Native American Graves Protection and Repatriation Act Regulations, 27078-27084 [2013-10966]
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BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 10
[NPS–WASO–NAGPRA–11600;
PPWOCRADN0–PCU00RP14.550000]
RIN 1024–AD99
Native American Graves Protection
and Repatriation Act Regulations
Office of the Secretary, Interior.
Final rule.
AGENCY:
ACTION:
This final rule revises
regulations implementing the Native
American Graves Protection and
Repatriation Act for accuracy and
consistency.
SUMMARY:
DATES:
The rule is effective June 10,
2013.
FOR FURTHER INFORMATION CONTACT:
• Mail: Sherry Hutt, Manager,
National NAGPRA Program, National
Park Service, 1201 Eye Street NW., 8th
Floor, Washington, DC 20005.
• Telephone: (202) 354–1479, Fax:
(202) 371–5197. Email:
sherry_hutt@nps.gov.
SUPPLEMENTARY INFORMATION:
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Background
The Secretary of the Interior
(Secretary) is responsible for
implementation of the Native American
Graves Protection Repatriation Act
(NAGPRA or Act) (25 U.S.C. 3001 et
seq.), including the issuance of
appropriate regulations implementing
and interpreting its provisions.
NAGPRA addresses the rights of lineal
descendants, Indian tribes, and Native
Hawaiian organizations in certain
Native American human remains,
funerary objects, sacred objects, and
objects of cultural patrimony. Pursuant
to Section 13 of NAGPRA (25 U.S.C.
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3011), the Department of the Interior
(Department) published the initial rules
to implement NAGPRA in 1995 (60 FR
62158, December 4, 1995), which have
been codified at 43 CFR Part 10.
Subsequently, the Department
published additional rules 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 1995, minor inaccuracies or
inconsistencies in 43 CFR Part 10 have
been identified by or brought to the
attention of the Department. On April
18, 2012, we published in the Federal
Register proposed amendments to
provide for factual accuracy and
consistency throughout 43 CFR Part 10
by revising 43 CFR 10.2(c)(1), 10.2(c)(3),
10.4(d)(1)(iii), 10.5(b)(1)(i), 10.6(a)(2),
10.6(a)(2)(iii)(B), 10.8(e),
10.10(a)(1)(ii)(B), 10.10(b)(1)(ii)(B),
10.10(c)(2), 10.10(g), 10.11(b)(2)(ii),
10.12(c), 10.12 (i)(3), 10.12(j)(1),
10.12(j)(6)(i), 10.12(k)(1), 10.12(k)(3),
10.13(c)(2), 10.15(c)(1), 10.15(c)(1)(ii),
Appendix A, and Appendix B.
Summary of and Responses to
Comments
The proposed rule to revise 43 CFR
Part 10 for the purposes of accuracy and
consistency was published in the
Federal Register on April 18, 2012 (77
FR 23196). Public comment was invited
for a 60-day period, ending June 18,
2012. The proposed rule also was
posted on the National NAGPRA
Program Web site. The Native American
Graves Protection and Repatriation
Review Committee commented on the
proposed rule at a public meeting on
May 10, 2012. In addition, 16 written
comments on the proposed minor
amendments, contained in 19 separate
submissions, were received during the
comment period from 13 Indian tribes,
2 Indian organizations, 3 Native
Hawaiian organizations, 1 museum, 1
museum and scientific organization, 1
Federal entity, 1 individual member of
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the public, and 1 other organization. All
relevant comments on the proposed rule
were considered during the final
rulemaking. The comments we received
that went beyond the scope of the
proposed rule will be taken into account
during any subsequent review and
rulemaking regarding 43 CFR Part 10.
Authority
Comment 1: Ten commenters stated
that the proposed rule revises the
authority citation for Part 10, and that
they oppose this purported revision.
Our Response: The proposed rule did
not intend to revise the authority
citation for Part 10. Based on the
promulgation of 43 CFR 10.11 and
related amendments in 2010 (75 FR
12378, March 15, 2010), the authority
citation for Part 10 remains 25 U.S.C.
3001 et seq., 16 U.S.C. 470dd(2), and 25
U.S.C. 9, and it is explicitly stated as
such in this final rule.
The Mailing Address of the National
NAGPRA Program
Comment 2: Seven commenters
recommended that the Main Interior
Building address currently in the
regulations be retained as the mailing
address for the National NAGPRA
Program because that address is
unlikely to change and because access
to the internet for purposes of obtaining
the current, direct mailing address of
the National NAGPRA Program is not
easily or universally accessible,
particularly in rural, tribal communities.
Our Response: The rule revises the
mailing address for the National
NAGPRA Program in §§ 10.2(c)(3),
10.12(c), and 10.12(i)(3) by removing an
indirect address and replacing it with
the Web site address where the National
NAGPRA Program’s current, direct
mailing address can always be found.
The intent of this revision is to improve
communications with the National
NAGPRA Program. Communications
that are not received in a timely manner
could adversely affect the treatment of
a NAGPRA grant request, a response to
a NAGPRA civil penalty notice, or a
request to the Review Committee. By
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referring the public to the National
NAGPRA Program Web site, the address
of the National NAGPRA Program will
remain current. Furthermore, the
Department believes that reducing the
risk of untimely communications
outweighs the inconvenience of
limitations on access to the Internet, as
any change in the National NAGPRA
Program’s address will be infrequent.
Telephone access to the National
NAGPRA Program for inquiries related
to the National NAGPRA Program’s
mailing address is also always available.
Terminology
Comment 3: Nine commenters
recommended that the term ‘‘human
remains’’ not be shortened to ‘‘remains’’
and that ‘‘associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural
patrimony’’ not be shortened to
‘‘objects.’’
Our Response: The proposed rule
shortened the term ‘‘human remains’’ to
‘‘remains’’ and shortened ‘‘associated
funerary objects, unassociated funerary
objects, sacred objects, or objects of
cultural patrimony’’ to ‘‘objects’’ in
§§ 10.4(d)(1)(iii), 10.5(b)(1)(i),
10.6(a)(2)(iii)(B), 10.8(e), 10.10(c)(2),
and 10.15(c)(1)(i). Although the
Department believes that, in context,
‘‘remains’’ clearly means ‘‘human
remains’’ and ‘‘objects’’ clearly means
‘‘associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural
patrimony,’’ and although NAGPRA
uses these shortened forms as well (see
25 U.S.C. 3002(a)), we agree with these
comments and the final rule does not
shorten these terms, but instead uses the
terms ‘‘human remains,’’ ‘‘associated
funerary objects,’’ unassociated funerary
objects,’’ ‘‘sacred objects,’’ and ‘‘objects
of cultural patrimony’’ as appropriate.
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The Secretary of the Interior’s Authority
To Delegate the Secretary’s
Responsibilities Under NAGPRA
Comment 4: Seven commenters stated
that the proposed rule revises the
Secretary of the Interior’s authority to
delegate the Secretary’s responsibilities
under NAGPRA.
Our Response: The rule is not
intended to revise the Secretary of the
Interior’s existing authority to delegate
the Secretary’s responsibilities under
NAGPRA.
Comment 5: Seven commenters
recommended that responsibilities
throughout 43 CFR Part 10 remain with
political appointees to ensure that these
duties are supervised at the highest
level in the Department.
