federal

crimes involving the theft of, damage to, destruction of, or illicit

trafficking in cultural heritage resources. Cultural heritage resources include national memorials, landmarks and parks, together

with archaeological and other historic resources specifically dedicated to the preservation of the nation’s heritage. Because individuals, communities, and nations identify themselves through intellectual, emotional, and spiritual connections to places and objects,

the effect of cultural heritage resource crimes transcends mere

monetary considerations. The Commission has determined that a

separate guideline is needed that specifically recognizes both the

federal government’s longstanding obligation and unique role in

preserving these resources and the harm caused to the nation and

its inhabitants when its history is degraded through the destruction of cultural heritage resources.

As a result, the Commission has approved a separate sentencing

guideline which reflects the fact that offense involving cultural heritage resources are more serious because they involve essentially irreplaceable resources and cause intangible harm to society. The actual and potential cases which the Commission considered in its review range from vandalism and terrorism at historic landmarks

and cemeteries to looting and theft of archaeological resources and

human remains from federal and Indian lands.

Upon close scrutiny the Commission recognized that treatment of

these offenses against unique and irreplaceable resources under

traditional property offense guidelines would not be adequate to reflect the significance of the resources and the concomitant harm to

the identity of the nation and its communities. Not only are the offenses themselves very serious and deserving of substantially more

punishment, but the conduct of many of the offenders, professional

looters who are well armed and dangerous to law enforcement and

innocent passers-by, requires increased proportional punishment.

For example, currently under the general guideline for theft and

property damage at § 2B1.1, a sentence for vandalism to the Vietnam Memorial would be determined primarily by the amount of intended or actual pecuniary harm. If a federal administration building sustains the same amount of harm caused by vandals, the same

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punishment would result under current law. The Commission has

determined that the magnitude of the harm caused to a national

memorial and landmark is greater precisely because of the symbolic and historic nature of the object of the offense conduct, together with the fact that such resources are unique, nonfungible,

and irreplaceable.

Accordingly, the Commission has taken steps to ensure that the

punishment for such cultural heritage resource crimes takes such

factors into consideration by promulgating a new guideline at

§ 2B1.5 for this unique category of offenses. (See enclosure.) This

new guideline will account for the fact that the offense involves

items and locations specially designated by Congress over the years

for preservation and education about the nation’s heritage. The

Commission has also been mindful of the potential for terrorist attacks against symbols of our nation and has provided for proportionate increases in punishment in the event that such violence occurs in connection with cultural heritage resources.

Surprisingly, when the Commission scrutinized the panoply of

federal statutes that are used to prosecute offenses involving both

property and cultural heritage resources, it found three significant

disparities among the various statutory maxima for these offenses.

These disparities impede Congress’s ultimate objectives of proportionality and the elimination of unwarranted disparity, as enunciated in the Sentencing Reform Act of 1984. The examples below

illustrate these disparities.

First, two cultural heritage resource statutes subordinate the

amount of harm caused by the offender to the number of the offender’s convictions under the statute. ARPA has one year and two

year statutory maxima (based on a $500 threshold) for the first offense, and NAGPRA has a one year maximum for the first violation, irrespective of the amount of harm caused by the offender’s

conduct. In contrast, general property crime statutes, such as Theft

and Destruction of Government Property at 18 U.S.C. §§ 641 and

1361, do not have a statutory cap based on whether the offense was

the defendant’s first violation of the particular statute.

The second disparity is that both ARPA and NAGPRA, together

with the federal law prohibiting theft from tribal organizations,

have five year statutory ceiling, whereas the theft and destruction

of government property statutes have ten year limits. The third

disparity is that even statutes specifically protecting cultural heritage resources have different statutory maxima. Thus while the

ARPA and NAGPRA statutory maxima are both five years, the

1994 federal law proscribing museum theft at 18 U.S.C. § 668 has

a ten year statutory maximum, similar to the general property

crimes.

