85078 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

1Available at: https://www.cpsc.gov/s3fs-public/ 

Play-Yard-PL112-28-Letter-to-ASTM-3-3- 

2023.pdf?VersionId=qKf310sZqWpkJlZtiqXEET

eswtfzJlVt. 

2The Commission voted (5–0) to publish this 

notice. 

to play yards. 88 FR 13686 (Mar. 6, 

2023) (NFS cribs); March 2, 2023, Letter 

to K. Morgan, President, ASTM 

International (play yards).1 Accordingly, 

the NFS cribs mandatory rule currently 

incorporates the 2022 version of ASTM 

F406 and the play yard mandatory rule 

currently incorporates the 2019 version 

of ASTM F406. 

On October 7, 2024, ASTM notified 

the Commission that it had approved 

and published another revised version 

of the voluntary standard, ASTM F406– 

2024. CPSC staff is assessing the revised 

voluntary standard to determine, 

consistent with section 104(b)(4)(B) of 

the CPSIA, its effect on the safety of 

NFS cribs subject to 16 CFR part 1220, 

and, separately, the safety of play yards 

subject to 16 CFR part 1221. The 

Commission invites public comment on 

those questions to inform staff’s 

assessment and subsequent Commission 

consideration of the revisions in ASTM 

F406–2024.2

The currently incorporated voluntary 

standards (ASTM F406–2019 and ASTM 

F406–2022) and the revised voluntary 

standard (ASTM F406–2024) are 

available for review in several ways. A 

read-only copy of the existing, 

incorporated standards are available for 

viewing, at no cost, on the ASTM 

website at: https://www.astm.org/ 

READINGLIBRARY/. A read-only copy 

of the revised standard (ASTM F406– 

2024), including red-lined versions that 

identify the changes from the 2019 and 

2022 versions to the 2024 version, are 

available, at no cost, on ASTM’s website 

at: https://www.astm.org/CPSC.htm. 

Interested parties can also download 

copies of the standards by purchasing 

them from ASTM International, 100 

Barr Harbor Drive, P.O. Box C700, West 

Conshohocken, PA 19428–2959; phone: 

610–832–9585; https://www.astm.org. 

Alternatively, interested parties can 

schedule an appointment to inspect 

copies of the standards at CPSC’s Office 

of the Secretary, U.S. Consumer Product 

Safety Commission, 4330 East-West 

Highway, Bethesda, MD 20814, 

telephone: 301–504–7479. 

Comments must be received by 

November 8, 2024. Because of the short 

statutory time frame Congress 

established for the Commission to 

consider revised voluntary standards 

under section 104(b)(4) of the CPSIA, 

CPSC will not consider comments 

received after this date. 

Alberta E. Mills, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. 2024–24130 Filed 10–24–24; 8:45 am] 

BILLING CODE 6355–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 1194 

[Docket No. BIA–2024–0002; 245A2100DD/ 

AAKC001030/A0A501010.999900] 

RIN 1076–AF78 

Safeguard Tribal Objects of Patrimony 

AGENCY: Office of the Assistant 

Secretary, Indian Affairs, Interior. 

ACTION: Proposed rule. 

SUMMARY: The Department of the 

Interior (Department) proposes new 

regulations that provide a framework to 

prevent the export for sale in foreign 

countries of Native American cultural 

items that are held in violation of 

current Federal laws; to repatriate such 

items from individuals and 

organizations having such items; and to 

improve coordination among Federal 

agencies, Indian Tribes, and Native 

Hawaiian organizations seeking to 

prevent the export and sale, and support 

the repatriation, of such items. The 

proposed rule would establish an export 

certification system, set forth 

procedures for detention and 

repatriation of items subject to the rule, 

establish a framework for voluntary 

return of items subject to the rule, and 

establish interagency and Native 

working groups. 

DATES: 

Proposed regulations: Interested 

parties are invited to submit comments, 

which must be received on or before 

December 24, 2024. 

Information collection requirements: 

If you wish to comment on the 

information collection requirements in 

this proposed rule, please note that the 

Office of Management and Budget 

(OMB) is required to make a decision 

concerning the collection of information 

contained in this proposed rule between 

30 and 60 days after publication of this 

proposed rule in the Federal Register. 

Therefore, comments should be 

submitted to OMB by November 25, 

2024. 

Tribal consultation sessions: The 

Department of the Interior will conduct 

virtual consultation sessions with 

federally recognized Indian Tribes on 

November 18, 2024, and November 19, 

2024. 

Native Hawaiian consultation 

sessions: The Department of the Interior 

will conduct virtual consultation 

sessions with the Native Hawaiian 

Community November 25, 2024, and 

November 26, 2024. 

ADDRESSES: 

Proposed regulations: You may 

submit comments on the proposed rule, 

and information collection requirements 

in the proposed rule, by any one of the 

following methods. 

Æ Please visit https://

www.regulations.gov/docket/BIA-2024- 

0002 or https://www.regulations.gov and 

enter ‘‘RIN 1076–AF78’’ in the search 

box and click ‘‘Search.’’ Follow the 

instructions for sending comments. 

Æ Mail: Please mail comments to 

Indian Affairs, RACA, 1001 Indian 

School Road NW, Suite 229, 

Albuquerque, NM 87104. 

Tribal Consultation Sessions: 

Federally recognized Indian Tribes may 

register for the November 18, 2024, 

virtual consultation session at https://

www.zoomgov.com/meeting/register/ 

vJIsd-murTkrEoCEm5Y2

To4t7GKtXSRhCnQ. Federally 

recognized Indian Tribes may register 

for the November 19, 2024, virtual 

consultation session at https://

www.zoomgov.com/meeting/register/ 

vJItdOmqqjkqHaI5e

OnhZTOtLE2GojpXIow. 

Native Hawaiian Consultation 

Sessions: The Native Hawaiian 

Community may register for the 

November 25, 2024, virtual consultation 

session at https://www.zoomgov.com/ 

meeting/register/vJItceqvpz0uGDSfTDed

EwLOmP5bvkGLjUA. The Native 

Hawaiian Community may register for 

the November 26, 2024, virtual 

consultation session at https://

www.zoomgov.com/meeting/register/

vJItfuurqj0rGIjrBn1_9KsywIdmkmIIjoY. 

Information Collection Requirements: 

Written comments and suggestions on 

the information collection requirements 

should be submitted to OMB at https:// 

www.reginfo.gov/public/do/PRAMain. 

Find this particular information 

collection by selecting ‘‘Currently under 

Review—Open for Public Comments’’ 

and then scrolling down to the 

‘‘Department of the Interior.’’ Please also 

provide a copy of your comments to DOI 

at consultation@bia.gov; and reference 

‘‘OMB Control Number 1076–NEW 

STOP Act’’ in the subject line of your 

email. 

Accessibility: On request to the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT, 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85079 

individuals can obtain this document in 

an alternate format, usable by people 

with disabilities, at the Office of the 

Assistant Secretary—Indian Affairs, 

Room 4660, 1849 C Street NW, 

Washington, DC 20240. 

FOR FURTHER INFORMATION CONTACT: 

Oliver Whaley, Director, Office of 

Regulatory Affairs and Collaborative 

Action (RACA), Office of the Assistant 

Secretary—Indian Affairs; Department 

of the Interior, telephone (202) 738– 

6065, consultation@bia.gov. Individuals 

in the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is published in exercise 

of authority delegated by the Secretary 

of the Interior to the Assistant 

Secretary—Indian Affairs (Assistant 

Secretary; AS–IA) by 209 DM 8. 

Table of Contents 

I. Statutory Authority and Background 

II. Public Comments on the Development of 

the Rule and Response to Comments 

III. Subpart-by-Subpart Summary of the 

Proposed Rule 

A. General Provisions 

B. Export Certification System 

C. Procedures for Detention, Forfeiture, 

Repatriation 

D. Administrative Appeals 

E. Voluntary Return of Tangible Cultural 

Heritage 

F. Interagency Working Group 

G. Native Working Group 

IV. Procedural Requirements 

A. Regulatory Planning and Review (E.O. 

12866, 14094 and 13563) 

B. Regulatory Analysis 

1. Regulatory Flexibility Act 

2. Regulatory Impact Analysis 

C. Unfunded Mandates Reform Act of 1995 

D. Takings (E.O. 12630) 

E. Federalism (E.O. 13132) 

F. Civil Justice Reform (E.O. 12988) 

G. Consultation With Indian Tribes (E.O. 

13175) 

H. Paperwork Reduction Act 

I. National Environmental Policy Act 

(NEPA) 

J. Energy Effects (E.O. 13211) 

K. Clarity of This Regulation 

L. Public Availability of Comments 

M. Pay-As-You-Go Act of 2010 

N. Privacy Act of 1974, System of Records 

I. Statutory Authority and Background 

Congress empowered the Secretary of 

the Interior, under section 10 of the 

Safeguard Tribal Objects of Patrimony 

Act (STOP Act) of 2021, Public Law 

117–258, codified at 25 U.S.C. 3071 et 

seq., to ‘‘promulgate rules and 

regulations to carry out this Act’’ in 

consultation with the Secretary of State, 

the Secretary of Homeland Security, and 

the Attorney General, and after 

consultation with Indian Tribes and 

Native Hawaiian organizations. See 25 

U.S.C. 3078. The proposed regulations 

at 25 CFR part 1194 implement this 

authority. 

The Department of the Interior 

(Department) issued a Dear Tribal 

Leader Letter inviting input on the 

development of draft regulations for the 

STOP Act on April 22, 2023, and a Dear 

Native Hawaiian Community Leader 

Letter inviting input on the 

development of draft regulations for the 

STOP Act on July 20, 2023. The 

Department held five consultation 

sessions with Indian Tribes, and two 

consultation sessions with the Native 

Hawaiian Community. The Department 

convened with Indian Tribes for a first 

consultation in person on May 31, 2023, 

at U.S. Geological Survey Oklahoma– 

Texas Walker Science Center in 

Oklahoma City, OK; for a second 

consultation in person on July 14, 2023, 

at the Bureau of Land Management 

Fairbanks District Office, in Fairbanks, 

AK; and for a fifth consultation in 

person on August 18, 2023, at the 

Bureau of Land Management New 

Mexico State Office, in Santa Fe, New 

Mexico. The Department conducted the 

third and fourth consultations with 

Indian Tribes virtually on Zoom on July 

27, 2023, and August 8, 2023, 

respectively. The Department convened 

the first consultation with the Native 

Hawaiian Community in person on 

August 23, 2023, at the State of Hawai’i 

Office of Hawaiian Affairs in Honolulu, 

HI, and conducted the next consultation 

virtually on Zoom on August 24, 2023. 

The Department of State and the 

Department of Homeland Security 

joined several of these consultations. 

Following the consultation sessions, the 

Department accepted written comments 

until September 1, 2023. 

Thereafter, beginning on August 31, 

2023, the Department convened 

multiple times per week with 

representatives of the Secretary of State, 

the Secretary of Homeland Security, and 

the Attorney General, to develop the 

proposed rule based on the feedback 

received in consultation. 

II. Public Comments on the 

Development of the Rule and Response 

to Comments 

Interior asked for answers to three 

framing questions during the 

consultations. Individual comments 

were separated and categorized after the 

closing of the comment period on 

September 1, 2023. In total, the 

submissions were separated into 501 

individual comments. Generally, around 

131 comments were exclusively 

supportive, no comments were not 

supportive, and 370 provided 

constructive feedback on how the rule 

may be improved. The Assistant 

Secretary for Indian Affairs (AS—IA) 

has decided to proceed to the proposed 

rule stage after careful consideration of 

all comments. The AS—IA’s responses 

to significant comments that provide 

constructive feedback, were neutral, or 

provided general support along with 

constructive criticism are detailed 

below. No responses are provided for 

comments that were exclusively 

supportive. 

A. Framing Question One: Which 

Assistant Secretary, Bureau or Office 

within the Department of the Interior 

should be responsible for the STOP Act 

program? 

1. Comment: Fourteen Tribes and 

organizations recommended that the 

STOP Act program be housed within the 

Assistant Secretary-Indian Affairs. Five 

Tribes recommended that the STOP Act 

program be housed within the Bureau of 

Indian Affairs, Office of Justice Services. 

Four Tribes and organizations asked for 

one office to take central control over 

implementation without identifying a 

specific office. One commenter 

recommended the National Park 

Service. Some of these comments came 

from the same letter. 

Response: The Department believes 

the balance of comments support 

placing the STOP Act program within 

the Office of the Assistant SecretaryIndian Affairs. 

2. Comment: One Tribe requested 

more information on the roles and 

responsibilities of the various offices 

and bureaus within the Department 

because the framing question alone was 

not helpful. 

Response: The Department referred 

this individual to the information about 

each of the Bureaus and Offices for the 

Department of the Interior, which may 

be found at this link: https://

www.doi.gov/bureaus. 

3. Comment: One commenter asked 

that the Office of Native Hawaiian 

Relations (ONHR) view itself as a 

centralized agency in this process. 

Response: The Department 

appreciates ONHR’s engagement in the 

drafting of the proposed rule and looks 

forward to ONHR’s active role in 

implementation of these regulations 

following publication of a final rule. 

B. Framing Question Two: What types of 

interagency agreements would be 

helpful for the program and for Act 

implementation? 

4. Comment: One Tribe asked that the 

Department of State prioritize 

engagement with any foreign 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85080 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

government or institution that has been 

identified by Tribes as holding exported 

cultural items or ones that are primary 

markets for items. One Tribe 

commented that foreign governments 

and entities that are open to voluntarily 

returning items should require a 

different level of engagement than those 

who are not willing to engage on 

repatriation. 

Response: The Department has 

conferred with the Department of State 

about the substance of these comments. 

The Department of State already engages 

with international institutions on 

repatriation and will continue this work 

in line with provisions in the STOP Act. 

5. Comment: One organization and 

one Tribe asked that formation of any 

agreements include Tribal consultation 

as early in the process of development 

as possible to ensure seamless 

coordination and harmonization of 

efforts. 

Response: The Department agrees. As 

interagency agreements are formed 

involving the Department, the 

Department commits to consultation to 

the degree possible. 

6. Comment: Two commenters asked 

that the United States military be part of 

any interagency working group. 

Response: The Department 

appreciates this feedback and will reach 

out to the Department of Defense to seek 

engagement in implementation of a final 

rule. 

7. Comment: One commenter 

expressed that exporters who act in 

violation of the STOP Act do not do so 

alone, and the Department should 

consult with experts to examine 

whether the Racketeer Influenced and 

Corrupt Organizations Act might apply 

in this situation. 

Response: The process for an export 

certification in subpart B of the 

proposed regulations, including 

discussions about potential exports 

without a certification, was developed 

with input from the Department of 

Justice. 

8. Comment: One commenter 

expressed that the STOP Act cannot be 

a barrier to repatriation and that getting 

through customs would continue to be 

difficult. 

Response: The process for voluntary 

return in subpart E of the proposed 

regulations was developed with input 

from the Departments of State and 

Homeland Security, including 

constituent agency, U.S. Customs and 

Border Protection. 

9. Comment: A Tribe asked that the 

Department of State notify foreign 

nations of the STOP Act’s passage to 

facilitate repatriations under other 

nations’ domestic laws and that the 

Department of State designate a liaison 

to facilitate voluntary returns. A Tribe 

and a Tribal Organization asked that the 

implementing regulations utilize the 

UNESCO 1970 Convention on the 

Means of Prohibiting and Preventing the 

Illicit Import, Export and Transfer of 

Ownership of Cultural Property (1970 

Convention) to advocate for stronger 

international cooperation, and to 

encourage other countries to adopt 

measures similar to the STOP Act. 

Response: The STOP Act, and its 

implementing regulations, apply 

primarily to items that a putative 

exporter seeks to take out of the United 

States prior to their exit from the 

country. The STOP Act does not contain 

mechanisms to persuade or obligate 

international governments or 

institutions. The 1970 Convention 

provides a common framework of 

measures each State Party may take, 

including some included in the STOP 

Act, such as the prohibition of 

exportation of designated cultural 

property and the establishment of 

export certificates. The Department 

works with the Department of State to 

raise awareness of the STOP Act in 

order to help other countries that are 

party to the 1970 Convention to identify 

items that are prohibited from 

exportation under the Act and, 

therefore, may be restricted from import 

into those countries. The Department of 

State will designate a liaison to facilitate 

voluntary returns. 

10. Comment: One commenter 

expressed that international engagement 

will be important based on processes 

that exist in international conventions 

like a Hague Convention that was 

unspecified by the author. The 

commenter expressed that establishing 

such processes could help with 

international borders. 

Response: The Department 

appreciates this feedback and will 

confer with the Department of State on 

types of international engagement. 