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Our Response: Consistent with
Departmental policy, the Secretary
delegated to the Manager of the National
NAGPRA Program the responsibility for
managing the operations of the National
NAGPRA Program. Likewise, the
Secretary delegated to the National
NAGPRA Program the responsibility for
providing staff to support the Assistant
Secretary for Fish and Wildlife and
Parks, who has the delegated
responsibility (in consultation with the
Office of the Solicitor) to investigate
allegations of a museum’s failure to
comply with the requirements of
NAGPRA and assess civil penalties
against museums that have failed to
comply with NAGPRA. In 2005, the
Department amended Part 10 to reflect
the Secretary’s delegations of authority
to the Manager of the National NAGPRA
Program and the Assistant Secretary for
Fish and Wildlife and Parks (70 FR
57177, September 30, 2005). The
revisions to §§ 10.12(c) and 10.12(i)(3)
reflect the Secretary’s delegation to the
National NAGPRA Program of staffing
responsibilities on civil penalties.
Comment 6: One commenter
recommended that the Secretary order
the Assistant Secretary for Fish and
Wildlife and Parks to consult with the
Assistant Secretary for Policy,
Management, and Budget or the Director
of the Office of Native Hawaiian
Relations on regulations to carry out
NAGPRA, in addition to the Assistant
Secretary for Indian Affairs.
Our Response: The Secretary’s
discretion to order the Assistant
Secretary for Fish and Wildlife and
Parks to consult with the Assistant
Secretary for Policy, Management, and
Budget or the Director of the Office of
Native Hawaiian Relations on
regulations to carry out NAGPRA is
beyond the scope of this rule.
Rights and Claims of Lineal
Descendants in Cultural Items
Excavated or Discovered on Federal or
Tribal Lands After November 16, 1990
Comment 7: One commenter stated
that the amendments proposed in
§§ 10.5(b)(1)(i) and 10.6(a)(2)
constructively diminish the rights and
claims of lineal descendants to cultural
items, and require a more thorough
examination and discussion than the
comment period allowed. The
commenter thus recommended that the
amendment of those sections be stayed.
Our Response: NAGPRA excludes
lineal descendants from the list of
possible owners of sacred objects or
objects of cultural patrimony excavated
or discovered on Federal or tribal lands
after November 16, 1990 (25 U.S.C.
3002(a)). The current regulation at
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§ 10.5(b)(1)(i), by contrast, includes
lineal descendants among the possible
owners of these two categories of
cultural item when they are, or might
be, excavated or discovered on Federal
lands after November 16, 1990. The
provision in the statute governs. The
revision to § 10.5(b)(1)(i) in this rule
makes the regulation consistent with the
statute. NAGPRA also provides that
ownership or control of human remains
and associated funerary objects
excavated or discovered on Federal or
tribal lands after November 16, 1990 is,
in the first instance, with the lineal
descendants of the deceased Native
American irrespective of the assertion of
a claim (25 U.S.C. 3002(a)). The current
regulation at § 10.6(a)(2), by contrast,
makes a lineal descendant’s right to
control the disposition of such human
remains and associated funerary objects
contingent on the lineal descendant
making a claim. The revision to
§ 10.6(a)(2) in this rule makes the
regulation consistent with the statute.
Typographical Error
Comment 8: One commenter pointed
out a typographical error in the spelling
of ‘‘NAGPRA’’ in the proposed
amendment of § 10.2(c)(3).
Our Response: This typographical
error is corrected in the final rule.
Section 10.2(c)(1) Definition of
‘‘Secretary’’
The proposed rule will amend the
definition of Secretary to reflect
Departmental delegations of the
Secretary of the Interior’s authority
under NAGPRA.
Comment 9: One commenter stated
that the Secretary could possibly
delegate a single responsibility under
NAGPRA to multiple designees, and
thus recommended that the words ‘‘a
designee’’ be changed to ‘‘designees.’’
Our Response: The rule does not
expand or limit the Secretary’s authority
to delegate NAGPRA responsibilities.
The words ‘‘a designee’’ mean any
designee to whom the Secretary
delegates any of the Secretary’s
responsibilities under NAGPRA.
Section 10.4(d)(1)(iii) Inadvertent
Discoveries
In order to facilitate the process of
consultation with known lineal
descendants of a deceased Native
American whose human remains and
associated funerary objects were
recovered from Federal or tribal lands
after November 16, 1990, as required
under § 10.5(b)(1)(i) of the current
regulations, the rule will add such
known lineal descendants to the list of
parties to be notified of an inadvertent
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discovery of human remains and
associated funerary objects.
Comment 10: Five commenters
asserted that the proposed rule suggests
that a lineal descendant be notified of
the inadvertent discovery of cultural
items that are not human remains and
associated funerary objects. Seven
commenters asserted that the proposed
rule implies that lineal descendants can
be ‘‘culturally affiliated’’ with Native
American human remains and funerary
objects, even though cultural affiliation
is a function of shared group identity
and not kinship.
Our Response: The Department
believes that both the current
regulations and this rule are clear in
requiring that the parties to be notified
of an inadvertent discovery are only
those who have, or are likely to have,
ownership or control of the
inadvertently discovered cultural items
in question. NAGPRA clearly states that
ownership or control in lineal
descendants of cultural items recovered
from Federal or tribal lands after
November 16, 1990 is restricted to
human remains and associated funerary
objects (25 U.S.C. 3002(a)(1)); there is no
requirement that lineal descendants of a
deceased Native American individual be
notified of the inadvertent discovery of
an object belonging to any category of
cultural item other than human remains
and associated funerary objects. We
have added text to the rule to clarify
that the required notice to known lineal
descendants of an inadvertent discovery
is limited to human remains and
associated funerary objects.
Comment 11: One commenter
suggested changing the second sentence
in the proposed rule from ‘‘this
notification must be by telephone with
written confirmation’’ to ‘‘this
notification must be by telephone
followed by written confirmation.’’
Our Response: This comment goes
beyond the scope of this rule because
there was no change proposed for that
sentence.
Section 10.5(b)(1)(i) Consultation
The rule revises the subject-matter of
a consultation with known lineal
descendants of a deceased Native
American individual when an activity
on Federal lands after November 16,
1990 has resulted in, or is likely to
result in, the excavation or discovery of
cultural items. As NAGPRA excludes
lineal descendants from the list of
possible owners of sacred objects or
objects of cultural patrimony excavated
or discovered on Federal lands after
November 16, 1990 (25 U.S.C. 3002(a)),
the rule limits the scope of the required
consultation with a known lineal
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descendant of a deceased Native
American individual to human remains
and associated funerary objects. Thus,
the revision to § 10.5(b)(1)(i), makes the
regulation consistent with the statute.
Comment 12: Seven commenters
proposed retaining the language in the
current regulation because not
consulting with a known lineal
descendant of an individual who owned
a sacred object that has been recovered
from Federal lands after November 16,
1990, on the disposition of such object
might result in a taking of property by
the United States without
compensation, in violation of the Fifth
Amendment of the U.S. Constitution.
Our Response: Under NAGPRA,
Congress has provided that the
ownership of a specific ceremonial
object needed by a traditional Native
American religious leader for the
practice of traditional Native American
religion by present-day adherents,
which is recovered from Federal land
after November 16, 1990, is in the
Indian tribe or Native Hawaiian
organization having the closest cultural
affiliation with the object and stating a
claim for such object (25 U.S.C.
3002(a)(2)(B)). The Department believes
that, under the criteria in Executive
Order 12360, this rule does not have
significant takings implications.