The Commission suggests eliminating these caps in ARPA and

NAGPRA for first violations and raising the statutory maximum

for ARPA, NAGPRA, and Theft from Tribal Organizations to ten

years. This change will not only achieve consistency with other federal property crimes but will also eliminate potential obstacles to

the proportional punishment of cultural heritage resource crimes

and allow for the full implementation of the sentencing guideline

structure that the Commission has determined is appropriate for

such crimes.

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A few illustrations may suffice to underscore the problem. A looter in the Civil War Battlefield at Manassas has violated the Archaeological Resources Protection Act (ARPA) by disturbing human

remains while collecting $10,000 worth of buttons, belt buckles,

and rifle shells to sell at an antique show, causing $30,000 in damage to the battlefield’s terrain. Under the Commission’s new guideline, this defendant qualifies for a sentence of between 27 and 33

months (without chapter three adjustments) based on the magnitude of the harm as measured by the aggravating factors that the

Commission has delineated. This offender’s possible sentence would

be twenty-four months under the statutory maximum if it were his

first ARPA conviction.

Similarly, a defendant who violates NAGPRA by stealing and attempting to sell Native American ceremonial masks and skulls unearthed from a burial site on tribal lands that have a commercial

value on the black market of $150,000, and who threatens the use

of a firearm when apprehended by law enforcement agents, qualifies for a sentence under the new guideline of 51 to 63 months.

Nonetheless, if it is the defendant’s first NAGPRA conviction, his

sentence is capped at 12 months. Even if prosecuted and convicted

under 18 U.S.C. § 1163 (Theft from Tribal Organizations), its five

year statutory maximum comes into play and prevents the sentencing judge both from applying the high end of the guideline

range, if appropriate, and from adjusting upwards to account for

the defendant’s prior criminal history.

In the actual case of a sophisticated and notorious professional

looter of ancient Anasazi archaeological sites who operated for over

a decade in remote federal lands, both in national parks and national forests, the seventy-eight month sentence calculated in 1997

under § 2B1.1 United States v. Shumway, 112 F.3d 1413 (10th Cir.

1997), could double to between 135 and 168 months under the new

guideline at § 2B1.5. Such a defendant, if convicted only of an

ARPA violation, will not serve this appropriately severe penalty reflecting the magnitude of harm because of ARPA’s five-year statutory maximum. Such an egregious violator would not even serve

his full guideline sentence under the ten year statutory maximum

for a single count of damage to government property (18 U.S.C.

§ 641). Raising ARPA’s statutory maximum to correspond to other

federal crime statutes would not constrain the operation of the new

sentencing guideline which the Commission has promulgated.

The Commission has taken an important step to ensure that

damage to our nation’s cultural heritage resources is appropriately

punished, for example, by requiring that the use of a destructive

device to accomplish such a crime receive more severe punishment

and providing enhanced punishment for other aggravating factors

in the offender’s conduct. This goal cannot be completely achieved,

however, if the statutory ceiling for these offenses is too low to permit a full application of the guideline criteria for fair and proportionate punishment. For other general property crimes, such as

interstate computer or car theft, the statutory maximum does not

generally restrict the application of the sentencing guidelines.

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I respectfully urge the Congress to consider the changes we have

recommended and will be pleased to provide you or your staff with

additional information that may assist you in your consideration.

Sincerely,

Judge DIANA E. MURPHY,

Chair.

Enclosure.

2. CULTURAL HERITAGE

Synopsis of Amendment: This amendment provides a new guideline at § 2B1.5 (Theft of, Damage to, Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation,

or Receipt of Cultural Heritage Resources) for offenses involving

cultural heritage resources. This amendment reflects the Commission’s conclusion that the existing sentencing guidelines for economic and property destruction crimes are inadequate to punish in

an appropriate and proportional way the variety of federal crimes

involving the theft of, damage to, destruction of, or illicit trafficking

in, cultural heritage resources. The Commission has determined

that a separate guideline, which specifically recognizes both the

federal government’s long-standing obligation and role in preserving such resources, and the harm caused to both the nation

and its inhabitants when its history is degraded through the destruction of cultural heritage resources, is needed.

