[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23196-23202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9228]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

[NPS-WASO-NAGPRA-8611; 2200-1100-665]
RIN 1024-AD99


Native American Graves Protection and Repatriation Act 
Regulations

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: The Secretary of the Interior (Secretary) is responsible for 
implementation of the Native American Graves Protection and 
Repatriation Act, including the issuance of appropriate regulations 
implementing and interpreting its provisions. Minor inaccuracies or 
inconsistencies in the regulations have been identified by or brought 
to the attention of the Department. These proposed amendments revise 
the rules implementing the Native American

[[Page 23197]]

Graves Protection and Repatriation Act for purposes of factual accuracy 
and consistency.

DATES: Comments must be received by June 18, 2012.

ADDRESSES: You may submit comments, identified by the Regulation 
Identifier Number (RIN) 1024-AD99, by any of the following methods:
    <bullet> Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail or hand deliver to: Dr. Sherry Hutt, Manager, 
National NAGPRA Program, National Park Service, 1201 Eye Street NW., 
(2253), Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Dr. Sherry Hutt, Manager, National 
NAGPRA Program, National Park Service, 1201 Eye Street NW., 8th floor, 
Washington, DC 20005, telephone (202) 354-1479, facsimile (202) 371-
5197.

SUPPLEMENTARY INFORMATION: 

Authority

    The Secretary of the Interior (Secretary) is responsible for 
implementation of the Native American Graves Protection and 
Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001 et seq.), including 
the issuance of appropriate regulations implementing and interpreting 
its provisions.

Background

    NAGPRA addresses the rights of lineal descendants, Indian tribes, 
and Native Hawaiian organizations to certain Native American human 
remains, funerary objects, sacred objects, and objects of cultural 
patrimony. Under Section 13 of NAGPRA (25 U.S.C. 3011), the Department 
of the Interior (Department) published the initial rules to implement 
NAGPRA (60 FR 62158, December 4, 1995). This regulation is codified at 
43 CFR Part 10. Subsequently, the Department published amendments to 
the regulation concerning:
    <bullet> Civil penalties (68 FR 16354, April 3, 2003);
    <bullet> Future applicability (72 FR 13189, March 21, 2007); and
    <bullet> Disposition of culturally unidentifiable human remains (75 
FR 12378, March 15, 2010).
    Since the promulgation of the December 4, 1995, rule, minor 
inaccuracies or inconsistencies in 43 CFR Part 10 have been identified 
by or brought to the attention of the Department. These proposed 
amendments revise the rules for purposes of factual accuracy and 
consistency throughout 43 CFR part 10.

Section-by-Section Analysis

Sec.  10.2 Definitions

    Paragraph (c)(1). The proposed rule would amend the definition of 
Secretary to reflect Departmental delegations of the Secretary's 
authority under NAGPRA. NAGPRA assigns implementation responsibilities 
to the Secretary of the Interior. Secretarial Order 3261 (May 23, 2005) 
delegated some of these implementation responsibilities to other 
officials in the Department and the National Park Service, and the 
Department amended part 10 to reflect provisions of this Order (70 FR 
57177, September 30, 2005).
    Under the Secretarial Order and amended rules, the Assistant 
Secretary for Fish and Wildlife and Parks (Assistant Secretary) is 
responsible for:
    <bullet> Issuing regulations to carry out NAGPRA after consultation 
with the Assistant Secretary for Indian Affairs;
    <bullet> Granting extensions of inventory deadlines and awarding 
implementation grants to Indian tribes, Native Hawaiian organizations, 
and museums; and
    <bullet> In consultation with the Solicitor's Office, investigating 
and assessing civil penalties against museums that fail to comply with 
NAGPRA.
    The Manager of the National NAGPRA Program (Manager), reporting to 
the National Park Service Director through the Associate Director for 
Cultural Resources, is responsible for managing the operations of the 
National NAGPRA Program, and provides staff support to the Assistant 
Secretary. The Manager's duties include:
    <bullet> Preparing rules for issuance by the Assistant Secretary, 
reviewing and recommending disposition of requests for extensions of 
inventory deadlines, and publishing notices in the Federal Register;
    <bullet> Serving as the Designated Federal Official for the Native 
American Graves Protection and Repatriation Review Committee;
    <bullet> Providing technical assistance to the Department of 
Justice in implementing the trafficking provisions of NAGPRA, in 
consultation with the Office of the Solicitor;
    <bullet> Developing and issuing guidelines, technical information, 
and training, and administering grants to assist Indian tribes, Native 
Hawaiian organizations, and museums in meeting their NAGPRA 
obligations; and
    <bullet> Supporting the civil penalty responsibilities of the 
Assistant Secretary.
    Paragraph (c)(3). The proposed rule would amend the definition of 
Manager, National NAGPRA Program to include the Web site listing the 
Manager's correct mailing address.

