Safeguard Tribal Objects of Patrimony, 85078-85099 [2024-24332]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Proposed Rules]
[Pages 85078-85099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24332]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 1194

[Docket No. BIA-2024-0002; 245A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF78


Safeguard Tribal Objects of Patrimony

AGENCY: Office of the Assistant Secretary, Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior (Department) proposes new 
regulations that provide a framework to prevent the export for sale in 
foreign countries of Native American cultural items that are held in 
violation of current Federal laws; to repatriate such items from 
individuals and organizations having such items; and to improve 
coordination among Federal agencies, Indian Tribes, and Native Hawaiian 
organizations seeking to prevent the export and sale, and support the 
repatriation, of such items. The proposed rule would establish an 
export certification system, set forth procedures for detention and 
repatriation of items subject to the rule, establish a framework for 
voluntary return of items subject to the rule, and establish 
interagency and Native working groups.

DATES: 
    Proposed regulations: Interested parties are invited to submit 
comments, which must be received on or before December 24, 2024.
    Information collection requirements: If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
proposed rule between 30 and 60 days after publication of this proposed 
rule in the Federal Register. Therefore, comments should be submitted 
to OMB by November 25, 2024.
    Tribal consultation sessions: The Department of the Interior will 
conduct virtual consultation sessions with federally recognized Indian 
Tribes on November 18, 2024, and November 19, 2024.
    Native Hawaiian consultation sessions: The Department of the 
Interior will conduct virtual consultation sessions with the Native 
Hawaiian Community November 25, 2024, and November 26, 2024.

ADDRESSES: 
    Proposed regulations: You may submit comments on the proposed rule, 
and information collection requirements in the proposed rule, by any 
one of the following methods.
    [cir] Please visit https://www.regulations.gov/docket/BIA-2024-0002 
or https://www.regulations.gov and enter ``RIN 1076-AF78'' in the 
search box and click ``Search.'' Follow the instructions for sending 
comments.
    [cir] Mail: Please mail comments to Indian Affairs, RACA, 1001 
Indian School Road NW, Suite 229, Albuquerque, NM 87104.
    Tribal Consultation Sessions: Federally recognized Indian Tribes 
may register for the November 18, 2024, virtual consultation session at 
https://www.zoomgov.com/meeting/register/vJIsd-murTkrEoCEm5Y2To4t7GKtXSRhCnQ. Federally recognized Indian Tribes may 
register for the November 19, 2024, virtual consultation session at 
https://www.zoomgov.com/meeting/register/vJItdOmqqjkqHaI5eOnhZTOtLE2GojpXIow.
    Native Hawaiian Consultation Sessions: The Native Hawaiian 
Community may register for the November 25, 2024, virtual consultation 
session at https://www.zoomgov.com/meeting/register/vJItceqvpz0uGDSfTDedEwLOmP5bvkGLjUA. The Native Hawaiian Community may 
register for the November 26, 2024, virtual consultation session at 
https://www.zoomgov.com/meeting/register/vJItfuurqj0rGIjrBn1_9KsywIdmkmIIjoY.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted to OMB at https://www.reginfo.gov/public/do/PRAMain. Find 
this particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' and then scrolling down to the 
``Department of the Interior.'' Please also provide a copy of your 
comments to DOI at [email protected]; and reference ``OMB Control 
Number 1076-NEW STOP Act'' in the subject line of your email.
    Accessibility: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT,

[[Page 85079]]

individuals can obtain this document in an alternate format, usable by 
people with disabilities, at the Office of the Assistant Secretary--
Indian Affairs, Room 4660, 1849 C Street NW, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of 
Regulatory Affairs and Collaborative Action (RACA), Office of the 
Assistant Secretary--Indian Affairs; Department of the Interior, 
telephone (202) 738-6065, [email protected]. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services.

SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise 
of authority delegated by the Secretary of the Interior to the 
Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209 
DM 8.