Cultural heritage resources include national memorials, landmarks, parks, archaeological and other historic and cultural resources, specifically designated by Congress and the President for

the preservation of the cultural heritage of this nation and its ancestors. The federal government acts either as a trustee of the public generally, or as a fiduciary on behalf of American Indians, Alaska Natives and Native Hawaiian Organizations, to protect these

cultural heritage resources. Because individuals, communities, and

nations identify themselves through intellectual, emotional, and

spiritual connections to places and objects, the effects of cultural

heritage resource crimes transcend mere monetary considerations.

Accordingly, this new guideline takes into account the transcendent

and irreplaceable value of cultural heritage resources and punishes

in a proportionate way the aggravating conduct associated with

cultural heritage resource crimes.

This guideline incorporates into the definition of ‘‘cultural heritage resource’’ a broad range of existing federal statutory definitions

for various historical, cultural, and archaeological items. If a defendant is convicted of an offense that charges illegal conduct involving a cultural heritage resource, this guideline will apply, irrespective of whether the conviction is obtained under general property theft or damage statutes, such as laws concerning the theft

and destruction of government property, 18 U.S.C. § 641, interstate

sale or receipt of stolen property, 18 U.S.C. §§ 2314–15, and smuggling, 18 U.S.C. §§ 541 et seq., or under specific cultural heritage

statutes, such as the Archaeological Resources Protection Act of

1979, 16 U.S.C. § 470ee (ARPA), the criminal provisions of the Native American Graves Protection and Repatriation Act (NAGPRA)

at 18 U.S.C. § 1170, and 18 U.S.C. § 668, which concerns theft from

museums. In addition, if a more general offense is charged that is

referenced in Appendix A to § 2B1.1, this guideline will apply by

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cross reference if the offense conduct involves a cultural heritage

resource and results in a higher offense level.

This new guideline has a base offense level of level 8, which is

two levels higher than the base offense level for general economic

and property destruction crimes. The higher base offense level represents the Commission’s determination that offenses involving cultural heritage resources are more serious because they involve essentially irreplaceable resources and cause intangible harm to society.

The new guideline also provides that the monetary value of the

cultural heritage resource is an important, although not the sole,

factor in determining the appropriate punishment. The Commission has elected not to use the concept of ‘‘loss’’, which is an integral part of the theft, fraud, and property destruction guideline at

§ 2B1.1 (Theft, Property Destruction, and Fraud), because cultural

heritage offenses do not involve the same fungible and compensatory values embodied in ‘‘loss.’’ Instead, under this new guideline,

value is to be based on commercial value, archaeological value, and

the cost of restoration and repair. These methods of valuation are

derived from existing federal law. See 16 U.S.C. § 470ee(d); 43

C.F.R. § 7.14.

The Commission has recognized that archaeological value shall

be used in calculating the value of archaeological resources but has

provided flexibility for the sentencing court to determine whether

either commercial value or the cost of restoration and repair, or

both, should be added to archaeological value in determining the

appropriate value of archaeological resources. For all other types of

cultural heritage resources covered by this guideline, the Commission has provided flexibility for the sentencing court regarding

whether and when to use all or some of the methods of valuation,

as appropriate, for calculating the total value associated with the

harm to the particular resource caused by the defendant’s offense

conduct. The value of the cultural heritage resource is then referenced to the monetary table provided at § 2B1.1(b)(1) in order to

determine appropriate and proportionate offense levels in a manner

consistent with the overall guidelines structure.

The new guideline provides five additional specific offense characteristics to provide proportionate enhancements for aggravating

conduct that may occur in connection with cultural heritage resource offenses. In providing enhancements for these nonpecuniary

aggravating factors, the Commission seeks to ensure that the nonquantifiable harm caused by the offense to affected cultural groups,

and society as a whole, is adequately reflected in the penalty structure.