Sec.  10.4 Inadvertent Discoveries

    Paragraph (d)(1)(iii). This paragraph applies to inadvertent 
discoveries of Native American human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal land after 
November 16, 1990. It would add known lineal descendants to the list of 
parties to be notified of an inadvertent discovery.
    The current rule requires the responsible Federal agency official 
to notify various parties to whom disposition of the human remains or 
cultural items might be determined but does not include known lineal 
descendants. While the current rule omits known lineal descendants from 
this requirement, it requires the responsible Federal agency official 
to initiate consultation with the known lineal descendants (43 CFR 
10.5(a)).
    In order to initiate consultation with known lineal descendants, 
the Federal agency official, in fact, must notify them of the 
inadvertent discovery. The proposed rule would correct this oversight 
by adding known lineal descendants to the list of parties to be 
notified of an inadvertent discovery.

Sec.  10.5 Consultation

    Paragraph (b)(1)(i). For a sacred object removed from Federal or 
tribal land after November 16, 1990, NAGPRA excludes lineal descendants 
from the list of possible owners. This same exclusion applies to an 
object of cultural patrimony (25 U.S.C. 3002(a)). The current 
regulations, by contrast, include lineal descendants on the list of 
possible owners of these objects. (See 43 CFR 10.5(b)(1)(i)). The 
proposed rule would correct that list to be consistent with NAGPRA.

Sec.  10.6 Custody

    Paragraph (a)(2). Section 3 of NAGPRA addresses ownership or 
control of Native American cultural items removed from Federal or 
tribal land after November 16, 1990 (25 U.S.C. 3002(a)). With respect 
to human remains and associated funerary objects, NAGPRA provides that 
ownership or control in these cases, in the first instance, is with the 
lineal descendants (25 U.S.C. 3002(a)). Because ownership or control in 
these situations does not depend on assertion of a claim, the proposed 
rule would remove the reference to claims by lineal descendants.
    Paragraph (a)(2)(iii)(B). Section 3(a)(2)(C) of NAGPRA addresses 
ownership or control of human remains

[[Page 23198]]

or cultural items whose cultural affiliation cannot be ascertained (25 
U.S.C. 3002(a)(2)(C)). It pertains to remains or cultural items removed 
after November 16, 1990, from Federal land recognized as the aboriginal 
land of an Indian tribe. NAGPRA states that an Indian tribe whose 
cultural relationship with the human remains or other cultural items is 
stronger than that of the Indian tribe recognized as being the 
aboriginal occupant of the land must be included in the list of 
potential parties to the disposition of ownership or control of those 
human remains or cultural items (25 U.S.C. 3002(a)(2)(C)).
    The current regulations inadvertently state that the cultural 
relationship would only be to the objects. The proposed rule would 
correct this omission by adding a reference to the cultural 
relationship with the human remains.

Sec.  10.8 Summaries

    Paragraph (e). The current regulations refer to ``individuals'', 
rather than ``lineal descendants'', in regard to sacred objects in the 
collection or holdings of a museum or Federal agency. NAGPRA gives the 
direct lineal descendant of an individual who owned the sacred object 
standing to request its repatriation, as well as a superior claim 
against one from an Indian tribe or Native Hawaiian organization (25 
U.S.C. 3005(a)(5)). The reference to ``individuals'' is ambiguous, and 
the proposed rule replaces the term ``individuals'' with the statutory 
term ``lineal descendants.''

