27078 Federal Register / Vol. 78, No. 90 / Thursday, May 9, 2013 / Rules and Regulations 

ALASKA—PM–10 

Designated area 

Designation Classification 

Date Type Date Type 

*******

Juneau ........................................................................ 7/8/2013 

City of Juneau ...................................................... ........................ Attainment.

Mendenhall Valley area.

*******

* * * * * 

[FR Doc. 2013–10939 Filed 5–8–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary of the Interior 

43 CFR Part 10 

[NPS–WASO–NAGPRA–11600; 

PPWOCRADN0–PCU00RP14.550000] 

RIN 1024–AD99 

Native American Graves Protection 

and Repatriation Act Regulations 

AGENCY: Office of the Secretary, Interior. 

ACTION: Final rule. 

SUMMARY: This final rule revises 

regulations implementing the Native 

American Graves Protection and 

Repatriation Act for accuracy and 

consistency. 

DATES: The rule is effective June 10, 

2013. 

FOR FURTHER INFORMATION CONTACT:

• Mail: Sherry Hutt, Manager, 

National NAGPRA Program, National 

Park Service, 1201 Eye Street NW., 8th 

Floor, Washington, DC 20005. 

• Telephone: (202) 354–1479, Fax: 

(202) 371–5197. Email: 

sherry_hutt@nps.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Secretary of the Interior 

(Secretary) is responsible for 

implementation of the Native American 

Graves Protection Repatriation Act 

(NAGPRA or Act) (25 U.S.C. 3001 et 

seq.), including the issuance of 

appropriate regulations implementing 

and interpreting its provisions. 

NAGPRA addresses the rights of lineal 

descendants, Indian tribes, and Native 

Hawaiian organizations in certain 

Native American human remains, 

funerary objects, sacred objects, and 

objects of cultural patrimony. Pursuant 

to Section 13 of NAGPRA (25 U.S.C. 

3011), the Department of the Interior 

(Department) published the initial rules 

to implement NAGPRA in 1995 (60 FR 

62158, December 4, 1995), which have 

been codified at 43 CFR Part 10. 

Subsequently, the Department 

published additional rules concerning: 

• Civil penalties (68 FR 16354, April 

3, 2003); 

• Future applicability (72 FR 13189, 

March 21, 2007); and 

• Disposition of culturally 

unidentifiable human remains (75 FR 

12378, March 15, 2010). 

Since 1995, minor inaccuracies or 

inconsistencies in 43 CFR Part 10 have 

been identified by or brought to the 

attention of the Department. On April 

18, 2012, we published in the Federal 

Register proposed amendments to 

provide for factual accuracy and 

consistency throughout 43 CFR Part 10 

by revising 43 CFR 10.2(c)(1), 10.2(c)(3), 

10.4(d)(1)(iii), 10.5(b)(1)(i), 10.6(a)(2), 

10.6(a)(2)(iii)(B), 10.8(e), 

10.10(a)(1)(ii)(B), 10.10(b)(1)(ii)(B), 

10.10(c)(2), 10.10(g), 10.11(b)(2)(ii), 

10.12(c), 10.12 (i)(3), 10.12(j)(1), 

10.12(j)(6)(i), 10.12(k)(1), 10.12(k)(3), 

10.13(c)(2), 10.15(c)(1), 10.15(c)(1)(ii), 

Appendix A, and Appendix B. 

Summary of and Responses to 

Comments 

The proposed rule to revise 43 CFR 

Part 10 for the purposes of accuracy and 

consistency was published in the 

Federal Register on April 18, 2012 (77 

FR 23196). Public comment was invited 

for a 60-day period, ending June 18, 

2012. The proposed rule also was 

posted on the National NAGPRA 

Program Web site. The Native American 

Graves Protection and Repatriation 

Review Committee commented on the 

proposed rule at a public meeting on 

May 10, 2012. In addition, 16 written 

comments on the proposed minor 

amendments, contained in 19 separate 

submissions, were received during the 

comment period from 13 Indian tribes, 

2 Indian organizations, 3 Native 

Hawaiian organizations, 1 museum, 1 

museum and scientific organization, 1 

Federal entity, 1 individual member of 

the public, and 1 other organization. All 

relevant comments on the proposed rule 

were considered during the final 

rulemaking. The comments we received 

that went beyond the scope of the 

proposed rule will be taken into account 

during any subsequent review and 

rulemaking regarding 43 CFR Part 10. 

Authority 

Comment 1: Ten commenters stated 

that the proposed rule revises the 

authority citation for Part 10, and that 

they oppose this purported revision. 

Our Response: The proposed rule did 

not intend to revise the authority 

citation for Part 10. Based on the 

promulgation of 43 CFR 10.11 and 

related amendments in 2010 (75 FR 

12378, March 15, 2010), the authority 

citation for Part 10 remains 25 U.S.C. 

3001 et seq., 16 U.S.C. 470dd(2), and 25 

U.S.C. 9, and it is explicitly stated as 

such in this final rule. 

The Mailing Address of the National 

NAGPRA Program 

Comment 2: Seven commenters 

recommended that the Main Interior 

Building address currently in the 

regulations be retained as the mailing 

address for the National NAGPRA 

Program because that address is 

unlikely to change and because access 

to the internet for purposes of obtaining 

the current, direct mailing address of 

the National NAGPRA Program is not 

easily or universally accessible, 

particularly in rural, tribal communities. 