11. Comment: A collective of Tribes 

asked that the Department of Justice 

direct all United States Attorneys to 

prosecute violations of 25 U.S.C. 

3073(a)(2) that are referred to them by 

the Department of the Interior, the 

Department of Homeland Security, or 

the Federal Bureau of Investigation. The 

same collective asked that the 

Department of Justice add the STOP 

Act, NAGPRA, and ARPA to the list of 

statutes enforced by the Department of 

Justice Environmental Crimes Section. 

Response: This comment is beyond 

the scope of these regulations. However, 

the Department has conferred with the 

Department of Justice about the 

substance of these comments. 

12. Comment: One Tribal commenter 

asked for memoranda of understanding 

(MOUs) among DOI’s National Park 

Service, Insular and International 

Affairs, and the Office of the Inspector 

General that lay out the purpose, duties 

and responsibilities, standards and 

procedures, reporting requirements, 

confidentiality provisions, and other 

resolutions. One Tribal commenter 

proposed an agreement between the 

Departments of State and Homeland 

Security that focused upon NAGPRA 

and repatriation and international 

repatriation. One Tribal commenter 

proposed a memorandum between the 

State Department and the Federal 

Bureau of Investigation that focused 

upon international auctions. A Tribe 

proposed an agreement among the 

National NAGPRA Program, NAGPRA 

Review Committee, Cultural Heritage 

Coordinating Committee, Bureau of 

Indian Affairs’ Office of Justice Services’ 

Cultural Resources Unit, and all other 

relevant Federal entities. A Tribe and a 

Tribal organization proposed 

cooperative agreements be established 

among the Department, other Federal 

agencies, Native Nations, and Native 

organizations and institutions. A Tribe 

proposed an agreement among the NPS, 

the Transportation Security 

Administration, the United States Forest 

Service, and the Bureau of Land 

Management. Two Tribes proposed an 

agreement among the NAGPRA 

Program, the Cultural Heritage 

Coordinating Committee established by 

the Protect and Preserve International 

Cultural Property Act, the Bureau of 

Indian Affairs’ Office of Justice Services’ 

Cultural Resources Unit, and all other 

relevant Federal entities. A collective of 

Tribes proposed an agreement among 

the Department of Commerce, 

Department of Homeland Security, 

Department of Justice, and Department 

of State regarding the export of Native 

American cultural items. A Tribe asked 

that Cooperative Agreements be 

established among the Interior, agencies, 

and Tribal nations to foster 

collaboration, training, documentation, 

outreach, and education. A Tribe 

requests agreements so that the 

Department of Commerce creates a 

‘‘cultural items’’ and ‘‘archaeological 

resource’’ list; Homeland Security 

notifies international travelers and 

shippers and instructs all baggage and 

cargo inspectors to prepare to identify 

any cultural items or archaeological 

resources; Justice notifies all attorneys 

of their responsibilities to prosecute 

violations referred to them; and the 

Department asks Congress for three 

million dollars for STOP Act 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85081 

implementation. A Tribe commented 

that Tribes may encounter problems 

importing items back into the United 

States because of protected animal parts 

in the items, or for other related reasons, 

and asks that interagency agreements 

provide a way to avoid seizure or 

delays. 

Response: The Department is grateful 

for the breadth and variety of feedback 

received about parties to interagency 

agreements. Given the diversity of 

agreements proposed, the Department 

will carefully evaluate the efficacy and 

need for each of these agreements upon 

implementation of the proposed rule. 

The scope of work for the Interagency 

Working Group, set forth at proposed 

subpart F, includes coordination of 

policy-making processes to facilitate 

repatriation. The Department’s goal is to 

establish broad regulatory authority, in 

alignment with statutory authority, to 

allow for creation of inter-Departmental 

MOUs, as appropriate, as these 

commenters have proposed. 

13. Comment: A Tribe asked that any 

interagency agreements, when read with 

the regulations, include all STOP Act 

action items and the two should be 

written to carry out all action items 

needed. A Tribal organization and a 

Tribe asked that any agreements include 

a step-by-step guide, contacts for each 

agency with one single Federal point of 

contact for Tribes, provisions that 

encourage Tribal collaboration with all 

agencies, encourage the Native work 

group to advise Federal agencies, 

facilitate voluntary return, and provide 

for Federal monitoring. Another Tribe 

asked that agreements be set up quickly 

and outline commitments of resources 

and responsibilities for agencies 

involved, include a single point of 

contact for Tribes, and a regular time 

period for review and revisions. Three 

Tribes and a Tribal organization asked 

that interagency agreements include a 

step-by-step guide or flow chart, and 

contacts for each agency. A Tribe asked 

that interagency agreements should 

provide for regular and mandatory 

meetings co-led by the Native Working 

Group and Interagency Working Group. 

A Tribe asked that any agreements 

include training, funding to Tribes for 

collaboration and travel to retrieve 

sacred items, coordination among the 

various agencies, a framework for the 

safe return of items, and guidelines and 

policies for how sacred items are 

returned, including addressing privacy, 

photography, media requests, and 

agency information provided to the 

public. A Tribe asked that any 

agreements include appropriate steps 

and a chain of command, mandatory 

training for agency officials and staff 

(semi-annual), consultation 

requirements with Tribes, and 

agreements designed to facilitate the 

importation of items voluntarily 

returned from foreign nations. A Tribe 

asked that any agreements address 

safeguarding, protection and 

inappropriate disclosure, or facilitation 

of misappropriation or misuse of 

tangible or intangible cultural heritage. 

A Native Hawaiian organization asked 

for an interagency agreement under 

which the Executive Branch may engage 

counterpart governmental entities for 

foreign countries directly and advocate 

for the return of stolen cultural objects; 

and call on respective U.S. Embassies to 

engage appropriate international 

government authorities and actively 

negotiate a process for the return of 

cultural objects. 

Response: The Department is grateful 

for the breadth and variety of feedback 

received about the contents of 

interagency agreements. Given the 

diversity of agreements proposed, the 

Department will carefully evaluate the 

efficacy and what should go into each 

agreement upon implementation of the 

proposed rule. The scope of work for the 

Interagency Working Group, set forth at 

proposed subpart F, includes 

coordination of policy-making processes 

to facilitate repatriation. The 

Department’s goal is to establish broad 

regulatory authority, in alignment with 

statutory authority, to allow for specific 

inclusion in various inter-Departmental 

MOUs such as those commenters have 

proposed. 

14. Comment: A Tribe and a Tribal 

organization asked that interagency 

consultation agreements be established 

to provide meaningful consultation with 

Tribes and to provide consistent 

policies for Federal agencies. A Tribe 

asked that Interagency Consultation 

Policy and Agreement would specify the 

process and frequency of consultation, 

the involvement of relevant agencies, 

and the sharing of information and 

expertise related to the protection and 

repatriation of Native cultural heritage. 

A Tribe asked that the Department 

follow the Interagency Consultation 

Policy and Agreement to ensure 

meaningful consultation with Indian 

Tribes, to address frequency of 

consultation, involvement of agencies, 

and expertise related to protection and 

repatriation of cultural heritage. 

Response: The Department is grateful 

for the breadth and variety of feedback 

received about the contents of 

interagency consultation agreements. 

The STOP Act program will maintain a 

robust consultation function and use of 

such an agreement may be practical. 

The scope of work for the Interagency 

Working Group, set forth at proposed 

subpart F, includes coordination of 

policy-making processes to facilitate 

repatriation. The Department’s goal is to 

establish broad regulatory authority, in 

alignment with statutory authority, to 

allow for potential use of an interagency 

consultation agreement as these 

commenters have proposed. 

15. Comment: A Tribe asked that any 

interagency agreements include shared 

jurisdiction or deputization between 

Tribal Historic Preservation Officers 

(THPO) and the Department. 

Response: This comment is beyond 

the scope of these regulations; however, 

the Department has conferred with the 

Department of Justice about the 

substance of this comment. 

16. Comment: A collective of Tribes 

commented that the Department of 

Commerce should immediately amend 

the Commerce Control List to include 

‘‘cultural item’’ as defined by 18 U.S.C. 

1170 and 25 U.S.C. 3001 et seq., and 

‘‘archaeological resource’’ as defined at 

16 U.S.C. 470ee. 

Response: The Department has 

conferred with the Department of 

Commerce about the substance of this 

comment. 

17. Comment: A Native Hawaiian 

organization asked that the Interagency 

Working Group prioritize work on 

programs and policies to require that 

museums better establish the 

provenance of objects within their 

collections. The Native Hawaiian 

organization requests that the 

Department of State call for a closer 

examination of existing provenance 

records at international institutions for 

cultural objects and human remains that 

would be subject to NAGPRA in 

domestic institutions as part of this 

agreement. The Native Hawaiian 

organization notes that these updates 

may implicate updates to the NAGPRA 

Program. 

Response: The Department will relay 

this request to the Interagency Working 

Group upon its formal establishment. 

The Department has conferred with the 

Department of State and the National 

NAGPRA Program about the balance of 

this comment. 

C. Framing Question Three: What 

should or should not be included in the 

draft regulations? 

18. Comment: Several Tribes and 

Tribal organizations and a Native 

Hawaiian organization reiterated that 

cultural resources have been stolen from 

their homes for many years, resulting in 

long lasting and devastating harm. 

Response: The Department is grateful 

for this comment and bore it in mind 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85082 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

throughout the drafting of the proposed 

rule. 

19. Comment: Several Tribes and 

Tribal organizations and a Native 

Hawaiian organization expressed a 

desire that implementation occur 

immediately or as soon as possible, and 

that the Department takes perspective of 

all Tribes into account and consults as 

much as possible in the process. One 

Tribe noted the need to consider what 

can be done immediately, given that 

there are items being trafficked 

currently and encouraged the 

Department to ‘‘chew gum and walk at 

the same time.’’ 

Response: The Department 

appreciates the need to move quickly, 

and this is one consideration for the 

Department issuing a proposed rule 

rather than an interim rule at this time. 

The Department looks forward to 

consulting with Tribes on this proposed 

rule and on implementation of the 

STOP Act as set forth in the proposed 

rule. 

20. Comment: One organization and 

two Tribes provided recommendations 

and suggested language to be included 

in the purpose section of the 

regulations. One organization 

recommended parallel language to the 

Department’s regulations implementing 

the Native American Graves Protection 

and Repatriation Act. Another Tribe 

recommended the regulations include 

information on the STOP Act, its 

passage, and a description of its 

provisions. 

Response: The Department 

appreciates this feedback. The 

Department has incorporated the Tribal 

suggestion to the degree possible to the 

Introduction as set forth in proposed 

§ 11941.1. 

21. Comment: One Tribe commented 

about the need for sections on fines and 

penalties to hold auction houses 

accountable. The same Tribe explained 

its desire for a mechanism for Tribes to 

receive the names, addresses, and 

information about where the items are 

going so that the items do not go 

underground. This will aid Tribes in 

learning the history of the item and how 

it moved into commerce. The Tribe 

commented that this process should be 

triggered when items are taken outside 

of reservation boundaries and would 

require sellers to remove items from the 

auction block. 

Response: The proposed schedule and 

process for civil penalties and fines 

appears at proposed § 1194.205. With 

regard to the mechanism requested, the 

text of the STOP Act does not provide 

authority for the Department to obtain 

information about an item after the sale 

of that item has been completed. This 

means the Department’s regulations 

implementing the STOP Act consider 

primarily the detention and recovery of 

items prior to export, and do not opine 

on collection of information about items 

that have been exported. 

22. Comment: One Tribal organization 

asked that enforcement of the STOP Act 

commence immediately, even though 

regulations were still forthcoming. A 

Tribe emphasized that heavy criminal 

charges would represent a strong 

incentive to disincentivize the illicit 

trade of Native artifacts. 

Response: The STOP Act was signed 

into law in December 2022. The law 

increased criminal penalties for stealing 

and illegally trafficking in Tribal 

cultural property. The increased 

criminal penalties are effective 

immediately, despite the need for 

regulations to implement other parts of 

the STOP Act. Additionally, prosecutors 

may continue to use other existing 

Federal criminal laws or Federal civil 

forfeiture proceedings, as appropriate, to 

disincentivize the illicit trade of native 

artifacts. 

23. Comment: Two Tribes and one 

Tribal organization asked that the 

Department ensure that a process to 

revoke wrongly issued export 

certificates is part of any proposed rule. 

This is because revocation would be 

important under treaties and other 

countries’ laws to prevent defendants 

from presenting evidence in domestic 

prosecutions for illegal trafficking. The 

same Tribal organization asked that 

export certifications contain language 

that they do not affirmatively establish 

an item’s legality. 

Response: The Department 

appreciates this feedback. Procedures 

for revocation of an export certification 

appear at proposed § 1194.106. The 

Department anticipates consulting with 

Tribes and Native Hawaiian 

organizations on the contents of 

certification applications, which may 

include issues related to the legality of 

an item for which a certification is 

sought. 

24. Comment: Two Tribes asked that 

the proposed rule include processes for 

the Department to assess civil penalties 

against individuals attempting to export 

items without an export certification. A 

Tribal collective asked that the 

Department implement the civil 

penalties, and related appeals section, 

as an interim rule. The same Tribal 

collective, another Tribal organization, 

and a Tribe asked that civil penalties be 

uniformly applied and sufficient to 

completely remove any financial 

incentive to illegally export, attempt to 

export, or otherwise transport any item 

requiring export certification. 

Response: The Department 

appreciates this feedback. Procedures 

for assessment of civil penalties appear 

at proposed § 1194.205. The Department 

is issuing a proposed rule rather than an 

interim rule at this time. 

25. Comment: A collective of Tribes 

asked that the Department be sure that 

Tribes and Native Hawaiian 

organizations receive adequate notice of 

attempted export of objects prohibited 

from exportation. 

Response: The Department 

appreciates this feedback. The 

Department anticipates providing notice 

using current mechanisms for 

consultation notices, including contact 

lists directed to THPOs. The Department 

welcomes methods to improve its 

consultation processes. 

26. Comment: A Tribe comments that 

an item attempted to be exported 

without an export certification should 

be promptly returned to an Indian Tribe 

rather than through a museum. 

Response: The Department agrees. In 

the event of seizure of an item, return 

of the item to a Tribe will be affected 

pursuant to NAGPRA or ARPA under 

proposed § 1194.206. 

27. Comment: A Tribe and a Tribal 

organization asked that appeals 

processes be assigned to the 

Department’s Office of Hearing and 

Appeals for adjudication. 

Response: The Department 

appreciates this feedback. The 

Department has incorporated the Tribal 

suggestion to the Tribal Authorization 

as set forth in proposed subpart D. 

28. Comment: Two Tribes and two 

Tribal organizations provided 

recommendations on the contents of 

definitions of the terms ‘‘Any other 

Federal law or treaty,’’ ‘‘consultation,’’ 

‘‘cultural affiliation,’’ ‘‘tangible cultural 

heritage,’’ ‘‘repatriation,’’ ‘‘voluntary 

return,’’ ‘‘credible evidence,’’ and 

‘‘Indian lands.’’ 

Response: The Department is grateful 

for this comment and the Department 

sought to incorporate as much of this 

feedback as possible in the proposed 

definitions section at proposed § 1194.2. 

29. Comment: A Tribe asked how the 

Department will address potential 

conflicts between claimants of lineal 

descendent priority versus Tribal 

priority, as established by NAGPRA. 

Response: The Department’s 

regulations implementing the STOP Act 

consider primarily the detention and 

recovery of items prior to export, and do 

not opine on the implementation of 

NAGPRA. Even if this comment 

addressed a matter germane to the STOP 

Act regulations, the Department 

generally is not able to provide preVerDate Sep<11>2014 16:18 Oct 24, 2024 Jkt 265001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\25OCP1.SGM 25OCP1

ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85083 

decisional guidance or to opine on 

competing claims in the hypothetical. 

30. Comment: Several Tribes and a 

Tribal organization expressed thoughts 

about the criteria and contents of an 

export certification application and 

permit. These included, among others, 

establishing criteria for granting export 

certification permits to individuals or 

organizations with demonstrated 

expertise and a legitimate need to 

handle and export cultural items, 

requiring exporters to exercise 

reasonable care in verifying the legal 

origin and compliance of cultural items, 

and consulting with Indian Tribes about 

the export certification application. 

Response: The Department 

appreciates this feedback. The 

Department will develop the form by 

which an applicant Requests an Export 

Certification in consultation with 

interested Tribes. 

31. Comment: Three Tribes and one 

Tribal consortium asked for a high 

degree of detail about how Tribes may 

access and view the database of export 

certification applications. One Tribe 

asked for the ability to limit sensitive 

information in databases. One Tribe 

expressed concern about how the 

database would operate with respect to 

FOIA. An individual expressed concern 

about the database and asked for a focus 

on process instead. Another Tribe asked 

for the ability to flag particular items in 

the database that a Tribe identifies as 

sensitive or missing and circulating in 

the marketplace. An additional Tribe 

asked for the ability to flag items that a 

Tribe has learned are in circulation at 

present. 