Sec.  10.10 Repatriation

    Paragraph (a)(1)(ii)(B). The proposed rule would remove the 
incorrect reference to Section 7(c) of NAGPRA and replace it with a 
correct reference to Section 7(a)(4) (25 U.S.C. 3005(a)(4)). The 
reference pertains to establishment of cultural affiliation of 
unassociated funerary objects other than through the summary, 
consultation, and notification procedures in 43 CFR 10.14.
    Paragraph (b)(1)(ii)(B). The proposed rule would remove the 
incorrect statutory reference to Section 7(c) of NAGPRA and replace it 
with a correct reference to Section 7(a)(4) (25 U.S.C. 3005(a)(4)). The 
reference pertains to establishment of cultural affiliation of Native 
American human remains and associated funerary objects other than 
through the procedures in 43 CFR 10.9 and 10.14.
    Paragraph (c)(2). The proposed rule would clarify that the 
exception to the requirements for repatriation applies where:
    <bullet> There are multiple competing requests for repatriation; 
and
    <bullet> The museum or Federal agency, after complying with the 
regulations, cannot determine by a preponderance of the evidence which 
competing requesting party is the most appropriate claimant.
    Paragraph (g). Section 10.11 governs disposition of culturally 
unidentifiable human remains to tribes and Native Hawaiian 
organizations from whose tribal or aboriginal land the remains were 
excavated. The proposed rule would clarify that the Review Committee 
still is responsible for recommending a process for disposition of 
culturally unidentifiable human remains not now covered by 43 CFR 
10.11.

Sec.  10.11 Disposition of Culturally Unidentifiable Human Remains

    Paragraph (b)(2)(ii). The proposed rule would clarify that, for 
purposes of Section 10.11, aboriginal occupation may be recognized by a 
treaty, Act of Congress, or Executive Order, in addition to a final 
judgment of the Indian Claims Commission or the United States Court of 
Claims. Section 10.11 implements Section 8(c)(5) of NAGPRA (25 U.S.C. 
3006(c)(5)) with respect to disposition of culturally unidentifiable 
human remains to tribes and Native Hawaiian organizations from whose 
tribal or aboriginal land the remains were excavated.
    Section 10.11 contrasts with the regulations (43 CFR 10.6) 
implementing Section 3(a) of NAGPRA, where recognition of aboriginal 
land is only by a final judgment of the Indian Claims Commission or the 
United States Court of Claims (25 U.S.C. 3002(a)(2)(C)).

Sec.  10.12 Civil Penalties

    Paragraph (c). The proposed rule would clarify that written 
allegations of a museum's failure to comply with the requirements of 
NAGPRA are to be sent to the NAGPRA Civil Penalties Coordinator, in the 
National NAGPRA Program. NAGPRA assigns implementation responsibilities 
to the Secretary, who has delegated some of these implementation 
responsibilities to other officials, as reflected in this part. (See 
Secretarial Order 3261 of May 23, 2005.)
    Under the Secretarial Order and this part, the Assistant Secretary, 
in consultation with the Office of the Solicitor, executes the 
provisions for civil penalties against museums that fail to comply with 
NAGPRA, investigates allegations of failure to comply with NAGPRA 
requirements, and develops and assesses civil penalties (Secretarial 
Order 3261, Section 4a). The Secretarial Order also directs the 
Manager, National NAGPRA Program to provide staff, who reports directly 
to the Assistant Secretary in the performance of these duties, to 
support the civil penalty responsibilities of the Assistant Secretary. 
The proposed rule would clarify that written allegations of a museum's 
failure to comply with the requirements of NAGPRA are to be sent to the 
NAGPRA Civil Penalties Coordinator, in the National NAGPRA Program.
    Paragraph (i)(3). The Manager, National NAGPRA Program provides 
staff to support the civil penalty responsibilities of the Assistant 
Secretary (Secretarial Order 3261, Section 4c, May 23, 2005). The 
proposed rule would clarify that a petition for relief should therefore 
be sent to the NAGPRA Civil Penalties Coordinator in the National 
NAGPRA Program.
    Paragraph (j)(1). The address for filing a written, dated request 
for a hearing on a notice of failure to comply or notice of assessment 
has changed since the rule was promulgated. The proposed rule would 
correct the mailing address. The proposed rule would also move the 
final sentence of this paragraph to paragraph (j)(6).
    Paragraph (j)(6)(i). The proposed rule would move the final 
sentence of paragraph (j)(1) to this location, which is more logical. 
The sentence reads, ``Hearings must take place following the procedures 
in 43 CFR part 4, Subparts A and B.''
    Paragraph (k)(1). The address for filing a ``Notice of Appeal'' has 
changed since the rule was promulgated. The proposed rule would correct 
the mailing address.
    Paragraph (k)(3). The address for obtaining copies of decisions in 
civil penalty proceedings under NAGPRA has changed since the rule was 
promulgated. The proposed rule would correct the mailing address.

Sec.  10.13 Future Applicability

    Paragraph (c)(2). Section 104 of the Federally Recognized Indian 
Tribe List Act of 1994, codified at 25 U.S.C. 479a-1 (2006), requires 
publication of the list of Indian Entities Recognized and Eligible to 
Receive Services from the United States Bureau of Indian Affairs. The 
proposed rule would correct the citation of that legal authority.