Our Response: The rule revises the 

mailing address for the National 

NAGPRA Program in §§ 10.2(c)(3), 

10.12(c), and 10.12(i)(3) by removing an 

indirect address and replacing it with 

the Web site address where the National 

NAGPRA Program’s current, direct 

mailing address can always be found. 

The intent of this revision is to improve 

communications with the National 

NAGPRA Program. Communications 

that are not received in a timely manner 

could adversely affect the treatment of 

a NAGPRA grant request, a response to 

a NAGPRA civil penalty notice, or a 

request to the Review Committee. By 


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referring the public to the National 

NAGPRA Program Web site, the address 

of the National NAGPRA Program will 

remain current. Furthermore, the 

Department believes that reducing the 

risk of untimely communications 

outweighs the inconvenience of 

limitations on access to the Internet, as 

any change in the National NAGPRA 

Program’s address will be infrequent. 

Telephone access to the National 

NAGPRA Program for inquiries related 

to the National NAGPRA Program’s 

mailing address is also always available. 

Terminology 

Comment 3: Nine commenters 

recommended that the term ‘‘human 

remains’’ not be shortened to ‘‘remains’’ 

and that ‘‘associated funerary objects, 

unassociated funerary objects, sacred 

objects, or objects of cultural 

patrimony’’ not be shortened to 

‘‘objects.’’ 

Our Response: The proposed rule 

shortened the term ‘‘human remains’’ to 

‘‘remains’’ and shortened ‘‘associated 

funerary objects, unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony’’ to ‘‘objects’’ in 

§§ 10.4(d)(1)(iii), 10.5(b)(1)(i), 

10.6(a)(2)(iii)(B), 10.8(e), 10.10(c)(2), 

and 10.15(c)(1)(i). Although the 

Department believes that, in context, 

‘‘remains’’ clearly means ‘‘human 

remains’’ and ‘‘objects’’ clearly means 

‘‘associated funerary objects, 

unassociated funerary objects, sacred 

objects, or objects of cultural 

patrimony,’’ and although NAGPRA 

uses these shortened forms as well (see 

25 U.S.C. 3002(a)), we agree with these 

comments and the final rule does not 

shorten these terms, but instead uses the 

terms ‘‘human remains,’’ ‘‘associated 

funerary objects,’’ unassociated funerary 

objects,’’ ‘‘sacred objects,’’ and ‘‘objects 

of cultural patrimony’’ as appropriate. 

The Secretary of the Interior’s Authority 

To Delegate the Secretary’s 

Responsibilities Under NAGPRA 

Comment 4: Seven commenters stated 

that the proposed rule revises the 

Secretary of the Interior’s authority to 

delegate the Secretary’s responsibilities 

under NAGPRA. 

Our Response: The rule is not 

intended to revise the Secretary of the 

Interior’s existing authority to delegate 

the Secretary’s responsibilities under 

NAGPRA. 

Comment 5: Seven commenters 

recommended that responsibilities 

throughout 43 CFR Part 10 remain with 

political appointees to ensure that these 

duties are supervised at the highest 

level in the Department. 

Our Response: Consistent with 

Departmental policy, the Secretary 

delegated to the Manager of the National 

NAGPRA Program the responsibility for 

managing the operations of the National 

NAGPRA Program. Likewise, the 

Secretary delegated to the National 

NAGPRA Program the responsibility for 

providing staff to support the Assistant 

Secretary for Fish and Wildlife and 

Parks, who has the delegated 

responsibility (in consultation with the 

Office of the Solicitor) to investigate 

allegations of a museum’s failure to 

comply with the requirements of 

NAGPRA and assess civil penalties 

against museums that have failed to 

comply with NAGPRA. In 2005, the 

Department amended Part 10 to reflect 

the Secretary’s delegations of authority 

to the Manager of the National NAGPRA 

Program and the Assistant Secretary for 

Fish and Wildlife and Parks (70 FR 

57177, September 30, 2005). The 

revisions to §§ 10.12(c) and 10.12(i)(3) 

reflect the Secretary’s delegation to the 

National NAGPRA Program of staffing 

responsibilities on civil penalties. 

Comment 6: One commenter 

recommended that the Secretary order 

the Assistant Secretary for Fish and 

Wildlife and Parks to consult with the 

Assistant Secretary for Policy, 

Management, and Budget or the Director 

of the Office of Native Hawaiian 

Relations on regulations to carry out 

NAGPRA, in addition to the Assistant 

Secretary for Indian Affairs. 

Our Response: The Secretary’s 

discretion to order the Assistant 

Secretary for Fish and Wildlife and 

Parks to consult with the Assistant 

Secretary for Policy, Management, and 

Budget or the Director of the Office of 

Native Hawaiian Relations on 

regulations to carry out NAGPRA is 

beyond the scope of this rule. 

Rights and Claims of Lineal 

Descendants in Cultural Items 

Excavated or Discovered on Federal or 

Tribal Lands After November 16, 1990 

Comment 7: One commenter stated 

that the amendments proposed in 

§§ 10.5(b)(1)(i) and 10.6(a)(2) 

constructively diminish the rights and 

claims of lineal descendants to cultural 

items, and require a more thorough 

examination and discussion than the 

comment period allowed. The 

commenter thus recommended that the 

amendment of those sections be stayed. 