Response: The Department has 

endeavored to include as much detail as 

is possible about the database of export 

certification applications in the 

regulations. The Act’s FOIA exemption 

is codified in regulation at proposed 

§ 1194.107(b), and Tribes may request 

removal of any application from the 

database. At this proposed stage, all data 

to be included in the database is 

categorized similarly and no identifiers 

are proposed. The Department 

anticipates generating more information, 

including possible trainings, on the 

database of export certification 

applications following publication of a 

final rule. 

32. Comment: A Tribal consortium 

asked for a receipt template for Tribes 

to issue to purchasers that would 

exempt an item from these regulations. 

Response: The Department has 

incorporated the Tribal suggestion to the 

Tribal Authorization as set forth in 

proposed § 1194.109. 

33. Comment: A Tribe asked that 

export certification fees not apply to 

Indian Tribes. 

Response: The Department has 

implemented a process for Tribal 

Authorization as set forth in proposed 

§ 1194.109. Such a Tribal Authorization 

would exempt an item from the need for 

an export certification, and the 

attendant fee. 

34. Comment: One Tribe asked for a 

process by which a revocation of an 

export certification could be affected 

without harming any DOJ processes. 

Response: The Department has 

included a provision in the regulations 

related to revocation of an export 

certification. The Department further 

notes that any administrative revocation 

of an export certification is, based upon 

these regulations, an administrative 

procedure different from actions law 

enforcement may take as part of an 

active Federal criminal or civil 

investigation. The Department will also 

be closely coordinating with the 

Department of Justice in implementing 

the STOP Act. 

35. Comment: Two Tribes and an 

organization asked for a presumption 

that if an item is cultural heritage or fits 

the category of archaeological resource 

under ARPA, that item is held and not 

provided an Export Certification until 

further evidence is shown that the 

exporter has a right of possession. 

Response: The Department has 

proposed that an applicant for Export 

Certification must demonstrate the right 

of possession as part of the application 

process. 

36. Comment: A Tribe asked that 

protection for items under the STOP Act 

include both objects of matrimony and 

patrimony and that Tribes be the only 

ones determining which items are 

deserving of protection. Another Tribe 

asked that Tribal consultation inform 

which items are categorized as cultural 

items under the STOP Act. 

Response: The Department agrees. 

The STOP Act applies to all ‘‘cultural 

items’’ as that term is defined in the 

Native American Graves Protection and 

Repatriation Act (NAGPRA) (including 

objects of cultural patrimony) and the 

proposed rule contemplates alerting 

Tribes for any request for an export 

certification and, to the degree possible, 

treating as determinative Tribal input on 

the application. 

37. Comment: A Tribe and two Tribal 

consortia asked for development of 

public education campaigns to 

encourage the purchase of contemporary 

Native art and emphasize the illegality 

of taking certain artifacts. A Tribe asked 

for the Department of State to conduct 

public awareness campaigns about 

Tribal repatriation efforts. A Tribe asked 

for incentives for international dealers 

and buyers to repatriate items. 

Response: The Department does not 

propose an educational campaign nor an 

incentive program as part of the 

proposed regulatory text. The 

Department will explore these ideas as 

possible tools following publication of a 

final rule. 

38. Comment: Three Tribes and a 

Tribal organization commented that the 

Department should not create an 

exhaustive list of items protected under 

the STOP Act. 

Response: The Department agrees. 

The Department intends to publish a 

description of characteristics typical of 

Items Requiring Export Certification 

rather than a list of items, as set forth 

in proposed § 1194.101. 

39. Comment: A Tribe and a Tribal 

organization asked that the Federal 

Register Notice be created in 

coordination with Indian Tribes. Both 

commenters suggested that this Notice 

be a live document and be updated over 

time. Both commenters asked that the 

Notice include practical assistance 

respectful to the fluidity of cultural 

items and be specific enough to notify 

exporters, customs officers and others 

encountering potentially sensitive 

items. 

Response: The Department has 

incorporated the Tribal suggestion into 

the Federal Register Notice regarding 

which items may require an export 

certification as set forth in proposed 

§ 1194.101. 

40. Comment: A Tribe asked for the 

ability to request an in camera hearing 

in any administrative appeal or penalty 

phase associated with a violation of the 

STOP Act to shield from the public 

items subject to these proceedings, 

because many cultural items can only be 

seen and handled by particular 

individuals. The Tribe explained that 

this will protect the items from further 

harm. Another Tribe commented that in 

its religion, sensitive items are only able 

to be touched and seen by certain 

people, and such items must be treated 

with respect when they are brought 

back. 

Response: The Department 

appreciates this feedback. In the 

administrative appeals provision of the 

proposed regulations, at proposed 

§ 1194.302, there is a mechanism for 

Tribes or Native Hawaiian organizations 

to provide sealed communications 

concerning the application for an export 

certification or detention. In the event of 

a hearing, the proposed regulations 

incorporate applicable rules from 43 

CFR part 4, at proposed § 1194.303. Part 

4, in turn, contemplates certain 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85084 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

proceedings occurring under seal or in 

camera. 

41. Comment: One Tribe asked for a 

single point of contact for all Native 

cultural heritage protection within the 

Department through which Tribes could 

access appropriate Federal agencies. A 

Tribal organization underscores that 

such Tribal liaisons should be equipped 

to provide trainings to Tribes about 

testing cultural heritage items for 

dangerous chemicals and assisting in 

the handling, moving, packing, and 

shipping of items internationally 

repatriated. The Tribal organization 

noted that Tribal cultural heritage items, 

including human remains, have often 

been subjected to chemicals harmful to 

humans by collectors or institutions for 

preservation and that can harm Tribal 

members that repatriate, handle, or 

reintegrate cultural heritage items for 

ceremonial use. The Tribal organization 

also asked that liaisons coordinate with 

Federal agencies and domestic 

institutions to ship fragile Tribal 

cultural heritage items safely and 

carefully. 

Response: The Department 

appreciates this feedback. Through the 

Interagency Working Group, the 

Department has endeavored to identify 

and centrally place the most relevant 

points of contact from the Department, 

as well as from the Departments of 

State, Justice, and Homeland Security. 

The Department welcomes feedback on 

the appropriateness of this solution. 

42. Comment: Two Tribes and a 

Tribal organization commented that the 

Department should provide more 

information on training materials that 

will be provided to Federal staff and 

officials. The Tribal organization asks if 

Tribes may reach out to the Department 

for technical assistance in developing 

training materials. The Tribes ask that 

Tribes be heavily involved in designing 

trainings. 

Response: The Department anticipates 

providing more information about 

training following a final rule 

implementing the STOP Act. 

43. Comment: Three Tribes asked for 

flow charts in the regulation to explain 

processes in the regulatory text. A Tribal 

consortium asked for a step-by-step 

guide for Federal officials within 

agencies to use in the event of a 

trafficking incident. 

Response: The Department does not 

propose any flow charts as part of the 

proposed regulatory text, either for 

Tribal, private, or Federal use. The 

Department will explore such flow 

charts as informational tools following 

publication of a final rule. 

44. Comment: Five Tribes and two 

Tribal organizations asked for guidance 

on the Tribal Working Group. Specific 

areas of inquiry included the process for 

nominations, a request for mandatory, 

regular meeting times, inclusion of 

compensation for the Tribal Working 

Group members, a mandatory process to 

implement judicial proceedings, and a 

requirement for timely responses from 

agencies. 

Response: The regulations governing 

the Native Working Group appear at 

proposed subpart G. These include 

guidance on nominations and eligibility. 

The Department declined to include 

mandatory meetings for the Native 

Working Group to promote maximum 

flexibility for this group. The 

Department is unable to compensate 

members of the Native Working Group 

based upon the language of the STOP 

Act. The Native Working Group may 

make a request that the Department of 

Justice initiate judicial proceedings, as 

set forth in proposed § 1194.603(c) and 

(d), and Native Working Group requests 

for assistance and information are set 

forth in proposed § 1194.603(e). 

45. Comment: One organization urged 

the Department to consult on the form 

of the export certification application. 

One Tribe asked that the regulations 

describe the minimum needed to apply 

for a certification, and also asked for a 

process or system where Tribes can 

learn about international or domestic 

auction yards where their items may be 

implicated. A Tribe and a Tribal 

organization asked that publication of 

characteristics typical of cultural 

heritage be general in nature and not 

require photographs or an exact 

description unless a Tribe consents to 

provide that information. The same 

commenters expressed that any 

descriptions should be more onerous 

than the Convention on Cultural 

Property Implementation Act, 19 U.S.C. 

2601 et seq. 

Response: A draft of the application 

form is attached to this proposed rule; 

the Department invites comments on the 

form from interested Tribes and Native 

Hawaiian organizations. The form 

specifically requests the purpose and 

timeframe of the proposed export. The 

Department does not have a definitive 

list of possible auction houses. 

Consultation on the form will enable 

Tribes to provide direct feedback on 

inclusions of photographs and nature of 

descriptions required. 

46. Comment: One Tribe asks that the 

regulations provide a mechanism for 

Tribes to review export certification 

applications. 

Response: Under the proposed 

regulations, the Department will notify 

the impacted Tribes and Native 

Hawaiian organizations when an 

application is submitted and uploaded 

into the database and again once the 

Department finds that the application is 

complete. 

47. Comment: One Tribe asks that the 

Departments of State and Justice consult 

with and take direction from Tribes on 

repatriation efforts, especially as it 

pertains to legal efforts for violations of 

Federal law and engaging with foreign 

countries and institutions with a history 

of holding exported Tribal cultural 

heritage items. 

Response: The Department 

appreciates this feedback and has 

included guidance on consultation in a 

number of areas in the proposed rule. 

48. Comment: One Tribal organization 

asks that where dispute resolution 

systems exist to minimize burdens for 

Tribes and review committees, Tribes be 

proactively included at the outset. 

Ideally, this would include training and 

curriculum to stakeholders to promote 

the types of items to look for, and to 

teach officers how to return sacred 

objects or objects of patrimony. 

Response: The Department 

appreciates this feedback. The 

Department has included guidance on 

consultation in a number of areas in the 

proposed rule. 

49. Comment: A Tribe asks that the 

database follow the ‘‘Do No Harm’’ 

principle and that Tribes should have 

access to the system to remove or 

correct information since the 

information may be confidential, 

culturally sensitive, sacred, or secret 

information to a Tribe. 

Response: The Department 

appreciates this feedback. The proposed 

rule clarifies that information provided 

to the Department will be protected to 

the degree possible in accordance with 

applicable law, and that a Tribe or 

Native Hawaiian organization may 

request the deletion of material from the 

database. 

50. Comment: One Tribe asks that the 

Department focus enforcement efforts 

on private dealers and brokers rather 

than placing burdens onto Tribes when 

facing repatriation. 

Response: The Department 

appreciates this feedback. The 

Department has endeavored to craft the 

proposed rule in such a way that it will 

prevent illegal exportations, while 

allowing Tribes to authorize exportation 

at their discretion and facilitate the 

voluntary return of tangible cultural 

heritage. 

51. Comment: One Tribe asks that the 

Department create a specific tax form 

and associated paperwork for tax 

deductive gifts for those who 

voluntarily return Tribal cultural items. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85085 

Response: The Department anticipates 

providing tax documentation to an 

individual who successfully completes 

a voluntary return, as set forth in 

proposed § 1194.403. In doing so, the 

Department must comply with IRS rules 

and will work with the IRS on what 

documentation is needed. 

52. Comment: A Tribal organization 

asks that the United States make a 

worldwide announcement about the 

voluntary return provision and provide 

for acknowledgement of voluntary 

returns. 

Response: The Department has 

consulted with the Department of State 

about potential methods and 

mechanisms to provide notice to 

international entities. The Department 

has not proposed a uniform approach to 

publicizing voluntary returns because 

the Department understands that some 

Tribes may not wish to share 

information about their objects of 

patrimony returning home. 

53. Comment: One Commenter asked 

if the STOP Act will exempt or address 

how the Marine Mammal Protection Act 

(MMPA) challenges cultural practices. 

Response: The Department is grateful 

for this comment. Generally, the STOP 

Act and the MMPA exist in parallel and 

neither law exempts nor preempts the 

application of the other. 

54. Comment: One Commenter 

referenced Hawai1i state law and how it 

identifies objects of patrimony and 

protects certain categories of objects. 

Response: The Department is grateful 

for this comment and has considered it 

in the drafting of the proposed rule. 

55. Comment: One Commenter 

requested that the Interagency Working 

Group look to Office of Native Hawaiian 

Relations (ONHR) to provide 

information about Native Hawaiian 

organizations. The commenter also 

referenced including an authentication 

system that ensures NHOs meet the 

regulatory definition for consultations 

they are engaged in. 

Response: The Department anticipates 

calling upon ONHR’s expertise as the 

Interagency Working Group commences 

its work. 

D. Other Comments 

57. Comment: Multiple Tribes 

expressed support for the STOP Act and 

prompt implementation of the 

regulations. 

Response: The Department 

appreciates this feedback and is pleased 

to offer this proposed rule for additional 

Tribal feedback. 

58. Comment: Three Tribes and two 

Tribal organizations noted that 

implementation of the STOP Act 

requires funding for Tribal Historic 

Preservation Offices (THPO) to ensure 

capacity to implement the STOP Act 

and to have staff to track items. One 

Tribe noted that the Tribe did not have 

enough funding to get patrimony back 

or to bid for it, in the worst-case 

scenario. Another Tribe noted the need 

for funds for Tribes to implement, 

identify, and store items subject to the 

STOP Act, including travel to locations 

of items, securing means of safe return, 

and ongoing storage and safekeeping of 

items after return. 

Response: The Department notes that 

funding is authorized in the statutory 

text of the STOP Act. However, that 

funding is not appropriated. If and 

when funds are appropriated, the 

Department will explore best ways to 

implement in line with these comments. 

59. Comment: One Tribal organization 

and one Tribe encouraged regulatory 

language to utilize more than NAGPRA 

and ARPA where the STOP Act 

references ‘‘other applicable law.’’ The 

commentors cite Tribal law, the Lacey 

Act, applicable Executive Orders, the 

Antiquities Act, and the Endangered 

Species Act. 

Response: The Department concurs 

with Tribes that these and other ineffect laws comprise the ‘‘other 

applicable law’’ referenced in the STOP 

Act. However, the Department declines 

to include a particularized list because 

all laws in effect may apply depending 

on a particular factual pattern that 

arises. 

60. Comment: A Tribe asked for 

monitoring of international institutions 

likely to house or traffic Tribal cultural 

heritage items, and that information 

gained from monitoring be made 

available to Tribes. The same Tribe 

asked that State officials be directed to 

monitor international auctions and 

sales. 

Response: The Department’s authority 

under the STOP Act does not provide a 

mechanism for the Department to direct 

monitoring of institutions, either by 

Federal or State authorities. 

61. Comment: A Tribe expressed 

questions on the Indian Arts and Crafts 

Act and whether there might be space 

for that Act and the STOP Act to work 

together. 

Response: The Department notes that 

the text of the STOP Act allows for an 

agreement with a foreign country ‘‘to 

expand the market for the products of 

Indian art and craftsmanship in 

accordance with section 2 of the Act of 

August 27, 1935.’’ Outside of this 

statutory reference, the Department has 

not included references to the Indian 

Arts and Crafts Act in the text of the 

proposed rule. 

62. Comment: A Tribe asked what 

would happen if a foreign government, 

entity, or individual is uncooperative, 

and what recourse the United States has 

to ensure strong enforcement to 

persuade uncooperative institutions or 

governments. 

Response: The STOP Act, and its 

implementing regulations, apply 

primarily to items that a putative 

exporter seeks to take out of the United 

States prior to their exit from the 

country. The STOP Act does not contain 

mechanisms to persuade or obligate 

international governments or 

institutions to repatriate items. 

63. Comment: A Tribal organization 

asked that the implementing regulations 

include an intellectual property 

provision because there continues to be 

harm to Tribes from the 

misappropriation, misuse, and 

exploitation of traditional knowledge, 

genetic resources associated with 

traditional knowledge, and traditional 

cultural expressions because of the lack 

of protection within the United States’ 

intellectual property system. 

Response: The Department’s authority 

under the STOP Act does not provide a 

mechanism for the Department to 

propose an intellectual property 

provision in this proposed rule. 

64. Comment: A Tribal organization 

asked that the United States, through 

the Department, call on countries to 

participate in a concerted international 

effort with necessary concrete measures 

and implement bilateral agreements to 

obligate countries to monitor imports 

and facilitate repatriations. 