Sec.  10.15 Limitations and Remedies

    Paragraph (c)(1). The proposed rule would clarify, consistent with 
the Administrative Procedure Act (5 U.S.C. 704), that administrative 
remedies relate

[[Page 23199]]

only to Federal agencies and not to museums.
    Paragraph (c)(1)(ii). The proposed rule would clarify, consistent 
with NAGPRA, that Federal collections, rather than Federal lands, are 
subject to 43 CFR part 10, Subpart C.

Appendix A to Part 10--Sample Summary and Appendix B to Part 10--Sample 
Notice of Inventory Completion

    Since the publication of the initial rules, new templates have been 
developed that address specific actions that museums and Federal 
agencies must take to comply with NAGPRA and satisfy the requirements 
of due process. These templates are published by the Manager, National 
NAGPRA Program, at www.nps.gov/nagpra, and include:
    <bullet> Notice of Inventory Completion Template for culturally 
affiliated inventories of Native American human remains and associated 
funerary objects and disposition with approval from the Secretary in 
situations not covered by 43 CFR 10.11;
    <bullet> Notice of Inventory Completion Template for culturally 
unidentifiable inventories of Native American human remains from tribal 
or aboriginal land to tribal/aboriginal land Indian tribes, 43 CFR 
10.11(c)(1);
    <bullet> Notice of Inventory Completion Template for culturally 
unidentifiable inventories of Native American human remains from tribal 
or aboriginal land to Indian tribes that are not the tribal or 
aboriginal land Indian tribe, 43 CFR 10.11(c)(2)(i);
    <bullet> Notice of Inventory Completion Template for culturally 
unidentifiable inventories of Native American human remains from tribal 
or aboriginal land with the recommendation of the Secretary to 
disposition to Indian groups that are non-federally recognized or for 
reinterment under state law, 43 CFR 10.11(c)(2)(ii);
    <bullet> Notice of Intent to Repatriate Template for culturally 
affiliated unassociated funerary objects, sacred objects, and/or 
objects of cultural patrimony;
    <bullet> Correction Template (used to correct a previously 
published notice); and
    <bullet> Notice of Intended Disposition Template for Native 
American human remains and cultural items removed from Federal or 
tribal land after November 16, 1990.
    As museums, Federal agencies, Indian tribes, and Native Hawaiian 
organizations can easily access these and other templates 
electronically, and as the current templates likely will be 
supplemented by others in the future, the proposed rule would delete 
these appendices from this part.

Compliance With Other Laws and Executive Orders; Regulatory Planning 
and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local or tribal 
government agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments, or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    Under the criteria in Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. No taking of personal property will occur as a result of 
this rule.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, the rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement. A Federalism summary impact 
statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175)

    In accordance with the Presidential Memorandum entitled 
``Government to Government Relations with Native American Tribal 
Governments'' (59 FR 22951, April 29, 1994); Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, Nov. 9, 2000); the President's Memorandum for the Heads of 
Executive Departments and Agencies on the Implementation of Executive 
Order 13175 (Nov. 5, 2009); and the Secretary of the Interior's Order 
No. 3317--Department of the Interior Policy on Consultation With Indian 
Tribes (Dec. 1, 2011); we have evaluated this rule and determined that 
it has no substantial direct effects on federally recognized Indian 
tribes because it amends the regulations to correct only minor 
inaccuracies or inconsistencies in 43 CFR part 10.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission under the Paperwork Reduction Act is not required.

[[Page 23200]]

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 is not required 
because the rule is covered by a categorical exclusion under 43 CFR 
46.210(i): ``Policies, directives, regulations, and guidelines: that 
are of an administrative, financial, legal, technical, or procedural 
nature; or whose environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will later be 
subject to the NEPA process, either collectively or case-by-case.'' We 
have also determined that the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under the National Environmental Policy Act.

Effects on the Energy Supply (Executive Order 13211)

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

Clarity of This Rule

    We are required by Executive Orders 12866 and 12988, and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, or the sections where you feel lists or tables would be 
useful.

Drafting Information

    This proposed rule was prepared by staff of the National NAGPRA 
Program and of the Office of the Solicitor, Division of Parks and 
Wildlife and Division of Indian Affairs.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule by one of the methods listed in 
the ADDRESSES section.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment, including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Hawaiian Natives, Historic 
preservation, Indians--claims, Indians--lands, Museums, Penalties, 
Public lands, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the NPS proposes to amend 43 CFR 
part 10 as follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

    1. The authority for part 10 continues to read as follows:

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

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


Sec.  10.2  Definitions.