Section 10.6(a)(2) Custody
Under NAGPRA, the right of control
of the disposition of Native American
human remains and associated funerary
objects recovered from Federal or tribal
lands after November 16, 1990, is
automatically in the lineal descendants
of the deceased Native American
individual whenever such lineal
descendants can be ascertained (25
U.S.C. 3002(a)). Such right of control is
not claim-dependent. The rule
eliminates the requirement in the
current regulation that lineal
descendants of a Native American
individual, whose human remains and
associated funerary objects were
recovered from Federal or tribal lands
after November 16, 1990, state a claim
for such human remains and funerary
objects. Thus, the revision to
§ 10.6(a)(2), makes the regulation
consistent with the statute.
Comment 13: Seven commenters
recommended that a provision be
included to allow for the disposition to
Indian tribes or Native Hawaiian
organizations of human remains and
associated funerary objects where a
known lineal descendant declines to
exercise the right of control of the
disposition of the human remains and
associated funerary objects of the
deceased Native American.
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Our Response: As noted above,
NAGPRA only allows a tribe or Native
Hawaiian organization to have custody
over human remains and associated
funerary objects of a deceased Native
American if a lineal descendant cannot
be ascertained. Congress did not provide
for transfer of control upon failure of a
lineal descendant to ‘‘exercise a right of
control’’ and consideration of such is
beyond the scope of this rulemaking.
Comment 14: Five commenters
asserted that the proposed rule wrongly
suggests that lineal descendants must be
located concerning the ownership or
control of cultural items other than the
human remains and associated funerary
objects of a deceased Native American.
Our Response: The rule, read together
with § 10.6(a)(1) and section 3(a) of
NAGPRA (25 U.S.C. 3002(a)), requires
that lineal descendants be identified
only with respect to the right of control
of the disposition of human remains and
associated funerary objects of a
deceased Native American individual.
We have added text to the rule to clarify
that, with respect to recoveries from
Federal lands, the priority of right of
control of human remains and
associated funerary objects defaults to a
culturally affiliated Indian tribe or
Native Hawaiian organization only
where the lineal descendants of the
deceased Native American cannot be
ascertained, but that, with respect to
other cultural items recovered from
Federal lands, the priority of ownership
is, in the first instance, in the culturally
affiliated Indian tribe or Native
Hawaiian organization.
Section 10.8(e) Using Summaries To
Determine Affiliation
Lineal descendants of a deceased
Native American whose unassociated
funerary objects or individually-owned
sacred object are in a museum or
Federal agency collection have standing
to request the repatriation of these
cultural items. The rule replaces the
word ‘‘individuals’’ used to denote such
lineal descendants with the statutory
term ‘‘lineal descendants.’’
Comment 15: Five commenters
asserted that the proposed rule wrongly
suggests that lineal descendants may be
affiliated with objects of cultural
patrimony.
Our Response: The rule merely
changes the word ‘‘individuals’’ to
‘‘lineal descendants.’’ Even under the
current regulations, ‘‘individuals’’ are
not eligible to be affiliated with objects
of cultural patrimony. Nonetheless, we
have added text to the rule to clarify
that the information documented in the
summary is used to determine, ‘‘as
appropriate,’’ the lineal descendants,
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Indian tribes, and Native Hawaiian
organizations with which the cultural
items in the summary are affiliated.
Section 10.10(g)(2)(ii) The Review
Committee’s Responsibility for
Recommending Specific Actions for
Developing a Process for the Disposition
of Culturally Unidentifiable Human
Remains Not Now Covered by § 10.11 of
These Regulations
Under NAGPRA, Congress tasked the
Secretary with promulgating regulations
to carry out the Act (25 U.S.C. 3011),
and assigned the Review Committee the
responsibility of consulting with the
Secretary in the development of those
regulations (25 U.S.C. 3006(c)(7)),
including recommending specific
actions for developing a process for the
disposition of culturally unidentifiable
Native American human remains that
are in the possession or control of each
Federal agency and museum (25 U.S.C.
3006(c)(5)). A rule on the disposition of
culturally unidentifiable human
remains to Indian tribes and Native
Hawaiian organizations from whose
tribal or aboriginal lands the human
remains were removed was promulgated
in 2010, and is presently codified at 43
CFR 10.11. This rule clarifies that the
Review Committee still is responsible
for recommending specific actions for
developing a process for the disposition
of such culturally unidentifiable Native
American human remains not addressed
by the 2010 rule.
Comment 16: Two commenters
question why, under the proposed rule,
the Review Committee is charged with
recommending specific actions for
developing a process for the disposition
of culturally unidentifiable Native
American human remains not addressed
by the 2010 rule. One of these
commenters recommends that the
current rule at § 10.10(g) be removed
entirely. The other commenter stated
that there are problems inherent in
§ 10.11, that these problems have yet to
be addressed, and that not addressing
these problems has left the entire
process of disposition of culturally
unidentifiable human remains
unresolved. The commenter urged the
Review Committee not to issue further
recommendations on the disposition of
culturally unidentifiable human
remains until these difficulties are
resolved.
Our Response: Under NAGPRA, the
Review Committee has the authority
and the responsibility to recommend
specific actions for developing a process
for the disposition of any culturally
unidentifiable Native American human
remains that are in the possession or
control of each Federal agency and
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museum (25 U.S.C. 3006(c)(5)). In the
2010 rule, the Secretary incorporated
Review Committee recommendations
with respect to the disposition of certain
categories of culturally unidentifiable
human remains. As for the disposition
of culturally unidentifiable human
remains not addressed in the 2010 rule,
the Review Committee, by statute, is
still responsible for recommending
specific actions. Also under NAGPRA,
the Secretary has the authority to assign
the Review Committee any function
related to any of the Review
Committee’s responsibilities (25 U.S.C.
3006(c)(8)), which may include
recommending specific actions for
developing a process for the disposition
of culturally unidentifiable Native
American human remains not addressed
by the 2010 rule.
Changes From the Proposed Rule
Based on the preceding comments
and responses, the drafters have made
the following changes to the proposed
rule language:
• Section 10.2(c)(iii). We have
corrected a typographical error in the
spelling of ‘‘NAGPRA.’’
• Section 10.4(d)(1)(iii). We have
used, as appropriate, the specific terms
for the categories of ‘‘cultural items’’
used in NAGPRA and the NAGPRA
term ‘‘cultural items.’’ In addition, we
have added text to clarify that the
required notice to known lineal
descendants of an inadvertent discovery
is limited to human remains and
associated funerary objects. We have
also explicitly stated that such
notification is to ‘‘known lineal
descendants of a deceased Native
American individual whose human
remains and associated funerary objects
were inadvertently discovered.’’
• Section 10.5(b)(1)(i). We have used,
as appropriate, the specific terms for the
categories of ‘‘cultural items’’ used in
NAGPRA.
• Section 10.6(a)(2). We have added
text to clarify that, with respect to
recoveries from Federal lands, the
priority of right of control of human
remains and associated funerary objects
defaults to a culturally affiliated Indian
tribe or Native Hawaiian organization
only where the lineal descendants of the
deceased Native American cannot be
ascertained, but that, with respect to
other cultural items recovered from
Federal lands, the priority of ownership
is, in the first instance, in the culturally
affiliated Indian tribe or Native
Hawaiian organization.
• Section 10.6(a)(2)(iii)(B). We have
used, as appropriate, the specific terms
for the categories of ‘‘cultural items’’
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used in NAGPRA and the NAGPRA
term ‘‘cultural items.’’
• Section 10.8(e). We have used, as
appropriate, the specific terms for the
categories of ‘‘cultural items’’ used in
NAGPRA. In addition, we have added
text to clarify that the information
documented in the summary is used to
determine, ‘‘as appropriate’’, the lineal
descendants, Indian tribes, and Native
Hawaiian organizations with which the
cultural items in the summary are
affiliated.
