Native American Graves Protection and Repatriation Act Regulations

Federal Register, Volume 77 Issue 75 (Wednesday, April 18, 2012)

Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)

Proposed Rules

Pages 23196-23202

From the Federal Register Online via the Government Printing Office www.gpo.gov

FR Doc No: 2012-9228

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

NPS-WASO-NAGPRA-8611; 2200-1100-665

RIN 1024-AD99

Native American Graves Protection and Repatriation Act Regulations

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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

Page 23197

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

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

ADDRESSES: You may submit comments, identified by the Regulation Identifier Number (RIN) 1024-AD99, by any of the following methods:

Federal eRulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail or hand deliver to: Dr. Sherry Hutt, Manager, National NAGPRA Program, National Park Service, 1201 Eye Street NW., (2253), Washington, DC 20005.

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

5197.

SUPPLEMENTARY INFORMATION:

Authority

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

Background

NAGPRA addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. Under Section 13 of NAGPRA (25 U.S.C. 3011), the Department of the Interior (Department) published the initial rules to implement NAGPRA (60 FR 62158, December 4, 1995). This regulation is codified at 43 CFR Part 10. Subsequently, the Department published amendments to the regulation concerning:

Civil penalties (68 FR 16354, April 3, 2003);

Future applicability (72 FR 13189, March 21, 2007); and

Disposition of culturally unidentifiable human remains (75 FR 12378, March 15, 2010).

Since the promulgation of the December 4, 1995, rule, minor inaccuracies or inconsistencies in 43 CFR Part 10 have been identified by or brought to the attention of the Department. These proposed amendments revise the rules for purposes of factual accuracy and consistency throughout 43 CFR part 10.

Section-by-Section Analysis

Sec. 10.2 Definitions

Paragraph (c)(1). The proposed rule would amend the definition of Secretary to reflect Departmental delegations of the Secretary's authority under NAGPRA. NAGPRA assigns implementation responsibilities to the Secretary of the Interior. Secretarial Order 3261 (May 23, 2005) delegated some of these implementation responsibilities to other officials in the Department and the National Park Service, and the Department amended part 10 to reflect provisions of this Order (70 FR 57177, September 30, 2005).

Under the Secretarial Order and amended rules, the Assistant Secretary for Fish and Wildlife and Parks (Assistant Secretary) is responsible for:

Issuing regulations to carry out NAGPRA after consultation with the Assistant Secretary for Indian Affairs;

Granting extensions of inventory deadlines and awarding implementation grants to Indian tribes, Native Hawaiian organizations, and museums; and

In consultation with the Solicitor's Office, investigating and assessing civil penalties against museums that fail to comply with NAGPRA.

The Manager of the National NAGPRA Program (Manager), reporting to the National Park Service Director through the Associate Director for Cultural Resources, is responsible for managing the operations of the National NAGPRA Program, and provides staff support to the Assistant Secretary. The Manager's duties include:

Preparing rules for issuance by the Assistant Secretary, reviewing and recommending disposition of requests for extensions of inventory deadlines, and publishing notices in the Federal Register;

Serving as the Designated Federal Official for the Native American Graves Protection and Repatriation Review Committee;

Providing technical assistance to the Department of Justice in implementing the trafficking provisions of NAGPRA, in consultation with the Office of the Solicitor;

Developing and issuing guidelines, technical information, and training, and administering grants to assist Indian tribes, Native Hawaiian organizations, and museums in meeting their NAGPRA obligations; and

Supporting the civil penalty responsibilities of the Assistant Secretary.

Paragraph (c)(3). The proposed rule would amend the definition of Manager, National NAGPRA Program to include the Web site listing the Manager's correct mailing address.

Sec. 10.4 Inadvertent Discoveries

Paragraph (d)(1)(iii). This paragraph applies to inadvertent discoveries of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal land after November 16, 1990. It would add known lineal descendants to the list of parties to be notified of an inadvertent discovery.