Table of Contents

I. Statutory Authority and Background
II. Public Comments on the Development of the Rule and Response to 
Comments
III. Subpart-by-Subpart Summary of the Proposed Rule
    A. General Provisions
    B. Export Certification System
    C. Procedures for Detention, Forfeiture, Repatriation
    D. Administrative Appeals
    E. Voluntary Return of Tangible Cultural Heritage
    F. Interagency Working Group
    G. Native Working Group
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866, 14094 and 13563)
    B. Regulatory Analysis
    1. Regulatory Flexibility Act
    2. Regulatory Impact Analysis
    C. Unfunded Mandates Reform Act of 1995
    D. Takings (E.O. 12630)
    E. Federalism (E.O. 13132)
    F. Civil Justice Reform (E.O. 12988)
    G. Consultation With Indian Tribes (E.O. 13175)
    H. Paperwork Reduction Act
    I. National Environmental Policy Act (NEPA)
    J. Energy Effects (E.O. 13211)
    K. Clarity of This Regulation
    L. Public Availability of Comments
    M. Pay-As-You-Go Act of 2010
    N. Privacy Act of 1974, System of Records

I. Statutory Authority and Background

    Congress empowered the Secretary of the Interior, under section 10 
of the Safeguard Tribal Objects of Patrimony Act (STOP Act) of 2021, 
Public Law 117-258, codified at 25 U.S.C. 3071 et seq., to ``promulgate 
rules and regulations to carry out this Act'' in consultation with the 
Secretary of State, the Secretary of Homeland Security, and the 
Attorney General, and after consultation with Indian Tribes and Native 
Hawaiian organizations. See 25 U.S.C. 3078. The proposed regulations at 
25 CFR part 1194 implement this authority.
    The Department of the Interior (Department) issued a Dear Tribal 
Leader Letter inviting input on the development of draft regulations 
for the STOP Act on April 22, 2023, and a Dear Native Hawaiian 
Community Leader Letter inviting input on the development of draft 
regulations for the STOP Act on July 20, 2023. The Department held five 
consultation sessions with Indian Tribes, and two consultation sessions 
with the Native Hawaiian Community. The Department convened with Indian 
Tribes for a first consultation in person on May 31, 2023, at U.S. 
Geological Survey Oklahoma-Texas Walker Science Center in Oklahoma 
City, OK; for a second consultation in person on July 14, 2023, at the 
Bureau of Land Management Fairbanks District Office, in Fairbanks, AK; 
and for a fifth consultation in person on August 18, 2023, at the 
Bureau of Land Management New Mexico State Office, in Santa Fe, New 
Mexico. The Department conducted the third and fourth consultations 
with Indian Tribes virtually on Zoom on July 27, 2023, and August 8, 
2023, respectively. The Department convened the first consultation with 
the Native Hawaiian Community in person on August 23, 2023, at the 
State of Hawai'i Office of Hawaiian Affairs in Honolulu, HI, and 
conducted the next consultation virtually on Zoom on August 24, 2023. 
The Department of State and the Department of Homeland Security joined 
several of these consultations. Following the consultation sessions, 
the Department accepted written comments until September 1, 2023.
    Thereafter, beginning on August 31, 2023, the Department convened 
multiple times per week with representatives of the Secretary of State, 
the Secretary of Homeland Security, and the Attorney General, to 
develop the proposed rule based on the feedback received in 
consultation.

II. Public Comments on the Development of the Rule and Response to 
Comments

    Interior asked for answers to three framing questions during the 
consultations. Individual comments were separated and categorized after 
the closing of the comment period on September 1, 2023. In total, the 
submissions were separated into 501 individual comments. Generally, 
around 131 comments were exclusively supportive, no comments were not 
supportive, and 370 provided constructive feedback on how the rule may 
be improved. The Assistant Secretary for Indian Affairs (AS--IA) has 
decided to proceed to the proposed rule stage after careful 
consideration of all comments. The AS--IA's responses to significant 
comments that provide constructive feedback, were neutral, or provided 
general support along with constructive criticism are detailed below. 
No responses are provided for comments that were exclusively 
supportive.