* * * * *
    (c) * * *
    (1) Secretary means the Secretary of the Interior or a designee.
* * * * *
    (3) Manager, National NAGPRA Program means the official of the 
Department of the Interior designated by the Secretary as responsible 
for administration of matters relating to this part. Communications to 
the Manager, National NAGPRA Program should be sent to the mailing 
address listed on the National NAGRPA Contact Information Web site, 
http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.
* * * * *
    2. Amend Sec.  10.4 by revising paragraph (d)(1)(iii) to read as 
follows:


Sec.  10.4  Inadvertent discoveries.

* * * * *
    (d) * * *
    (1) * * *
    (iii) Notify any known lineal descendants, Indian tribes, or Native 
Hawaiian organizations likely to be culturally affiliated with the 
remains or objects, the Indian tribe or Native Hawaiian organization 
that aboriginally occupied the area, and any other Indian tribe or 
Native Hawaiian organization known to have a cultural relationship to 
the remains or objects. This notification must be by telephone with 
written confirmation and must include information about the kinds of 
remains or objects, their condition, and the circumstances of their 
discovery;
* * * * *
    3. Amend Sec.  10.5 by revising paragraph (b)(1)(i) to read as 
follows:


Sec.  10.5  Consultation.

* * * * *
    (b) * * *
    (1) * * *
    (i) Any known lineal descendants of the individual whose remains 
and associated funerary objects have been or are likely to be excavated 
intentionally or discovered inadvertently; and
* * * * *
    4. Amend Sec.  10.6 by revising paragraphs (a)(2) introductory text 
and (a)(2)(iii)(B) to read as follows:


Sec.  10.6  Custody.

    (a) * * *
    (2) When a lineal descendant cannot be ascertained, and with 
respect to unassociated funerary objects, sacred objects, and objects 
of cultural patrimony:
    (iii) * * *
    (B) If a preponderance of the evidence shows that a different 
Indian tribe or Native Hawaiian organization has a stronger cultural 
relationship with the remains or objects, in the Indian tribe or Native 
Hawaiian organization that has the strongest demonstrated relationship 
with the remains or objects.
* * * * *
    5. Amend Sec.  10.8 by revising paragraph (e) introductory text to 
read as follows:


Sec.  10.8  Summaries.

* * * * *
    (e) Using summaries to determine affiliation. Museum and Federal 
agency officials must document in the summary the following information 
and must use this information in determining the lineal descendants, 
Indian tribes, and Native Hawaiian organizations with which objects are 
affiliated:
* * * * *
    6. Amend Sec.  10.10 by revising paragraphs (a)(1)(ii)(B), 
(b)(1)(ii)(B), (c)(2), and (g) to read as follows:

[[Page 23201]]

Sec.  10.10  Repatriation.

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization under section 
7(a)(4) of the Act; and
* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (B) Has been shown by a preponderance of the evidence presented by 
a requesting Indian tribe or Native Hawaiian organization under section 
7(a)(4) of the Act; and
* * * * *
    (c) * * *
    (2) Circumstances where there are multiple requests for 
repatriation of remains or objects and the museum or Federal agency, 
after complying with this part, cannot determine by a preponderance of 
the evidence which competing requesting party is the most appropriate 
claimant. In these circumstances, the museum or Federal agency may 
retain the remains or objects until the competing requesting parties 
agree upon the appropriate recipient or the dispute is otherwise 
resolved pursuant to these regulations or by a court of competent 
jurisdiction; or
* * * * *
    (g) Culturally unidentifiable human remains. If the cultural 
affiliation of human remains cannot be established under this part, the 
human remains must be considered culturally unidentifiable.
    (1) Museum and Federal agency officials must report the inventory 
information regarding these human remains in their holdings to the 
Manager, National NAGPRA Program, who will send this information to the 
Review Committee.
    (2) The Review Committee will:
    (i) Compile an inventory of culturally unidentifiable human remains 
in the possession or control of each museum and Federal agency; and
    (ii) Recommend to the Secretary specific actions for disposition of 
any human remains not already addressed in Sec.  10.11.
    7. Amend Sec.  10.11 by revising paragraph (b)(2)(ii) to read as 
follows:


Sec.  10.11  Disposition of culturally unidentifiable human remains.