Our Response: NAGPRA excludes 

lineal descendants from the list of 

possible owners of sacred objects or 

objects of cultural patrimony excavated 

or discovered on Federal or tribal lands 

after November 16, 1990 (25 U.S.C. 

3002(a)). The current regulation at 

§ 10.5(b)(1)(i), by contrast, includes 

lineal descendants among the possible 

owners of these two categories of 

cultural item when they are, or might 

be, excavated or discovered on Federal 

lands after November 16, 1990. The 

provision in the statute governs. The 

revision to § 10.5(b)(1)(i) in this rule 

makes the regulation consistent with the 

statute. NAGPRA also provides that 

ownership or control of human remains 

and associated funerary objects 

excavated or discovered on Federal or 

tribal lands after November 16, 1990 is, 

in the first instance, with the lineal 

descendants of the deceased Native 

American irrespective of the assertion of 

a claim (25 U.S.C. 3002(a)). The current 

regulation at § 10.6(a)(2), by contrast, 

makes a lineal descendant’s right to 

control the disposition of such human 

remains and associated funerary objects 

contingent on the lineal descendant 

making a claim. The revision to 

§ 10.6(a)(2) in this rule makes the 

regulation consistent with the statute. 

Typographical Error 

Comment 8: One commenter pointed 

out a typographical error in the spelling 

of ‘‘NAGPRA’’ in the proposed 

amendment of § 10.2(c)(3). 

Our Response: This typographical 

error is corrected in the final rule. 

Section 10.2(c)(1) Definition of 

‘‘Secretary’’ 

The proposed rule will amend the 

definition of Secretary to reflect 

Departmental delegations of the 

Secretary of the Interior’s authority 

under NAGPRA. 

Comment 9: One commenter stated 

that the Secretary could possibly 

delegate a single responsibility under 

NAGPRA to multiple designees, and 

thus recommended that the words ‘‘a 

designee’’ be changed to ‘‘designees.’’ 

Our Response: The rule does not 

expand or limit the Secretary’s authority 

to delegate NAGPRA responsibilities. 

The words ‘‘a designee’’ mean any 

designee to whom the Secretary 

delegates any of the Secretary’s 

responsibilities under NAGPRA. 

Section 10.4(d)(1)(iii) Inadvertent 

Discoveries 

In order to facilitate the process of 

consultation with known lineal 

descendants of a deceased Native 

American whose human remains and 

associated funerary objects were 

recovered from Federal or tribal lands 

after November 16, 1990, as required 

under § 10.5(b)(1)(i) of the current 

regulations, the rule will add such 

known lineal descendants to the list of 

parties to be notified of an inadvertent 


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discovery of human remains and 

associated funerary objects. 

Comment 10: Five commenters 

asserted that the proposed rule suggests 

that a lineal descendant be notified of 

the inadvertent discovery of cultural 

items that are not human remains and 

associated funerary objects. Seven 

commenters asserted that the proposed 

rule implies that lineal descendants can 

be ‘‘culturally affiliated’’ with Native 

American human remains and funerary 

objects, even though cultural affiliation 

is a function of shared group identity 

and not kinship. 

Our Response: The Department 

believes that both the current 

regulations and this rule are clear in 

requiring that the parties to be notified 

of an inadvertent discovery are only 

those who have, or are likely to have, 

ownership or control of the 

inadvertently discovered cultural items 

in question. NAGPRA clearly states that 

ownership or control in lineal 

descendants of cultural items recovered 

from Federal or tribal lands after 

November 16, 1990 is restricted to 

human remains and associated funerary 

objects (25 U.S.C. 3002(a)(1)); there is no 

requirement that lineal descendants of a 

deceased Native American individual be 

notified of the inadvertent discovery of 

an object belonging to any category of 

cultural item other than human remains 

and associated funerary objects. We 

have added text to the rule to clarify 

that the required notice to known lineal 

descendants of an inadvertent discovery 

is limited to human remains and 

associated funerary objects. 

Comment 11: One commenter 

suggested changing the second sentence 

in the proposed rule from ‘‘this 

notification must be by telephone with 

written confirmation’’ to ‘‘this 

notification must be by telephone 

followed by written confirmation.’’ 

Our Response: This comment goes 

beyond the scope of this rule because 

there was no change proposed for that 

sentence. 

Section 10.5(b)(1)(i) Consultation 

The rule revises the subject-matter of 

a consultation with known lineal 

descendants of a deceased Native 

American individual when an activity 

on Federal lands after November 16, 

1990 has resulted in, or is likely to 

result in, the excavation or discovery of 

cultural items. As NAGPRA excludes 

lineal descendants from the list of 

possible owners of sacred objects or 

objects of cultural patrimony excavated 

or discovered on Federal lands after 

November 16, 1990 (25 U.S.C. 3002(a)), 

the rule limits the scope of the required 

consultation with a known lineal 

descendant of a deceased Native 

American individual to human remains 

and associated funerary objects. Thus, 

the revision to § 10.5(b)(1)(i), makes the 

regulation consistent with the statute. 

Comment 12: Seven commenters 

proposed retaining the language in the 

current regulation because not 

consulting with a known lineal 

descendant of an individual who owned 

a sacred object that has been recovered 

from Federal lands after November 16, 

1990, on the disposition of such object 

might result in a taking of property by 

the United States without 

compensation, in violation of the Fifth 

Amendment of the U.S. Constitution. 