Response: The STOP Act confirms the 

authority of the President to request 

agreements with foreign countries to 

discourage commerce in and collection 

of certain items, encourage voluntary 

return of tangible cultural heritage, and 

expand markets for products of Indian 

art and craftsmanship. The Department 

of State approves the negotiation and 

conclusion of all international 

agreements to which the United States 

will become a party. The STOP Act does 

not contain mechanisms to persuade or 

obligate international governments or 

institutions to repatriate items. 

However, the existence of the STOP Act, 

including implementing regulations, 

may be influential under international 

mechanisms, such as the UNESCO 1970 

Convention on the Means of Prohibiting 

and Preventing the Illicit Import, Export 

and Transfer of Ownership of Cultural 

Property. 

65. Comment: One Tribe shared that 

the application of ARPA was complex 

on the Tribe’s allotted lands, resulting 

in a scenario where a landholder moved 

forward with excavation with no permit 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85086 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

because ARPA did not apply to Tribal 

lands and because no Tribal law 

regulated the excavation. The Tribe 

wanted the Department to consider this 

example of complex situations in Indian 

Country to inform drafting of the 

proposed regulation. 

Response: The Department is grateful 

to the Tribe for sharing this story as it 

exemplifies the complex legal issues 

that manifest in Indian country. ARPA 

does apply on trust and restricted 

Indian land. The application for an 

Export Certification requires 

presentation of an ARPA permit 

authorizing export of the resource or 

attestation that ARPA does not apply. 

66. Comment: A Tribal organization 

asked whether the Department would 

consult on a draft before a proposed 

rule, or whether the next draft would be 

a proposed rulemaking. 

Response: The Department is issuing 

a proposed rule rather than an interim 

rule at this time. 

67. Comment: One commenter 

expressed concern with the ‘‘most 

appropriate claimant’’ language used in 

the STOP Act. The commenter asked to 

envision alternative approaches. 

Response: The Department 

appreciates this concern. As required, 

these implementing regulations have 

been drafted consistent with the STOP 

Act’s express language and Congress’ 

intent in enacting the statute. 

68. Comment: A Native Hawaiian 

commenter asked what would happen if 

a museum in Europe voluntarily 

returned an item, and whether that item 

would return to its community or to the 

national museum. The same commenter 

asked who determined the item’s 

ultimate resting place. 

Response: The proposed regulations 

contemplate that the voluntary return of 

an item would occur as agreed by the 

individual or organization wishing to 

return the item and the appropriate 

Indian Tribe or Native Hawaiian 

organization. 

69. Comment: A Native Hawaiian 

commenter asked if the STOP Act 

addressed how items are stored or 

displayed. Another commenter asked if 

the STOP Act protected items found on 

public or private lands. 

Response: Manner of storage of items, 

and items from private lands outside the 

exterior boundaries of a reservation are 

outside the scope of the STOP Act and 

this regulation. The definitions of 

archaeological resource and cultural 

item includes resources and items from 

Federal land. 

70. Comment: One commenter 

expressed concern with the Federal 

Government’s role in identifying who 

could be criminalized and therefore 

who may be seen as a legitimate 

practitioner, particularly with regard to 

the Native Hawaiian Community. 

Response: The Department 

appreciates this concern and will 

endeavor to follow its obligations under 

the statute. 

71. Comment: Two commenters 

reiterated that Native Hawaiian 

organizations are different from Indian 

Tribes, and requested the Department 

avoid making one look like the other. 

Response: The Department agrees that 

Native Hawaiian organizations are 

different than Indian Tribes and will 

continue to strive to ensure that its 

regulations and guidance reflect that 

difference. 

72. Comment: One commenter asked 

that the proposed rule include ‘‘the 

provision of technical assistance if 

NHOs lack sufficient resource[s].’’ 

Response: The Department 

appreciates this concern and has 

included a broad offer of technical 

assistance in the proposed rule. 

73. Comment: Two commenters 

expressed concern about traditional 

divisions between the political and the 

spiritual. 

Response: The Department 

appreciates this concern and has 

considered it in drafting the proposed 

rule. 

74. Comment: One commenter asked 

the Department to amend the definition 

of Native Hawaiian organization in the 

STOP Act regulations to include any 

organization that has Native Hawaiians 

in substantive and policymaking 

positions within the organization. 

Another commenter asked that specific 

organizations not be listed in applicable 

definitions. 

Response: The Department appreciate 

these concerns. However, the definition 

provided in the proposed STOP Act 

regulations aligns with the terminology 

utilized in the recently amended 

NAGPRA regulations. 

75. Comment: One commenter asked 

how NHOs may be recognized. Several 

other commenters provided comments 

about recognition of NHOs and the 

Secretary’s list of recognized NHOs. 

Response: Recognition of NHOs is 

outside the scope of the Act and this 

regulation. The Department respectfully 

refers the inquirer to ONHR, which is 

well positioned to provide information 

about applicable processes. 

III. Subpart-by-Subpart Summary of the 

Proposed Rule 

This section summarizes the seven 

subparts of the proposed rule. 

A. General Provisions 

Subpart A includes an introductory 

section setting forth the purpose of the 

regulations, definitions for terms in the 

regulations, and provisions concerning 

filing of documents and severability. 

The definitions are mostly from the Act 

or, as directed in the Act, from the 

regulations implementing NAGPRA at 

43 CFR part 10 or the Department’s 

uniform regulations implementing the 

Archaeological Resources Protection Act 

(ARPA) at 43 CFR part 7. The 

Department proposes to add Native 

American human remains to the Act’s 

definition of ‘‘items prohibited from 

exportation.’’ This is consistent with the 

provision later in the proposed rule that 

the Secretary will not issue an export 

certification for native American human 

remains. The only major change to the 

NAGPRA and ARPA definitions is that 

proposed for ‘‘repatriation.’’ Under 

NAGPRA that term refers to the transfer 

of possession or control of a cultural 

item or human remains, but not 

necessarily physical custody. One of the 

purposes of the STOP Act, however, is 

to return tangible cultural heritage to the 

physical custody of the Indian Tribe or 

Native Hawaiian organization. This 

section also includes a placeholder 

definition for the ‘‘Office,’’ the entity 

within the Department of the Interior 

that will be delegated the responsibility 

for implementing the export 

certification and other programs under 

the Act. As noted above, as of this 

notice, the Department has not yet 

established that entity. This definition 

will be replaced with one for that entity 

once the Department establishes it. 

As noted, the Department is also 

proposing a provision concerning 

severability. In enacting the Act, 

Congress created several different ways 

to stop the export of cultural items and 

archaeological resources and facilitate 

the repatriation of tangible cultural 

heritage. While this rule is intended to 

create systematic processes for those 

methods, if a court holds any provision 

of one part of this rule invalid, it should 

not impact the other parts of the rule. 

For example, a decision finding invalid 

a portion of subpart B should not impact 

subpart C, because the detention, 

forfeiture, and repatriation of items not 

having a necessary export certification 

would not be affected by a problem in 

the process for obtaining a certification. 

Similarly, a decision finding invalid 

part of the export certification process 

should not impact the process for 

voluntary return of tangible cultural 

heritage or the provisions for the Native 

Working Group. Any decision finding 

any provisions in this rule to be invalid 

would not impact the remaining 

provisions, which would remain in 

force. The intent of this rule is to stop 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85087 

exports and facilitate repatriation as a 

whole, but the rule is not an 

interdependent whole—other provisions 

of the rule would implement that intent 

even if a court declared certain 

provisions invalid. 

B. Export Certification System 

The Act directs the Department to 

establish a system to issue export 

certifications, which are required to 

export cultural items and archaeological 

resources. In deference to the cultural 

sensitivity for Indian Tribes and Native 

Hawaiian organizations surrounding 

Native American human remains and 

recognition of the common law rule that 

human remains cannot be owned, the 

Department is proposing that it will not 

issue an export certification for the 

export of Native American human 

remains. 

The proposed export certification 

process begins with the submission of 

an application and supporting 

documents, together with the 

application fee. Because of the broad 

variety of such items and variations in 

the cultural importance of such items to 

Indian Tribes and Native Hawaiian 

organizations, the Department is 

proposing to require a separate 

application and certification for each 

item proposed to be exported. A draft 

application is included with this 

proposed rule; we invite comment on its 

contents. To make the Department’s 

review and the subsequent review and 

consultation with the relevant Indian 

Tribes and Native Hawaiian 

organizations as efficient as possible 

(given the extremely tight decisionmaking deadlines in the Act), the 

Department is proposing to require 

submission of supplemental documents 

in addition to the application. Such 

supplemental documents are designed 

to establish that the item is not an item 

prohibited from export and to give the 

Department and the Indian Tribe or 

Native Hawaiian organization sufficient 

information to decide what Indian Tribe 

or Native Hawaiian organization is 

culturally affiliated with the item and 

whether the Secretary should issue an 

export certification. 

After the exporter has filed the 

application and all supporting 

documents, the Department will upload 

the application and supporting 

documents into the Export Certification 

Database for review by Indian Tribes 

and Native Hawaiian organizations, 

with notification to the relevant Tribes 

and organizations; review the 

application for completeness; and begin 

coordination with relevant Federal 

agencies. Once the Department has 

determined that the application and all 

supporting documents are complete, the 

statutory process and timeframes for 

consultation and approval or 

disapproval begins. 

At the end of that process, the 

Department will notify the applicant 

and any relevant Indian Tribe or Native 

Hawaiian organization of its 

determination to issue or deny an export 

certification. That notification will 

include notice of the right to 

administratively appeal that 

determination under subpart D. Upon 

the expiration of the period for appeal, 

or the final exhaustion of administrative 

remedies, the Department will issue the 

Export Certification or decline to issue 

it. That decision may be further 

appealed to a United States District 

Court. If the Department issues an 

Export Certification, the exporter must 

provide U.S. Customs and Border 

Protection (CBP) with a copy of the 

Certification by following the process in 

these regulations. 

The proposed regulations also provide 

for an Indian Tribe or Native Hawaiian 

organization to issue, at its sole 

discretion, a Tribal Authorization that is 

equivalent to an Export Certification. 

C. Procedures for Detention, Forfeiture, 

Repatriation 

The Act provides for detention by 

CBP, and forfeiture, and repatriation by 

the Department of (1) any item that may 

be an Item Prohibited from Exportation 

that is exported, attempted to be 

exported, or otherwise transported from 

the United States; or (2) any item that 

may be an Item Requiring Export 

Certification that is exported, attempted 

to be exported, or otherwise transported 

from the United States without an 

Export Certification or Tribal 

Authorization. Proposed procedures for 

such actions are in subpart C of the 

proposed rule. Under the proposed 

procedures, CBP will detain any such 

item and contact the Department. The 

Department will then inform CBP 

whether the item is within the scope of 

the Act and should continue to be 

detained. If the Department advises CBP 

that the item is within the scope of the 

Act and should be detained, CBP will 

continue to detain the item and provide 

a detention form to the exporter together 

with a notice the Department provides 

to CBP of its right to appeal the 

detention under subpart D of this part. 

The Department, within 10 days of 

detention, will retrieve the detained 

item from the CBP Port of detention and 

execute the appropriate CBP Chain of 

Custody form. The Department is 

responsible for storage of the item in an 

appropriate manner based on 

consultation with the relevant Indian 

Tribe or Native Hawaiian organization. 

Upon the expiration of the period for 

appeal, or the final exhaustion of 

administrative remedies, the 

Department may refer the item to an 

appropriate Federal agency or U.S. 

Attorney’s Office for forfeiture 

proceedings, or the Department may 

follow abandonment procedures. If the 

exporter abandons the item, the 

Department will repatriate the item to 

(1) the Indian Tribe or Native Hawaiian 

organization from whose Tribal Land 

the item was removed or who is 

culturally affiliated with the item, for 

cultural items under NAGPRA; or (2) 

the Indian Tribe from whose Indian 

Land the item was removed, for 

archaeological resources under ARPA. 

Similarly, after an administrative 

declaration of forfeiture or a final order 

of forfeiture in a judicial proceeding, the 

Department may, consistent with 

applicable law and regulations 

governing the remission and mitigation 

of forfeitures, seek the item and 

repatriate it to (1) the Indian Tribe or 

Native Hawaiian organization from 

whose Tribal Land the item was 

removed or who is culturally affiliated 

with the item, for cultural items under 

NAGPRA; or (2) the Indian Tribe from 

whose Indian Land the item was 

removed, for archaeological resources 

under ARPA. 

D. Administrative Appeals 

The Act provides that the Department 

afford an exporter the opportunity for a 

hearing concerning certain actions in 

the export certification and detention 

processes. As proposed in subpart D, 

that hearing would be before the 

Departmental Cases Hearings Division 

in the Department’s Office of Hearings 

and Appeals, followed by an appeal to 

the Interior Board of Indian Appeals. 

Consistent with the exemption under 

the Act from the Freedom of 

Information Act, all proceedings before 

DCHD or the IBIA would be under seal. 

The proposed regulations provide that 

the hearing and appeals process must be 

exhausted before any appeal to a United 

States District Court. 

E. Voluntary Return of Tangible 

Cultural Heritage 

The Act tasks the Departments of the 

Interior and State with creating a 

process for the voluntary return of 

tangible cultural heritage to Indian 

Tribes and Native Hawaiian 

organizations. That proposed process is 

in subpart E of the proposed rule. The 

process begins with the individual or 

organization wishing to return the items 

submitting a simple list of the items to 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85088 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

the Department, with certain 

information concerning the items, to the 

extent that the individual or 

organization has that information. The 

Department will then conduct the 

consultation required for it to determine 

which Indian Tribe(s) or Native 

Hawaiian organization(s) would 

potentially be culturally affiliated with 

the items. Once the Department makes 

that determination, it will supply 

contact information and the list to the 

parties, and will provide assistance, as 

needed, to the parties to arrange for the 

return. The Departments of Homeland 

Security and State will facilitate both 

foreign and domestic transportation of 

the items, and at the request of the 

Indian Tribe or Native Hawaiian 

organization, the Interagency Working 

Group will explore funding mechanisms 

or use of in-kind resources to assist the 

Indian Tribe or Native Hawaiian 

organization. The goal of this process is 

for the Federal government to facilitate 

the return, not to obstruct or delay it. As 

noted by the Act, this process does not 

apply to a return of an object subject to 

NAGPRA by a museum as that term is 

defined in NAGPRA. 

F. Interagency Working Group 

The Act formalizes an existing 

informal Interagency Working Group of 

staff from the Departments of Justice, 

State, Homeland Security, and the 

Interior. This subpart sets out the 

purpose and duties of that group. 

G. Native Working Group 

The Act also creates a Native Working 

Group to provide recommendations to 

Federal agencies on certain areas in 

implementing the Act. Subpart G of the 

proposed rule sets out a proposed 

process for the Secretary to choose the 

members of the Native Working Group. 

Under that process, the Native Working 

Group would consist of thirteen 

members—one from each of the BIA’s 

twelve regions, plus one representing 

Native Hawaiian organizations. The 

members would be nominated by Indian 

Tribes and Native Hawaiian 

organizations. Any Tribe or organization 

could nominate someone as a member 

of the Working Group, even if that Tribe 

or organization is not in the same region 

or State as the nominee. The proposed 

rule also provides for consideration by 

the Federal Government of requests 

from the Native Working Group for 

agency actions, with specific processes 

by the Departments of Justice and State, 

and for the Native Working Group to 

request information and assistance from 

Federal agencies, committees, and 

working groups. 

IV. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866, 14094 and E.O. 13563) 

Executive Order (E.O.) 12866, as 

amended by E.O. 14094, provides that 

the Office of Information and Regulatory 

Affairs (OIRA) at the Office of 

Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this rule is significant. 

E.O. 14094 amends E.O. 12866 and 

reaffirms the principles of E.O. 12866 

and E.O. 13563 and states that that 

regulatory analysis should facilitate 

agency efforts to develop regulations 

that serve the public interest, advance 

statutory objectives, and be consistent 

with E.O. 12866, E.O. 13563, and the 

Presidential Memorandum of January 

20, 2021 (Modernizing Regulatory 

Review). Regulatory analysis, as 

practicable and appropriate, shall 

recognize distributive impacts and 

equity, to the extent permitted by law. 

E.O. 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 lease burdensome 

tools for achieving regulatory ends. E.O. 

13563 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. The DOI has 

developed this rule in a manner 

consistent with these requirements. 

In accordance with 5 U.S.C. 553(b)(4), 

a summary of this rule may be found at 

https://www.regulations.gov by 

searching for ‘‘RIN 1076–AF78.’’ 

