1820 Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024–AC48

Native American Graves Protection

and Repatriation Act Regulations—

Civil Penalties

AGENCY: Department of the Interior.

ACTION: Interim rule.

SUMMARY: This interim rule relates to

one section of regulations implementing

the Native American Graves Protection

and Repatriation Act of 1990 (‘‘the

Act’’). This section outlines procedures

for assessing civil penalties upon

museums that fail to comply with

applicable provisions of the Act.

Comments on this rule are requested.

DATES: Effective Date: This interim rule

becomes effective on February 12, 1997.

This interim rule will remain in effect

until final regulations are adopted

through general notice and comment

rulemaking. However, written

comments on this interim rule are

solicited from Indian tribes, Native

Hawaiian organizations, museums,

Federal agencies and members of the

public. Comments will be taken into

account in developing a final rule. The

Departmental Consulting Archeologist

will accept written comments until

April 14, 1997.

ADDRESSES: Comments (2 copies) should

be addressed to: Departmental

Consulting Archeologist, Archeology

and Ethnography Program, National

Park Service, Docket No. 1024–AC48,

Box 37127, Washington, D.C. 20013–

7127, or hand deliver comments to room

210, 800 North Capital Street,

Washington, D.C. 20001.

FOR FURTHER INFORMATION CONTACT: Dr.

Francis P. McManamon, Departmental

Consulting Archeologist, Archeology

and Ethnography Program, National

Park Service, Box 37127, Washington,

DC 20013–7127. Telephone: 202–343–

4101. Fax: 202–523–1547.

SUPPLEMENTARY INFORMATION:

Background

On November 16, 1990, President

George Bush signed the Act into law.

The Act addresses the rights of lineal

descendants, Indian Tribes, and Native

Hawaiian organizations to certain

Native American human remains,

funerary objects, sacred objects, and

objects of cultural patrimony with

which they are affiliated. Section 13 of

the Act requires the Secretary of the

Interior to promulgate regulations to

carry out provisions of the Act. Final

regulations implementing the Act were

published in the Federal Register on

December 4, 1995 (60 FR 62158). The

final regulations had five sections

reserved for later publication. This

interim rule includes one section that

was reserved in the final regulations.

Section 10.12 develops procedures for

assessing civil penalties upon museums

that fail to comply with provisions of

the Act. This section does not apply to

Federal agencies. However, Federal

agencies are subject to enforcement

actions by aggrieved parties under

section 15 of the Act.

Section-by-Section Analysis

Section 10.12

Section 9 of the Act authorizes the

Secretary of the Interior to assess a civil

penalty against any museum that fails to

comply with the requirements of this

Act. This section defines procedures for

assessing those civil penalties.

A ‘‘museum’’ is defined at 43 CFR

10.2 (a)(3) as any institution or State or

local government agency (including any

institution of higher learning) that

receives Federal funds and possesses or

has control over Native American

human remains, funerary objects, sacred

objects, or objects of cultural patrimony

as defined in 43 CFR 10.2 (d). The

phrase ‘‘receives Federal funds’’ is

defined at 43 CFR 10.2 (a)(3)(iii) to

mean the receipt of funds by a museum

after November 16, 1990, from a Federal

agency through any grant, loan, contract

(other than a procurement contract), or

other arrangement by which a Federal

agency makes or made available to a

museum assistance in the form of funds.

Federal funds provided for any purpose

that are received by a larger entity of

which the museum is a part are

considered Federal funds for the

purposes of these regulations. For

example, if a museum is part of a state

or local government or private

university, and the state or local

government or private university

received Federal funds for any purpose,

the museum is considered to receive

Federal funds for purpose of these

regulations. Although Federal agencies

are not considered ‘‘museums’’ for

purposes of civil penalties under this

section, civil actions may be taken

against Federal agencies to compel

compliance with the Act in the United

States District Courts under section 15

of the Act.