Our Response: Under NAGPRA, 

Congress has provided that the 

ownership of a specific ceremonial 

object needed by a traditional Native 

American religious leader for the 

practice of traditional Native American 

religion by present-day adherents, 

which is recovered from Federal land 

after November 16, 1990, is in the 

Indian tribe or Native Hawaiian 

organization having the closest cultural 

affiliation with the object and stating a 

claim for such object (25 U.S.C. 

3002(a)(2)(B)). The Department believes 

that, under the criteria in Executive 

Order 12360, this rule does not have 

significant takings implications. 

Section 10.6(a)(2) Custody 

Under NAGPRA, the right of control 

of the disposition of Native American 

human remains and associated funerary 

objects recovered from Federal or tribal 

lands after November 16, 1990, is 

automatically in the lineal descendants 

of the deceased Native American 

individual whenever such lineal 

descendants can be ascertained (25 

U.S.C. 3002(a)). Such right of control is 

not claim-dependent. The rule 

eliminates the requirement in the 

current regulation that lineal 

descendants of a Native American 

individual, whose human remains and 

associated funerary objects were 

recovered from Federal or tribal lands 

after November 16, 1990, state a claim 

for such human remains and funerary 

objects. Thus, the revision to 

§ 10.6(a)(2), makes the regulation 

consistent with the statute. 

Comment 13: Seven commenters 

recommended that a provision be 

included to allow for the disposition to 

Indian tribes or Native Hawaiian 

organizations of human remains and 

associated funerary objects where a 

known lineal descendant declines to 

exercise the right of control of the 

disposition of the human remains and 

associated funerary objects of the 

deceased Native American. 

Our Response: As noted above, 

NAGPRA only allows a tribe or Native 

Hawaiian organization to have custody 

over human remains and associated 

funerary objects of a deceased Native 

American if a lineal descendant cannot 

be ascertained. Congress did not provide 

for transfer of control upon failure of a 

lineal descendant to ‘‘exercise a right of 

control’’ and consideration of such is 

beyond the scope of this rulemaking. 

Comment 14: Five commenters 

asserted that the proposed rule wrongly 

suggests that lineal descendants must be 

located concerning the ownership or 

control of cultural items other than the 

human remains and associated funerary 

objects of a deceased Native American. 

Our Response: The rule, read together 

with § 10.6(a)(1) and section 3(a) of 

NAGPRA (25 U.S.C. 3002(a)), requires 

that lineal descendants be identified 

only with respect to the right of control 

of the disposition of human remains and 

associated funerary objects of a 

deceased Native American individual. 

We have added text to the rule to clarify 

that, with respect to recoveries from 

Federal lands, the priority of right of 

control of human remains and 

associated funerary objects defaults to a 

culturally affiliated Indian tribe or 

Native Hawaiian organization only 

where the lineal descendants of the 

deceased Native American cannot be 

ascertained, but that, with respect to 

other cultural items recovered from 

Federal lands, the priority of ownership 

is, in the first instance, in the culturally 

affiliated Indian tribe or Native 

Hawaiian organization. 

Section 10.8(e) Using Summaries To 

Determine Affiliation 

Lineal descendants of a deceased 

Native American whose unassociated 

funerary objects or individually-owned 

sacred object are in a museum or 

Federal agency collection have standing 

to request the repatriation of these 

cultural items. The rule replaces the 

word ‘‘individuals’’ used to denote such 

lineal descendants with the statutory 

term ‘‘lineal descendants.’’ 

Comment 15: Five commenters 

asserted that the proposed rule wrongly 

suggests that lineal descendants may be 

affiliated with objects of cultural 

patrimony. 

Our Response: The rule merely 

changes the word ‘‘individuals’’ to 

‘‘lineal descendants.’’ Even under the 

current regulations, ‘‘individuals’’ are 

not eligible to be affiliated with objects 

of cultural patrimony. Nonetheless, we 

have added text to the rule to clarify 

that the information documented in the 

summary is used to determine, ‘‘as 

appropriate,’’ the lineal descendants, 


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Indian tribes, and Native Hawaiian 

organizations with which the cultural 

items in the summary are affiliated. 

Section 10.10(g)(2)(ii) The Review 

Committee’s Responsibility for 

Recommending Specific Actions for 

Developing a Process for the Disposition 

of Culturally Unidentifiable Human 

Remains Not Now Covered by § 10.11 of 

These Regulations 

Under NAGPRA, Congress tasked the 

Secretary with promulgating regulations 

to carry out the Act (25 U.S.C. 3011), 

and assigned the Review Committee the 

responsibility of consulting with the 

Secretary in the development of those 

regulations (25 U.S.C. 3006(c)(7)), 

including recommending specific 

actions for developing a process for the 

disposition of culturally unidentifiable 

Native American human remains that 

are in the possession or control of each 

Federal agency and museum (25 U.S.C. 

3006(c)(5)). A rule on the disposition of 

culturally unidentifiable human 

remains to Indian tribes and Native 

Hawaiian organizations from whose 

tribal or aboriginal lands the human 

remains were removed was promulgated 

in 2010, and is presently codified at 43 

CFR 10.11. This rule clarifies that the 

Review Committee still is responsible 

for recommending specific actions for 

developing a process for the disposition 

of such culturally unidentifiable Native 

American human remains not addressed 

by the 2010 rule. 