The current rule requires the responsible Federal agency official to notify various parties to whom disposition of the human remains or cultural items might be determined but does not include known lineal descendants. While the current rule omits known lineal descendants from this requirement, it requires the responsible Federal agency official to initiate consultation with the known lineal descendants (43 CFR 10.5(a)).

In order to initiate consultation with known lineal descendants, the Federal agency official, in fact, must notify them of the inadvertent discovery. The proposed rule would correct this oversight by adding known lineal descendants to the list of parties to be notified of an inadvertent discovery.

Sec. 10.5 Consultation

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

Sec. 10.6 Custody

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

Paragraph (a)(2)(iii)(B). Section 3(a)(2)(C) of NAGPRA addresses ownership or control of human remains

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or cultural items whose cultural affiliation cannot be ascertained (25 U.S.C. 3002(a)(2)(C)). It pertains to remains or cultural items removed after November 16, 1990, from Federal land recognized as the aboriginal land of an Indian tribe. NAGPRA states that an Indian tribe whose cultural relationship with the human remains or other cultural items is stronger than that of the Indian tribe recognized as being the aboriginal occupant of the land must be included in the list of potential parties to the disposition of ownership or control of those human remains or cultural items (25 U.S.C. 3002(a)(2)(C)).

The current regulations inadvertently state that the cultural relationship would only be to the objects. The proposed rule would correct this omission by adding a reference to the cultural relationship with the human remains.

Sec. 10.8 Summaries

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

Sec. 10.10 Repatriation

Paragraph (a)(1)(ii)(B). The proposed rule would remove the incorrect reference to Section 7(c) of NAGPRA and replace it with a correct reference to Section 7(a)(4) (25 U.S.C. 3005(a)(4)). The reference pertains to establishment of cultural affiliation of unassociated funerary objects other than through the summary, consultation, and notification procedures in 43 CFR 10.14.

Paragraph (b)(1)(ii)(B). The proposed rule would remove the incorrect statutory reference to Section 7(c) of NAGPRA and replace it with a correct reference to Section 7(a)(4) (25 U.S.C. 3005(a)(4)). The reference pertains to establishment of cultural affiliation of Native American human remains and associated funerary objects other than through the procedures in 43 CFR 10.9 and 10.14.

Paragraph (c)(2). The proposed rule would clarify that the exception to the requirements for repatriation applies where:

There are multiple competing requests for repatriation; and

The museum or Federal agency, after complying with the regulations, cannot determine by a preponderance of the evidence which competing requesting party is the most appropriate claimant.

Paragraph (g). Section 10.11 governs disposition of culturally unidentifiable human remains to tribes and Native Hawaiian organizations from whose tribal or aboriginal land the remains were excavated. The proposed rule would clarify that the Review Committee still is responsible for recommending a process for disposition of culturally unidentifiable human remains not now covered by 43 CFR 10.11.

Sec. 10.11 Disposition of Culturally Unidentifiable Human Remains

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

Section 10.11 contrasts with the regulations (43 CFR 10.6) implementing Section 3(a) of NAGPRA, where recognition of aboriginal land is only by a final judgment of the Indian Claims Commission or the United States Court of Claims (25 U.S.C. 3002(a)(2)(C)).

Sec. 10.12 Civil Penalties

Paragraph (c). The proposed rule would clarify that written allegations of a museum's failure to comply with the requirements of NAGPRA are to be sent to the NAGPRA Civil Penalties Coordinator, in the National NAGPRA Program. NAGPRA assigns implementation responsibilities to the Secretary, who has delegated some of these implementation responsibilities to other officials, as reflected in this part. (See Secretarial Order 3261 of May 23, 2005.)

Under the Secretarial Order and this part, the Assistant Secretary, in consultation with the Office of the Solicitor, executes the provisions for civil penalties against museums that fail to comply with NAGPRA, investigates allegations of failure to comply with NAGPRA requirements, and develops and assesses civil penalties (Secretarial Order 3261, Section 4a). The Secretarial Order also directs the Manager, National NAGPRA Program to provide staff, who reports directly to the Assistant Secretary in the performance of these duties, to support the civil penalty responsibilities of the Assistant Secretary. The proposed rule would clarify that written allegations of a museum's failure to comply with the requirements of NAGPRA are to be sent to the NAGPRA Civil Penalties Coordinator, in the National NAGPRA Program.