• Section 10.10(c)(2). We have used,
as appropriate, the specific terms for the
categories of ‘‘cultural items’’ used in
NAGPRA and the NAGPRA term
‘‘cultural items.’’
• Section 10.15(c)(1)(i). We have
used, as appropriate, the specific terms
for the categories of ‘‘cultural items’’
used in NAGPRA.
Compliance With Other Laws,
Executive Orders and Department
Policy 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
Tbe 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
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Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State,
local or tribal government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local or tribal
governments, or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
Takings (Executive Order 12630)
Under the criteria in section 2 of
Executive Order 12630, this rule does
not have significant takings
implications. A takings implication
assessment is not required. No taking of
property will occur as a result of this
rule.
Federalism (Executive Order 13132)
Under the criteria in section 1 of
Executive Order 13132, this 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)
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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 and
Department Policy)
The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
Tribes through a commitment to
consultation with Indian Tribes and
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recognition of their right to selfgovernance and tribal sovereignty. 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 consulted with federally
recognized Indian Tribes on this rule
both before publication of the proposed
rule and during the public comment
period. Tribal comments have been
addressed to ensure this rule only
amends the 43 CFR part 10 regulations
to correct minor inaccuracies or
inconsistencies.
Paperwork Reduction Act
The Office of Management and Budget
has approved the information collection
requirements in 43 CFR part 10 and
assigned OMB Control Number 1024–
0144. This rule does not contain any
new information collections that require
OMB approval under the Paperwork
Reduction Act. An 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.
National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment. A
detailed statement under the National
Environmental Policy Act of 1969 is not
required because the rule is covered by
a categorical exclusion under 43 CFR
46.210(i): ‘‘Policies, directives,
regulations, and guidelines: that are of
an administrative, financial, legal,
technical, or procedural nature; or
whose environmental effects are too
broad, speculative, or conjectural to
lend themselves to meaningful analysis
and will later be subject to the NEPA
process, either collectively or case-bycase.’’ We have also determined that the
rule does not involve any of the
extraordinary circumstances listed in 43
CFR 46.215 that would require further
analysis under the National
Environmental Policy Act.
Effects on the Energy Supply (Executive
Order 13211)
This rule is not a significant energy
action under the definition in Executive
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Order 13211. A statement of Energy
Effects is not required.
Drafting Information
The proposed rule and this final rule
were prepared by staff of the National
NAGPRA Program, National Park
Service; Office of Regulations and
Special Park Uses, National Park
Service; and Office of the Solicitor,
Division of Parks and Wildlife and
Division of Indian Affairs, Department
of the Interior. This final rule was
prepared in consultation with the
Native American Graves Protection and
Repatriation Review Committee under
NAGPRA (25 U.S.C. 3006(c)(7)).
List of Subjects in 43 CFR Part 10
Administrative practice and
procedure, Hawaiian Natives, Historic
preservation, Indians-claims, Indianslands, Museums, Penalties, Public
lands, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the
NPS amends 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., 16
U.S.C. 470dd(2), 25 U.S.C. 9.
2. Amend § 10.2 by revising
paragraphs (c)(1) and (c)(3) to read as
follows:
■
§ 10.2
Definitions.
*
*
*
*
*
(c) * * *
(1) Secretary means the Secretary of
the Interior or a designee.
*
*
*
*
*
(3) Manager, National NAGPRA
Program means the official of the
Department of the Interior designated by
the Secretary as responsible for
administration of matters relating to this
part. Communications to the Manager,
National NAGPRA Program should be
sent to the mailing address listed on the
National NAGPRA Contact Information
Web site, https://www.nps.gov/nagpra/
CONTACTS/INDEX.HTM.
*
*
*
*
*
■ 3. Amend § 10.4 by revising paragraph
(d)(1)(iii) to read as follows:
§ 10.4
Inadvertent discoveries.
*
*
*
*
*
(d) * * *
(1) * * *
(iii) Notify any known lineal
descendants of a deceased Native
American individual whose human
remains and associated funerary objects
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were discovered of such discovery, and,
with respect to a discovery of human
remains, associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural patrimony,
notify the Indian tribes or Native
Hawaiian organizations likely to be
culturally affiliated with the cultural
items, 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 cultural items. This notification
must be by telephone with written
confirmation and must include
information about the kinds of human
remains, associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural patrimony,
their condition, and the circumstances
of their discovery;
■ 4. Amend § 10.5 by revising paragraph
(b)(1)(i) to read as follows:
§ 10.5
Consultation.
*
*
*
*
*
(b) * * *
(1) * * *
(i) Any known lineal descendants of
the deceased Native American
individual whose human remains and
associated funerary objects have been or
are likely to be excavated intentionally
or discovered inadvertently; and
*
*
*
*
*
■ 5. Amend § 10.6 by revising the
introductory text of paragraph (a)(2) and
paragraph (a)(2)(iii)(B) to read as
follows:
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§ 10.6
Custody.
(a) * * *
(2) When a lineal descendant of a
deceased Native American individual
cannot be ascertained with respect to
the human remains and associated
funerary objects, 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
human remains, associated funerary
objects, unassociated funerary objects,
sacred objects, or objects of cultural
patrimony, in the Indian tribe or Native
Hawaiian organization that has the
strongest demonstrated relationship
with the cultural items.
*
*
*
*
*
■ 6. Amend § 10.8 by revising the
introductory text of paragraph (e) to
read as follows:
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§ 10.8
Summaries.
*
*
*
*
*
(e) Using summaries to determine
affiliation. Museum and Federal agency
officials must document in the summary
the following information. They must
use this information in determining, as
appropriate, the lineal descendants of a
deceased Native American individual
with whom unassociated funerary
objects and sacred objects are affiliated,
and the Indian tribes and Native
Hawaiian organizations with which
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
are affiliated:
*
*
*
*
*
■ 7. Amend § 10.10 by revising
paragraphs (a)(1)(ii)(B), (b)(1)(ii)(B),
(c)(2), and (g) to read as follows:
§ 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
human remains, associated funerary
objects, unassociated funerary objects,
sacred objects, or objects of cultural
patrimony 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 cultural items in question 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
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27083
information regarding these human
remains in their holdings to the
Manager, National NAGPRA Program,
who will send this information to the
Review Committee.
(2) The Review Committee will:
(i) Compile an inventory of culturally
unidentifiable human remains in the
possession or control of each museum
and Federal agency; and
(ii) Recommend to the Secretary
specific actions for disposition of any
human remains not already addressed
in § 10.11.
■ 8. Amend § 10.11 by revising
paragraph (b)(2)(ii) to read as follows:
§ 10.11 Disposition of culturally
unidentifiable human remains.
*
*
*
*
*
(b) * * *
(2) * * *
(ii) From whose aboriginal lands the
human remains and associated funerary
objects were removed. Aboriginal
occupation for purposes of this section
may be recognized by a final judgment
of the Indian Claims Commission or the
United States Court of Claims, or by a
treaty, Act of Congress, or Executive
Order.
*
*
*
*
*
■ 9. Amend § 10.12 by:
■ A. Revising paragraph (c).
■ B. Revising paragraph (i)(3).
■ C. Adding introductory text to
paragraph (j).
■ D. Revising paragraph (j)(1), adding
introductory text to paragraph (j)(6), and
revising paragraph (j)(6)(i).
■ E. Revising paragraphs (k)(1) and
(k)(3).