B. Regulatory Analysis 

1. Regulatory Flexibility Act 

The Department certifies that this 

document would 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.). For 

the final rule stage, DOI will prepare a 

final analysis using the public 

comments received. For the proposed 

rule stage, DOI welcomes additional 

data regarding anticipated compliance 

costs, and impacts to the annual 

revenues, for small entities. 

The following table lists small 

business size standards, matched to 

industries described in the North 

American Industry Classification 

System (NAICS), as modified by the 

OMB, effective January 1, 2022, and 

published March 17, 2023 at https://

www.sba.gov/document/support-tablesize-standards: 

NAICS code NAICS industry description 

Size standards 

in millions 

of dollars 

Size standards 

in number of 

employees 

458310 ......... Jewelry Retailers ............................................................................................................... $20.5 ..............................

459130 ......... Sewing, Needlework, and Piece Goods Retailers ............................................................ 34.0 ..............................

459420 ......... Gift, Novelty, and Souvenir Retailers ................................................................................ 13.5 ..............................

459920 ......... Art Dealers ........................................................................................................................ 16.5 ..............................

DOI’s preliminary threshold analysis 

included the small entity communities 

(and industries) for retailers and dealers 

listed in the above table. The proposed 

regulations would not have a significant 

economic impact on these small 

entities. During Tribal consultations 

held in fall 2023 on its draft proposed 

rule, DOI received feedback from 

stakeholders in these industries but did 

not receive any information or 

comments specific to the development 

of this preliminary threshold analysis. 

Consequently, DOI has developed a list 

of questions located at the end of this 

section to obtain more information from 

these small entity communities (and 

industries) for retailers and dealers to 

aid in further developing this analysis. 

The rule DOI proposes creates a 

minimal burden on select market 

participants who voluntarily opt to 

participate in stopping the export of 

cultural items, and aid in facilitating the 

international repatriation of cultural 

items prohibited from being trafficked 

by the NAGPRA, and archeological 

resources prohibited from being 

trafficked by the ARPA. The burden on 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85089 

a participant includes the 

administrative fee DOI will assess and 

potentially an appraisal the IRS would 

require for cultural items that 

participants claim as a tax-deductible 

gift if they have a monetary value of 

$5,000.00 or more. The proposed 

regulations would not have an impact 

on a substantial number of these small 

entities. DOI’s threshold analysis 

identified: 

• no increase to regulatory 

compliance costs; 

• no decreases to annual revenue; 

• no increases to the risk of shortterm or long-term insolvency; and 

• no disproportional impacts to small 

businesses. 

INITIAL/THRESHOLD REGULATORY FLEXIBILITY ANALYSIS

NAICS code NAICS industry description 

Regulatory 

compliance 

costs 

Decrease to 

annual revenue 

458310 ......... Jewelry Retailers ............................................................................................................... $0.00 $0.00 

459130 ......... Sewing, Needlework, and Piece Goods Retailers ............................................................ 0.00 0.00 

459420 ......... Gift, Novelty, and Souvenir Retailers ................................................................................ 0.00 0.00 

459920 ......... Art Dealers ........................................................................................................................ 0.00 0.00 

2. Regulatory Impact Analysis 

Alternatives 

As this rule is required by the STOP 

Act, the Department considered no 

other alternatives to the proposed rule. 

Burdens, Benefits and Costs 

The Department is proposing new 

regulations to establish an export 

certification system, set forth 

procedures for detention of items 

subject to the rule and repatriation of 

those items, establish a framework for 

voluntary return of items subject to the 

rule, and establish interagency and 

Native working groups. The Preamble 

discusses the rationale for all the 

changes, which we assume will have no 

major economic effects, small business 

impacts, or distributional effects. 

Overall, the rule is expected to prevent 

the export of Native American cultural 

items that are held in violation of 

current Federal laws for sale in foreign 

countries; to repatriate such items from 

individuals and organizations having 

such items; and to improve coordination 

between Federal agencies, Indian 

Tribes, and Native Hawaiian 

organizations (NHOs) seeking to prevent 

the export and sale of such items. 

This regulation will benefit Tribes, 

NHOs, and individuals who have their 

patrimony returned, and reduce future 

illegal trade in patrimony. This will also 

benefit buyers and sellers of items that 

qualify for certification, who can be 

confident of the legality of holding, 

trading, and owning these items. 

Costs related to this regulation may 

include the time and fees potential 

exporters spend to obtain certification, 

higher prices for purchasers of these 

items (whether certified or not), and the 

time and expense required for Tribes 

and NHOs to participate in certification. 

There may also be costs for purchasers 

who make a voluntary return of items, 

and for Tribes and NHOs to receive and 

curate returned items. Under the Act, 

the Secretary may assess reasonable fees 

to process export certification 

applications and may collect fees to the 

extent and in the amounts provided in 

advance in appropriations Acts. 

Distributional effects could depend on 

how fees collected from exporters are 

used. Distributional effects may be 

minimal if the fee is set solely to offset 

the Government costs of administering 

the program. Under proposed Section 

1194.107(e), ‘‘if an Indian Tribe or 

Native Hawaiian organization lacks 

sufficient resources to access the 

database or respond to agency 

communications in a timely manner, the 

Secretary, in consultation with Indian 

Tribes and Native Hawaiian 

organizations, will provide technical 

assistance to facilitate that access or 

response, as applicable.’’ Thus, the 

Secretary will be able to lessen any 

distributional effects on Tribes and 

NHOs. 

DOI currently lacks information to 

describe the baseline, or state of the 

world in the absence of the regulation. 

Some priority learning questions where 

we seek information include: 

• What data or estimates do we have 

to describe the ‘‘without-regulation’’ 

baseline? 

Æ How many items are currently 

exported that will be subject to the 

regulation? 

Æ How many firms and individuals 

are currently engaged in this export? 

• What will change as a result of the 

regulation? 

Æ Which groups will experience costs 

and benefits? 

Æ How can we quantify and value 

those costs and benefits? 

Æ What are time and monetary costs 

of complying with the regulation for the 

individuals and groups involved? 

• What are the likely effects for 

exporters applying for certification? 

Æ What are likely scenarios for the 

proportion of compliant and noncompliant exporters? 

• What are the likely effects for 

purchasers completing a voluntary 

return? 

• What are the roles of Tribes and 

NHOs in verifying certifications? 

• What is the role of Federal 

government staff? 

C. Unfunded Mandates Reform Act of 

1995 

This rule would not impose an 

unfunded mandate on State, local, or 

Tribal governments or the private sector 

of more than $100 million per year. The 

rule would not have a significant or 

unique effect on State, local, or Tribal 

governments or the private sector 

because this rule affects only putative 

exporters and their related businesses. A 

statement containing the information 

required by the Unfunded Mandates 

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

required. 

D. Takings (E.O. 12630) 

This rule would not affect a taking of 

private property or otherwise have 

taking implications under E.O. 12630. A 

takings implication assessment is not 

required. 

E. Federalism (E.O. 13132) 

Under the criteria in section 1 of E.O. 

13132, this rule would not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. A 

federalism summary impact statement is 

not required. 

F. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of E.O. 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85090 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

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. 

G. Consultation With Indian Tribes (E.O. 

13175) 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance and Tribal sovereignty. We 

have evaluated this rule under the 

Department’s consultation policy and 

under the criteria in E.O. 13175 and 

have hosted extensive consultation with 

federally recognized Indian Tribes in 

preparation of this proposed rule, 

including through a Dear Tribal Leader 

letter delivered to every federally 

recognized Tribe in the country, and 

through three consultation sessions held 

on May 9, 13, and 23, 2022. 

H. Paperwork Reduction Act 

This proposed rule contains new 

information collections. All information 

collections require approval under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). We may not 

conduct or sponsor and you are not 

required to respond to a collection of 

information unless it displays a 

currently valid Office of Management 

and Budget (OMB) control number. The 

Department is seeking approval of a new 

information collection, as follows. 

Brief Description of Collection: The 

Act requires the Department to 

promulgate regulations to implement 

the Native Working Group; export 

certification application and issuance 

procedures; and secure central Federal 

database information system for the 

purpose of making export certification 

applications available to Indian Tribes 

and Native Hawaiian organizations. We 

estimate that the annual cost to the 

Federal Government to administer this 

information collection is $3,000,000. 

Title: Export Certification System, 25 

CFR 1194. 

OMB Control Number: 1076–NEW. 

Form Number: Export Certification 

Application. 

Type of Review: New collection. 

Respondents/Affected Public: 

Individuals, Private Sector, 

Government. 

Total Estimated Number of Annual 

Respondents: 122. 

Total Estimated Number of Annual 

Responses: 122. 

Estimated Completion Time per 

Response: Varies from 2 to 18 hours. 

Total Estimated Number of Annual 

Burden Hours: 2,504. 

Respondents’ Obligation: Required to 

obtain a benefit. 

Frequency of Response: On occasion. 

Total Estimated Annual Non-Hour 

Burden Cost: $50,044. 

As part of our continuing effort to 

reduce paperwork and respondent 

burdens, we invite the public and other 

Federal agencies to comment on any 

aspect of this information collection, 

including: 

(1) Whether or not the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether or not the 

information will have practical utility; 

(2) The accuracy of our estimate of the 

burden for this collection of 

information, including the validity of 

the methodology and assumptions used; 

(3) Ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and 

(4) Ways to minimize the burden of 

the collection of information on those 

who are to respond, including through 

the use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

response. 

Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

notice to https://www.reginfo.gov/ 

public/do/PRAMain. 

Find this particular information 

collection by selecting ‘‘Currently under 

30-day Review—Open for Public 

Comments’’ or by using the search 

function. Please provide a copy of your 

comments to consultation@bia.gov. 

Please reference OMB Control Number 

1076–NEW in the subject line of your 

comments. 

I. National Environmental Policy Act 

(NEPA) 

Under NEPA, categories of Federal 

actions that normally do not 

significantly impact the human 

environment may be categorically 

excluded from the requirement to 

prepare an environmental assessment or 

impact statement. (40 CFR 1501.4) 

Under the Department, regulations that 

are administrative or procedural are 

categorially excluded from NEPA 

analysis because they normally do not 

significantly impact the human 

environment. (43 CFR 46.210(i)) This 

rule is administrative and procedural in 

nature. Consequently, it is categorically 

excluded from the NEPA requirement to 

prepare a detailed environmental 

analysis. Further, the Department also 

determined that the rule would not 

involve any of the extraordinary 

circumstances under a categorical 

exclusion that would necessitate 

environmental analysis. (43 CFR 

46.215.) 

J. Energy Effects (E.O. 13211) 

This rule is not a significant energy 

action under the definition in E.O. 

13211. A Statement of Energy Effects is 

not required. 

K. Clarity of This Regulation 

We are required by Executive Orders 

12866 (section 1(b)(12)), 12988 (section 

3(b)(l)(B)), and 13563 (section l(a)), 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 common, everyday words and 

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, the sections where you feel 

lists or tables would be useful, and so 

forth. 

L. 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. 

M. Pay-As-You-Go Act of 2010 

Public Law 117–258: There is 

authorized to be appropriated to carry 

out this Act $3,000,000 for each of fiscal 

years 2022 through 2027. 

N. Privacy Act of 1974, System of 

Records 

The Privacy Act of 1974, as amended, 

embodies fair information practice 

principles in a statutory framework 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85091 

governing the means by which Federal 

agencies collect, maintain, use, and 

disseminate individuals’ records. The 

Privacy Act applies to records about 

individuals that are maintained in a 

‘‘system of records.’’ A ‘‘system of 

records’’ is a group of any records under 

the control of an agency from which 

information is retrieved by the name of 

an individual or by some identifying 

number, symbol, or other identifying 

particular assigned to the individual. 

The Privacy Act defines an individual 

as a United States citizen or lawful 

permanent resident. The Privacy Act 

requires each agency to publish in the 

Federal Register a description denoting 

the existence and character of each 

system of records that the agency 

maintains, and the routine uses of each 

system. 

This proposed rule contains 

recordkeeping requirements subject to 

the Privacy Act. The Department will 

publish in the Federal Register a 

description denoting the existence and 

character of system of record, and the 

routine uses of the system. 

List of Subjects in 25 CFR Part 1194 

Administrative practice and 

procedure, Alaska, Hawaiian Natives, 

Historic preservation, Human remains, 

Indians, Indians—claims, Indians—law. 

■ For the reasons set forth in the 

preamble above, the Department of the 

Interior, Assistant Secretary—Indian 

Affairs, proposes to add 25 CFR part 

1194 to read as follows: 

PART 1194—SAFEGUARD TRIBAL 

OBJECTS OF PATRIMONY 

Sec. 

Subpart A—General Provisions 

1194.1 What is the purpose of this part? 

1194.2 How are key terms defined in the 

part? 

1194.3 What are the timeframes and 

methods of delivery of documents under 

this part? 

1194.4 How does severability apply under 

this regulation? 

Subpart B—Export Certification System 

1194.101 What is the purpose of the Federal 

Register Notice under this part? 

1194.102 When do I need an Export 

Certification? 

1194.103 What is the process for applying 

for an Export Certification? 

1194.104 What is the process for the Office 

to review an Export Certification? 

1194.105 What is the process for the Office 

to approve an Export Certification? 

1194.106 What is the process for the 

Secretary to revoke an Export 

Certification? 

1194.107 What is the Export Certification 

Database? 

1194.108 When are Export Certification 

Fees assessed? 

1194.109 Under what circumstances may a 

Tribal Authorization be issued? 

1194.110 How does the Paperwork 

Reduction Act affect this part? 

Subpart C—Procedures for Detention, 

Forfeiture, Repatriation, and Return 

1194.201 When can CBP detain certain 

items? 

1194.202 How does CBP deliver items to 

the Office? 

1194.203 What is the process for forfeiture 

proceedings? 

1194.204 Does safe harbor apply this 

regulation? 

1194.205 What are civil penalties for 

violations of this regulation? 

1194.206 How is an item repatriated or 

returned? 

Subpart D—Administrative Appeals 

1194.301 What is the purpose of this 

section? 

1194.302 How do I request a hearing? 

1194.303 What are the hearing procedures? 

1194.304 How do I appeal a decision? 

Subpart E—Voluntary Return of Tangible 

Cultural Heritage 

1194.401 What is the purpose of this 

section? 

1194.402 When is consultation initiated? 

1194.403 What is the process for 

consultation and return of items under 

this regulation? 

Subpart F—Interagency Working Group 

1194.501 What is the Interagency Working 

Group? 

1194.502 What is the membership of 

Interagency Working Group? 

1194.503 What are the duties of Interagency 

Working Group? 

Subpart G—Native Working Group 

1194.601 What is the relationship between 

the Office and the Native Working 

Group? 

1194.602 What is the membership of the 

Native Working Group? 

1194.603 What are the duties of the Native 

Working Group? 

Authority: 16 U.S.C. 470aaa–470aaa11; 25 

U.S.C. 9, 25 U.S.C. 3001–3013; 25 U.S.C. 

3071; 25 U.S.C. 3078. 

Subpart A—General Provisions 

§ 1194.1 What is the purpose of this part? 

In stopping the export of cultural 

items and archaeological resources and 

facilitating the repatriation of tangible 

cultural heritage, the Safeguard Tribal 

Objects of Patrimony (STOP) Act, Public 

Law 117–258, codified at 25 U.S.C. 

3071, et seq., recognizes the inherent 

rights of Indian Tribes and Native 

Hawaiian organizations in their own 

cultural heritage, wherever their 

cultural heritage is located. Consistent 

with the STOP Act’s express language 

and Congress’ intent in enacting the 

statute, these regulations require the 

Secretary and others to make decisions 

for the benefit of Indian Tribes and 

Native Hawaiian organizations, through 

consultation and collaboration with 

them. In implementing this systematic 

process, the Secretary must defer and 

give preference to the expertise, 

customs, traditions, and Native 

American traditional knowledge of 

lineal descendants, Indian Tribes, and 

Native Hawaiian organizations, as 

Indian Tribes and Native Hawaiian 

organizations understand them. 

§ 1194.2 How are key terms defined in the 

part? 

Act means the Safeguard Tribal 

Objects of Patrimony Act, Public Law 

No. 117–258 (136 Stat. 2372) as codified 

at 25 U.S.C. 3071 et seq. 

Archaeological resource means any 

material remains of past human life or 

activities which are of archaeological 

interest as described in uniform 

regulations for the Archaeological 

Resources Protection Act pursuant to 16 

U.S.C. 470bb, 43 CFR 7.3; are Native 

American in origin; and are at least 100 

years of age. 

Business day means Monday through 

Friday, excluding federally recognized 

holidays; other days that the applicable 

office of the Federal Government is 

closed to the public; and holidays or 

other days when the Indian Tribe or 

Native Hawaiian organization that could 

be culturally affiliated with the relevant 

item is closed to the public. 