The first two of these enhancements, at subsections (b)(2) and

(b)(3), relate to whether the offense involves a place or resource

that Congress has designated for special protection. A two level enhancement attaches if the offense involves a resource from one of

eight locations specifically designated by Congress for historic commemoration, resource preservation, or public education. These are

the national park system, national historic landmarks, national

monuments, national memorials, national marine sanctuaries national cemeteries, sites contained on the World Heritage List, and

museums.

13

Consistent with the definition in 18 U.S.C. § 668(a)(1), museums

are defined broadly to include all organized and permanent institutions, with an essentially educational or aesthetic purpose, which

exhibit tangible objects to the public on a regular schedule. Adoption of this definition reflects the Commission’s recognition that

cultural heritage resource crimes affecting institutions dedicated to

the preservation of resources and associated knowledge, irrespective of the institution’s size, ownership, or funding, deprive the

public and future generations of the opportunity to learn and appreciate the richness of the nation’s heritage. Similarly, this enhancement reflects the Commission’s assessment that damage to

the other listed places degrades not only the resource itself but also

the historical and cultural aspects which the resource commemorates.

An additional two level enhancement attaches to offense conduct

that involves any of a number of specified resources, including

human remains and other resources that have been designated by

Congress for special treatment and heightened protection under

federal law. Funerary objects, items of cultural patrimony, and sacred objects are included because they are domestic cultural heritage resources protected under NAGPRA. See 25 U.S.C. § 3001. Cultural property, designated archaeological and ethnological material,

and pre-Columbian monumental and architectural sculpture and

murals are included in the enhancement because these are cultural

heritage resources of foreign provenance for which Congress has

chosen, in the implementation of international treaties and bilateral agreements, to impose import restrictions. See 19 U.S.C. §§

2092, 2606, and 2607.

This guideline also provides a two level enhancement at subsection (b)(4) if the offense was committed for pecuniary gain or

otherwise involved a commercial purpose. This increase is based on

a determination that offenders who are motivated by financial gain

or other commercial incentive are guideline at § 2B1.5 if the resulting offense level under it would be greater than under § 2B1.1.

When a case involving a cultural heritage resource is sentenced

under § 2B1.1, loss attributable to that cultural heritage resource

is to be determined using the definition of ‘‘value of the cultural

heritage resource’’ from § 2B1.5.

The Commission recognizes that the full implementation of this

new guideline for the most serious offenders often will be limited

in its application because of the extremely low statutory maxima

of some of the potentially applicable statutes, such as the criminal

provisions of ARPA, NAGPRA, and 18 U.S.C. § 1163 (covering the

theft of tribal property). Currently ARPA has either a one year or

two year statutory maximum term of imprisonment for the first offense, depending on whether the value exceeds $500, and NAGPRA

has a statutory maximum term of imprisonment of one year for the

first offense irrespective of value. These statutes all have five year

statutory maximum terms of imprisonment for second and subsequent offenses. Consequently, the statutory ceiling may limit the

full range of proportionate guideline sentencing, but the Commission has promulgated this new guideline to cover the wide variety

of potential offense conduct that can occur in connection with cultural heritage resources. The Commission has recommended to

14

Congress that the statutory maximum terms of imprisonment for

these offenses be raised appropriately.

§ 2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud

and Deceit; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the

United States

* * * * * * *

(c) Cross References

* * * * * * *

(4) If the offense involved a cultural heritage resource, apply

§ 2B1.5 (Theft of Damage to, or Destruction of Cultural Heritage

Resources, Unlawful Sale, Purchase, Exchange, Transportation or

Receipt of Cultural Heritage Resources), if the resulting offense

level is greater than that determined above.

* * * * * * *

Commentary

* * * * * * *

Application Notes:

1. Definitions.—For purposes of this guideline:

‘‘Cultural heritage resource’’ has the meaning given that term in

Application Note 1 of the Commentary to § 2B1.5 (Theft of Damage

to, or Destruction of Cultural Heritage Resources, Unlawful Sale,

Purchase, Exchange, Transportation or Receipt of Cultural Heritage Resources).

* * * * * * *

2. Loss Under Subsection (b)(1).—This application note applies to

the determination of loss under subsection (b)(1).