Section 9(b) of the Act identifies some

of the criteria to be used by the

Secretary in determining the amount of

the civil penalty to be assessed. The

Secretary has consulted the Native

American Graves Protection and

Repatriation Review Committee which

has recommended that the Secretary use

a two stage approach to implementing

these criteria. They recommend an

initial assessment based upon the sum

of three factors: (1) an amount equal to

.25% of the museum’s annual budget, or

$5,000, whichever is less; (2) damages

suffered by any aggrieved party or

parties, including, but not limited to,

the costs of attorney and expert witness

fees, investigations, and administrative

expenses incurred by the aggrieved

parties to compel compliance with the

Act; and (3) the importance of the

human remains, funerary objects, sacred

object, or object of cultural patrimony to

performing traditional practices by the

aggrieved party or parties. The review

committee recognizes that this initial

assessment, and in particular that

portion based upon the museum’s

annual budget, might be considered

overly modest by some, but emphasizes

that civil penalties should be used to

ensure compliance instead of simply

imposing large penalty amounts. The

review committee considers .25% of the

museum’s annual budget, or $5,000,

whichever is less, an amount sufficient

to compel compliance without inflicting

undue damage, particularly on small

institutions. We believe that a monetary

standard is useful as it will lessen the

need to make more difficult assessment

determinations based on archeological,

historical, and commercial value. As the

law allows for establishment of civil

penalties based on other factors as the

Secretary considers appropriate, this

formula will further the goals of the

legislation. We have therefore adopted

it. The review committee also

recommended assessment of a

subsequent penalty amount of $100 per

day after the date of the final

administrative decision that the

museum continues not to comply with

the Act. We have also adopted this

recommendation. In addition to the

above factors, the commercial value of

any human remains, funerary object,

sacred object, or object of cultural

patrimony may be assessed on any

museum that, after November 16, 1990,

sells or otherwise transfers such object

in violation of the Act. The review

committee also recommends that the

Secretary double the penalty amount for

subsequent failures to comply. We have

included the number of violations that

have occurred as a criterion in

determining the penalty amount. The

Secretary gave the review committee’s

recommendations careful consideration

in developing the procedures outlined

in this interim rule.
Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations 1821

The administrative procedures for

providing notice, holding a hearing,

appealing an administrative decision,

and issuing a final administrative

decision are patterned after the

procedures currently used in assessing

civil penalties under the Archaeological

Resources Protection Act. As a matter of

general policy, the Secretary does not

intend to institute civil penalty actions

under this section for violations which

occurred before the effective date of

these regulations if the museum in

question made a good faith effort to

comply with the basic requirements of

the Act.

Administrative Procedures Act

The Secretary of the Interior has

determined under 5 U.S.C. 553 (b)(B)

and 318 DM 6.4 (B)(1) that it is not in

the public interest to delay the effective

date of this regulation to accommodate

notice and comment procedures. There

are three reasons for this decision:

(a) The requirements that the Act

places upon museums as outlined in

section 10.12 (b)(1) of these regulations

are generally known and were

established by statute in 1990 or by

regulation in 1995;

(b) Section 9 of the Act clearly

outlines the limits of the Secretary’s

discretion in enforcing provisions of the

Act; and

(c) The administrative procedures for

appealing the levy of a penalty as

outlined in section 10.12 (e) through (l)

closely imitate those already used under

the Archaeological Resources Protection

Act.

The civil penalty provisions of the

Act are intended to assist in the

protection and appropriate repatriation

of Native American human remains,

funerary objects, sacred objects, and

objects of cultural patrimony that are of

extreme importance to lineal

descendants, Indian tribes and Native

Hawaiian organizations. Loss of such

items causes irreparable injury to the

lineal descendants, Indian tribes, and

Native Hawaiian organizations entitled

to their repatriation under the terms of

the Act. Delaying implementation of the

enforcement procedures of this section

to accommodate notice and comment

procedures will likely result in further

losses or in an inability to remedy, to

the extent feasible, losses which have

already occurred.