Paragraph (i)(3). The Manager, National NAGPRA Program provides staff to support the civil penalty responsibilities of the Assistant Secretary (Secretarial Order 3261, Section 4c, May 23, 2005). The proposed rule would clarify that a petition for relief should therefore be sent to the NAGPRA Civil Penalties Coordinator in the National NAGPRA Program.

Paragraph (j)(1). The address for filing a written, dated request for a hearing on a notice of failure to comply or notice of assessment has changed since the rule was promulgated. The proposed rule would correct the mailing address. The proposed rule would also move the final sentence of this paragraph to paragraph (j)(6).

Paragraph (j)(6)(i). The proposed rule would move the final sentence of paragraph (j)(1) to this location, which is more logical. The sentence reads, ``Hearings must take place following the procedures in 43 CFR part 4, Subparts A and B.''

Paragraph (k)(1). The address for filing a ``Notice of Appeal'' has changed since the rule was promulgated. The proposed rule would correct the mailing address.

Paragraph (k)(3). The address for obtaining copies of decisions in civil penalty proceedings under NAGPRA has changed since the rule was promulgated. The proposed rule would correct the mailing address.

Sec. 10.13 Future Applicability

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

Sec. 10.15 Limitations and Remedies

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

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only to Federal agencies and not to museums.

Paragraph (c)(1)(ii). The proposed rule would clarify, consistent with NAGPRA, that Federal collections, rather than Federal lands, are subject to 43 CFR part 10, Subpart C.

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

Since the publication of the initial rules, new templates have been developed that address specific actions that museums and Federal agencies must take to comply with NAGPRA and satisfy the requirements of due process. These templates are published by the Manager, National NAGPRA Program, at www.nps.gov/nagpra, and include:

Notice of Inventory Completion Template for culturally affiliated inventories of Native American human remains and associated funerary objects and disposition with approval from the Secretary in situations not covered by 43 CFR 10.11;

Notice of Inventory Completion Template for culturally unidentifiable inventories of Native American human remains from tribal or aboriginal land to tribal/aboriginal land Indian tribes, 43 CFR 10.11(c)(1);

Notice of Inventory Completion Template for culturally unidentifiable inventories of Native American human remains from tribal or aboriginal land to Indian tribes that are not the tribal or aboriginal land Indian tribe, 43 CFR 10.11(c)(2)(i);

Notice of Inventory Completion Template for culturally unidentifiable inventories of Native American human remains from tribal or aboriginal land with the recommendation of the Secretary to disposition to Indian groups that are non-federally recognized or for reinterment under state law, 43 CFR 10.11(c)(2)(ii);

Notice of Intent to Repatriate Template for culturally affiliated unassociated funerary objects, sacred objects, and/or objects of cultural patrimony;

Correction Template (used to correct a previously published notice); and

Notice of Intended Disposition Template for Native American human remains and cultural items removed from Federal or tribal land after November 16, 1990.

As museums, Federal agencies, Indian tribes, and Native Hawaiian organizations can easily access these and other templates electronically, and as the current templates likely will be supplemented by others in the future, the proposed rule would delete these appendices from this part.

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

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

1. Does not have an annual effect on the economy of $100 million or more.

2. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local or tribal government agencies, or geographic regions.

3. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Consultation With Indian Tribes (Executive Order 13175)

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

Paperwork Reduction Act

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

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National Environmental Policy Act

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

Effects on the Energy Supply (Executive Order 13211)

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

Clarity of This Rule

We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, or the sections where you feel lists or tables would be useful.

Drafting Information

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

Public Participation

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

Public Availability of Comments

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

List of Subjects in 43 CFR Part 10

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

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

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

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

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

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

Sec. 10.2 Definitions.