Comment 16: Two commenters 

question why, under the proposed rule, 

the Review Committee is charged with 

recommending specific actions for 

developing a process for the disposition 

of culturally unidentifiable Native 

American human remains not addressed 

by the 2010 rule. One of these 

commenters recommends that the 

current rule at § 10.10(g) be removed 

entirely. The other commenter stated 

that there are problems inherent in 

§ 10.11, that these problems have yet to 

be addressed, and that not addressing 

these problems has left the entire 

process of disposition of culturally 

unidentifiable human remains 

unresolved. The commenter urged the 

Review Committee not to issue further 

recommendations on the disposition of 

culturally unidentifiable human 

remains until these difficulties are 

resolved. 

Our Response: Under NAGPRA, the 

Review Committee has the authority 

and the responsibility to recommend 

specific actions for developing a process 

for the disposition of any culturally 

unidentifiable Native American human 

remains that are in the possession or 

control of each Federal agency and 

museum (25 U.S.C. 3006(c)(5)). In the 

2010 rule, the Secretary incorporated 

Review Committee recommendations 

with respect to the disposition of certain 

categories of culturally unidentifiable 

human remains. As for the disposition 

of culturally unidentifiable human 

remains not addressed in the 2010 rule, 

the Review Committee, by statute, is 

still responsible for recommending 

specific actions. Also under NAGPRA, 

the Secretary has the authority to assign 

the Review Committee any function 

related to any of the Review 

Committee’s responsibilities (25 U.S.C. 

3006(c)(8)), which may include 

recommending specific actions for 

developing a process for the disposition 

of culturally unidentifiable Native 

American human remains not addressed 

by the 2010 rule. 

Changes From the Proposed Rule 

Based on the preceding comments 

and responses, the drafters have made 

the following changes to the proposed 

rule language: 

• Section 10.2(c)(iii). We have 

corrected a typographical error in the 

spelling of ‘‘NAGPRA.’’ 

• Section 10.4(d)(1)(iii). We have 

used, as appropriate, the specific terms 

for the categories of ‘‘cultural items’’ 

used in NAGPRA and the NAGPRA 

term ‘‘cultural items.’’ In addition, we 

have added text to clarify that the 

required notice to known lineal 

descendants of an inadvertent discovery 

is limited to human remains and 

associated funerary objects. We have 

also explicitly stated that such 

notification is to ‘‘known lineal 

descendants of a deceased Native 

American individual whose human 

remains and associated funerary objects 

were inadvertently discovered.’’ 

• Section 10.5(b)(1)(i). We have used, 

as appropriate, the specific terms for the 

categories of ‘‘cultural items’’ used in 

NAGPRA. 

• Section 10.6(a)(2). We have added 

text to clarify that, with respect to 

recoveries from Federal lands, the 

priority of right of control of human 

remains and associated funerary objects 

defaults to a culturally affiliated Indian 

tribe or Native Hawaiian organization 

only where the lineal descendants of the 

deceased Native American cannot be 

ascertained, but that, with respect to 

other cultural items recovered from 

Federal lands, the priority of ownership 

is, in the first instance, in the culturally 

affiliated Indian tribe or Native 

Hawaiian organization. 

• Section 10.6(a)(2)(iii)(B). We have 

used, as appropriate, the specific terms 

for the categories of ‘‘cultural items’’ 

used in NAGPRA and the NAGPRA 

term ‘‘cultural items.’’ 

• Section 10.8(e). We have used, as 

appropriate, the specific terms for the 

categories of ‘‘cultural items’’ used in 

NAGPRA. In addition, we have added 

text to clarify that the information 

documented in the summary is used to 

determine, ‘‘as appropriate’’, the lineal 

descendants, Indian tribes, and Native 

Hawaiian organizations with which the 

cultural items in the summary are 

affiliated. 

• Section 10.10(c)(2). We have used, 

as appropriate, the specific terms for the 

categories of ‘‘cultural items’’ used in 

NAGPRA and the NAGPRA term 

‘‘cultural items.’’ 

• Section 10.15(c)(1)(i). We have 

used, as appropriate, the specific terms 

for the categories of ‘‘cultural items’’ 

used in NAGPRA. 

Compliance With Other Laws, 

Executive Orders and Department 

Policy Regulatory Planning and Review 

(Executive Orders 12866 and 13563). 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) will review all significant 

rules. The Office of Information and 

Regulatory Affairs has determined that 

this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives, E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Regulatory Flexibility Act 

Tbe Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 


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27082 Federal Register / Vol. 78, No. 90 / Thursday, May 9, 2013 / Rules and Regulations 

Regulatory Enforcement Fairness Act. 

This rule: 

a. Does not have an annual effect on 

the economy of $100 million or more. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, 

local or tribal government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local or tribal 

governments, or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

Takings (Executive Order 12630) 

Under the criteria in section 2 of 

Executive Order 12630, this rule does 

not have significant takings 

implications. A takings implication 

assessment is not required. No taking of 

property will occur as a result of this 

rule. 

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. 

Civil Justice Reform (Executive Order 

12988) 

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule: 

(a) Meets the criteria of section 3(a) 

requiring that all regulations be 

reviewed to eliminate errors and 

ambiguity and be written to minimize 

litigation; and 

(b) Meets the criteria of section 3(b)(2) 

requiring that all regulations be written 

in clear language and contain clear legal 

standards. 