CBP means the Secretary of the U.S. 

Department of Homeland Security, 

acting through the Commissioner of U.S. 

Customs and Border Protection. 

Consultation or Consult means the 

exchange of information, open 

discussion, and joint deliberations made 

between all parties in good-faith and in 

order to: 

(1) Seek, discuss, and consider the 

views of all parties; 

(2) Strive for consensus, agreement, or 

mutually acceptable alternatives; and 

(3) Enable meaningful consideration 

of the Native American traditional 

knowledge, including oral history, of 

lineal descendants, Indian Tribes, and 

Native Hawaiian organizations. 

Cultural affiliation means there is a 

reasonable connection between human 

remains or cultural items and an Indian 

Tribe or Native Hawaiian organization 

based on a relationship of shared group 

identity. Cultural affiliation may be 

clearly identified by the information 

available or reasonably identified by the 

geographical location or acquisition 

history of the human remains or cultural 

items. 

Cultural item means a funerary object, 

sacred object, or object of cultural 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85092 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

patrimony according to the Native 

American traditional knowledge of a 

lineal descendant, Indian Tribe, or 

Native Hawaiian organization. 

Detention means the holding for 

further investigation of cultural items or 

archaeological resources and any 

associated property that is neither 

immediately released nor seized but is 

temporarily held by CBP. 

Export certification means the 

authorization issued by the Office 

allowing an exporter to export an item 

requiring an export certification. 

Funerary object means any object 

reasonably believed to have been placed 

intentionally with or near human 

remains. A funerary object is any object 

connected, either at the time of death or 

later, to a death rite or ceremony of a 

Native American culture according to 

the Native American traditional 

knowledge of a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization. This term does not include 

any object returned or distributed to 

living persons according to traditional 

custom after a death rite or ceremony. 

Funerary objects are either associated 

funerary objects or unassociated 

funerary objects. 

(1) Associated funerary object means 

any funerary object related to human 

remains that were removed and the 

location of the human remains is 

known. Any object made exclusively for 

burial purposes or to contain human 

remains is always an associated 

funerary object regardless of the 

physical location or existence of any 

related human remains. 

(2) Unassociated funerary object 

means any funerary object that is not an 

associated funerary object and is 

identified by a preponderance of the 

evidence as one or more of the 

following: 

(i) Related to human remains but the 

human remains were not removed, or 

the location of the human remains is 

unknown, 

(ii) Related to specific individuals or 

families, 

(iii) Removed from a specific burial 

site of an individual or individuals with 

cultural affiliation to an Indian Tribe or 

Native Hawaiian organization, or 

(iv) Removed from a specific area 

where a burial site of an individual or 

individuals with cultural affiliation to 

an Indian Tribe or Native Hawaiian 

organization is known to have existed, 

but the burial site is no longer extant. 

Human remains means any physical 

part of the body of a Native American 

individual. This term does not include 

human remains to which a museum or 

Federal agency can prove it has a right 

of possession. 

(1) Human remains reasonably 

believed to be comingled with other 

materials (such as soil or faunal 

remains) may be treated as human 

remains. 

(2) Human remains incorporated into 

a funerary object, sacred object, or object 

of cultural patrimony are considered 

part of the cultural item rather than 

human remains. 

(3) Human remains incorporated into 

an object or item that is not a funerary 

object, sacred object, or object of 

cultural patrimony are considered 

human remains. 

Indian land means lands of Indian 

Tribes, or Indian individuals, which are 

either held in trust by the United States 

or subject to a restriction against 

alienation imposed by the United States, 

except for subsurface interests not 

owned or controlled by an Indian Tribe 

or Indian individual. 

Indian Tribe means any Tribe, band, 

nation, or other organized group or 

community of Indians, including any 

Alaska Native village (as defined in, or 

established pursuant to, the Alaska 

Native Claims Settlement Act (43 U.S.C. 

1601 et seq.)), recognized as eligible for 

the special programs and services 

provided by the United States 

Government to Indians because of their 

status as Indians by its inclusion on the 

list of recognized Indian Tribes 

published by the Secretary of the 

Interior under the Act of November 2, 

1994 (25 U.S.C. 5131). 

Item prohibited from exportation 

means— 

(1) A cultural item prohibited from 

being trafficked, including through sale, 

purchase, use for profit, or transport for 

sale or profit, by— 

(i) Section 1170 of title 18, United 

States Code, as added by the Native 

American Graves Protection and 

Repatriation Act (25 U.S.C. 3001 et 

seq.); or 

(ii) Any other Federal law or treaty; 

(2) An archaeological resource 

prohibited from being trafficked, 

including through sale, purchase, 

exchange, transport, receipt (including 

as a gift), or offer to sell, purchase, or 

exchange, including in interstate or 

foreign commerce, by— 

(i) Section 6(b) and (c) of the 

Archaeological Resources Protection Act 

of 1979 (16 U.S.C. 470ee); or 

(ii) Any other Federal law or treaty; 

and 

(3) Native American human remains. 

Item requiring export certification 

means a cultural item and an 

archaeological resource, but does not 

include any item or resource for which 

an Indian Tribe or Native Hawaiian 

organization with a cultural affiliation 

with the item has provided a Tribal 

Authorization. 

Native American means of, or relating 

to, a Tribe, people, or culture that is 

indigenous to the United States. To be 

considered Native American under this 

part, human remains or cultural items 

must bear some relationship to a Tribe, 

people, or culture indigenous to the 

United States. 

(1) A Tribe is an Indian Tribe. 

(2) A people comprise the entire body 

of persons who constitute a community, 

Tribe, nation, or other group by virtue 

of a common culture, history, religion, 

language, race, ethnicity, or similar 

feature. The Native Hawaiian 

Community is a ‘‘people.’’ 

(3) A culture comprises the 

characteristic features of everyday 

existence shared by people in a place or 

time. 

Native American traditional 

knowledge means knowledge, 

philosophies, beliefs, traditions, skills, 

and practices that are developed, 

embedded, and often safeguarded by or 

confidential to individual Native 

Americans, Indian Tribes, or the Native 

Hawaiian Community. Native American 

traditional knowledge contextualizes 

relationships between and among 

people, the places they inhabit, and the 

broader world around them, covering a 

wide variety of information, including, 

but not limited to, cultural, ecological, 

linguistic, religious, scientific, societal, 

spiritual, and technical knowledge. 

Native American traditional knowledge 

may be, but is not required to be, 

developed, sustained, and passed 

through time, often forming part of a 

cultural or spiritual identity. Native 

American traditional knowledge is 

expert opinion. Other terms such as 

Indigenous Knowledge, Traditional 

Knowledge(s), Traditional Ecological 

Knowledge, Tribal Ecological 

Knowledge, Native Science, Indigenous 

Science, and others, are sometimes used 

to describe this knowledge system. 

Native Hawaiian organization means 

any organization that: 

(1) Serves and represents the interests 

of Native Hawaiians, who are 

descendants of the indigenous people 

who, before 1778, occupied and 

exercised sovereignty in the area that 

now constitutes the State of Hawai1i; 

(2) Has as a primary and stated 

purpose the provision of services to 

Native Hawaiians; and 

(3) Has expertise in Native Hawaiian 

affairs, and includes but is not limited 

to: 

(i) The Office of Hawaiian Affairs 

established by the constitution of the 

State of Hawai1i, 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85093 

(ii) Native Hawaiian organizations 

(including ‘ohana) who are registered 

with the Secretary of the Interior’s 

Office of Native Hawaiian Relations, 

and 

(iii) Hawaiian Homes Commission Act 

(HHCA) Beneficiary Associations and 

Homestead Associations as defined 

under 43 CFR 47.10. 

Object of cultural patrimony means an 

object that has ongoing historical, 

traditional, or cultural importance 

central to a Native American group, 

including any constituent sub-group 

(such as a band, clan, lineage, 

ceremonial society, or other 

subdivision), according to the Native 

American traditional knowledge of an 

Indian Tribe or Native Hawaiian 

organization. An object of cultural 

patrimony may have been entrusted to 

a caretaker, along with the authority to 

confer that responsibility to another 

caretaker. The object must be reasonably 

identified as being of such importance 

central to the group that it: 

(1) Cannot or could not be alienated, 

appropriated, or conveyed by any 

person, including its caretaker, 

regardless of whether the person is a 

member of the group, and 

(2) Must have been considered 

inalienable by the group at the time the 

object was separated from the group. 

Office means the Office in the 

Department of the Interior that the 

Secretary has designated as responsible 

for exercising the duties of the Secretary 

under the Act. 

Repatriation means return of cultural 

items, archaeological resources, or 

tangible cultural heritage to a culturally 

affiliated Indian Tribe or Native 

Hawaiian organization. 

Right of possession means possession 

or control obtained with the voluntary 

consent of a person or group that had 

authority of alienation. Right of 

possession is given through the original 

acquisition of: 

(1) An unassociated funerary object, a 

sacred object, or an object of cultural 

patrimony from an Indian Tribe or 

Native Hawaiian organization with the 

voluntary consent of a person or group 

with authority to alienate the object; or 

(2) An associated funerary object that 

was exhumed, removed, or otherwise 

obtained with full knowledge and 

consent of the next of kin or, when no 

next of kin is ascertainable, the official 

governing body of the appropriate 

Indian Tribe or Native Hawaiian 

organization. 

Sacred object means a specific 

ceremonial object needed by a 

traditional religious leader for presentday adherents to practice traditional 

Native American religion, according to 

the Native American traditional 

knowledge of a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization. While many items might 

be imbued with sacredness in a culture, 

this term is specifically limited to an 

object needed for the observance or 

renewal of a Native American religious 

ceremony. 

Secretary means the Secretary of the 

Interior. 

Tangible cultural heritage means— 

(1) Native American human remains; 

or 

(2) Culturally, historically, or 

archaeologically significant objects, 

resources, patrimony, or other items that 

are affiliated with a Native American 

culture. 

Tribal authorization means the 

authorization issued by a culturally 

affiliated Indian Tribe or Native 

Hawaiian organization, at the sole 

discretion of the Tribe or organization, 

stating that an item does not require an 

Export Certification from the Secretary. 

Tribal land means 

(1) All lands within the exterior 

boundaries of any Indian reservation; 

(2) All dependent Indian 

communities; and 

(3) Any lands administered for the 

benefit of Native Hawaiians pursuant to 

the Hawaiian Homes Commission Act, 

1920, and section 4 of Public Law 86– 

3. 

§ 1194.3 What are the timeframes and 

methods of delivery of documents under 

this part? 

(a) Whenever this part requires or 

allows the exporter to file a document 

on or before a certain date, the exporter 

is responsible for submitting that 

document so as to reach the 

Government office designated for 

receipt by the time specified. The 

exporter may use the U.S. Postal Office 

(USPS), a commercial carrier, or 

electronic or facsimile transmission. 

The Office will consider the document 

filed on the date on which the 

document is received by the 

Government office designated for 

receipt. Acceptable evidence to 

establish the time of receipt by the 

Government office includes any official 

USPS receipt, commercial carrier 

signature log, time/date stamp placed by 

the Government on the document, other 

documentary evidence of receipt 

maintained by that Government office, 

or oral testimony or statements of 

Government personnel. 

(b) Whenever this part requires or 

allows the Government to issue or file 

a document on or before a certain date, 

the document will be considered to be 

issued or filed on the date on which the 

document was placed in the USPS 

system, delivered to a commercial 

carrier, or sent by electronic or facsimile 

transmission. Acceptable evidence to 

establish the time of filing or issuance 

by the Government includes any official 

USPS sender’s receipt, commercial 

carrier receipt log, and time/date stamp 

placed by the government office on the 

document, other documentary evidence 

of receipt maintained by that office, or 

oral testimony or statements of 

Government personnel. 

§ 1194.4 How does severability apply 

under this regulation? 

If a court holds any provisions of the 

regulations in this part or their 

applicability to any person or 

circumstances invalid, the remainder of 

the regulations and their applicability to 

other people or circumstances will not 

be affected. 

Subpart B—Export Certification 

System 

§ 1194.101 What is the purpose of the 

Federal Register notice under this part? 

The Secretary shall publish in the 

Federal Register, after consultation with 

Indian Tribes and Native Hawaiian 

organizations, an announcement that 

provides fair notice to exporters and 

other persons regarding which items 

require an export certification under 

this section, and: 

(a) Includes a description of 

characteristics typical of items requiring 

export certification and definitions for 

‘‘archeological resource’’ and ‘‘cultural 

item’’; 

(b) Describes the provenance 

requirements associated with the 

trafficking prohibition of 18 U.S.C. 1170 

and 16 U.S.C. 470ee(b)–(c), and 

describes the characteristics of items 

prohibited from exportation; 

(c) Includes the definitions of Indian 

Tribe, Native American, and Native 

Hawaiian organization in § 1194.2 and a 

description of how those terms apply to 

archaeological resources and cultural 

items subject to these regulations; and 

(d) Includes a description of 

characteristics typical of items that do 

not qualify as items requiring export 

certification and therefore do not 

require an export certification under 

this section, including clarification that: 

(1) An item made solely for 

commercial purposes is presumed to not 

qualify as an item requiring export 

certification, unless an Indian Tribe or 

Native Hawaiian organization 

challenges that presumption during the 

process for obtaining an export 

certification under § 1194.102; 

(2) A Tribal authorization may be 

used as evidence to demonstrate that an 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85094 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

item would not qualify as an Item 

Requiring Export Certification; and 

(e) Information on consulting with 

Indian Tribes and Native Hawaiian 

organizations. Such information would 

include information on how to contact 

Indian Tribes and Native Hawaiian 

organizations and the possibility, in the 

sole discretion of the Indian Tribe or 

Native Hawaiian organization, of 

obtaining a Tribal Authorization. 

§ 1194.102 When do I need an export 

certification? 

(a) Any person attempting to export 

an item that may be an item requiring 

export certification must apply to the 

Office for an export certification 

covering that item before transporting or 

shipping the item to any foreign 

country. 

(b) Each item to be transported 

requires a separate application, and the 

Office will process each application 

separately. 

(c) No item requiring export 

certification may be exported from the 

United States without first having 

obtained an export certification in 

accordance with this subpart. The Office 

will not issue an export certification for 

Native American human remains. 

(d) Exporters may apply for an export 

certification by filing the application 

described in § 1194.103 with all 

required supporting documentation. 

(e) The Office will process the 

application using the procedure in 

§ 1194.104 of this part, and will assess 

exporters who submit an application the 

fee in § 1194.108 of this part. 

§ 1194.103 What is the process for 

applying for an export certification? 

(a) Who may apply: 

(1) An exporter seeking to export an 

item that may be an item requiring 

export certification from the United 

States must submit to the Office an 

export certification application. 

(2) An Indian Tribe or a Native 

Hawaiian organization with an interest 

in a particular item requiring export 

certification may submit to the Office an 

export certification application. 

(b) How to apply: 

(1) Requests for an export certification 

shall be made on an export certification 

application. The application must be 

accompanied by the fee required under 

§ 1194.108. 

(2) In addition to completing the 

application under § 1194.103(b)(1), an 

application to the Office must include: 

(i) Description and pictures (if 

culturally appropriate) of the item 

requiring export certification; 

(ii) All available information 

regarding the provenance of the item 

requiring export certification; 

(iii) The presence of any potentially 

hazardous substances used to treat the 

item requiring export certification, if 

known; 

(iv) An attestation that, to the best of 

the knowledge and belief of the 

exporter, the exporter is not attempting 

to export an item prohibited from 

exportation; 

(v) Substantial evidence of 

consultation with possibly culturally 

affiliated Indian Tribes or Native 

Hawaiian organizations, including, but 

not limited to, written correspondence 

between the exporter and the leader of 

the Indian Tribe or Native Hawaiian 

organization and agreement from the 

leader of the Indian Tribe or Native 

Hawaiian organization that the Office 

should issue an export certification; 

(vi) Evidence, for an archaeological 

resource, of a permit under section 4 of 

the Archaeological Resources Protection 

Act, 16 U.S.C. 470cc, that authorizes 

export or that a permit is not necessary; 

(vii) Evidence, for Native American 

cultural items, of a disposition 

statement (43 CFR 10.7(b) or (c)(5)); a 

repatriation statement (43 CFR 10.9(g)); 

or that a disposition statement or 

repatriation statement is not necessary, 

with written confirmation from the 

Indian Tribe or Native Hawaiian 

organization with authority to alienate 

the item requiring export certification 

that the exporter has a right of 

possession of the item requiring export 

certification or the Indian Tribe or 

Native Hawaiian organization has 

relinquished title or control of the item 

requiring export certification in 

accordance with section 3 of NAGPRA; 

(viii) If the item was excavated or 

removed, evidence concerning the 

ownership of the land that the item was 

removed from at the time the item was 

removed; 

(ix) Evidence adequate to show that 

the Indian Tribes or Native Hawaiian 

organizations are culturally affiliated 

with the item under 43 CFR 10.3; and 

(x) The purpose and timeframe for the 

proposed exportation of the item. 