Public Participation

It is the policy of the Department of

the Interior, whenever practicable, to

afford the public an opportunity to

participate in the rulemaking process.

Accordingly, interested persons may

submit written comments regarding this

interim rule to the address noted at the

beginning of this rulemaking. The

National Park Service will review

comments and consider making changes

to the rule based upon an analysis of the

comments.

If you wish the National Park Service

to acknowledge receipt of your

comments you must submit with those

comments, a self-addressed, stamped

postcard that includes the following

statement: ‘‘Comments to Docket No

1024–AC48.’’ The Departmental

Consulting Archeologist will date stamp

the postcard and return it to you. The

Departmental Consulting Archeologist

will consider comments received on or

before April 14, 1997 before taking

action on a final rule and may change

the interim rule contained in this notice

in light of the comments received.

Drafting Information

This interim rule was prepared by Dr.

Francis P. McManamon (Departmental

Consulting Archeologist, National Park

Service), Dr. C. Timothy McKeown

(NAGPRA Team Leader, National Park

Service), and Lars Hanslin (Senior

Attorney, Office of the Solicitor), in

consultation with the Native American

Graves Protection and Repatriation

Review Committee as directed by

section 8 (c)(7) of the Act.

Paperwork Reduction Act

This interim rule does not contain

collections of information requiring

approval by the Office of Management

and Budget under the Paperwork

Reduction Act of 1995.

Compliance With Other Laws

This rule was reviewed by the Office

of Management and Budget under

Executive Order 12866. The Department

of the Interior determined that this

document will not have a significant

economic effect on a substantial number

of small entities under the Regulatory

Flexibility Act (5 USC 601 et seq.). The

civil penalties are expected to be

assessed on only a very small number of

museums that have failed to comply

with the Act. Civil penalty amounts will

be calculated to ensure compliance and

not as retribution.

The National Park Service has

determined and certifies pursuant to the

Unfunded Mandates Reform Act, 2

U.S.C. 1502 et seq., that this proposed

rule will not impose a cost of $100

million or more in any given year on

local, State, or tribal governments or

private entities.

The National Park Service has

determined that this interim rule will

not have a significant effect on the

quality of the human environment,

health and safety because it is not

expected to:

(a) Increase public use to the extent of

compromising the nature and character

of the area or causing physical damage

to it;

(b) Introduce non-compatible uses

which compromise the nature and

characteristics of the area, or cause

physical damage to it;

(c) Conflict with adjacent ownerships

or land uses; or

(d) Cause a nuisance to adjacent

owners or occupants.

Based on this determination, this

interim rule is categorically excluded

from the procedural requirements of the

National Environmental Policy Act

(NEPA) by Departmental regulations in

516 DM 6 (49 FR 21438). As such,

neither an Environmental Assessment

(EA) nor an Environmental Impact

Statement (EIS) has been prepared.

List of Subjects in 43 CFR Part 10

Administrative practice and

procedure, Hawaiian Natives, Historic

preservation, Indians—Claims,

Museums, Reporting and record keeping

requirements.

In consideration of the forgoing, 43

CFR Subpart A is amended as follows:

PART 10—NATIVE AMERICAN

GRAVES PROTECTION AND

REPATRIATION ACT REGULATIONS

1. The authority citation for Part 10

continues to read as follows:

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

2. Part 10 is amended by adding

§ 10.12 to read as follows:

§ 10.12 Civil Penalties.

(a) The Secretary’s authority to assess

civil penalties. The Secretary is

authorized by section 9 of the Act to

assess civil penalties on any museum

that fails to comply with the

requirements of the Act. As used in this

section, ‘‘failure to comply with

requirements of the Act’’ also means

failure to comply with applicable

portions of the regulations set forth in

this part. As used in this section ‘‘you’’

refers to the museum or the museum

official designated responsible for

matters related to implementation of the

Act.