The revisions and additions read as
follows:
§ 10.12
Civil penalties.
*
*
*
*
*
(c) How to notify the Secretary of a
failure to comply. Any person may file
an allegation of failure to comply.
Allegations are to be sent to the
NAGPRA Civil Penalties Coordinator,
National NAGPRA Program, at the
mailing address listed on the National
NAGPRA Contact Information Web site,
https://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
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Federal Register / Vol. 78, No. 90 / Thursday, May 9, 2013 / Rules and Regulations
(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 NAGRPA Contact
Information Web site, https://
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) Hearing Administration. Hearings
must take place following the
procedures in 43 CFR Part 4, Subparts
A and B.
(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.
*
*
*
*
*
(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
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15:51 May 08, 2013
Jkt 229001
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.
*
*
*
*
*
DEPARTMENT OF COMMERCE
10. Amend § 10.13 by revising
paragraph (c)(2) to read as follows:
SUMMARY:
■
§ 10.13
Future applicability.
*
*
*
*
*
(c) * * *
(2) The list of Indian Entities
Recognized and Eligible to Receive
Services from the United States Bureau
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. 479a1 (2006)).
*
*
*
*
*
■ 11. In § 10.15, revise paragraph (c)(1)
to read as follows:
§ 10.15
Limitations and remedies.
*
*
*
*
*
(c) * * *
(1) A person’s administrative
remedies are exhausted only when the
person has filed a written claim with the
responsible Federal agency and the
claim has been duly denied under this
part. This paragraph applies to both:
(i) Human remains, associated
funerary objects, unassociated 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 to Part 10
[Removed]
12. Remove Appendices A and B to
Part 10.
■
Dated: May 1, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2013–10966 Filed 5–8–13; 8:45 am]
BILLING CODE 4312–EJ–P
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National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 121004518–3398–01]
RIN 0648–BC66
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico;
Amendment 37
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues this final rule to
implement management measures for
gray triggerfish described in
Amendment 37 to the Fishery
Management Plan for the Reef Fish
Resources of the Gulf of Mexico (FMP),
prepared by the Gulf of Mexico Fishery
Management Council (Council). This
final rule revises the commercial and
recreational annual catch limits (ACLs)
and annual catch targets (ACTs) for gray
triggerfish; revises the recreational
accountability measures (AMs) for gray
triggerfish; revises the gray triggerfish
recreational bag limit; establishes a
commercial trip limit for gray
triggerfish; and establishes a fixed
closed season for the gray triggerfish
commercial and recreational sectors.
Additionally, Amendment 37 modifies
the gray triggerfish rebuilding plan. The
purpose of Amendment 37 and this final
rule is to end overfishing of gray
triggerfish and help achieve optimum
yield (OY) for the gray triggerfish
resource in accordance with the
requirements of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act).
DATES: This rule is effective June 10,
2013 except for the amendments to
§§ 622.39(a)(1)(vi) and 622.41(b) which
are effective May 9, 2013.
ADDRESSES: Electronic copies of
Amendment 37, which includes an
environmental assessment, a regulatory
flexibility act analysis (RFAA), and a
regulatory impact review, may be
obtained from the Southeast Regional
Office Web site at https://
sero.nmfs.noaa.gov/sf/
GrouperSnapperandReefFish.htm.
FOR FURTHER INFORMATION CONTACT: Rich
Malinowski, Southeast Regional Office,
telephone 727–824–5305, email
rich.malinowski@noaa.gov.
SUPPLEMENTARY INFORMATION: The reef
fish fishery of the Gulf is managed
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Agencies
[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Rules and Regulations]
[Pages 27078-27084]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10966]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 10
[NPS-WASO-NAGPRA-11600; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AD99
Native American Graves Protection and Repatriation Act
Regulations
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises regulations implementing the Native
American Graves Protection and Repatriation Act for accuracy and
consistency.
DATES: The rule is effective June 10, 2013.
FOR FURTHER INFORMATION CONTACT:
Mail: Sherry Hutt, Manager, National NAGPRA Program,
National Park Service, 1201 Eye Street NW., 8th Floor, Washington, DC
20005.
Telephone: (202) 354-1479, Fax: (202) 371-5197. Email:
sherry_hutt@nps.gov.
SUPPLEMENTARY INFORMATION:
Background
The Secretary of the Interior (Secretary) is responsible for
implementation of the Native American Graves Protection Repatriation
Act (NAGPRA or Act) (25 U.S.C. 3001 et seq.), including the issuance of
appropriate regulations implementing and interpreting its provisions.
NAGPRA addresses the rights of lineal descendants, Indian tribes, and
Native Hawaiian organizations in certain Native American human remains,
funerary objects, sacred objects, and objects of cultural patrimony.
Pursuant to Section 13 of NAGPRA (25 U.S.C. 3011), the Department of
the Interior (Department) published the initial rules to implement
NAGPRA in 1995 (60 FR 62158, December 4, 1995), which have been
codified at 43 CFR Part 10. Subsequently, the Department published
additional rules 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 1995, minor inaccuracies or inconsistencies in 43 CFR Part 10
have been identified by or brought to the attention of the Department.
On April 18, 2012, we published in the Federal Register proposed
amendments to provide for factual accuracy and consistency throughout
43 CFR Part 10 by revising 43 CFR 10.2(c)(1), 10.2(c)(3),
10.4(d)(1)(iii), 10.5(b)(1)(i), 10.6(a)(2), 10.6(a)(2)(iii)(B),
10.8(e), 10.10(a)(1)(ii)(B), 10.10(b)(1)(ii)(B), 10.10(c)(2), 10.10(g),
10.11(b)(2)(ii), 10.12(c), 10.12 (i)(3), 10.12(j)(1), 10.12(j)(6)(i),
10.12(k)(1), 10.12(k)(3), 10.13(c)(2), 10.15(c)(1), 10.15(c)(1)(ii),
Appendix A, and Appendix B.
Summary of and Responses to Comments
The proposed rule to revise 43 CFR Part 10 for the purposes of
accuracy and consistency was published in the Federal Register on April
18, 2012 (77 FR 23196). Public comment was invited for a 60-day period,
ending June 18, 2012. The proposed rule also was posted on the National
NAGPRA Program Web site. The Native American Graves Protection and
Repatriation Review Committee commented on the proposed rule at a
public meeting on May 10, 2012. In addition, 16 written comments on the
proposed minor amendments, contained in 19 separate submissions, were
received during the comment period from 13 Indian tribes, 2 Indian
organizations, 3 Native Hawaiian organizations, 1 museum, 1 museum and
scientific organization, 1 Federal entity, 1 individual member of the
public, and 1 other organization. All relevant comments on the proposed
rule were considered during the final rulemaking. The comments we
received that went beyond the scope of the proposed rule will be taken
into account during any subsequent review and rulemaking regarding 43
CFR Part 10.
Authority
Comment 1: Ten commenters stated that the proposed rule revises the
authority citation for Part 10, and that they oppose this purported
revision.
Our Response: The proposed rule did not intend to revise the
authority citation for Part 10. Based on the promulgation of 43 CFR
10.11 and related amendments in 2010 (75 FR 12378, March 15, 2010), the
authority citation for Part 10 remains 25 U.S.C. 3001 et seq., 16
U.S.C. 470dd(2), and 25 U.S.C. 9, and it is explicitly stated as such
in this final rule.
