23196 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

TABLE 9—CLINICAL QUALITY MEASURES PROPOSED FOR ELIGIBLE HOSPITALS AND CRITICAL ACCESS HOSPITALS

BEGINNING WITH FY 2014—Continued 

NQF No. Measure steward and contact information 

0136 .................................... CMS/OFMQ Qualitynet.org and click on ‘‘Questions & Answers’’. 

0284 .................................... CMS/OFMQ Qualitynet.org and click on ‘‘Questions & Answers’’. 

0218 .................................... CMS/OFMQ Qualitynet.org and click on ‘‘Questions & Answers’’. 

0496 .................................... CMS/OFMQ Qualitynet.org and click on ‘‘Questions & Answers’’. 

1653 .................................... CMS/OFMQ Qualitynet.org and click on ‘‘Questions & Answers’’. 

1659 .................................... CMS/OFMQ Qualitynet.org and click on ‘‘Questions & Answers’’. 

17. On page 13766, second column, 

last paragraph, last line, the reference 

‘‘§ 495.10’’ is corrected to read 

‘‘§ 495.8’’. 

18. On page 13769, second column— 

a. First full paragraph, line 1, the 

phrase ‘‘Except as provided’’ is 

corrected to read ‘‘• Except as 

provided’’. 

b. Second full paragraph, line 1, the 

phrase ‘‘We would create’’ is corrected 

to read ‘‘• We would create’’. 

19. On page 13803, third column, 

after the first partial paragraph, the 

section heading, ‘‘4. Medicare Incentive 

Program Costs’’ is corrected to read ‘‘3. 

Medicare Incentive Program Costs’’. 

20. On page 13808, top half of the 

page following Table 28, second 

column, after the first partial paragraph, 

the section heading, ‘‘5. Medicaid 

Incentive Program Costs’’ is corrected to 

read ‘‘4. Medicaid Incentive Program 

Costs’’. 

21. On page 13810, bottom half of the 

page, after Table 34, first column, before 

the first paragraph, the section heading 

‘‘6. Benefits for All EPs and All Eligible 

Hospitals’’ is corrected to read ‘‘5. 

Benefits for All EPs and All Eligible 

Hospitals’’. 

22. On page 13811— 

a. First column, after the first partial 

paragraph, the section heading, ‘‘7. 

Benefits to Society’’ is corrected to read 

‘‘6. Benefits to Society’’. 

b. Second column, after first partial 

paragraph, the section heading, ‘‘8. 

General Considerations’’ is corrected to 

read ‘‘7. General Considerations’’. 

c. Third column, before the last full 

paragraph, the section heading, ‘‘9. 

Summary’’ is corrected to read ‘‘8. 

Summary’’. 

23. On page 13812, bottom half of the 

page, after Table 36, first column, before 

the first full paragraph, the section 

heading, ‘‘10. Explanation of Benefits 

and Savings Calculations’’ is corrected 

to read ‘‘9. Explanation of Benefits and 

Savings Calculations’’. 

B. Correction of Errors in the 

Regulations Text 

1. On page 13816, second column, 

seventh full paragraph 

(§ 495.6(d)(8)(ii)(C)), line 2, the 

reference ‘‘paragraph (d)(8)(ii)(B)’’ is 

corrected to read ‘‘paragraph 

(d)(8)(ii)(B)(1)’’. 

2. On page 13817, 

a. First column, 

(1) Fourth full paragraph 

(§ 495.6(f)(1)(ii)(B)), line 1, the phrase 

‘‘Beginning 2013, subject to’’ is 

corrected to read ‘‘For 2013, subject to’’. 

(2) Sixth full paragraph 

(§ 495.6(f)(7)(i)(E)(2)), line 1, ‘‘Beginning 

2013, plot and display’’ is corrected to 

read ‘‘For 2013, plot and display’’. 