A. Framing Question One: Which Assistant Secretary, Bureau or Office 
within the Department of the Interior should be responsible for the 
STOP Act program?

    1. Comment: Fourteen Tribes and organizations recommended that the 
STOP Act program be housed within the Assistant Secretary-Indian 
Affairs. Five Tribes recommended that the STOP Act program be housed 
within the Bureau of Indian Affairs, Office of Justice Services. Four 
Tribes and organizations asked for one office to take central control 
over implementation without identifying a specific office. One 
commenter recommended the National Park Service. Some of these comments 
came from the same letter.
    Response: The Department believes the balance of comments support 
placing the STOP Act program within the Office of the Assistant 
Secretary-Indian Affairs.
    2. Comment: One Tribe requested more information on the roles and 
responsibilities of the various offices and bureaus within the 
Department because the framing question alone was not helpful.
    Response: The Department referred this individual to the 
information about each of the Bureaus and Offices for the Department of 
the Interior, which may be found at this link: https://www.doi.gov/bureaus.
    3. Comment: One commenter asked that the Office of Native Hawaiian 
Relations (ONHR) view itself as a centralized agency in this process.
    Response: The Department appreciates ONHR's engagement in the 
drafting of the proposed rule and looks forward to ONHR's active role 
in implementation of these regulations following publication of a final 
rule.

B. Framing Question Two: What types of interagency agreements would be 
helpful for the program and for Act implementation?

    4. Comment: One Tribe asked that the Department of State prioritize 
engagement with any foreign

[[Page 85080]]