The Mailing Address of the National NAGPRA Program
Comment 2: Seven commenters recommended that the Main Interior
Building address currently in the regulations be retained as the
mailing address for the National NAGPRA Program because that address is
unlikely to change and because access to the internet for purposes of
obtaining the current, direct mailing address of the National NAGPRA
Program is not easily or universally accessible, particularly in rural,
tribal communities.
Our Response: The rule revises the mailing address for the National
NAGPRA Program in Sec. Sec. 10.2(c)(3), 10.12(c), and 10.12(i)(3) by
removing an indirect address and replacing it with the Web site address
where the National NAGPRA Program's current, direct mailing address can
always be found. The intent of this revision is to improve
communications with the National NAGPRA Program. Communications that
are not received in a timely manner could adversely affect the
treatment of a NAGPRA grant request, a response to a NAGPRA civil
penalty notice, or a request to the Review Committee. By
[[Page 27079]]
referring the public to the National NAGPRA Program Web site, the
address of the National NAGPRA Program will remain current.
Furthermore, the Department believes that reducing the risk of untimely
communications outweighs the inconvenience of limitations on access to
the Internet, as any change in the National NAGPRA Program's address
will be infrequent. Telephone access to the National NAGPRA Program for
inquiries related to the National NAGPRA Program's mailing address is
also always available.
Terminology
Comment 3: Nine commenters recommended that the term ``human
remains'' not be shortened to ``remains'' and that ``associated
funerary objects, unassociated funerary objects, sacred objects, or
objects of cultural patrimony'' not be shortened to ``objects.''
Our Response: The proposed rule shortened the term ``human
remains'' to ``remains'' and shortened ``associated funerary objects,
unassociated funerary objects, sacred objects, or objects of cultural
patrimony'' to ``objects'' in Sec. Sec. 10.4(d)(1)(iii),
10.5(b)(1)(i), 10.6(a)(2)(iii)(B), 10.8(e), 10.10(c)(2), and
10.15(c)(1)(i). Although the Department believes that, in context,
``remains'' clearly means ``human remains'' and ``objects'' clearly
means ``associated funerary objects, unassociated funerary objects,
sacred objects, or objects of cultural patrimony,'' and although NAGPRA
uses these shortened forms as well (see 25 U.S.C. 3002(a)), we agree
with these comments and the final rule does not shorten these terms,
but instead uses the terms ``human remains,'' ``associated funerary
objects,'' unassociated funerary objects,'' ``sacred objects,'' and
``objects of cultural patrimony'' as appropriate.
The Secretary of the Interior's Authority To Delegate the Secretary's
Responsibilities Under NAGPRA
Comment 4: Seven commenters stated that the proposed rule revises
the Secretary of the Interior's authority to delegate the Secretary's
responsibilities under NAGPRA.
Our Response: The rule is not intended to revise the Secretary of
the Interior's existing authority to delegate the Secretary's
responsibilities under NAGPRA.
Comment 5: Seven commenters recommended that responsibilities
throughout 43 CFR Part 10 remain with political appointees to ensure
that these duties are supervised at the highest level in the
Department.
Our Response: Consistent with Departmental policy, the Secretary
delegated to the Manager of the National NAGPRA Program the
responsibility for managing the operations of the National NAGPRA
Program. Likewise, the Secretary delegated to the National NAGPRA
Program the responsibility for providing staff to support the Assistant
Secretary for Fish and Wildlife and Parks, who has the delegated
responsibility (in consultation with the Office of the Solicitor) to
investigate allegations of a museum's failure to comply with the
requirements of NAGPRA and assess civil penalties against museums that
have failed to comply with NAGPRA. In 2005, the Department amended Part
10 to reflect the Secretary's delegations of authority to the Manager
of the National NAGPRA Program and the Assistant Secretary for Fish and
Wildlife and Parks (70 FR 57177, September 30, 2005). The revisions to
Sec. Sec. 10.12(c) and 10.12(i)(3) reflect the Secretary's delegation
to the National NAGPRA Program of staffing responsibilities on civil
penalties.
Comment 6: One commenter recommended that the Secretary order the
Assistant Secretary for Fish and Wildlife and Parks to consult with the
Assistant Secretary for Policy, Management, and Budget or the Director
of the Office of Native Hawaiian Relations on regulations to carry out
NAGPRA, in addition to the Assistant Secretary for Indian Affairs.
Our Response: The Secretary's discretion to order the Assistant
Secretary for Fish and Wildlife and Parks to consult with the Assistant
Secretary for Policy, Management, and Budget or the Director of the
Office of Native Hawaiian Relations on regulations to carry out NAGPRA
is beyond the scope of this rule.
Rights and Claims of Lineal Descendants in Cultural Items Excavated or
Discovered on Federal or Tribal Lands After November 16, 1990
Comment 7: One commenter stated that the amendments proposed in
Sec. Sec. 10.5(b)(1)(i) and 10.6(a)(2) constructively diminish the
rights and claims of lineal descendants to cultural items, and require
a more thorough examination and discussion than the comment period
allowed. The commenter thus recommended that the amendment of those
sections be stayed.
Our Response: NAGPRA excludes lineal descendants from the list of
possible owners of sacred objects or objects of cultural patrimony
excavated or discovered on Federal or tribal lands after November 16,
1990 (25 U.S.C. 3002(a)). The current regulation at Sec.
10.5(b)(1)(i), by contrast, includes lineal descendants among the
possible owners of these two categories of cultural item when they are,
or might be, excavated or discovered on Federal lands after November
16, 1990. The provision in the statute governs. The revision to Sec.
10.5(b)(1)(i) in this rule makes the regulation consistent with the
statute. NAGPRA also provides that ownership or control of human
remains and associated funerary objects excavated or discovered on
Federal or tribal lands after November 16, 1990 is, in the first
instance, with the lineal descendants of the deceased Native American
irrespective of the assertion of a claim (25 U.S.C. 3002(a)). The
current regulation at Sec. 10.6(a)(2), by contrast, makes a lineal
descendant's right to control the disposition of such human remains and
associated funerary objects contingent on the lineal descendant making
a claim. The revision to Sec. 10.6(a)(2) in this rule makes the
regulation consistent with the statute.
Typographical Error
Comment 8: One commenter pointed out a typographical error in the
spelling of ``NAGPRA'' in the proposed amendment of Sec. 10.2(c)(3).
Our Response: This typographical error is corrected in the final
rule.
Section 10.2(c)(1) Definition of ``Secretary''
The proposed rule will amend the definition of Secretary to reflect
Departmental delegations of the Secretary of the Interior's authority
under NAGPRA.
Comment 9: One commenter stated that the Secretary could possibly
delegate a single responsibility under NAGPRA to multiple designees,
and thus recommended that the words ``a designee'' be changed to
``designees.''
Our Response: The rule does not expand or limit the Secretary's
authority to delegate NAGPRA responsibilities. The words ``a designee''
mean any designee to whom the Secretary delegates any of the
Secretary's responsibilities under NAGPRA.
Section 10.4(d)(1)(iii) Inadvertent Discoveries
In order to facilitate the process of consultation with known
lineal descendants of a deceased Native American whose human remains
and associated funerary objects were recovered from Federal or tribal
lands after November 16, 1990, as required under Sec. 10.5(b)(1)(i) of
the current regulations, the rule will add such known lineal
descendants to the list of parties to be notified of an inadvertent
[[Page 27080]]
discovery of human remains and associated funerary objects.
Comment 10: Five commenters asserted that the proposed rule
suggests that a lineal descendant be notified of the inadvertent
discovery of cultural items that are not human remains and associated
funerary objects. Seven commenters asserted that the proposed rule
implies that lineal descendants can be ``culturally affiliated'' with
Native American human remains and funerary objects, even though
cultural affiliation is a function of shared group identity and not
kinship.