Consultation With Indian Tribes 

(Executive Order 13175 and 

Department Policy) 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance and tribal sovereignty. In 

accordance with the Presidential 

Memorandum entitled ‘‘Government to 

Government Relations with Native 

American Tribal Governments’’ (59 FR 

22951, April 29, 1994); Executive Order 

13175, ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ (65 FR 

67249, Nov. 9, 2000); the President’s 

Memorandum for the Heads of 

Executive Departments and Agencies on 

the Implementation of Executive Order 

13175 (Nov. 5, 2009); and the Secretary 

of the Interior’s Order No. 3317— 

Department of the Interior Policy on 

Consultation with Indian Tribes (Dec. 1, 

2011); we have consulted with federally 

recognized Indian Tribes on this rule 

both before publication of the proposed 

rule and during the public comment 

period. Tribal comments have been 

addressed to ensure this rule only 

amends the 43 CFR part 10 regulations 

to correct minor inaccuracies or 

inconsistencies. 

Paperwork Reduction Act 

The Office of Management and Budget 

has approved the information collection 

requirements in 43 CFR part 10 and 

assigned OMB Control Number 1024– 

0144. This rule does not contain any 

new information collections that require 

OMB approval under the Paperwork 

Reduction Act. An agency may not 

conduct or sponsor and you are not 

required to respond to a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment. A 

detailed statement under the National 

Environmental Policy Act of 1969 is not 

required because the rule is covered by 

a categorical exclusion under 43 CFR 

46.210(i): ‘‘Policies, directives, 

regulations, and guidelines: that are of 

an administrative, financial, legal, 

technical, or procedural nature; or 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase.’’ We have also determined that the 

rule does not involve any of the 

extraordinary circumstances listed in 43 

CFR 46.215 that would require further 

analysis under the National 

Environmental Policy Act. 

Effects on the Energy Supply (Executive 

Order 13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A statement of Energy 

Effects is not required. 

Drafting Information 

The proposed rule and this final rule 

were prepared by staff of the National 

NAGPRA Program, National Park 

Service; Office of Regulations and 

Special Park Uses, National Park 

Service; and Office of the Solicitor, 

Division of Parks and Wildlife and 

Division of Indian Affairs, Department 

of the Interior. This final rule was 

prepared in consultation with the 

Native American Graves Protection and 

Repatriation Review Committee under 

NAGPRA (25 U.S.C. 3006(c)(7)). 

List of Subjects in 43 CFR Part 10 

Administrative practice and 

procedure, Hawaiian Natives, Historic 

preservation, Indians-claims, Indianslands, Museums, Penalties, Public 

lands, Reporting and recordkeeping 

requirements. 

In consideration of the foregoing, the 

NPS amends 43 CFR part 10 as follows: 

PART 10—NATIVE AMERICAN 

GRAVES PROTECTION AND 

REPATRIATION REGULATIONS 

■ 1. The authority for part 10 continues 

to read as follows: 

Authority: 25 U.S.C. 3001 et seq., 16 

U.S.C. 470dd(2), 25 U.S.C. 9. 

■ 2. Amend § 10.2 by revising 

paragraphs (c)(1) and (c)(3) to read as 

follows: 

§ 10.2 Definitions. 

* * * * * 

(c) * * * 

(1) Secretary means the Secretary of 

the Interior or a designee. 

* * * * * 

(3) Manager, National NAGPRA 

Program means the official of the 

Department of the Interior designated by 

the Secretary as responsible for 

administration of matters relating to this 

part. Communications to the Manager, 

National NAGPRA Program should be 

sent to the mailing address listed on the 

National NAGPRA Contact Information 

Web site, http://www.nps.gov/nagpra/ 

CONTACTS/INDEX.HTM. 

* * * * * 

■ 3. Amend § 10.4 by revising paragraph 

(d)(1)(iii) to read as follows: 

§ 10.4 Inadvertent discoveries. 

* * * * * 

(d) * * * 

(1) * * * 

(iii) Notify any known lineal 

descendants of a deceased Native 

American individual whose human 

remains and associated funerary objects 


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Federal Register / Vol. 78, No. 90 / Thursday, May 9, 2013 / Rules and Regulations 27083 

were discovered of such discovery, and, 

with respect to a discovery of human 

remains, associated funerary objects, 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony, 

notify the Indian tribes or Native 

Hawaiian organizations likely to be 

culturally affiliated with the cultural 

items, the Indian tribe or Native 

Hawaiian organization that aboriginally 

occupied the area, and any other Indian 

tribe or Native Hawaiian organization 

known to have a cultural relationship to 

the cultural items. This notification 

must be by telephone with written 

confirmation and must include 

information about the kinds of human 

remains, associated funerary objects, 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony, 

their condition, and the circumstances 

of their discovery; 

■ 4. Amend § 10.5 by revising paragraph 

(b)(1)(i) to read as follows: 

§ 10.5 Consultation. 

* * * * * 

(b) * * * 

(1) * * * 

(i) Any known lineal descendants of 

the deceased Native American 

individual whose human remains and 

associated funerary objects have been or 

are likely to be excavated intentionally 

or discovered inadvertently; and 

* * * * * 

■ 5. Amend § 10.6 by revising the 

introductory text of paragraph (a)(2) and 

paragraph (a)(2)(iii)(B) to read as 

follows: 

§ 10.6 Custody. 