government or institution that has been identified by Tribes as holding 
exported cultural items or ones that are primary markets for items. One 
Tribe commented that foreign governments and entities that are open to 
voluntarily returning items should require a different level of 
engagement than those who are not willing to engage on repatriation.
    Response: The Department has conferred with the Department of State 
about the substance of these comments. The Department of State already 
engages with international institutions on repatriation and will 
continue this work in line with provisions in the STOP Act.
    5. Comment: One organization and one Tribe asked that formation of 
any agreements include Tribal consultation as early in the process of 
development as possible to ensure seamless coordination and 
harmonization of efforts.
    Response: The Department agrees. As interagency agreements are 
formed involving the Department, the Department commits to consultation 
to the degree possible.
    6. Comment: Two commenters asked that the United States military be 
part of any interagency working group.
    Response: The Department appreciates this feedback and will reach 
out to the Department of Defense to seek engagement in implementation 
of a final rule.
    7. Comment: One commenter expressed that exporters who act in 
violation of the STOP Act do not do so alone, and the Department should 
consult with experts to examine whether the Racketeer Influenced and 
Corrupt Organizations Act might apply in this situation.
    Response: The process for an export certification in subpart B of 
the proposed regulations, including discussions about potential exports 
without a certification, was developed with input from the Department 
of Justice.
    8. Comment: One commenter expressed that the STOP Act cannot be a 
barrier to repatriation and that getting through customs would continue 
to be difficult.
    Response: The process for voluntary return in subpart E of the 
proposed regulations was developed with input from the Departments of 
State and Homeland Security, including constituent agency, U.S. Customs 
and Border Protection.
    9. Comment: A Tribe asked that the Department of State notify 
foreign nations of the STOP Act's passage to facilitate repatriations 
under other nations' domestic laws and that the Department of State 
designate a liaison to facilitate voluntary returns. A Tribe and a 
Tribal Organization asked that the implementing regulations utilize the 
UNESCO 1970 Convention on the Means of Prohibiting and Preventing the 
Illicit Import, Export and Transfer of Ownership of Cultural Property 
(1970 Convention) to advocate for stronger international cooperation, 
and to encourage other countries to adopt measures similar to the STOP 
Act.
    Response: The STOP Act, and its implementing regulations, apply 
primarily to items that a putative exporter seeks to take out of the 
United States prior to their exit from the country. The STOP Act does 
not contain mechanisms to persuade or obligate international 
governments or institutions. The 1970 Convention provides a common 
framework of measures each State Party may take, including some 
included in the STOP Act, such as the prohibition of exportation of 
designated cultural property and the establishment of export 
certificates. The Department works with the Department of State to 
raise awareness of the STOP Act in order to help other countries that 
are party to the 1970 Convention to identify items that are prohibited 
from exportation under the Act and, therefore, may be restricted from 
import into those countries. The Department of State will designate a 
liaison to facilitate voluntary returns.
    10. Comment: One commenter expressed that international engagement 
will be important based on processes that exist in international 
conventions like a Hague Convention that was unspecified by the author. 
The commenter expressed that establishing such processes could help 
with international borders.
    Response: The Department appreciates this feedback and will confer 
with the Department of State on types of international engagement.
    11. Comment: A collective of Tribes asked that the Department of 
Justice direct all United States Attorneys to prosecute violations of 
25 U.S.C. 3073(a)(2) that are referred to them by the Department of the 
Interior, the Department of Homeland Security, or the Federal Bureau of 
Investigation. The same collective asked that the Department of Justice 
add the STOP Act, NAGPRA, and ARPA to the list of statutes enforced by 
the Department of Justice Environmental Crimes Section.
    Response: This comment is beyond the scope of these regulations. 
However, the Department has conferred with the Department of Justice 
about the substance of these comments.
    12. Comment: One Tribal commenter asked for memoranda of 
understanding (MOUs) among DOI's National Park Service, Insular and 
International Affairs, and the Office of the Inspector General that lay 
out the purpose, duties and responsibilities, standards and procedures, 
reporting requirements, confidentiality provisions, and other 
resolutions. One Tribal commenter proposed an agreement between the 
Departments of State and Homeland Security that focused upon NAGPRA and 
repatriation and international repatriation. One Tribal commenter 
proposed a memorandum between the State Department and the Federal 
Bureau of Investigation that focused upon international auctions. A 
Tribe proposed an agreement among the National NAGPRA Program, NAGPRA 
Review Committee, Cultural Heritage Coordinating Committee, Bureau of 
Indian Affairs' Office of Justice Services' Cultural Resources Unit, 
and all other relevant Federal entities. A Tribe and a Tribal 
organization proposed cooperative agreements be established among the 
Department, other Federal agencies, Native Nations, and Native 
organizations and institutions. A Tribe proposed an agreement among the 
NPS, the Transportation Security Administration, the United States 
Forest Service, and the Bureau of Land Management. Two Tribes proposed 
an agreement among the NAGPRA Program, the Cultural Heritage 
Coordinating Committee established by the Protect and Preserve 
International Cultural Property Act, the Bureau of Indian Affairs' 
Office of Justice Services' Cultural Resources Unit, and all other 
relevant Federal entities. A collective of Tribes proposed an agreement 
among the Department of Commerce, Department of Homeland Security, 
Department of Justice, and Department of State regarding the export of 
Native American cultural items. A Tribe asked that Cooperative 
Agreements be established among the Interior, agencies, and Tribal 
nations to foster collaboration, training, documentation, outreach, and 
education. A Tribe requests agreements so that the Department of 
Commerce creates a ``cultural items'' and ``archaeological resource'' 
list; Homeland Security notifies international travelers and shippers 
and instructs all baggage and cargo inspectors to prepare to identify 
any cultural items or archaeological resources; Justice notifies all 
attorneys of their responsibilities to prosecute violations referred to 
them; and the Department asks Congress for three million dollars for 
STOP Act

