[Federal Register: January 13, 1997 (Volume 62, Number 8)]
[Rules and Regulations]
[Page 1819-1823]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 1819]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
43 CFR Part 10
Native American Graves Protection and Repatriation Act; Interim Rule
[[Page 1820]]
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.
[[Page 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 Sec. 10.12 to read as follows:
Sec. 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
[[Page 1822]]
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,
[[Page 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
[Back to Top]