(a) * * * 

(2) When a lineal descendant of a 

deceased Native American individual 

cannot be ascertained with respect to 

the human remains and associated 

funerary objects, and with respect to 

unassociated funerary objects, sacred 

objects, and objects of cultural 

patrimony: 

* * * * * 

(iii) * * * 

(B) If a preponderance of the evidence 

shows that a different Indian tribe or 

Native Hawaiian organization has a 

stronger cultural relationship with the 

human remains, associated funerary 

objects, unassociated funerary objects, 

sacred objects, or objects of cultural 

patrimony, in the Indian tribe or Native 

Hawaiian organization that has the 

strongest demonstrated relationship 

with the cultural items. 

* * * * * 

■ 6. Amend § 10.8 by revising the 

introductory text of paragraph (e) to 

read as follows: 

§ 10.8 Summaries. 

* * * * * 

(e) Using summaries to determine 

affiliation. Museum and Federal agency 

officials must document in the summary 

the following information. They must 

use this information in determining, as 

appropriate, the lineal descendants of a 

deceased Native American individual 

with whom unassociated funerary 

objects and sacred objects are affiliated, 

and the Indian tribes and Native 

Hawaiian organizations with which 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

are affiliated: 

* * * * * 

■ 7. Amend § 10.10 by revising 

paragraphs (a)(1)(ii)(B), (b)(1)(ii)(B), 

(c)(2), and (g) to read as follows: 

§ 10.10 Repatriation. 

(a) * * * 

(1) * * * 

(ii) * * * 

(B) By presentation of a 

preponderance of the evidence by a 

requesting Indian tribe or Native 

Hawaiian organization under section 

7(a)(4) of the Act; and 

* * * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(B) Has been shown by a 

preponderance of the evidence 

presented by a requesting Indian tribe or 

Native Hawaiian organization under 

section 7(a)(4) of the Act; and 

* * * * * 

(c) * * * 

(2) Circumstances where there are 

multiple requests for repatriation of 

human remains, associated funerary 

objects, unassociated funerary objects, 

sacred objects, or objects of cultural 

patrimony and the museum or Federal 

agency, after complying with this part, 

cannot determine by a preponderance of 

the evidence which competing 

requesting party is the most appropriate 

claimant. In these circumstances, the 

museum or Federal agency may retain 

the cultural items in question until the 

competing requesting parties agree upon 

the appropriate recipient or the dispute 

is otherwise resolved pursuant to these 

regulations or by a court of competent 

jurisdiction; or 

* * * * * 

(g) Culturally unidentifiable human 

remains. If the cultural affiliation of 

human remains cannot be established 

under this part, the human remains 

must be considered culturally 

unidentifiable. 

(1) Museum and Federal agency 

officials must report the inventory 

information regarding these human 

remains in their holdings to the 

Manager, National NAGPRA Program, 

who will send this information to the 

Review Committee. 

(2) The Review Committee will: 

(i) Compile an inventory of culturally 

unidentifiable human remains in the 

possession or control of each museum 

and Federal agency; and 

(ii) Recommend to the Secretary 

specific actions for disposition of any 

human remains not already addressed 

in § 10.11. 

■ 8. Amend § 10.11 by revising 

paragraph (b)(2)(ii) to read as follows: 

§ 10.11 Disposition of culturally 

unidentifiable human remains. 

* * * * * 

(b) * * * 

(2) * * * 

(ii) From whose aboriginal lands the 

human remains and associated funerary 

objects were removed. Aboriginal 

occupation for purposes of this section 

may be recognized by a final judgment 

of the Indian Claims Commission or the 

United States Court of Claims, or by a 

treaty, Act of Congress, or Executive 

Order. 

* * * * * 

■ 9. Amend § 10.12 by: 

■ A. Revising paragraph (c). 

■ B. Revising paragraph (i)(3). 

■ C. Adding introductory text to 

paragraph (j). 

■ D. Revising paragraph (j)(1), adding 

introductory text to paragraph (j)(6), and 

revising paragraph (j)(6)(i). 

■ E. Revising paragraphs (k)(1) and 

(k)(3). 

The revisions and additions read as 

follows: 

§ 10.12 Civil penalties. 

* * * * * 

(c) How to notify the Secretary of a 

failure to comply. Any person may file 

an allegation of failure to comply. 

Allegations are to be sent to the 

NAGPRA Civil Penalties Coordinator, 

National NAGPRA Program, at the 

mailing address listed on the National 

NAGPRA Contact Information Web site, 

http://www.nps.gov/nagpra/ 

CONTACTS/INDEX.HTM. The 

allegation must be in writing, and 

should: 

(1) Identify each provision of the Act 

with which there has been a failure to 

comply by a museum; 

(2) Include facts supporting the 

allegation; 

(3) Include evidence that the museum 

has possession or control of Native 

American cultural items; and 


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27084 Federal Register / Vol. 78, No. 90 / Thursday, May 9, 2013 / Rules and Regulations 

(4) Include evidence that the museum 

receives Federal funds. 

* * * * * 

(i) * * * 

(3) File a petition for relief. You may 

file a petition for relief within 45 

calendar days of receiving the notice of 

assessment. A petition for relief is to be 

sent to the NAGPRA Civil Penalties 

Coordinator, National NAGPRA 

Program, at the mailing address listed 

on the National NAGRPA Contact 

Information Web site, http:// 

www.nps.gov/nagpra/CONTACTS/ 

INDEX.HTM. Your petition may ask the 

Secretary not to assess a penalty or to 

reduce the penalty amount. Your 

petition must: 

(i) Be in writing and signed by an 

official authorized to sign such 

documents; and 

(ii) Fully explain the legal or factual 

basis for the requested relief. 