[[Page 85081]]

implementation. A Tribe commented that Tribes may encounter problems 
importing items back into the United States because of protected animal 
parts in the items, or for other related reasons, and asks that 
interagency agreements provide a way to avoid seizure or delays.
    Response: The Department is grateful for the breadth and variety of 
feedback received about parties to interagency agreements. Given the 
diversity of agreements proposed, the Department will carefully 
evaluate the efficacy and need for each of these agreements upon 
implementation of the proposed rule. The scope of work for the 
Interagency Working Group, set forth at proposed subpart F, includes 
coordination of policy-making processes to facilitate repatriation. The 
Department's goal is to establish broad regulatory authority, in 
alignment with statutory authority, to allow for creation of inter-
Departmental MOUs, as appropriate, as these commenters have proposed.
    13. Comment: A Tribe asked that any interagency agreements, when 
read with the regulations, include all STOP Act action items and the 
two should be written to carry out all action items needed. A Tribal 
organization and a Tribe asked that any agreements include a step-by-
step guide, contacts for each agency with one single Federal point of 
contact for Tribes, provisions that encourage Tribal collaboration with 
all agencies, encourage the Native work group to advise Federal 
agencies, facilitate voluntary return, and provide for Federal 
monitoring. Another Tribe asked that agreements be set up quickly and 
outline commitments of resources and responsibilities for agencies 
involved, include a single point of contact for Tribes, and a regular 
time period for review and revisions. Three Tribes and a Tribal 
organization asked that interagency agreements include a step-by-step 
guide or flow chart, and contacts for each agency. A Tribe asked that 
interagency agreements should provide for regular and mandatory 
meetings co-led by the Native Working Group and Interagency Working 
Group. A Tribe asked that any agreements include training, funding to 
Tribes for collaboration and travel to retrieve sacred items, 
coordination among the various agencies, a framework for the safe 
return of items, and guidelines and policies for how sacred items are 
returned, including addressing privacy, photography, media requests, 
and agency information provided to the public. A Tribe asked that any 
agreements include appropriate steps and a chain of command, mandatory 
training for agency officials and staff (semi-annual), consultation 
requirements with Tribes, and agreements designed to facilitate the 
importation of items voluntarily returned from foreign nations. A Tribe 
asked that any agreements address safeguarding, protection and 
inappropriate disclosure, or facilitation of misappropriation or misuse 
of tangible or intangible cultural heritage. A Native Hawaiian 
organization asked for an interagency agreement under which the 
Executive Branch may engage counterpart governmental entities for 
foreign countries directly and advocate for the return of stolen 
cultural objects; and call on respective U.S. Embassies to engage 
appropriate international government authorities and actively negotiate 
a process for the return of cultural objects.
    Response: The Department is grateful for the breadth and variety of 
feedback received about the contents of interagency agreements. Given 
the diversity of agreements proposed, the Department will carefully 
evaluate the efficacy and what should go into each agreement upon 
implementation of the proposed rule. The scope of work for the 
Interagency Working Group, set forth at proposed subpart F, includes 
coordination of policy-making processes to facilitate repatriation. The 
Department's goal is to establish broad regulatory authority, in 
alignment with statutory authority, to allow for specific inclusion in 
various inter-Departmental MOUs such as those commenters have proposed.
    14. Comment: A Tribe and a Tribal organization asked that 
interagency consultation agreements be established to provide 
meaningful consultation with Tribes and to provide consistent policies 
for Federal agencies. A Tribe asked that Interagency Consultation 
Policy and Agreement would specify the process and frequency of 
consultation, the involvement of relevant agencies, and the sharing of 
information and expertise related to the protection and repatriation of 
Native cultural heritage. A Tribe asked that the Department follow the 
Interagency Consultation Policy and Agreement to ensure meaningful 
consultation with Indian Tribes, to address frequency of consultation, 
involvement of agencies, and expertise related to protection and 
repatriation of cultural heritage.
    Response: The Department is grateful for the breadth and variety of 
feedback received about the contents of interagency consultation 
agreements. The STOP Act program will maintain a robust consultation 
function and use of such an agreement may be practical. The scope of 
work for the Interagency Working Group, set forth at proposed subpart 
F, includes coordination of policy-making processes to facilitate 
repatriation. The Department's goal is to establish broad regulatory 
authority, in alignment with statutory authority, to allow for 
potential use of an interagency consultation agreement as these 
commenters have proposed.
    15. Comment: A Tribe asked that any interagency agreements include 
shared jurisdiction or deputization between Tribal Historic 
Preservation Officers (THPO) and the Department.
    Response: This comment is beyond the scope of these regulations; 
however, the Department has conferred with the Department of Justice 
about the substance of this comment.
    16. Comment: A collective of Tribes commented that the Department 
of Commerce should immediately amend the Commerce Control List to 
include ``cultural item'' as defined by 18 U.S.C. 1170 and 25 U.S.C. 
3001 et seq., and ``archaeological resource'' as defined at 16 U.S.C. 
470ee.
    Response: The Department has conferred with the Department of 
Commerce about the substance of this comment.
    17. Comment: A Native Hawaiian organization asked that the 
Interagency Working Group prioritize work on programs and policies to 
require that museums better establish the provenance of objects within 
their collections. The Native Hawaiian organization requests that the 
Department of State call for a closer examination of existing 
provenance records at international institutions for cultural objects 
and human remains that would be subject to NAGPRA in domestic 
institutions as part of this agreement. The Native Hawaiian 
organization notes that these updates may implicate updates to the 
NAGPRA Program.
    Response: The Department will relay this request to the Interagency 
Working Group upon its formal establishment. The Department has 
conferred with the Department of State and the National NAGPRA Program 
about the balance of this comment.