(3) Seventh full paragraph 

(§ 495.6(f)(7)(ii)(B)), the paragraph 

beginning with the phrase ‘‘For 2013, 

subject to paragraph (c)’’ and ending 

with the phrase ‘‘recorded as structured 

data.’’ is corrected to read as follows: 

‘‘(B) For 2013—(1) Subject to 

paragraph (c) of this section, more than 

50 percent of all unique patients 

admitted to the eligible hospital’s or 

CAH’s inpatient or emergency 

department (POS 21 or 23) during the 

EHR reporting period have blood 

pressure (for patients age 3 and over 

only) and height/length and weight (for 

all ages) recorded as structured data; or 

(2) The measure specified in 

paragraph (f)(7)(ii)(A) of this section.’’ 

(4) Eighth full paragraph 

(§ 495.6(f)(7)(ii)(C)), line 2, the phrase 

‘‘in paragraph (f)(7)(ii)(B)’’ is corrected 

to read ‘‘in paragraph (f)(7)(ii)(B)(1)’’. 

b. Third column, sixth full paragraph 

(§ 495.6(h)(2)(ii)(B)), line 14, the phrase 

‘‘must meet the remaining the’’ is 

corrected to read ‘‘must meet the 

remaining’’. 

3. On page 13818, second column, last 

paragraph (§ 495.6(j)(6)(ii)(B)), the 

phrase ‘‘has enabled the’’ is corrected to 

read ‘‘has enabled and implemented 

the’’. 

4. On page 13820, second column, 

ninth paragraph (§ 495.6(l)(5)(ii)(B)), the 

phrase ‘‘has enabled the’’ is corrected to 

read ‘‘has enabled and implemented 

the’’. 

5. On page 13821, third column— 

a. First full paragraph 

(§ 495.6(l)(16)(ii)), lines 3 through 6, the 

sentence ‘‘(ii) Measure. eMAR is 

implemented and in use for the entire 

EHR reporting period in at least one 

ward/unit of the hospital.’’ is corrected 

to read ‘‘(ii) Measure. More than 10 

percent of medication orders created by 

authorized providers of the eligible 

hospital’s or CAH’s inpatient or 

emergency department (POS 21 or 23) 

during the EHR reporting period are 

tracked using eMAR.’’. 

b. Fifth full paragraph 

(§ 495.6(m)(1)(iii)), last line, the phrase 

‘‘the EHR’’ is corrected to read ‘‘the EHR 

reporting period.’’ 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) (Catalog of Federal Domestic 

Assistance Program No. 93.773, Medicare— 

Hospital Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: April 12, 2012. 

Jennifer M. Cannistra, 

Executive Secretary to the Department. 

[FR Doc. 2012–9331 Filed 4–17–12; 8:45 am] 

BILLING CODE 4120–01–P 

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. 

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 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 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: 

• Federal eRulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• 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: 

• 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 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 

§ 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: 

• Issuing regulations to carry out 

NAGPRA after consultation with the 

Assistant Secretary for Indian Affairs; 

• Granting extensions of inventory 

deadlines and awarding implementation 

grants to Indian tribes, Native Hawaiian 

organizations, and museums; and 

• 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: 

• 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; 

• Serving as the Designated Federal 

Official for the Native American Graves 

Protection and Repatriation Review 

Committee; 

• Providing technical assistance to 

the Department of Justice in 

implementing the trafficking provisions 

of NAGPRA, in consultation with the 

Office of the Solicitor; 

• 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 

• 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. 

§ 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. 

§ 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. 

§ 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 

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23198 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

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. 

§ 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.’’ 

§ 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: 

• There are multiple competing 

requests for repatriation; and 

• 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. 

§ 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)). 

§ 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. 

§ 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. 

§ 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 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 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: 

• 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; 

• 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); 

• 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); 

• 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); 

• Notice of Intent to Repatriate 

Template for culturally affiliated 

unassociated funerary objects, sacred 

objects, and/or objects of cultural 

patrimony; 

• Correction Template (used to 

correct a previously published notice); 

and 

• 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. 

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23200 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

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. 

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 § 10.2 by revising 

paragraphs (c)(1) and (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 NAGRPA Contact Information 

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

CONTACTS/INDEX.HTM. 