* * * * * 

(j) How you request a hearing. You 

may file a written, dated request for a 

hearing on a notice of failure to comply 

or notice of assessment with the 

Departmental Cases Hearings Division, 

Office of Hearings and Appeals, U.S. 

Department of the Interior, 405 South 

Main Street, Suite 400, Salt Lake City, 

UT 84111. You must also serve a copy 

of the request on the Solicitor of the 

Department of the Interior personally or 

by registered or certified mail (return 

receipt requested) at the address 

specified in the notice. 

(1) Your request for a hearing must: 

(i) Include a copy of the notice of 

failure to comply or the notice of 

assessment; 

(ii) State the relief sought; 

(iii) State the basis for challenging the 

facts used as the basis for determining 

the failure to comply or fixing the 

assessment; and 

(iv) State your preferred place and 

date for a hearing. 

* * * * * 

(6) Hearing Administration. Hearings 

must take place following the 

procedures in 43 CFR Part 4, Subparts 

A and B. 

(i) The administrative law judge has 

all powers accorded by law and 

necessary to preside over the parties and 

the proceedings and to make decisions 

under 5 U.S.C. 554–557. 

* * * * * 

(k) * * * 

(1) Either you or the Secretary may 

appeal the decision of an administrative 

law judge by filing a Notice of Appeal. 

Send your Notice of Appeal to the 

Interior Board of Indian Appeals, Office 

of Hearings and Appeals, U.S. 

Department of the Interior, 800 North 

Quincy Street, Suite 300, Arlington, VA 

22203, within 30 calendar days of the 

date of the administrative law judge’s 

decision. The notice must be 

accompanied by proof of service on the 

administrative law judge and the 

opposing party. 

* * * * * 

(3) You may obtain copies of 

decisions in civil penalty proceedings 

instituted under the Act by sending a 

request to the Interior Board of Indian 

Appeals, Office of Hearings and 

Appeals, U.S. Department of the 

Interior, 800 North Quincy Street, Suite 

300, Arlington, VA 22203. Fees for this 

service are established by the director of 

that office. 

* * * * * 

■ 10. Amend § 10.13 by revising 

paragraph (c)(2) to read as follows: 

§ 10.13 Future applicability. 

* * * * * 

(c) * * * 

(2) The list of Indian Entities 

Recognized and Eligible to Receive 

Services from the United States Bureau 

of Indian Affairs is published in the 

Federal Register as required by section 

104 of the Federally Recognized Indian 

Tribe List Act of 1994 (25 U.S.C. 479a1 (2006)). 

* * * * * 

■ 11. In § 10.15, revise paragraph (c)(1) 

to read as follows: 

§ 10.15 Limitations and remedies. 

* * * * * 

(c) * * * 

(1) A person’s administrative 

remedies are exhausted only when the 

person has filed a written claim with the 

responsible Federal agency and the 

claim has been duly denied under this 

part. This paragraph applies to both: 

(i) Human remains, associated 

funerary objects, unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony subject to Subpart B 

of this part; and 

(ii) Federal collections subject to 

Subpart C of this part. 

* * * * * 

Appendices A and B to Part 10 

[Removed] 

■ 12. Remove Appendices A and B to 

Part 10. 

Dated: May 1, 2013. 

Rachel Jacobson, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks. 

[FR Doc. 2013–10966 Filed 5–8–13; 8:45 am] 

BILLING CODE 4312–EJ–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 121004518–3398–01] 

RIN 0648–BC66 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; 

Amendment 37 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement management measures for 

gray triggerfish described in 

Amendment 37 to the Fishery 

Management Plan for the Reef Fish 

Resources of the Gulf of Mexico (FMP), 

prepared by the Gulf of Mexico Fishery 

Management Council (Council). This 

final rule revises the commercial and 

recreational annual catch limits (ACLs) 

and annual catch targets (ACTs) for gray 

triggerfish; revises the recreational 

accountability measures (AMs) for gray 

triggerfish; revises the gray triggerfish 

recreational bag limit; establishes a 

commercial trip limit for gray 

triggerfish; and establishes a fixed 

closed season for the gray triggerfish 

commercial and recreational sectors. 

Additionally, Amendment 37 modifies 

the gray triggerfish rebuilding plan. The 

purpose of Amendment 37 and this final 

rule is to end overfishing of gray 

triggerfish and help achieve optimum 

yield (OY) for the gray triggerfish 

resource in accordance with the 

requirements of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). 

DATES: This rule is effective June 10, 

2013 except for the amendments to 

§§ 622.39(a)(1)(vi) and 622.41(b) which 

are effective May 9, 2013. 

ADDRESSES: Electronic copies of 

Amendment 37, which includes an 

environmental assessment, a regulatory 

flexibility act analysis (RFAA), and a 

regulatory impact review, may be 

obtained from the Southeast Regional 

Office Web site at http:// 

sero.nmfs.noaa.gov/sf/ 

GrouperSnapperandReefFish.htm. 

FOR FURTHER INFORMATION CONTACT: Rich 

Malinowski, Southeast Regional Office, 

telephone 727–824–5305, email 

rich.malinowski@noaa.gov. 

SUPPLEMENTARY INFORMATION: The reef 

fish fishery of the Gulf is managed 


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