C. Framing Question Three: What should or should not be included in the 
draft regulations?

    18. Comment: Several Tribes and Tribal organizations and a Native 
Hawaiian organization reiterated that cultural resources have been 
stolen from their homes for many years, resulting in long lasting and 
devastating harm.
    Response: The Department is grateful for this comment and bore it 
in mind

[[Page 85082]]

throughout the drafting of the proposed rule.
    19. Comment: Several Tribes and Tribal organizations and a Native 
Hawaiian organization expressed a desire that implementation occur 
immediately or as soon as possible, and that the Department takes 
perspective of all Tribes into account and consults as much as possible 
in the process. One Tribe noted the need to consider what can be done 
immediately, given that there are items being trafficked currently and 
encouraged the Department to ``chew gum and walk at the same time.''
    Response: The Department appreciates the need to move quickly, and 
this is one consideration for the Department issuing a proposed rule 
rather than an interim rule at this time. The Department looks forward 
to consulting with Tribes on this proposed rule and on implementation 
of the STOP Act as set forth in the proposed rule.
    20. Comment: One organization and two Tribes provided 
recommendations and suggested language to be included in the purpose 
section of the regulations. One organization recommended parallel 
language to the Department's regulations implementing the Native 
American Graves Protection and Repatriation Act. Another Tribe 
recommended the regulations include information on the STOP Act, its 
passage, and a description of its provisions.
    Response: The Department appreciates this feedback. The Department 
has incorporated the Tribal suggestion to the degree possible to the 
Introduction as set forth in proposed Sec.  11941.1.
    21. Comment: One Tribe commented about the need for sections on 
fines and penalties to hold auction houses accountable. The same Tribe 
explained its desire for a mechanism for Tribes to receive the names, 
addresses, and information about where the items are going so that the 
items do not go underground. This will aid Tribes in learning the 
history of the item and how it moved into commerce. The Tribe commented 
that this process should be triggered when items are taken outside of 
reservation boundaries and would require sellers to remove items from 
the auction block.
    Response: The proposed schedule and process for civil penalties and 
fines appears at proposed Sec.  1194.205. With regard to the mechanism 
requested, the text of the STOP Act does not provide authority for the 
Department to obtain information about an item after the sale of that 
item has been completed. This means the Department's regulations 
implementing the STOP Act consider primarily the detention and recovery 
of items prior to export, and do not opine on collection of information 
about items that have been exported.
    22. Comment: One Tribal organization asked that enforcement of the 
STOP Act commence immediately, even though regulations were still 
forthcoming. A Tribe emphasized that heavy criminal charges would 
represent a strong incentive to disincentivize the illicit trade of 
Native artifacts.
    Response: The STOP Act was signed into law in December 2022. The 
law increased criminal penalties for stealing and illegally trafficking 
in Tribal cultural property. The increased criminal penalties are 
effective immediately, despite the need for regulations to implement 
other parts of the STOP Act. Additionally, prosecutors may continue to 
use other existing Federal criminal laws or Federal civil forfeiture 
proceedings, as appropriate, to disincentivize the illicit trade of 
native artifacts.
    23. Comment: Two Tribes and one Tribal organization asked that the 