(3) The exporter must submit all 

documents supporting the application 

in the format(s) required for upload into 

the export certification database 

established by § 1194.107. The Office 

will publish the requirements for 

upload on its website. 

(4) When the Office receives an export 

certification application and supporting 

documents, the Office will immediately 

include the application and supporting 

documents in the export certification 

database established by § 1194.107. Any 

further documents that the exporter 

submits to support an incomplete 

application under § 1194.104 will be 

added to the database upon receipt by 

the Office. 

§ 1194.104 What is the process for the 

Office to review an export certification? 

(a) Upon receipt of an export 

certification application, the Office shall 

review the application for completeness 

in compliance with § 1194.103 of this 

part. That review will include 

coordination with relevant Federal 

agencies to identify whether there are 

active Federal investigations into the 

trafficking of cultural items or 

archaeological resources by the 

applicant. The Office will also notify the 

relevant Indian Tribes and Native 

Hawaiian organizations of the receipt of 

the application. 

(b) Within 20 business days of receipt, 

the Office will notify the exporter by 

mail or overnight carrier whether the 

application meets the criteria of 

§ 1194.103. 

(c) If the application package is not 

complete, the Office’s notification will 

identify the missing information or 

documents required for a complete 

package. 

(d) Upon a determination that the 

export certification application is 

complete, the Office will notify the 

relevant Indian Tribes and Native 

Hawaiian organizations the following 

business day that the application is 

complete. 

(e) After receiving the notification 

from the Office under § 1194.104(d), the 

relevant Indian Tribes and Native 

Hawaiian organizations will have 9 

business days to review the application 

and supporting documents. 

(f) If an Indian Tribe or Native 

Hawaiian organization notifies the 

Office that the item requiring export 

certification may not be eligible for an 

export certification, the Office will have 

7 business days to review the 

application and supporting documents. 

If no Indian Tribe or Native Hawaiian 

organization so notifies the Office, the 

Office will have 1 business day to 

review the application and supporting 

documents. 

(g) With notice to the exporter, the 

Office may extend the review of an 

application and supporting documents 

for up to 30 business days if credible 

evidence is provided that the item 

requiring export certification may not be 

eligible for an export certification. 

§ 1194.105 What is the process for the 

Office to approve an Export Certification? 

(a) Following completion of the 

process under § 1194.104(a) through (f), 

and any extension under § 1194.104(g), 

the Office will make a determination to 

approve or deny the export certification 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85095 

application. The Office will notify the 

applicant and any relevant Indian Tribe 

or Native Hawaiian organization of the 

determination and the right to 

administratively appeal the 

determination under subpart D of this 

part. Upon the expiration of the period 

for appeal, or the final exhaustion of 

administrative remedies, the Secretary 

will issue the export certification or 

decline to issue it. 

(b) The exporter must provide CBP 

with a copy of the export certification 

within 48 hours before presentation of 

the item to CBP at the border by 

uploading the electronic export 

information (including the export 

certification) or successor to the CBP 

Automated Commercial System or 

successor system. 

§ 1194.106 What is the process for the 

Secretary to revoke an export certification? 

(a) If the Office receives credible 

evidence indicating that an item that 

received an export certification is not 

eligible for an export certification, then 

the Secretary, after consultation with 

relevant Indian Tribes and Native 

Hawaiian organizations, may 

immediately revoke a previously issued 

export certification. 

(b) Any revocation will be effective 

immediately, notwithstanding any 

administrative appeal under subpart D 

of this part. 

§ 1194.107 What is the export certification 

database? 

(a) The Office will enter all 

Applications for export certification and 

supporting documents in a secure 

database information system for the 

purpose of making export certification 

applications available to Indian Tribes, 

Native Hawaiian organizations, and 

other Federal agencies, including the 

Departments of Homeland Security, 

Justice, and State. Access to the 

database will be limited to users within 

Indian Tribes, Native Hawaiian 

organizations, and relevant Federal 

agencies. 

(b) Under the Act, the following 

information will be exempt from 

disclosure under the Freedom of 

Information Act, 5 U.S.C. 552: 

(1) Information that a representative 

of an Indian Tribe or Native Hawaiian 

organization— 

(i) Submits to a Federal agency 

pursuant to the Act, an amendment 

made by the Act, or these regulations; 

and 

(ii) Designates as sensitive or private 

according to Native American custom, 

law, culture, or religion; or 

(2) Information that any person 

submits to a Federal agency pursuant to 

the Act or an amendment made by the 

Act or these regulations that relates to 

an item for which an Export 

Certification is denied under this Act. 

(c) All information in the database 

other than that under § 1194.107(b) will 

be treated by the Secretary as controlled 

unclassified information and will be 

protected in accordance with applicable 

law. 

(d) If an Indian Tribe or Native 

Hawaiian organization requests that the 

Office delete an application and 

supporting documents or any portion 

thereof from the database, the Office 

will immediately do so. The review of 

the Application will continue off-line. 

(e) If an Indian Tribe or Native 

Hawaiian organization lacks sufficient 

resources to access the database or 

respond to agency communications in a 

timely manner, the Office, in 

consultation with Indian Tribes and 

Native Hawaiian organizations, will 

provide technical assistance to facilitate 

that access or response, as applicable. 

§ 1194.108 When are export certification 

fees assessed? 

(a) As of [EFFECTIVE DATE OF 

FINAL RULE], the fee for applying for 

an export certification is $500.00 per 

application. Federal, Indian Tribe, State, 

and local government agencies and 

Native Hawaiian organizations are 

exempt from the processing fee. 

(b) The fee will be paid when the 

application is submitted, and is not 

refundable. The Office will keep the fee 

as a service charge even if the Secretary 

does not issue an Export Certification or 

the applicant withdraws the 

application. 

(c) The application fee will be 

adjusted annually according to the 

change in the implicit price deflator for 

gross domestic product (published by 

the Department of Commerce) since the 

previous adjustment and will 

subsequently be posted on the Office 

website before October 1 each year. 

Revised fees are effective each year on 

October 1. Because the fee adjustments 

are simply based on a mathematical 

formula, the adjustments will not be 

subject to notice and comment. 

§ 1194.109 Under what circumstances may 

a Tribal authorization be issued? 

(a) In some circumstances, and at the 

sole discretion of the Indian Tribe or 

Native Hawaiian organization, an Indian 

Tribe or Native Hawaiian organization 

may issue a Tribal authorization that 

may be used as evidence to demonstrate 

a particular item does not qualify as an 

item requiring export certification. 

(1) The Tribal authorization will be in 

a letter signed by the Tribal leader or a 

duly adopted Tribal resolution, Tribal 

ordinance, or other, similar act of the 

Tribal government or Native Hawaiian 

organization. 

(2) The Tribe or Native Hawaiian 

organization must provide a copy of the 

Tribal Authorization to the Office. 

(3) The Office may publish a template 

for Indian Tribes or Native Hawaiian 

organizations to use for the Tribal 

authorization. 

(b) The exporter must provide CBP 

with a copy of the Tribal authorization 

within 48 hours before presentation of 

the item to CBP at the border by 

uploading the electronic export 

information (including the Tribal 

authorization) or successor to the CBP 

automated commercial system or 

successor system. 

§ 1194.110 How does the Paperwork 

Reduction Act affect this part? 

The information collection 

requirements contained in this part have 

been approved by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995, 

44 U.S.C. 3507(d), and assigned control 

number 1076–XXXX. A Federal 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. 

Subpart C—Procedures for Detention, 

Forfeiture, Repatriation, and Return 

§ 1194.201 When can CBP detain certain 

items? 

(a) The Act authorizes CBP to detain 

certain items specified in § 1194.201(b), 

and through this regulation, the 

Secretary requests that CBP do so in 

accordance with the procedures 

specified below. 

(b) CBP will detain, using procedures 

under this section: 

(1) Any item that may be an item 

prohibited from exportation that is 

exported, attempted to be exported, or 

otherwise transported from the United 

States; or 

(2) Any item that may be an item 

requiring export certification that is 

exported, attempted to be exported, or 

otherwise transported from the United 

States without an export certification or 

Tribal authorization. 

(c) Upon discovery of an item 

specified in § 1194.201(b), CBP will 

contact the Office within 24 hours for 

the Office to determine whether the 

item may be lawfully exported in 

accordance with the Act and these 

regulations. 

(d) Upon the request of the Office, 

CBP may provide additional 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85096 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

information such as photographs of the 

item to assist the Office in determining 

whether the item falls within the scope 

of the Act. 

(e) The Office will provide to CBP a 

written statement within five calendar 

days of initial CBP contact stating 

whether the item falls within the scope 

of the Act, whether the item requires an 

Export Certification, and whether the 

Secretary has issued an export 

certification or an Indian Tribe or Native 

Hawaiian organization has issued a 

Tribal authorization for the item. The 

statement will be accompanied by a 

notification of the appeal procedures in 

subpart D of this part for CBP to provide 

to the exporter. The Office may provide 

the statement and notification to the 

exporter by email. 

(f) If the Office provides the written 

statement under § 1194.201(e), CBP will 

detain the item. 

(g) If the Office fails to timely provide 

the written statement under 

§ 1194.201(e), and assuming no other 

legal restrictions apply, CBP will 

provide notice to the exporter that the 

item is being released back to the 

exporter. 

(h) The exporter will have five 

calendar days following the issuance of 

the notice under § 1194.201(g) to 

arrange retrieval of the detained item. If, 

after five calendar days, no arrangement 

has been made, the item will be deemed 

abandoned and surrendered to the 

Office. 

(i) If the exporter voluntarily 

abandons the detained good(s) or the 

goods are deemed abandoned under 

paragraph (h) of this section, the 

shipment will be surrendered to the 

Office for repatriation under § 1194.206. 

Such voluntary return may be eligible 

for the safe harbor from prosecution 

under § 1194.204. 

(j) Detained item(s) will be held in a 

secure location at the port consistent 

with current CBP regulations and 

policy, until they are turned over to the 

Office for disposition. 

§ 1194.202 How does CBP deliver items to 

the Office? 

(a) Within 48 hours after the Office 

notifies CBP under § 1194.201 of this 

part that an item is subject to detention, 

CBP will record the detention on a CBP 

Form 6051D or equivalent detention 

form. CBP will provide a copy of that 

form to the exporter with the 

notification of appeal procedures 

provided by the Office under 

§ 1194.201. Once the item has been 

formally detained by CBP, CBP will 

notify the Office that the item is 

available for the Office to retrieve. 

(b) The Office will retrieve the item 

in-person within five days after the 

notification under § 1194.202(a). 

(c) The Office will also notify the 

exporter within five days that it has 

custody of the detained items. The 

Office will also provide a notification to 

the exporter for purposes of appealing 

the detention under subpart D of this 

part. 

(d) The Office will hold any items 

retrieved from CBP in a secure location 

in a manner based on consultation with 

the appropriate Indian Tribe or Native 

Hawaiian organization. 

(e) Within 60 days after the Office 

retrieves an item detained under 

§ 1194.201(b)(2) to the Office, and in 

consultation with appropriate Indian 

Tribes and Native Hawaiian 

organizations, the Office will determine 

whether the item is an Item Prohibited 

from Exportation. 

(f) If the Office determines under 

§ 1194.202(e) that the item is an Item 

Prohibited from Exportation subject to 

forfeiture, the exporter may appeal that 

determination under subpart D of this 

part. 

§ 1194.203 What is the process for 

forfeiture proceedings? 

Property seized for violations of the 

Act and subject to forfeiture may be 

forfeited, depending upon the nature of 

the property, through civil 

administrative procedures, civil judicial 

procedures, or criminal forfeiture 

proceedings. Upon the expiration of the 

period for appeal of detention under 

§ 1194.202(f), or the final exhaustion of 

Department administrative remedies, 

the Office may refer the item to an 

appropriate Federal agency or U.S. 

Attorney’s Office for forfeiture 

proceedings under the appropriate 

administrative or judicial authorities. 

The Office will retain the item in its 

custody unless the agency or U.S. 

Attorney’s Office needs the item for its 

investigation. 

§ 1194.204 Does safe harbor apply to this 

regulation? 

(a) If the exporter voluntarily returns 

the item or directs that the item be 

returned to the appropriate Indian Tribe 

or Native Hawaiian organization, in 

accordance with § 1194.201(i) of this 

part prior to the commencement of an 

active Federal investigation into the 

trafficking of the item or into the 

trafficking of cultural items or 

archeological resources by the 

applicant, the exporter shall not be 

prosecuted for a violation of the Act 

with respect to the item. 

(b) For purposes of § 1194.204(a), the 

following actions shall not be 

considered to be actions that commence 

an active Federal investigation: 

(1) The submission by the exporter of 

an export certification application for 

the item under § 1194.103; 

(2) The detention of the item by CBP 

under § 1194.201; 

(3) The retrieval of the detained item 

by the Office from CBP under 

§ 1194.202; or 

(4) The seizure by the Office of the 

item under § 1194.202. 

§ 1194.205 What are civil penalties for 

violations of this regulation? 

(a) If the item is an item prohibited 

from exportation, the base penalty 

amount is $800. 

(b) If the item is an item requiring 

export certification, the base penalty 

amount is $8,000. 

(1) The Act authorizes the assessment 

of civil penalties for violations of the 

Act, subject to annual adjustments 

based on inflation under the Federal 

Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015 (Pub. L. 114– 

74). 

(2) The base penalty amount may be 

increased after considering: 

(i) The ceremonial or cultural value of 

the item requiring export certification 

involved, as identified by any aggrieved 

Indian Tribe or Native Hawaiian 

organization; 

(ii) The archaeological, historical, or 

commercial value of the item requiring 

export certification involved; 

(iii) The economic and non-economic 

damages suffered by any aggrieved 

Indian Tribe or Native Hawaiian 

organization, including expenditures by 

the aggrieved party to compel the 

exporter to comply with the Act or this 

regulation; 

(iv) The number of prior violations by 

the exporter that have occurred; 

(v) The cost of storing and repatriating 

the item, or 

(vi) Any other appropriate factor 

justifying an increase. 

§ 1194.206 How is an item repatriated or 

returned? 

(a) If an item is deemed abandoned 

under § 1194.201(h) or (i), the Office 

will expeditiously repatriate the item 

prohibited from exportation to: 

(1) the Indian Tribe or Native 

Hawaiian organization from whose 

Tribal land the item was removed or 

who is culturally affiliated with the 

item, for cultural items under NAGPRA; 

or 

(2) the Indian Tribe from whose 

Indian land the item was removed, for 

archaeological resources under ARPA. 

(b) After an administrative declaration 

of forfeiture or a final order of forfeiture 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85097 

in a judicial proceeding, the Department 

may, consistent with applicable law and 

regulations governing the remission and 

mitigation of forfeitures, seek the item 

prohibited from exportation and 

repatriate it to: 

(1) The Indian Tribe or Native 

Hawaiian organization from whose 

Tribal land the item was removed or 

who is culturally affiliated with the 

item, for cultural items under NAGPRA; 

or 

(2) The Indian Tribe from whose 

Indian land the item was removed, for 

archaeological resources under ARPA. 

(c) The Office will return the item 

requiring export certification to the 

exporter if: 

(1) The Office does not make the 

required determination by the deadline 

under § 1194.202(e); 

(2) The Office determines under 

§ 1194.15(e) that the item is not an Item 

Prohibited from Exportation; 

(3) The exporter is successful in the 

appeal under § 1194.202(f). 

(d) The Office will issue a letter or 

other document authorizing the return 

of the property. This letter or other 

document will be delivered personally 

or sent by registered or certified mail, 

return receipt requested, and will 

identify the owner or consignee, the 

seized property, and, if appropriate, the 

custodian of the seized property. It will 

also provide that, upon presentation of 

the letter or other document and proper 

identification, and the signing of a 

receipt provided by the Office, the 

seized property is authorized to be 

released, provided it is properly marked 

in accordance with applicable State or 

Federal requirements. 

(e) The return of an item under 

§ 1194.206(d) does not mean that the 

item is eligible for an export 

certification, nor does it substitute for 

an export certification. To export the 

item, the exporter must apply for, and 

receive an export certification under 

subpart B of this part. 

Subpart D—Administrative Appeals 

§ 1194.301 What is the purpose of this 

section? 

Any exporter wishing to appeal the 

Office’s denial of an export certification 

application under § 1194.105 or 

detention of an item requiring export 

certification under § 1194.202 part must 

follow the procedures in this regulation. 

The provisions of 25 CFR part 2 do not 

apply to decisions under this regulation. 