* * * * * * *

(F) Special Rules.—Notwithstanding subdivision (A), the following special rules shall be used to assist in determining loss in

the cases indicated:

* * * * * * *

(vii) Value of Cultural Heritage Resources.—In a case involving

a cultural heritage resource, loss attributable to that cultural heritage resource shall be determined in accordance with the rules for

determining the ‘‘value of the cultural heritage resource’’ set forth

in Application Note 2 of the Commentary to § 2B1.5.

* * * * * * *

§ 2B1.5. Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation,

or Receipt of Cultural Heritage Resources

(a) Base Offense Level: 8

(b) Specific Offense Characteristics

(1) If the value of cultural heritage resource (A) exceeded $2,000

but did not exceed $5,000, increase by 1 level; or (B) exceeded

$5,000, increase by the number of levels from the table in § 2B1.1

(Theft, Property Destruction, and Fraud) corresponding to that

amount.

15

(2) If the offense involved a cultural heritage resource from, or

that, prior to the offense, was on, in, or in the custody of (A) the

national park system; (B) a National Historic Landmark; (C) a national monument or national memorial; (D) a national marine sanctuary; (E) a national cemetery; (F) a museum; or (G) the World

Heritage List, increase by 2 levels.

(3) If the offense involved a cultural heritage resource constituting (A) human remains; (B) a funerary object; (C) cultural patrimony; (D) a sacred object; (E) cultural property; (F) designated

archaeological or ethnological material; or (G) a pre-Columbian

monumental or architectural sculpture or mural, increase by 2 levels.

(4) If the offense was committed for pecuniary gain or otherwise

involved a commercial purpose increase by 2 levels.

(5) If the defendant engaged in a pattern of misconduct involving

cultural heritage resources, increase by 2 levels.

(6) If a dangerous weapon was brandished or its use was threatened increase by 2 levels. If the resulting offense level is less than

level 14; increase to level 14.

(c) Cross Reference

(F) ‘‘National park system’’ has the meaning given that term in

16 U.S.C. § 1c(a).

(G) ‘‘World Heritage List’’ means the World Heritage List maintained by the World Heritage Committee of the United Nations

Educational, Scientific, and Cultural Organization in accordance

with the Convention Concerning the Protection of the World Cultural and Natural Heritage.

(4) Enhancement in Subsection (b)(3).—For purpose of subsection

(b)(3):

(A) ‘‘Cultural patrimony’’ has the meaning given that term in 25

U.S.C. § 3001(3)(D) see also 43 C.F.R. 10.2(d)(4).

(B) ‘‘Cultural property’’ has the meaning given the term in 19

U.S.C. § 2601(6).

(C) ‘‘Designate archaeological or ethnological material’’ means archaeological or ethnological material described in 19 U.S.C.

§ 2601(7) (see also 19 U.S.C. §§ 2601(2) and 2604).

(D) ‘‘Funerary object means an object that, as a part of the death

rite or ceremony or a culture, was placed intentionally, at the time

of death or later, with or near human remains.

(E) ‘‘Human remains’’ (i) means the physical remains of the body

of a human; and (ii) does not include remains that reasonably may

be determined to have been freely disposed of or naturally shed by

the human from whose body the remains were obtained, such as

hair made into ropes or nets.

(F) ‘‘Pre-Columbian monumental or architectural sculpture or

mural’’ has the meaning given the term in 19 U.S.C. § 2095(3).

(G) ‘‘Sacred object’’ has the meaning given that term in 25 U.S.C.

§ 3001(3)(C) (see also 43 C.F.R. § 10.2(d)(3).

(5) Pecuniary Gain and Commercial Purpose Enhancement Under

Subsection (b)(4)

(A) ‘‘For Precuniary Gain.—For purposes of subsection (b)(4) ‘‘for

pecuniary gain’’ means for receipt of, or in anticipation of receipt

of anything of value, whether monetary or in goods or services.

Therefore, offense committed for precuniary gain include both monVerDate 11-MAY-2000 07:38 Sep 11, 2002 Jkt 099010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR258.XXX pfrm12 PsN: SR258
16

etary and barter transactions, as well as activities designed to increase gross revenue.