Our Response: The Department believes that both the current
regulations and this rule are clear in requiring that the parties to be
notified of an inadvertent discovery are only those who have, or are
likely to have, ownership or control of the inadvertently discovered
cultural items in question. NAGPRA clearly states that ownership or
control in lineal descendants of cultural items recovered from Federal
or tribal lands after November 16, 1990 is restricted to human remains
and associated funerary objects (25 U.S.C. 3002(a)(1)); there is no
requirement that lineal descendants of a deceased Native American
individual be notified of the inadvertent discovery of an object
belonging to any category of cultural item other than human remains and
associated funerary objects. We have added text to the rule to clarify
that the required notice to known lineal descendants of an inadvertent
discovery is limited to human remains and associated funerary objects.
Comment 11: One commenter suggested changing the second sentence in
the proposed rule from ``this notification must be by telephone with
written confirmation'' to ``this notification must be by telephone
followed by written confirmation.''
Our Response: This comment goes beyond the scope of this rule
because there was no change proposed for that sentence.
Section 10.5(b)(1)(i) Consultation
The rule revises the subject-matter of a consultation with known
lineal descendants of a deceased Native American individual when an
activity on Federal lands after November 16, 1990 has resulted in, or
is likely to result in, the excavation or discovery of cultural items.
As NAGPRA excludes lineal descendants from the list of possible owners
of sacred objects or objects of cultural patrimony excavated or
discovered on Federal lands after November 16, 1990 (25 U.S.C.
3002(a)), the rule limits the scope of the required consultation with a
known lineal descendant of a deceased Native American individual to
human remains and associated funerary objects. Thus, the revision to
Sec. 10.5(b)(1)(i), makes the regulation consistent with the statute.
Comment 12: Seven commenters proposed retaining the language in the
current regulation because not consulting with a known lineal
descendant of an individual who owned a sacred object that has been
recovered from Federal lands after November 16, 1990, on the
disposition of such object might result in a taking of property by the
United States without compensation, in violation of the Fifth Amendment
of the U.S. Constitution.
Our Response: Under NAGPRA, Congress has provided that the
ownership of a specific ceremonial object needed by a traditional
Native American religious leader for the practice of traditional Native
American religion by present-day adherents, which is recovered from
Federal land after November 16, 1990, is in the Indian tribe or Native
Hawaiian organization having the closest cultural affiliation with the
object and stating a claim for such object (25 U.S.C. 3002(a)(2)(B)).
The Department believes that, under the criteria in Executive Order
12360, this rule does not have significant takings implications.
Section 10.6(a)(2) Custody
Under NAGPRA, the right of control of the disposition of Native
American human remains and associated funerary objects recovered from
Federal or tribal lands after November 16, 1990, is automatically in
the lineal descendants of the deceased Native American individual
whenever such lineal descendants can be ascertained (25 U.S.C.
3002(a)). Such right of control is not claim-dependent. The rule
eliminates the requirement in the current regulation that lineal
descendants of a Native American individual, whose human remains and
associated funerary objects were recovered from Federal or tribal lands
after November 16, 1990, state a claim for such human remains and
funerary objects. Thus, the revision to Sec. 10.6(a)(2), makes the
regulation consistent with the statute.
Comment 13: Seven commenters recommended that a provision be
included to allow for the disposition to Indian tribes or Native
Hawaiian organizations of human remains and associated funerary objects
where a known lineal descendant declines to exercise the right of
control of the disposition of the human remains and associated funerary
objects of the deceased Native American.
Our Response: As noted above, NAGPRA only allows a tribe or Native
Hawaiian organization to have custody over human remains and associated
funerary objects of a deceased Native American if a lineal descendant
cannot be ascertained. Congress did not provide for transfer of control
upon failure of a lineal descendant to ``exercise a right of control''
and consideration of such is beyond the scope of this rulemaking.
Comment 14: Five commenters asserted that the proposed rule wrongly
suggests that lineal descendants must be located concerning the
ownership or control of cultural items other than the human remains and
associated funerary objects of a deceased Native American.
Our Response: The rule, read together with Sec. 10.6(a)(1) and
section 3(a) of NAGPRA (25 U.S.C. 3002(a)), requires that lineal
descendants be identified only with respect to the right of control of
the disposition of human remains and associated funerary objects of a
deceased Native American individual. We have added text to the rule to
clarify that, with respect to recoveries from Federal lands, the
priority of right of control of human remains and associated funerary
objects defaults to a culturally affiliated Indian tribe or Native
Hawaiian organization only where the lineal descendants of the deceased
Native American cannot be ascertained, but that, with respect to other
cultural items recovered from Federal lands, the priority of ownership
is, in the first instance, in the culturally affiliated Indian tribe or
Native Hawaiian organization.
Section 10.8(e) Using Summaries To Determine Affiliation
Lineal descendants of a deceased Native American whose unassociated
funerary objects or individually-owned sacred object are in a museum or
Federal agency collection have standing to request the repatriation of
these cultural items. The rule replaces the word ``individuals'' used
to denote such lineal descendants with the statutory term ``lineal
descendants.''
Comment 15: Five commenters asserted that the proposed rule wrongly
suggests that lineal descendants may be affiliated with objects of
cultural patrimony.
Our Response: The rule merely changes the word ``individuals'' to
``lineal descendants.'' Even under the current regulations,
``individuals'' are not eligible to be affiliated with objects of
cultural patrimony. Nonetheless, we have added text to the rule to
clarify that the information documented in the summary is used to
determine, ``as appropriate,'' the lineal descendants,
[[Page 27081]]
Indian tribes, and Native Hawaiian organizations with which the
cultural items in the summary are affiliated.
Section 10.10(g)(2)(ii) The Review Committee's Responsibility for
Recommending Specific Actions for Developing a Process for the
Disposition of Culturally Unidentifiable Human Remains Not Now Covered
by Sec. 10.11 of These Regulations
Under NAGPRA, Congress tasked the Secretary with promulgating
regulations to carry out the Act (25 U.S.C. 3011), and assigned the
Review Committee the responsibility of consulting with the Secretary in
the development of those regulations (25 U.S.C. 3006(c)(7)), including
recommending specific actions for developing a process for the
disposition of culturally unidentifiable Native American human remains
that are in the possession or control of each Federal agency and museum
(25 U.S.C. 3006(c)(5)). A rule on the disposition of culturally
unidentifiable human remains to Indian tribes and Native Hawaiian
organizations from whose tribal or aboriginal lands the human remains
were removed was promulgated in 2010, and is presently codified at 43
CFR 10.11. This rule clarifies that the Review Committee still is
responsible for recommending specific actions for developing a process
for the disposition of such culturally unidentifiable Native American
human remains not addressed by the 2010 rule.
Comment 16: Two commenters question why, under the proposed rule,
the Review Committee is charged with recommending specific actions for
developing a process for the disposition of culturally unidentifiable
Native American human remains not addressed by the 2010 rule. One of
these commenters recommends that the current rule at Sec. 10.10(g) be
removed entirely. The other commenter stated that there are problems
inherent in Sec. 10.11, that these problems have yet to be addressed,
and that not addressing these problems has left the entire process of
disposition of culturally unidentifiable human remains unresolved. The
commenter urged the Review Committee not to issue further
recommendations on the disposition of culturally unidentifiable human
remains until these difficulties are resolved.