No decision, which at the time of its 

rendition is subject to appeal under this 

subpart, shall be considered final so as 

to constitute agency action subject to 

judicial review. The decision being 

appealed shall not be effective during 

the pendency of the appeal. 

§ 1194.302 How do I request a hearing? 

(a) To begin an appeal under this 

subpart, the exporter must file a written 

request for a hearing under 

§ 1194.302(b). The request for hearing 

and any document filed thereafter with 

the Departmental Cases Hearings 

Division (DCHD) under this section are 

subject to the rules that govern the 

method and effective date of filing and 

service under the subparts applicable to 

DCHD in 43 CFR part 4. If the exporter 

does not file a written request for a 

hearing in 45 days from the date of the 

denial or detention, the exporter waives 

the right to request a hearing and has 

failed to exhaust administrative 

remedies. 

(b) The exporter must file the written 

request for a hearing with the DCHD, 

Office of Hearings and Appeals (OHA), 

U.S. Department of the Interior, at the 

mailing address specified in the OHA 

Standing Orders on Contact 

Information, or by electronic means 

under the terms specified in the OHA 

Standing Orders on Electronic 

Transmissions. A copy of the request 

must be served on the Solicitor of the 

Department of the Interior at the address 

specified in the OHA Standing Orders 

on Contact Information and on any 

culturally affiliated Indian Tribe or 

Native Hawaiian organization using the 

contact information in the Federal 

Register notice published by the 

Secretary under § 1194.101. The 

Standing Orders are available on the 

Department of the Interior OHA’s 

website at https://www.doi.gov/oha. 

(c) The request for a hearing must: 

(1) Include a copy of the denial of the 

export certification application or the 

notice of detention; 

(2) State the relief sought by the 

exporter; and 

(3) Include the basis for challenging 

the facts used to deny the application or 

detain the Item. 

(d) Upon receiving a request for a 

hearing, DCHD will assign an 

administrative law judge to the case and 

promptly give notice of the assignment 

to the exporter, the Office of the 

Solicitor, and any culturally affiliated 

Indian Tribe or Native Hawaiian 

organization. Thereafter, each filing 

must be addressed to the administrative 

law judge and a copy served on each 

opposing party or its counsel. 

(1) Subject to the provisions of 43 CFR 

1.3, an exporter may appear by 

authorized representative or by counsel 

and may participate fully in the 

proceedings. If the exporter does not 

appear and the administrative law judge 

determines that this absence is without 

good cause, the administrative law 

judge may, at the judge’s discretion, 

determine that the exporter has waived 

the right to a hearing and consents to 

the making of a decision on the record. 

(2) The Department of the Interior 

counsel is designated by the Office of 

the Solicitor of the Department of the 

Interior. No later than 20 days after 

receipt of its copy of the written request 

for hearing, Departmental counsel must 

file with the DCHD an entry of 

appearance on behalf of the Office and 

the following: 

(i) Any Application for Export 

Certification with all supporting 

documents. The Application and 

supporting documents will be filed 

under seal and available only to the 

administrative law judge. Alternatively, 

the Office may provide the 

administrative law judge with read-only 

access to the appropriate records in the 

database under § 1194.107; 

(ii) Any written communications 

between the Office and the exporter 

concerning the application; 

(iii) Any written communications 

between the Office and culturally 

affiliated Indian Tribes or Native 

Hawaiian organizations concerning the 

application or detention. Such 

communications will be filed under seal 

and treated as confidential information 

available to the exporter only under a 

protective order; 

(iv) A written description of any item 

requiring export certification that has 

been detained. The description may 

include photographs of the item, but 

only with the consent of the culturally 

affiliated Indian Tribe or Native 

Hawaiian organization. The description 

and any photographs will be filed under 

seal and treated as confidential 

information available to the exporter 

only under a protective order; and 

(v) Any other information considered 

by the Office in reaching the decision 

being challenged. 

(3) Any Indian Tribe or Native 

Hawaiian organization that is culturally 

affiliated with the item that has been 

detained or the item requiring export 

certification is a required party to the 

hearing and any appeal. 

§ 1194.303 What are the hearing 

procedures? 

(a) To the extent they are not 

inconsistent with this section, the rules 

in the subparts applicable to DCHD in 

43 CFR part 4 apply to the hearing 

process. 

(b) The administrative law judge has 

all powers necessary to conduct a fair, 

orderly, expeditious, and impartial 

hearing process, and to render a 


ddrumheller on DSK120RN23PROD with PROPOSALS1
85098 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 

decision under 5 U.S.C. 554 through 

557. 

(c) The administrative law judge will 

render a written decision. The decision 

must set forth the findings of fact and 

conclusions of law, and the reasons and 

basis for them. 

(d) The administrative law judge’s 

decision shall be the final 

administrative decision of the Secretary 

and will take effect 31 days from the 

date of the decision unless the exporter 

or the Indian Tribe or Native Hawaiian 

organization files a notice of appeal as 

described in § 1194.302. If the exporter 

does not file a notice of appeal 30 days 

from the date of the administrative law 

judge’s decision, the exporter has failed 

to exhaust administrative remedies. 

§ 1194.304 How do I appeal a decision? 

(a) The exporter or culturally 

affiliated Indian Tribe or Native 

Hawaiian organization seeking review of 

the decision of the administrative law 

judge must file a written notice of 

appeal no later than 30 days after the 

date of the decision. The notice of 

appeal must be filed with the Interior 

Board of Indian Appeals (IBIA), Office 

of Hearings and Appeals (OHA), U.S. 

Department of the Interior, at the 

mailing address specified in the OHA 

Standing Orders on Contact 

Information, or by electronic means 

under the terms specified in the OHA 

Standing Orders on Electronic 

Transmission. The Standing Orders are 

available on the Department of the 

Interior OHA’s website at https://

www.doi.gov/oha. The notice of appeal 

must be accompanied by proof of 

service on the administrative law judge 

and each opposing party. The notice of 

appeal and any document filed 

thereafter with the IBIA are subject to 

the rules that govern the method and 

effective date of filing under 43 CFR 

4.310. 

(b) To the extent they are not 

inconsistent with this section, the 

provisions of 43 CFR part 4, subpart D, 

apply to the appeal process. 

(c) The IBIA’s decision will be in 

writing and takes effect as the final 

administrative decision of the Secretary 

on the date that the IBIA’s decision is 

rendered, unless otherwise specified in 

the decision. 

(d) OHA decisions in proceedings 

instituted under this subpart are posted 

on OHA’s website. 

(e) The final administrative decision 

of the Secretary will be final agency 

action for purposes of 5 U.S.C. 704, only 

if the exporter has exhausted all 

administrative remedies under this 

subpart. 

Subpart E—Voluntary Return of 

Tangible Cultural Heritage 

§ 1194.401 What is the purpose of this 

section? 

An individual or organization may 

return tangible cultural heritage under 

this part. The goal of this subpart is to 

facilitate the return of cultural items and 

Native American human remains to 

Indian Tribes and Native Hawaiian 

organizations. If the voluntary return is 

of an item subject to NAGPRA by a 

museum as that term is defined in 

NAGPRA, the return of that item will 

follow the process under section 7 of 

NAGPRA (25 U.S.C. 3005) rather than 

the process in this regulation. 

§ 1194.402 When is consultation initiated? 

(a) An individual or organization that 

is seeking to voluntarily return tangible 

cultural heritage under this subpart 

must compile a simple itemized list and 

description of any tangible cultural 

heritage. The simple itemized list must 

include, to the extent that the individual 

or organization has the required 

information: 

(1) The geographical location 

(provenance) by county or State where 

the tangible cultural heritage was 

removed; 

(2) The acquisition history 

(provenance) of the tangible cultural 

heritage; 

(3) Other information available for 

identifying a culturally affiliated Indian 

Tribe or Native Hawaiian organization; 

and 

(4) The presence of any potentially 

hazardous substances used to treat the 

tangible cultural heritage, if known. 

(b) The individual or organization 

should submit this list to the Office. In 

consultation with Indian Tribes, Native 

Hawaiian organizations, and the Native 

Working Group convened under subpart 

G of this part, the Office will determine 

what Indian Tribe or Native Hawaiian 

organization is potentially culturally 

affiliated with the tangible cultural 

heritage, and provide its contact 

information to the individual or 

organization. The Office will also 

provide the contact information of the 

individual or organization to the 

identified Indian Tribe or Native 

Hawaiian organization with the list 

compiled under § 1194.402(a). 

§ 1194.403 What is the process for 

consultation and return of items under this 

regulation? 

(a) After the Office transmits the 

contact information under § 1194.402, 

the individual or organization and the 

Indian Tribe or Native Hawaiian 

organization will contact each other and 

arrange for consultation and return of 

the tangible cultural heritage. 

(b) At the request of the Indian Tribe 

or Native Hawaiian organization, the 

Departments of Homeland Security and 

State will facilitate the transportation 

and importation of the tangible cultural 

heritage. 

(c) At the request of the Indian Tribe 

or Native Hawaiian organization, the 

Interagency Working Group convened 

under subpart F of this part will explore 

funding mechanisms to pay the 

expenses of the Indian Tribe or Native 

Hawaiian organization for the return of 

tangible cultural heritage. Assistance to 

the Indian Tribe or Native Hawaiian 

organization could also be in the form 

of in-kind resources. 

(d) Upon a successful voluntary 

return, and with the consent of the 

Indian Tribe or Native Hawaiian 

organization, the Office will provide the 

individual or organization with tax 

documentation for a charitable gift to 

the Indian Tribe or Native Hawaiian 

organization that may be tax deductible 

if the requirements under 26 U.S.C. 170 

and 26 CFR part 1 are satisfied. 

Subpart F—Interagency Working 

Group 

§ 1194.501 What is the Interagency 

Working Group? 

The Office will convene the 

Interagency Working Group to 

coordinate the policy-making process 

with respect to facilitation of the 

repatriation to Indian Tribes and Native 

Hawaiian organizations of items that 

have been illegally removed or 

trafficked in violation of applicable law; 

protection of tangible cultural heritage, 

cultural items, Native American human 

remains, and archaeological resources 

still owned or controlled by Indian 

Tribes and Native Hawaiian 

organizations; and support for 

improvements in implementation of 

NAGPRA, ARPA, and other relevant 

Federal law. 

§ 1194.502 What is the membership of 

Interagency Working Group? 

The Departments of Justice, State, and 

Homeland Security shall each designate 

a responsible office and individual to 

serve on the Interagency Working 

Group. The Office will represent the 

Secretary of the Interior on the Working 

Group. 

§ 1194.503 What are the duties of the 

Interagency Working Group? 

The Interagency Working Group will 

aid in implementation of the Act by, 

including but not limited to, facilitating 

the voluntary return of tangible cultural 

heritage, attempting to prevent 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Proposed Rules 85099 

international sales of items that are 

prohibited from being trafficked under 

Federal law, and collaborating with the 

Native Working Group, the NAGPRA 

Review Committee, and the Cultural 

Heritage Coordinating Committee. 

Subpart G—Native Working Group 

§ 1194.601 What is the relationship 

between the Office and the Native Working 

Group? 

The Office will provide 

administrative support to the Native 

Working Group. 

§ 1194.602 What is the membership of the 

Native Working Group? 

(a) The Native Working Group is 

composed of representatives of Indian 

Tribes and Native Hawaiian 

organizations with relevant expertise. 

(b) There are thirteen members of the 

Native Working Group: one representing 

Indian Tribes in each Bureau of Indian 

Affairs Region, and one representing 

Native Hawaiian organizations. 

(c) The members of the Native 

Working Group are appointed by the 

Secretary for an initial term of four 

years. A member may be reappointed for 

a term of two years. 

(d) Any Indian Tribe or Native 

Hawaiian organization may nominate a 

person from a particular BIA Region or 

Hawai1i for membership, even if that 

Indian Tribe or Native Hawaiian 

organization is not in that Region or in 

Hawai1i. The Office will recommend a 

list of candidates to the Secretary, in 

coordination with the Interagency 

Working Group convened under subpart 

F of this part. 

§ 1194.603 What are the duties of the 

Native Working Group? 

(a) The Native Working Group may 

provide recommendations for Federal 

agency action regarding: 

(1) The voluntary return of tangible 

cultural heritage by collectors, dealers, 

and other individuals and non-Federal 

organizations that hold such tangible 

cultural heritage; and 

(2) The elimination of illegal 

commerce of cultural items and 

archaeological resources in the United 

States and foreign markets. 

(b) Such recommendations shall be 

considered fully by affected agencies, 

but shall not be binding upon any 

affected agency. 

(c) The Office of Tribal Justice shall 

represent the Department of Justice with 

regard to relevant matters before the 

Native Working Group including 

receiving formal requests to initiate 

agency actions and to provide 

information and assistance to the Native 

Working Group. Requests to initiate 

litigation will be directed by the Office 

of Tribal Justice to the appropriate 

litigation component within the 

Department of Justice. 

(d) Upon request from the Native 

Working Group, the Department of 

State, in coordination with the 

Department of Justice when judicial 

proceedings are initiated either 

domestically or abroad, may initiate 

dialog through U.S. missions abroad, in 

coordination with the Department of 

State’s Cultural Heritage Center, with 

appropriate foreign government offices. 

(e) The Native Working Group may 

also request information or assistance 

from: 

(1) The Department of the Interior; 

(2) The Department of Justice; 

(3) The Department of Homeland 

Security; 

(4) The Department of State; 

(5) The Review Committee established 

under section 8(a) of NAGPRA; 

(6) The Cultural Heritage 

Coordinating Committee established 

pursuant to section 2 of the Protect and 

Preserve International Cultural Property 

Act; or 

(7) Any other relevant Federal agency, 

committee, or working group. 

Bryan Newland, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2024–24332 Filed 10–24–24; 8:45 am] 

BILLING CODE 4337–15–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[REG–118264–23] 

RIN 1545–BR27 

Energy Efficient Home Improvement 

Credit 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking 

and notice of public hearing. 

SUMMARY: This document contains 

proposed regulations regarding the 

energy efficient home improvement 

credit as modified by the Inflation 

Reduction Act of 2022 (IRA). The 

proposed regulations would affect 

manufacturers of specified property 

who want to become qualified 

manufacturers and eligible taxpayers 

who place in service certain home 

improvement property. The proposed 

regulations would provide rules for 

manufacturers of specified property to 

register to be qualified manufacturers 

and satisfy certain other requirements, 

and rules for taxpayers to calculate the 

credit. 

DATES: Written or electronic comments 

must be received by December 24, 2024. 

A public hearing on these proposed 

regulations is scheduled to be held on 

January 21, 2025, at 10 a.m. ET. 

Requests to speak and outlines of topics 

to be discussed at the public hearing 

must be received by December 24, 2024. 

If no outlines are received by December 

24, 2024, the public hearing will be 

cancelled. Requests to attend the public 

hearing must be received by 5 p.m. ET 

on January 17, 2025. The public hearing 

will be made accessible to people with 

disabilities. Requests for special 

assistance during the hearing must be 

received by January 16, 2025. 

ADDRESSES: Commenters are strongly 

encouraged to submit public comments 

electronically. Submit electronic 

submissions via the Federal 

eRulemaking Portal at https://

www.regulations.gov (indicate IRS and 

REG–118264–23) by following the 

online instructions for submitting 

comments. Once submitted to the 

Federal eRulemaking Portal, comments 

cannot be edited or withdrawn. The 

Department of the Treasury (Treasury 

Department) and the IRS will publish 

for public availability any comments 

submitted to the IRS’s public docket. 

Send paper submissions to: 

CC:PA:01:PR (REG–118264–23), Room 

5203, Internal Revenue Service, P.O. 

Box 7604, Ben Franklin Station, 

Washington, DC 20044. 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations, 

contact the Office of Associate Chief 

Counsel (Passthroughs & Special 

Industries) at (202) 317–6853 (not a tollfree number). Concerning submissions 

of comments and requests for a public 

hearing, contact the Publications and 

Regulations Section of the Office of 

Associate Chief Counsel (Procedure and 

Administration) by email at 

publichearings@irs.gov (preferred) or by 

telephone at (202) 317–6901 (not a tollfree number). 

SUPPLEMENTARY INFORMATION: 

Authority 

This notice of proposed rulemaking 

contains proposed amendments to the 

Income Tax Regulations (26 CFR part 1) 

that would implement section 25C of 

the Internal Revenue Code (Code), as 

amended by section 13301 of Public 

Law 117–169, 136 Stat. 1818, 1941 

(August 16, 2022), commonly known as 

the Inflation Reduction Act of 2022 

(IRA). The proposed additions are 

issued by the Secretary of the Treasury 


ddrumheller on DSK120RN23PROD with PROPOSALS1