(B) Commercial Purpose.—The acquisition of cultural heritage resources for display to the public, whether for a fee or donation and

whether by an individual or an organization, including a governmental entity, a private non-profit or organization, or a private

non-profit organization, shall be considered to involve a ‘‘commercial purpose’’ for purposes of subsection (b)(4).

6. Pattern of Misconduct Enhancement Under Subsection (b)(5).— (A) Definition.—For purposes of subsection (b)(5), ‘‘pattern of misconduct involving cultural heritage resources’’; means two or more

separate instances of offense conduct involving a cultural heritage

resource that did not occur during the course of the offense (i.e., that did not occur during the course of the instant offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct). Offense conduct involving a cultural heritage resource may be considered for purposes of subsection (b)(5) regardless of whether the defendant was convicted of that conduct.

(B) Computation of Criminal History Points.—A conviction taken

into account under subsection (b)(5) is not excluded from consideration of whether that conviction receives criminal history points

pursuant to Chapter Four, Part A (Criminal History).

7. Dangerous Weapons Enhancement Under Subsection (b)(6).— For purposes of subsection (b)(6), ‘‘brandished’’ and ‘‘dangerous

weapon’’ have the meaning given those terms in Application Note

1 of the Commentary to § 1B1.1 (Application Instructions).

8. Multiple Counts.—For purposes of Chapter Three Part D (Multiple Counts), multiples counts involving cultural heritage offense

covered by this guideline are grouped together under subsection (d)

of § 3D1.2 (Groups of Closely Related Counts). Multiple counts involving cultural heritage offenses covered by this guideline and offenses covered by other guidelines are not to be grouped under

§ 3D1.2(d).

9. Upward Departure Provision.—There may be cases in which

the offense level determined under this guideline substantially understates the seriousness of the offense. In such cases an upward

departure may be warranted. For example, an upward departure

may be warranted if (A) in addition to cultural heritage resources,

the offense involved theft of, damage to, or destruction of, items

that are not cultural heritage resources (such as an offense involving the theft from a national cemetery of lawnmowers and other

administrative property in addition to historic gravemarkers or

other cultural heritage resources); or (B) the offense involved cultural heritage resource that has profound significance to cultural

identity (e.g., the Statue of Liberty, or the Liberty Bell).

§ 2Q2.1. Offenses Involving Fish, Wildlife, and Plants

* * * * * * *

(c) Cross Reference

(1) If the offense involved a cultural heritage resource, apply

§ 2B.5 (Theft of, Damage to, or Destruction of, Cultural Heritage

Resource; Unlawful Sale, Purchase, Exchange, Transportation, or

Receipt of Cultural Heritage Resources), if the resulting offense

level is greater than that determined above.

* * * * * * *

17

Commentary

* * * * * * *

Application Notes:

* * * * * * *

6. For purposes of subsection (c)(1), ‘‘cultural’’ heritage resource

has the meaning given that term in Application Note 1. of the

Commentary to § 2BI:5 (Theft of, Damage to, or Destruction of Cultural Heritage Resources; Unlawful Sale; Purchase, Exchange,

Transportation or Receipt of Cultural Heritage Resources).

* * * * * * *

§ D1.2 Groups of Closely Related Counts

(d) * * *

Offenses covered by the following guidelines are to be grouped

under this subsection:

§§ 2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B6.1;