* * * * * 

2. 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, 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 § 10.5 by revising paragraph 

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

§ 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 § 10.6 by revising 

paragraphs (a)(2) introductory text and 

(a)(2)(iii)(B) to read as follows: 

§ 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 § 10.8 by revising paragraph 

(e) introductory text 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 and must use 

this information in determining the 

lineal descendants, Indian tribes, and 

Native Hawaiian organizations with 

which objects are affiliated: 

* * * * * 

6. Amend § 10.10 by revising 

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

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

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23201 

§ 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 § 10.11. 

7. 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. 

* * * * * 

8. Amend § 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: 

§ 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 § 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 

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23202 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

1Section 16 of the Shipping Act grants the 

Commission the authority to make rules exempting 

regulated entities from the requirements of the 

Shipping Act if it finds such an exemption will not 

result in substantial reduction in competition or 

detriment to commerce. 46 U.S.C. 40103. The 

Commission must make an affirmative finding, 

based on information gathered in a public record, 

that these adverse consequences will not result 

from any exemption it may grant. 

2 46 CFR part 531. The Commission’s rules 

provide that an NSA means a written contract, other 

than a bill of lading or receipt, between one or more 

NSA shippers and an individual NVOCC or two or 

more affiliated NVOCCs, in which the NSA shipper 

makes a commitment to provide a certain minimum 

quantity or portion of its cargo or freight revenue 

over a fixed time period, and the NVOCC commits 

to a certain rate or rate schedule and a defined 

service level. 46 CFR 531.3(p). An NSA shipper is 

a cargo owner, the person for whose account the 

ocean transportation is provided, the person to 

whom delivery is to be made, a shippers’ 

association, or a non-vessel-operating common 

carrier. 46 CFR 531.3(o). Specifically, the 

exemption allows individual NVOCCs (including 

corporately affiliated NVOCCs), who are compliant 

with the other requirements of the Shipping Act 

and the FMC’s regulations at 46 CFR part 515 and 

46 CFR part 520, to enter into an NSA with one or 

more NSA shippers. 46 CFR 531.2. 

3 Gosselin World Wide Moving, N.V. and The 

Pasha Group, involved in the shipping of household 

goods of American military personnel to and from 

Europe, were accused of bid rigging in violation of 

the Sherman Act. They argued, and the district 

court agreed, that they had antitrust immunity 

based on three provisions of the Shipping Act: (1) 

46 U.S.C. app. § 1706(a)(4), now 46 U.S.C. 

40307(a)(5); (2) 46 U.S.C. app. § 1706(a)(2), now 46 

U.S.C. 40307(a)(3); and (3) 46 U.S.C. app. 

§ 1706(c)(1), now 46 U.S.C. 40307(c). On cross 

appeals, the Fourth Circuit rejected the district 

court’s findings and the companies’ arguments. 

First, the court found that the parties’ behavior did 

not solely concern a foreign inland segment as 

required by 46 U.S.C. 40307(a)(5). The court 

rejected the argument that United States v. Tucor 

Int’l, Inc., involving shipments of household goods 

belonging to military personnel from U.S. military 

bases in the Philippines to Filipino seaports, was 

analogous. See United States v. Tucor Int’l, Inc., 35 

F. Supp. 2d 1172 (N.D. Cal. 1998), aff’d, 189 F.3d 

834 (9th Cir. 1999). Second, the court found it was 

not reasonable for the companies to rely on 46 CFR 

520.13(c) to believe their collusive behavior was 

exempt from the antitrust laws. Finally, the court 

rejected the argument that an adverse determination 

on the two grounds for statutory immunity 

discussed above constituted a denial or removal 

such that any penalty could only be imposed 

prospectively. The court also stated that exceptions 

to federal antitrust laws should be construed 

narrowly. See also In re Household Goods Movers 

Antitrust Litigation, 2009 WL 8234043 (D.S.C. Sep. 

10, 2009); U.S. v. Daily Gazette, 567 F. Supp 2d 859, 

871 (S.D.W.Va. 2008) (following Gosselin). 4 Docket No. 05–06, 70 FR 52345 (September 2, 

2005). 