Department ensure that a process to revoke wrongly issued export 
certificates is part of any proposed rule. This is because revocation 
would be important under treaties and other countries' laws to prevent 
defendants from presenting evidence in domestic prosecutions for 
illegal trafficking. The same Tribal organization asked that export 
certifications contain language that they do not affirmatively 
establish an item's legality.
    Response: The Department appreciates this feedback. Procedures for 
revocation of an export certification appear at proposed Sec.  
1194.106. The Department anticipates consulting with Tribes and Native 
Hawaiian organizations on the contents of certification applications, 
which may include issues related to the legality of an item for which a 
certification is sought.
    24. Comment: Two Tribes asked that the proposed rule include 
processes for the Department to assess civil penalties against 
individuals attempting to export items without an export certification. 
A Tribal collective asked that the Department implement the civil 
penalties, and related appeals section, as an interim rule. The same 
Tribal collective, another Tribal organization, and a Tribe asked that 
civil penalties be uniformly applied and sufficient to completely 
remove any financial incentive to illegally export, attempt to export, 
or otherwise transport any item requiring export certification.
    Response: The Department appreciates this feedback. Procedures for 
assessment of civil penalties appear at proposed Sec.  1194.205. The 
Department is issuing a proposed rule rather than an interim rule at 
this time.
    25. Comment: A collective of Tribes asked that the Department be 
sure that Tribes and Native Hawaiian organizations receive adequate 
notice of attempted export of objects prohibited from exportation.
    Response: The Department appreciates this feedback. The Department 
anticipates providing notice using current mechanisms for consultation 
notices, including contact lists directed to THPOs. The Department 
welcomes methods to improve its consultation processes.
    26. Comment: A Tribe comments that an item attempted to be exported 
without an export certification should be promptly returned to an 
Indian Tribe rather than through a museum.
    Response: The Department agrees. In the event of seizure of an 
item, return of the item to a Tribe will be affected pursuant to NAGPRA 
or ARPA under proposed Sec.  1194.206.
    27. Comment: A Tribe and a Tribal organization asked that appeals 
processes be assigned to the Department's Office of Hearing and Appeals 
for adjudication.
    Response: The Department appreciates this feedback. The Department 
has incorporated the Tribal suggestion to the Tribal Authorization as 
set forth in proposed subpart D.
    28. Comment: Two Tribes and two Tribal organizations provided 
recommendations on the contents of definitions of the terms ``Any other 
Federal law or treaty,'' ``consultation,'' ``cultural affiliation,'' 
``tangible cultural heritage,'' ``repatriation,'' ``voluntary return,'' 
``credible evidence,'' and ``Indian lands.''
    Response: The Department is grateful for this comment and the 
Department sought to incorporate as much of this feedback as possible 
in the proposed definitions section at proposed Sec.  1194.2.
    29. Comment: A Tribe asked how the Department will address 
potential conflicts between claimants of lineal descendent priority 
versus Tribal priority, as established by NAGPRA.
    Response: The Department's regulations implementing the STOP Act 
consider primarily the detention and recovery of items prior to export, 
and do not opine on the implementation of NAGPRA. Even if this comment 
addressed a matter germane to the STOP Act regulations, the Department 
generally is not able to provide pre-