* * * * *

(c) * * *

(1) Secretary means the Secretary of the Interior or a designee.

* * * * *

(3) Manager, National NAGPRA Program means the official of the Department of the Interior designated by the Secretary as responsible for administration of matters relating to this part. Communications to the Manager, National NAGPRA Program should be sent to the mailing address listed on the National NAGRPA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.

* * * * *

2. Amend Sec. 10.4 by revising paragraph (d)(1)(iii) to read as follows:

Sec. 10.4 Inadvertent discoveries.

* * * * *

(d) * * *

(1) * * *

(iii) Notify any known lineal descendants, Indian tribes, or Native Hawaiian organizations likely to be culturally affiliated with the remains or objects, the Indian tribe or Native Hawaiian organization that aboriginally occupied the area, and any other Indian tribe or Native Hawaiian organization known to have a cultural relationship to the remains or objects. This notification must be by telephone with written confirmation and must include information about the kinds of remains or objects, their condition, and the circumstances of their discovery;

* * * * *

3. Amend Sec. 10.5 by revising paragraph (b)(1)(i) to read as follows:

Sec. 10.5 Consultation.

* * * * *

(b) * * *

(1) * * *

(i) Any known lineal descendants of the individual whose remains and associated funerary objects have been or are likely to be excavated intentionally or discovered inadvertently; and

* * * * *

4. Amend Sec. 10.6 by revising paragraphs (a)(2) introductory text and (a)(2)(iii)(B) to read as follows:

Sec. 10.6 Custody.

(a) * * *

(2) When a lineal descendant cannot be ascertained, and with respect to unassociated funerary objects, sacred objects, and objects of cultural patrimony:

(iii) * * *

(B) If a preponderance of the evidence shows that a different Indian tribe or Native Hawaiian organization has a stronger cultural relationship with the remains or objects, in the Indian tribe or Native Hawaiian organization that has the strongest demonstrated relationship with the remains or objects.

* * * * *

5. Amend Sec. 10.8 by revising paragraph (e) introductory text to read as follows:

Sec. 10.8 Summaries.

* * * * *

(e) Using summaries to determine affiliation. Museum and Federal agency officials must document in the summary the following information and must use this information in determining the lineal descendants, Indian tribes, and Native Hawaiian organizations with which objects are affiliated:

* * * * *

6. Amend Sec. 10.10 by revising paragraphs (a)(1)(ii)(B), (b)(1)(ii)(B), (c)(2), and (g) to read as follows:

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Sec. 10.10 Repatriation.

(a) * * *

(1) * * *

(ii) * * *

(B) By presentation of a preponderance of the evidence by a requesting Indian tribe or Native Hawaiian organization under section 7(a)(4) of the Act; and

* * * * *

(b) * * *

(1) * * *

(ii) * * *

(B) Has been shown by a preponderance of the evidence presented by a requesting Indian tribe or Native Hawaiian organization under section 7(a)(4) of the Act; and

* * * * *

(c) * * *

(2) Circumstances where there are multiple requests for repatriation of remains or objects and the museum or Federal agency, after complying with this part, cannot determine by a preponderance of the evidence which competing requesting party is the most appropriate claimant. In these circumstances, the museum or Federal agency may retain the remains or objects until the competing requesting parties agree upon the appropriate recipient or the dispute is otherwise resolved pursuant to these regulations or by a court of competent jurisdiction; or

* * * * *

(g) Culturally unidentifiable human remains. If the cultural affiliation of human remains cannot be established under this part, the human remains must be considered culturally unidentifiable.

(1) Museum and Federal agency officials must report the inventory information regarding these human remains in their holdings to the Manager, National NAGPRA Program, who will send this information to the Review Committee.

(2) The Review Committee will:

(i) Compile an inventory of culturally unidentifiable human remains in the possession or control of each museum and Federal agency; and

(ii) Recommend to the Secretary specific actions for disposition of any human remains not already addressed in Sec. 10.11.

7. Amend Sec. 10.11 by revising paragraph (b)(2)(ii) to read as follows:

Sec. 10.11 Disposition of culturally unidentifiable human remains.