(b) Definition of ‘‘failure to comply’’.

(1) Your museum has failed to comply

with the requirements of the Act if it:

(i) After November 16, 1990, sells or

otherwise transfers human remains,

funerary objects, sacred objects, or

objects of cultural patrimony in

violation of the Act, including, but not

limited to, an unlawful sale or transfer
1822 Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations

to any individual or institution that is

not required to comply with the Act; or

(ii) After November 16, 1993, has not

completed summaries as required by the

Act; or

(iii) After November 16, 1995, or the

date specified in an extension issued by

the Secretary, whichever is later, has not

completed inventories as required by

the Act; or

(iv) After May 16, 1996, or six months

after completion of an inventory under

an extension issued by the Secretary,

whichever is later, has not notified

culturally affiliated Indian tribes and

Native Hawaiian organizations; or

(v) Refuses to repatriate human

remains, funerary object, sacred object,

or object of cultural patrimony to a

lineal descendant or culturally affiliated

Indian tribe or Native Hawaiian

organization pursuant to the

requirements of the Act; or

(vi) Repatriates human remains,

funerary object, sacred object, or object

of cultural patrimony before publishing

a notice in the Federal Register as

required by the Act.

(2) Each violation will constitute a

separate offense.

(c) How to notify the Secretary of a

failure to comply. (1) Any person may

bring an allegation of failure to comply

to the attention of the Secretary.

(2) The Secretary may take the

following steps upon receiving such an

allegation:

(i) Review the alleged failure to

comply;

(ii) Identify the specific provisions of

the Act which allegedly have not been

complied with;

(iii) Determine if the institution of a

civil penalty action is in the public

interest in the circumstances; and

(iv) If appropriate, estimate the

proposed penalty.

(d) How the Secretary determines the

penalty amount. (1) The penalty amount

will be .25% of your museum’s annual

budget, or $5000, whichever is less, and,

such additional sum as the Secretary

may determine is appropriate after

taking into account:

(i) The archeological, historical, or

commercial value of the human

remains, funerary object, sacred object,

or object of cultural patrimony involved

including, but not limited to,

consideration of their importance to

performing traditional practices; and

(ii) The damages suffered, both

economic and non-economic, by the

aggrieved party or parties including, but

not limited to, the costs of attorney and

expert witness fees, investigations, and

administrative expenses related to

efforts to compel compliance with the

Act; and

(iii) The number of violations that

have occurred.

(2) An additional penalty of $100 per

day after the date the final

administrative decision takes effect if

your museum continues to violate the

Act.

(3) The Secretary may reduce the

penalty amount if there is:

(i) A determination that you did not

willfully fail to comply; or

(ii) An agreement by you to mitigate

the violation, including, but not limited

to, payment of restitution to the

aggrieved party or parties; or

(iii) A demonstration of hardship or

inability to pay, provided that this factor

will only apply when you have not been

previously found to have failed to

comply with the regulations in this part;

or

(iv) A determination that the

proposed penalty would constitute

excessive punishment under the

circumstances.

(e) How the Secretary notifies you of

a failure to comply. (1) If the allegations

are verified, the Secretary serves you

with a notice of failure to comply either

by personal delivery or by registered or

certified mail (return receipt requested).

The notice includes:

(i) A concise statement of the facts

believed to show a failure to comply;

(ii) A specific reference to the

provisions of the Act and/or the

regulations in this part that you have

allegedly not complied with;

(iii) The amount of the proposed

penalty, including any initial proposal

to mitigate or remit where appropriate,

or a statement that the Secretary will

serve notice of a proposed penalty

amount after ascertaining the damages

associated with the alleged failure to

comply; and

(iv) Notification of the right to file a

petition for relief as provided in this

section below, or to await the

Secretary’s notice of assessment and to

request a hearing. The notice will also

inform you of your right to seek judicial

review of any final administrative

decision assessing a civil penalty.