* * * * * * *

APPENDIX A—STATUTORY INDEX

16 U.S.C. § 433 2B1.1

16 U.S.C. § 470ee § 2B1.5

16 U.S.C. § 668(a) 2B1.5, 2Q2.1

16 U.S.C. § 707(b) 2B1.5, 2Q2.1

* * * * * * *

18 U.S.C. § 541 2B1.5, 2T3.1

18 U.S.C. § 542 2B1.5, 2T3.1

18 U.S.C. § 543 2B1.5, 2T3.1

18 U.S.C. § 544 2B1.5, 2T3.1

18 U.S.C. § 545 2B1.5, 2Q2.1. 2T3.1

18 U.S.C. § 546 2B1.5

* * * * * * *

18 U.S.C. § 641 2B1.1, 2B1.5

* * * * * * *

18 U.S.C. § 661 2B1.1, 2B1.5

* * * * * * *

18 U.S.C. § 662 2B1.1,2B1.5

* * * * * * *

18 U.S.C. § 666(a)(1)(A) 2B1.1, 2B1.5

* * * * * * *

18 U.S.C. § 668 2B1.12B1.5

* * * * * * *

18 U.S.C. § 1152 2B1.5

18 U.S.C. § 1153 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A3.1, 2A3.2, 2A3.3, 2A3.4, 2A4.1, 2B1.1, 2B1.5, 2B2.1,

2B3.1, 2K1.4

* * * * * * *

18 U.S.C. § 1163 2B1.1, 2B1.5

* * * * * * *

18

18 U.S.C. § 1170 2B1.5

* * * * * * *

18 U.S.C. § 1361 2B1.1, 2B1.5

* * * * * * *

18 U.S.C. § 2232 2B1.5, 2J1.2

* * * * * * *

18 U.S.C. § 2314 2B1.1, 2B1.5

* * * * * * *

18 U.S.C. § 2315 2B1.1, 2B1.5

* * * * * * *

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing

Rules of the Senate, changes in existing law made by the bill S.

2598, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in brackets, new matter is printed

in italic, and existing law in which no change is proposed is shown

in roman):

PUBLIC LAW 96–95

SECTION 1. This Act may be cited as the ‘‘Archaeological Resources Protection Act of 1979’’.

* * * * * * *

SEC. 6. (a) * * *

* * * * * * *

(d) Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined ønot more than $10,000 or imprisoned not more than

one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the

cost of restoration and repair of such resources exceeds the sum of

$500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or

subsequent such violation upon conviction such person shall be

fined not more than $100,000, or imprisoned not more than five

years, or both.¿ in accordance with title 18, United States Code, or

imprisoned not more than ten years or both; but if the sum of the

commercial and archaeological value of the archaeological resources

involved and the cost of restoration and repair of such resources

does not exceed $500, such person shall be fined in accordance with

title 18, United States Code, or imprisoned not more than one year,

or both

18 U.S.C. 1163

Embezzlement and theft from Indian tribal organizations.

Whoever embezzles, steals, knowingly converts to his use or the

use of another, willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, goods, assets, or other

property belonging to any Indian tribal organization or intrusted to

19

the custody or care of any officer, employee, or agent of an Indian

tribal organization; or

Whoever, knowing any such moneys, funds, credits, goods, assets,

or other property to have been so embezzled, stolen, converted, misapplied or permitted to be misapplied, receives, conceals, or retains

the same with intent to convert it to his use or the use of

another—— Shall be fined under this title, or imprisoned not more than øfive

years¿ 10 years or both; but if the value of such property does not exceed the sum of $1,000 he shall be fined under this title, or imprisoned not more than one year, or both.

As used in this section, the term ‘‘Indian tribal organization’’ means any tribe, band, or community of Indians which is subject

to the laws of the United States relating to Indian affairs or any

corporation, association, or group which is organized under any of

such laws.

18 U.S.C. 1170

Illegal trafficking in Native American human remains and cultural items.

(a) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American

without the right of possession to those remains as provided in the

Native American Graves Protection and Repatriation Act shall be

fined in accordance with this title, øor imprisoned not more than

12 months, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, or imprisoned not more

than 5 years¿ imprisoned not more than 10 years or both.

(b) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and

Repatriation Act shall be fined in accordance with this title, øimprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined in accordance with this title,

imprisoned not more than 5 years, or both¿ imprisoned not more

than 10 years, or both; but if the sum of the commercial and archaeological value of the cultural items involved and the cost of restoration and repair of such items does not exceed $500, such person

shall be fined in accordance with this title, imprisoned not more

than one year, or both.

Æ