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[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Rules and Regulations]
[Pages 27078-27084]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10966]

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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.

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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 Sec. Sec.  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

[[Page 27079]]

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 Sec. Sec.  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 
Sec. Sec.  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 
Sec. Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 27080]]

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 
Sec.  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 Sec.  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 Sec.  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,

[[Page 27081]]

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 Sec.  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 Sec.  10.10(g) be 
removed entirely. The other commenter stated that there are problems 
inherent in Sec.  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

[[Page 27082]]

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-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and tribal sovereignty. 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-by-case.'' We 
have also determined that the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under the National Environmental Policy Act.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A statement of Energy Effects is not 
required.

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, Indians-lands, 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

0
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.

0
2. Amend Sec.  10.2 by revising paragraphs (c)(1) and (c)(3) to read as 
follows:

Sec.  10.2  Definitions.

* * * * *
    (c) * * *
    (1) Secretary means the Secretary of the Interior or a designee.
* * * * *
    (3) Manager, National NAGPRA Program means the official of the 
Department of the Interior designated by the Secretary as responsible 
for administration of matters relating to this part. Communications to 
the Manager, National NAGPRA Program should be sent to the mailing 
address listed on the National NAGPRA Contact Information Web site, 
http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.
* * * * *

0
3. Amend Sec.  10.4 by revising paragraph (d)(1)(iii) to read as 
follows:

Sec.  10.4  Inadvertent discoveries.

* * * * *
    (d) * * *
    (1) * * *
    (iii) Notify any known lineal descendants of a deceased Native 
American individual whose human remains and associated funerary objects

[[Page 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;

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4. Amend Sec.  10.5 by revising paragraph (b)(1)(i) to read as follows:

Sec.  10.5  Consultation.

* * * * *
    (b) * * *
    (1) * * *
    (i) Any known lineal descendants of the deceased Native American 
individual whose human remains and associated funerary objects have 
been or are likely to be excavated intentionally or discovered 
inadvertently; and
* * * * *

0
5. Amend Sec.  10.6 by revising the introductory text of paragraph 
(a)(2) and paragraph (a)(2)(iii)(B) to read as follows:

Sec.  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.
* * * * *

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6. Amend Sec.  10.8 by revising the introductory text of paragraph (e) 
to read as follows:

Sec.  10.8  Summaries.

* * * * *
    (e) Using summaries to determine affiliation. Museum and Federal 
agency officials must document in the summary the following 
information. 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:
* * * * *

0
7. Amend Sec.  10.10 by revising paragraphs (a)(1)(ii)(B), 
(b)(1)(ii)(B), (c)(2), and (g) to read as follows:

Sec.  10.10  Repatriation.

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization under section 
7(a)(4) of the Act; and
* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (B) Has been shown by a preponderance of the evidence presented by 
a requesting Indian tribe or Native Hawaiian organization under section 
7(a)(4) of the Act; and
* * * * *
    (c) * * *
    (2) Circumstances where there are multiple requests for 
repatriation of 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 Sec.  10.11.

0
8. Amend Sec.  10.11 by revising paragraph (b)(2)(ii) to read as 
follows:

Sec.  10.11  Disposition of culturally unidentifiable human remains.

* * * * *
    (b) * * *
    (2) * * *
    (ii) From whose aboriginal lands the human remains and associated 
funerary objects were removed. Aboriginal occupation for purposes of 
this section may be recognized by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or by a treaty, Act of 
Congress, or Executive Order.
* * * * *

0
9. Amend Sec.  10.12 by:
0
A. Revising paragraph (c).
0
B. Revising paragraph (i)(3).
0
C. Adding introductory text to paragraph (j).
0
D. Revising paragraph (j)(1), adding introductory text to paragraph 
(j)(6), and revising paragraph (j)(6)(i).
0
E. Revising paragraphs (k)(1) and (k)(3).
    The revisions and additions read as follows:

Sec.  10.12  Civil penalties.

* * * * *
    (c) How to notify the Secretary of a failure to comply. Any person 
may file an allegation of failure to comply. Allegations are to be sent 
to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at 
the mailing address listed on the National NAGPRA Contact Information 
Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation 
must be in writing, and should:
    (1) Identify each provision of the Act with which there has been a 
failure to comply by a museum;
    (2) Include facts supporting the allegation;
    (3) Include evidence that the museum has possession or control of 
Native American cultural items; and

[[Page 27084]]

    (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.
* * * * *

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10. Amend Sec.  10.13 by revising paragraph (c)(2) to read as follows:

Sec.  10.13  Future applicability.

* * * * *
    (c) * * *
    (2) The list of Indian Entities Recognized and Eligible to Receive 
Services from the United States Bureau of Indian Affairs is published 
in the Federal Register as required by section 104 of the Federally 
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1 (2006)).
* * * * *
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11. In Sec.  10.15, revise paragraph (c)(1) to read as follows:

Sec.  10.15  Limitations and remedies.

* * * * *
    (c) * * *
    (1) A person's administrative remedies are exhausted only when the 
person has filed a written claim with the responsible Federal agency 
and the claim has been duly denied under this part. This paragraph 
applies to both:
    (i) Human remains, 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]

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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
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