(2) The Secretary also sends a copy of

the notice of failure to comply to:

(i) Any lineal descendant of a known

Native American individual whose

human remains or cultural items are in

question; and

(ii) Any Indian tribes or Native

Hawaiian organizations that are, or are

likely to be, culturally affiliated with the

human remains or cultural items in

question.

(f) Actions you may take upon receipt

of a notice. If you are served with a

notice of failure to comply, you may: (1)

Seek informal discussions with the

Secretary;

(2) File a petition for relief. You may

file a petition for relief with the

Secretary within 45 calendar days of

receiving the notice of failure to comply

(or of a proposed penalty amount, if

later). Your petition for relief may

request the Secretary to assess no

penalty or to reduce the amount. Your

petition must be in writing and signed

by an official authorized to sign such

documents. Your petition must set forth

in full the legal or factual basis for the

requested relief.

(3) Take no action and await the

Secretary’s notice of assessment; or

(4) Accept in writing or by payment

the proposed penalty, or any mitigation

or remission offered in the notice. If you

accept the proposed penalty or

mitigation or remission, you waive the

notice of assessment and the right to

request a hearing.

(g) How the Secretary assesses the

penalty. (1) The Secretary assesses the

civil penalty when the period for filing

a petition for relief expires, or upon

completing the review of any petition

filed, or upon completing informal

discussions, whichever is later.

(2) The Secretary considers all

available information, including

information provided during the process

of assessing civil penalties or furnished

upon further request by the Secretary.

(3) If the facts warrant a conclusion

that you have not failed to comply, the

Secretary notifies you that you will have

no penalty assessed.

(4) If the facts warrant a conclusion

that you have failed to comply, the

Secretary may determine a penalty

according to the standards in paragraph

(d) of this section.

(5) The Secretary notifies you of the

penalty amount assessed by serving a

written notice of assessment, either in

person or by registered or certified mail

(return receipt requested). The notice of

assessment includes:

(i) The facts and conclusions from

which the Secretary determined that

you have failed to comply;

(ii) The basis for determining the

penalty amount assessed and/or any

offer to mitigate or remit the penalty;

and

(iii) Notification of the right to request

a hearing, including the procedures to

follow, and to seek judicial review of

any final administrative decision

assessing a civil penalty.

(h) How you request a hearing. (1)

You may file a written, dated request for

a hearing on a notice of assessment with

the Hearings Division, Office of

Hearings and Appeals, U.S. Department

of the Interior, 4015 Wilson Boulevard,
Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations 1823

Arlington, Virginia 22203–1923. You

must enclose a copy of the notice of

failure to comply and a copy of the

notice of assessment. Your request must

state the relief sought, the basis for

challenging the facts used as the basis

for determining the failure to comply

and fixing the assessment, and your

preference as to the place and date for

a hearing. You must serve a copy of the

request upon the Solicitor of the

Department of the Interior personally or

by registered or certified mail (return

receipt requested) at the address

specified in the notice of assessment.

Hearings will take place following

procedures set forth in 43 CFR part 4,

subparts A and B.

(2) Your failure to file a written

request for a hearing within 45 days of

the date of service of a notice of

assessment waives your right to a

hearing.

(i) Hearing appearance and practice.

(1) Upon receiving a request for a

hearing, the Hearings Division assigns

an administrative law judge to the case,

gives notice of assignment promptly to

the parties, and files all pleadings,

papers, and other documents in the

proceeding directly with the

administrative law judge, with copies

served on the opposing party.

(2) Subject to the provisions of 43 CFR

1.3, you may appear by representative,

or by counsel, and may participate fully

in those proceedings. If you fail to

appear and the administrative law judge

determines this failure is without good

cause, the administrative law judge

may, in his/her discretion, determine

that this failure waives your right to a

hearing and consent to the making of a

decision on the record.