* * * * *
    (b) * * *
    (2) * * *
    (ii) From whose aboriginal lands the human remains and associated 
funerary objects were removed. Aboriginal occupation for purposes of 
this section may be recognized by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or by a treaty, Act of 
Congress, or Executive Order.
* * * * *
    8. Amend Sec.  10.12 by:
    A. Revising paragraph (c).
    B. Revising paragraph (i)(3).
    C. Adding introductory text to paragraph (j).
    D. Revising paragraphs (j)(1) and (j)(6)(i).
    E. Revising paragraphs (k)(1) and (k)(3).
    The revisions to read as follows:


Sec.  10.12  Civil penalties.

* * * * *
    (c) How to notify the Secretary of a failure to comply. Any person 
may file an allegation of failure to comply. Allegations are to be sent 
to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at 
the mailing address listed on the National NAGPRA Contact Information 
Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation 
must be in writing, and should:
    (1) Identify each provision of the Act with which there has been a 
failure to comply by a museum;
    (2) Include facts supporting the allegation;
    (3) Include evidence that the museum has possession or control of 
Native American cultural items; and
    (4) Include evidence that the museum receives Federal funds.
* * * * *
    (i) * * *
    (3) File a petition for relief. You may file a petition for relief 
within 45 calendar days of receiving the notice of assessment. A 
petition for relief is to be sent to the NAGPRA Civil Penalties 
Coordinator, National NAGPRA Program, at the mailing address listed on 
the National NAGPRA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. Your petition may ask the Secretary not to 
assess a penalty or to reduce the penalty amount. Your petition must:
    (i) Be in writing and signed by an official authorized to sign such 
documents; and
    (ii) Fully explain the legal or factual basis for the requested 
relief.
* * * * *
    (j) How you request a hearing. You may file a written, dated 
request for a hearing on a notice of failure to comply or notice of 
assessment with the Departmental Cases Hearings Division, Office of 
Hearings and Appeals, U.S. Department of the Interior, 405 South Main 
Street, Suite 400, Salt Lake City, UT 84111. You must also serve a copy 
of the request on the Solicitor of the Department of the Interior 
personally or by registered or certified mail (return receipt 
requested) at the address specified in the notice.
    (1) Your request for a hearing must:
    (i) Include a copy of the notice of failure to comply or the notice 
of assessment;
    (ii) State the relief sought;
    (iii) State the basis for challenging the facts used as the basis 
for determining the failure to comply or fixing the assessment; and
    (iv) State your preferred place and date for a hearing.
* * * * *
    (6) * * *
    (i) Hearings must take place following the procedures in 43 CFR 
part 4, subparts A and B. The administrative law judge has all powers 
accorded by law and necessary to preside over the parties and the 
proceedings and to make decisions under 5 U.S.C. 554-557.
* * * * *
    (k) * * *
    (1) Either you or the Secretary may appeal the decision of an 
administrative law judge by filing a Notice of Appeal. Send your Notice 
of Appeal to the Interior Board of Indian Appeals, Office of Hearings 
and Appeals, U.S. Department of the Interior, 800 North Quincy Street, 
Suite 300, Arlington, VA 22203, within 30 calendar days of the date of 
the administrative law judge's decision. The notice must be accompanied 
by proof of service on the administrative law judge and the opposing 
party.
* * * * *
    (3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Interior Board of 
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees 
for this service are established by the director of that office.
* * * * *
    9. Amend Sec.  10.13 by revising paragraph (c)(2) to read as 
follows:


Sec.  10.13  Future applicability.

* * * * *
    (c) * * *
    (2) The list of Indian Entities Recognized and Eligible to Receive 
Services from the United States Bureau

[[Page 23202]]

of Indian Affairs is published in the Federal Register as required by 
section 104 of the Federally Recognized Indian Tribe List Act of 1994 
(25 U.S.C. 479a-1 (2006)).
* * * * *
    10. In Sec.  10.15, revise paragraph (c)(1) to read as follows:


Sec.  10.15  Limitations and remedies.

* * * * *
    (c) * * *
    (1) A person's administrative remedies are exhausted only when the 
person has filed a written claim with the responsible Federal agency 
and the claim has been duly denied under this part. This paragraph 
applies to both:
    (i) Human remains, funerary objects, sacred objects, or objects of 
cultural patrimony subject to subpart B of this part; and
    (ii) Federal collections subject to subpart C of this part.
* * * * *

Appendices A and B [Removed]

    11. Remove Appendices A and B.

    Dated: March 30, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-9228 Filed 4-17-12; 8:45 am]
BILLING CODE 4312-50-P