5The Commission received comments from: The 

United States Department of Justice (‘‘DOJ’’); the 

United States Department of Transportation 

(‘‘DOT’’); the World Shipping Council (‘‘WSC’’); the 

International Trade Surety Association (‘‘ITSA’’); 

and Joint Comments of the National Industrial 

Transportation League, United Parcel Service, Inc., 

FEDEX Trade Networks Transport & Brokerage, Inc., 

Transportation Intermediaries Association, North 

Atlantic Alliance Association, Inc., and the 

Agriculture Ocean Transportation Coalition (‘‘Joint 

commenters’’). All comments were supportive of 

expanding the exemption to enable two or more 

unaffiliated NVOCCs to jointly offer NSAs. 

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 § 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, 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 

FEDERAL MARITIME COMMISSION 

46 CFR Part 531 

[Docket No. 12–05] 

Non-Vessel-Operating Common Carrier 

Service Arrangements 

AGENCY: Federal Maritime Commission. 

ACTION: Notice of Inquiry. 

SUMMARY: The Federal Maritime 

Commission is issuing this Notice of 

Inquiry seeking comments on its rules 

which exempt non-vessel-operating 

common carriers who enter into service 

arrangements from certain tariff filing 

requirements of the Shipping Act of 

1984. 

DATES: Comments are due on or before 

June 18, 2012. 

ADDRESSES: Submit comments to: Karen 

V. Gregory, Secretary, Federal Maritime 

Commission, 800 North Capitol Street 

NW., Washington, DC 20573–0001; or 

email non-confidential comments to: 

Secretary@fmc.gov (email comments as 

attachments preferably in Microsoft 

Word or PDF). 

FOR FURTHER INFORMATION CONTACT: 

Karen V. Gregory, Secretary, Federal 

Maritime Commission, 800 N. Capitol 

Street NW., Washington, DC 20573– 

0001, Phone: (202) 523–5725, Fax: (202) 

523–0014, Email: Secretary@fmc.gov. 

Rebecca A. Fenneman, General 

Counsel, Federal Maritime Commission, 

800 N. Capitol Street NW., Washington, 

DC 20573–0001, (202) 523–5740, Fax 

(202) 523–5738, Email: 

GeneralCounsel@fmc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

In December 2004, the Commission 

issued a final rule exempting 1 nonvessel-operating common carriers 

(NVOCCs) who enter into NVOCC 

service arrangements (NSAs) from 

certain tariff requirements of the 

Shipping Act of 1984 (Act).2 The rule 

allows NVOCCs to enter into NSAs with 

their customers in lieu of publishing 

those arrangements in a publiclyavailable tariff, as otherwise would be 

required by Sections 8(a) and 10 of the 

Shipping Act. In the preamble to the 

final rule, the Commission stated that it 

would continue to consider how it 

could remove limitations on shipper 

participation while ensuring that the 

criteria of Section 16 were met. 69 FR 

75850, 75852 (December 20, 2004). 

The ability of two or more unaffiliated 

NVOCCs to jointly offer NSAs was not 

included in part 531, in part due to 

ongoing litigation that included 

arguments on whether two or more 

NVOCCs acting concertedly in NSAs 

were immune from the prohibitions of 

the antitrust laws. See United States v. 

Gosselin World Wide Moving, N.V., 411 

F.3d 502 (4th Cir. 2005), cert. denied, 

547 U.S. 1002 (2006).3 The ruling in the 

Gosselin case alleviated the 

Commission’s concerns that NVOCCs 

acting jointly through NSAs would 

create a potential for reduction in 

competition through immunity from the 

antitrust laws. In August 2005, the 

Commission issued a notice of inquiry 

to consider expanding the exemption 

provided for in 46 CFR part 531 to 

enable two or more unaffiliated 

NVOCCs to jointly offer NSAs.4

Commenters were given until October 

20, 2005, to address a set of questions 

designed to provide information and 

perspectives on the likely impact of 

joint NSA authority.5

In its Plan for Retrospective Review of 

Existing Rules, published on November 

4, 2011, the Commission announced its 

intention to conduct a full review of 

part 531, governing NSAs, no later than 

2013. The purpose of the review is to 

determine whether the NSA regulations 

should be modified, streamlined, 

expanded, or repealed to make them 

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