(3) Departmental counsel, designated

by the Solicitor of the Department,

represents the Secretary in the

proceedings. Upon notice to the

Secretary of the assignment of an

administrative law judge to the case,

this counsel must enter his/her

appearance on behalf of the Secretary

and files all petitions and

correspondence exchanges by the

Secretary and the respondent which

become part of the hearing record.

Thereafter, you must serve all

documents for the Secretary to his/her

counsel.

(4) Hearing administration. (i) The

administrative law judge has all powers

accorded by law and necessary to

preside over the parties and the

proceedings and to make decisions

under 5 U.S.C. 554–557.

(ii) The transcript of testimony, the

exhibits, and all papers, documents and

requests filed in the proceedings

constitute the record for decision. The

administrative law judge renders a

written decision upon the record, which

sets forth his/her findings of fact and

conclusions of law, and the reasons and

basis for them, and an assessment of a

penalty, if any.

(iii) Unless you file a notice of appeal

described in the regulations in this part,

the administrative law judge’s decision

constitutes the final administrative

determination of the Secretary in the

matter and takes effect 30 calendar days

from this decision.

(iv) In this hearing, the amount of

civil penalty assessed will be

determined in accordance with

paragraph (d) of this section, and will

not be limited by the amount assessed

by the Secretary or any offer of

mitigation or remission made by the

Secretary.

(j) How you appeal a decision. (1)

Either you or the Secretary may appeal

the decision of an administrative law

judge by filing a ‘‘Notice of Appeal’’

with the Director, Office of Hearings and

Appeals, U.S. Department of Interior,

4015 Wilson Boulevard, Arlington,

Virginia 22203–1923, within 30

calendar days of the date of the

administrative law judge’s decision.

This notice must be accompanied by

proof of service on the administrative

law judge and the opposing party.

(2) Upon receiving this notice, the

Director, Office of Hearings and

Appeals, appoints an ad hoc appeals

board to hear and decide an appeal. To

the extent they are not inconsistent with

the regulations in this part the provision

of the Department of Hearings and

Appeals Procedures in 43 CFR part 4,

subparts A, B, and G apply to such

appeal proceedings. The appeal board’s

decision on the appeal must be in

writing and takes effect as the final

administrative determination of the

Secretary on the date it is rendered,

unless otherwise specified in the

decision.

(3) You may obtain copies of

decisions in civil penalty proceedings

instituted under the Act by sending a

request to the Director, Office of

Hearings and Appeals, U.S. Department

of the Interior, 4015 Wilson Boulevard,

Arlington, Virginia 22203–1923. Fees

for this service are established by the

Director of that Office.

(k) The final administrative decision.

(1) When you have been served with a

notice of a failure to comply and have

accepted the penalty as provided in the

regulations in this part, the notice

constitutes the final administrative

decision;

(2) When you have been served with

a notice of assessment and have not

filed a timely request for a hearing as

provided in the regulations in this part,

the notice of assessment constitutes the

final administrative decision.

(3) When you have been served with

a notice of assessment and have filed a

timely request for a hearing as provided

in these regulations in this part, the

decision resulting from the hearing or

any applicable administrative appeal

from it constitutes the final

administrative decision.

(l) How you pay the penalty. (1) If you

are assessed a civil penalty, you have 45

calendar days from the date of issuance

of the final administrative decision to

make full payment of the penalty

assessed to the Secretary, unless you

have filed a timely request for appeal

with a court of competent jurisdiction.

(2) If you fail to pay the penalty, the

Secretary may request the Attorney

General to institute a civil action to

collect the penalty in the U.S. District

Court for the district in which your

museum is located. Where the Secretary

is not represented by the Attorney

General, the Secretary may start civil

action directly. In these actions, the

validity and amount of the penalty will

not be subject to review by the court.

(3) Assessing a penalty under this

section is not a waiver by the Secretary

of the right to pursue other available

legal or administrative remedies.

Dated: November 5, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 97–653 Filed 1–10–97; 8:45 am]

BILLING CODE 4310–70–P