* * * * *

(b) * * *

(2) * * *

(ii) From whose aboriginal lands the human remains and associated funerary objects were removed. Aboriginal occupation for purposes of this section may be recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims, or by a treaty, Act of Congress, or Executive Order.

* * * * *

8. Amend Sec. 10.12 by:

1. Revising paragraph (c).

2. Revising paragraph (i)(3).

3. Adding introductory text to paragraph (j).

4. Revising paragraphs (j)(1) and (j)(6)(i).

5. Revising paragraphs (k)(1) and (k)(3).

The revisions to read as follows:

Sec. 10.12 Civil penalties.

* * * * *

(c) How to notify the Secretary of a failure to comply. Any person may file an allegation of failure to comply. Allegations are to be sent to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at the mailing address listed on the National NAGPRA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation must be in writing, and should:

(1) Identify each provision of the Act with which there has been a failure to comply by a museum;

(2) Include facts supporting the allegation;

(3) Include evidence that the museum has possession or control of Native American cultural items; and

(4) Include evidence that the museum receives Federal funds.

* * * * *

(i) * * *

(3) File a petition for relief. You may file a petition for relief within 45 calendar days of receiving the notice of assessment. A petition for relief is to be sent to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at the mailing address listed on the National NAGPRA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. Your petition may ask the Secretary not to assess a penalty or to reduce the penalty amount. Your petition must:

(i) Be in writing and signed by an official authorized to sign such documents; and

(ii) Fully explain the legal or factual basis for the requested relief.

* * * * *

(j) How you request a hearing. You may file a written, dated request for a hearing on a notice of failure to comply or notice of assessment with the Departmental Cases Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 405 South Main Street, Suite 400, Salt Lake City, UT 84111. You must also serve a copy of the request on the Solicitor of the Department of the Interior personally or by registered or certified mail (return receipt requested) at the address specified in the notice.

(1) Your request for a hearing must:

(i) Include a copy of the notice of failure to comply or the notice of assessment;

(ii) State the relief sought;

(iii) State the basis for challenging the facts used as the basis for determining the failure to comply or fixing the assessment; and

(iv) State your preferred place and date for a hearing.

* * * * *

(6) * * *

(i) Hearings must take place following the procedures in 43 CFR part 4, subparts A and B. The administrative law judge has all powers accorded by law and necessary to preside over the parties and the proceedings and to make decisions under 5 U.S.C. 554-557.

* * * * *

(k) * * *

(1) Either you or the Secretary may appeal the decision of an administrative law judge by filing a Notice of Appeal. Send your Notice of Appeal to the Interior Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203, within 30 calendar days of the date of the administrative law judge's decision. The notice must be accompanied by proof of service on the administrative law judge and the opposing party.

* * * * *

(3) You may obtain copies of decisions in civil penalty proceedings instituted under the Act by sending a request to the Interior Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees for this service are established by the director of that office.

* * * * *

9. Amend Sec. 10.13 by revising paragraph (c)(2) to read as follows:

Sec. 10.13 Future applicability.

* * * * *

(c) * * *

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

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of Indian Affairs is published in the Federal Register as required by section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1 (2006)).

* * * * *

10. In Sec. 10.15, revise paragraph (c)(1) to read as follows:

Sec. 10.15 Limitations and remedies.

* * * * *

(c) * * *

(1) A person's administrative remedies are exhausted only when the person has filed a written claim with the responsible Federal agency and the claim has been duly denied under this part. This paragraph applies to both:

(i) Human remains, funerary objects, sacred objects, or objects of cultural patrimony subject to subpart B of this part; and

(ii) Federal collections subject to subpart C of this part.

* * * * *

Appendices A and B Removed

11. Remove Appendices A and B.

Dated: March 30, 2012.

Rachel Jacobson,

Acting Assistant Secretary for Fish and Wildlife and Parks.

FR Doc. 2012-9228 Filed 4-17-12; 8:45 am

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