Our Response: Under NAGPRA, the Review Committee has the authority
and the responsibility to recommend specific actions for developing a
process for the disposition of any culturally unidentifiable Native
American human remains that are in the possession or control of each
Federal agency and museum (25 U.S.C. 3006(c)(5)). In the 2010 rule, the
Secretary incorporated Review Committee recommendations with respect to
the disposition of certain categories of culturally unidentifiable
human remains. As for the disposition of culturally unidentifiable
human remains not addressed in the 2010 rule, the Review Committee, by
statute, is still responsible for recommending specific actions. Also
under NAGPRA, the Secretary has the authority to assign the Review
Committee any function related to any of the Review Committee's
responsibilities (25 U.S.C. 3006(c)(8)), which may include recommending
specific actions for developing a process for the disposition of
culturally unidentifiable Native American human remains not addressed
by the 2010 rule.
Changes From the Proposed Rule
Based on the preceding comments and responses, the drafters have
made the following changes to the proposed rule language:
Section 10.2(c)(iii). We have corrected a typographical
error in the spelling of ``NAGPRA.''
Section 10.4(d)(1)(iii). We have used, as appropriate, the
specific terms for the categories of ``cultural items'' used in NAGPRA
and the NAGPRA term ``cultural items.'' In addition, we have added text
to clarify that the required notice to known lineal descendants of an
inadvertent discovery is limited to human remains and associated
funerary objects. We have also explicitly stated that such notification
is to ``known lineal descendants of a deceased Native American
individual whose human remains and associated funerary objects were
inadvertently discovered.''
Section 10.5(b)(1)(i). We have used, as appropriate, the
specific terms for the categories of ``cultural items'' used in NAGPRA.
Section 10.6(a)(2). We have added text to clarify that,
with respect to recoveries from Federal lands, the priority of right of
control of human remains and associated funerary objects defaults to a
culturally affiliated Indian tribe or Native Hawaiian organization only
where the lineal descendants of the deceased Native American cannot be
ascertained, but that, with respect to other cultural items recovered
from Federal lands, the priority of ownership is, in the first
instance, in the culturally affiliated Indian tribe or Native Hawaiian
organization.
Section 10.6(a)(2)(iii)(B). We have used, as appropriate,
the specific terms for the categories of ``cultural items'' used in
NAGPRA and the NAGPRA term ``cultural items.''
Section 10.8(e). We have used, as appropriate, the
specific terms for the categories of ``cultural items'' used in NAGPRA.
In addition, we have added text to clarify that the information
documented in the summary is used to determine, ``as appropriate'', the
lineal descendants, Indian tribes, and Native Hawaiian organizations
with which the cultural items in the summary are affiliated.
Section 10.10(c)(2). We have used, as appropriate, the
specific terms for the categories of ``cultural items'' used in NAGPRA
and the NAGPRA term ``cultural items.''
Section 10.15(c)(1)(i). We have used, as appropriate, the
specific terms for the categories of ``cultural items'' used in NAGPRA.
Compliance With Other Laws, Executive Orders and Department Policy
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
Tbe 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
[[Page 27082]]
Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local or tribal
government agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments, or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
Under the criteria in section 2 of Executive Order 12630, this rule
does not have significant takings implications. A takings implication
assessment is not required. No taking of property will occur as a
result of this rule.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, this 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 and Department
Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and tribal sovereignty. 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 consulted with federally recognized Indian Tribes on this rule
both before publication of the proposed rule and during the public
comment period. Tribal comments have been addressed to ensure this rule
only amends the 43 CFR part 10 regulations to correct minor
inaccuracies or inconsistencies.
Paperwork Reduction Act
The Office of Management and Budget has approved the information
collection requirements in 43 CFR part 10 and assigned OMB Control
Number 1024-0144. This rule does not contain any new information
collections that require OMB approval under the Paperwork Reduction
Act. An 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.
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.
Drafting Information
The proposed rule and this final rule were prepared by staff of the
National NAGPRA Program, National Park Service; Office of Regulations
and Special Park Uses, National Park Service; and Office of the
Solicitor, Division of Parks and Wildlife and Division of Indian
Affairs, Department of the Interior. This final rule was prepared in
consultation with the Native American Graves Protection and
Repatriation Review Committee under NAGPRA (25 U.S.C. 3006(c)(7)).
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 amends 43 CFR part 10 as
follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
0
1. The authority for part 10 continues to read as follows:
Authority: 25 U.S.C. 3001 et seq., 16 U.S.C. 470dd(2), 25
U.S.C. 9.
0
2. Amend Sec. 10.2 by revising paragraphs (c)(1) and (c)(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 NAGPRA Contact Information Web site,
https://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.
* * * * *
0
3. 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 of a deceased Native
American individual whose human remains and associated funerary objects
[[Page 27083]]
were discovered of such discovery, and, with respect to a discovery of
human remains, associated funerary objects, unassociated funerary
objects, sacred objects, or objects of cultural patrimony, notify the
Indian tribes or Native Hawaiian organizations likely to be culturally
affiliated with the cultural items, 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 cultural items. This notification must be by
telephone with written confirmation and must include information about
the kinds of human remains, associated funerary objects, unassociated
funerary objects, sacred objects, or objects of cultural patrimony,
their condition, and the circumstances of their discovery;
0
4. 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 deceased Native American
individual whose human remains and associated funerary objects have
been or are likely to be excavated intentionally or discovered
inadvertently; and
* * * * *
0
5. Amend Sec. 10.6 by revising the introductory text of paragraph
(a)(2) and paragraph (a)(2)(iii)(B) to read as follows:
Sec. 10.6 Custody.
(a) * * *
(2) When a lineal descendant of a deceased Native American
individual cannot be ascertained with respect to the human remains and
associated funerary objects, 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 human remains, associated funerary objects,
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, in the Indian tribe or Native Hawaiian organization that has
the strongest demonstrated relationship with the cultural items.
* * * * *
0
6. Amend Sec. 10.8 by revising the introductory text of paragraph (e)
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. They must use this information in determining, as
appropriate, the lineal descendants of a deceased Native American
individual with whom unassociated funerary objects and sacred objects
are affiliated, and the Indian tribes and Native Hawaiian organizations
with which unassociated funerary objects, sacred objects, or objects of
cultural patrimony are affiliated:
* * * * *
0
7. Amend Sec. 10.10 by revising paragraphs (a)(1)(ii)(B),
(b)(1)(ii)(B), (c)(2), and (g) to read as follows:
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 human remains, associated funerary objects,
unassociated funerary objects, sacred objects, or objects of cultural
patrimony 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 cultural
items in question 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.
0
8. 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.
* * * * *
0
9. Amend Sec. 10.12 by:
0
A. Revising paragraph (c).
0
B. Revising paragraph (i)(3).
0
C. Adding introductory text to paragraph (j).
0
D. Revising paragraph (j)(1), adding introductory text to paragraph
(j)(6), and revising paragraph (j)(6)(i).
0
E. Revising paragraphs (k)(1) and (k)(3).
The revisions and additions 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, https://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
[[Page 27084]]
(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 NAGRPA Contact Information Web site, https://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) Hearing Administration. Hearings must take place following the
procedures in 43 CFR Part 4, Subparts A and B.
(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.
* * * * *
(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.
* * * * *
0
10. 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 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)).
* * * * *
0
11. 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, associated funerary objects, unassociated
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 to Part 10 [Removed]
0
12. Remove Appendices A and B to Part 10.
Dated: May 1, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-10966 Filed 5-8-13; 8:45 am]
BILLING CODE 4312-EJ-P