[[Page 85083]]

decisional guidance or to opine on competing claims in the 
hypothetical.
    30. Comment: Several Tribes and a Tribal organization expressed 
thoughts about the criteria and contents of an export certification 
application and permit. These included, among others, establishing 
criteria for granting export certification permits to individuals or 
organizations with demonstrated expertise and a legitimate need to 
handle and export cultural items, requiring exporters to exercise 
reasonable care in verifying the legal origin and compliance of 
cultural items, and consulting with Indian Tribes about the export 
certification application.
    Response: The Department appreciates this feedback. The Department 
will develop the form by which an applicant Requests an Export 
Certification in consultation with interested Tribes.
    31. Comment: Three Tribes and one Tribal consortium asked for a 
high degree of detail about how Tribes may access and view the database 
of export certification applications. One Tribe asked for the ability 
to limit sensitive information in databases. One Tribe expressed 
concern about how the database would operate with respect to FOIA. An 
individual expressed concern about the database and asked for a focus 
on process instead. Another Tribe asked for the ability to flag 
particular items in the database that a Tribe identifies as sensitive 
or missing and circulating in the marketplace. An additional Tribe 
asked for the ability to flag items that a Tribe has learned are in 
circulation at present.
    Response: The Department has endeavored to include as much detail 
as is possible about the database of export certification applications 
in the regulations. The Act's FOIA exemption is codified in regulation 
at proposed Sec.  1194.107(b), and Tribes may request removal of any 
application from the database. At this proposed stage, all data to be 
included in the database is categorized similarly and no identifiers 
are proposed. The Department anticipates generating more information, 
including possible trainings, on the database of export certification 
applications following publication of a final rule.
    32. Comment: A Tribal consortium asked for a receipt template for 
Tribes to issue to purchasers that would exempt an item from these 
regulations.
    Response: The Department has incorporated the Tribal suggestion to 
the Tribal Authorization as set forth in proposed Sec.  1194.109.
    33. Comment: A Tribe asked that export certification fees not apply 
to Indian Tribes.
    Response: The Department has implemented a process for Tribal 
Authorization as set forth in proposed Sec.  1194.109. Such a Tribal 
Authorization would exempt an item from the need for an export 
certification, and the attendant fee.
    34. Comment: One Tribe asked for a process by which a revocation of 
an export certification could be affected without harming any DOJ 
processes.
    Response: The Department has included a provision in the 
regulations related to revocation of an export certification. The 
Department further notes that any administrative revocation of an 
export certification is, based upon these regulations, an 
administrative procedure different from actions law enforcement may 
take as part of an active Federal criminal or civil investigation. The 
Department will also be closely coordinating with the Department of 
Justice in implementing the STOP Act.
    35. Comment: Two Tribes and an organization asked for a presumption 
that if an item is cultural heritage or fits the category of 
archaeological resource under ARPA, that item is held and not provided 
an Export Certification until further evidence is shown that the 
exporter has a right of possession.
    Response: The Department has proposed that an applicant for Export 
Certification must demonstrate the right of possession as part of the 
application process.
    36. Comment: A Tribe asked that protection for items under the STOP 
Act include both objects of matrimony and patrimony and that Tribes be 
the only ones determining which items are deserving of protection. 
Another Tribe asked that Tribal consultation inform which items are 
categorized as cultural items under the STOP Act.
    Response: The Department agrees. The STOP Act applies to all 
``cultural items'' as that term is defined in the Native American 
Graves Protection and Repatriation Act (NAGPRA) (including objects of 
cultural patrimony) and the proposed rule contemplates alerting Tribes 
for any request for an export certification and, to the degree 
possible, treating as determinative Tribal input on the application.
    37. Comment: A Tribe and two Tribal consortia asked for development 
of public education campaigns to encourage the purchase of contemporary 
Native art and emphasize the illegality of taking certain artifacts. A 
Tribe asked for the Department of State to conduct public awareness 
campaigns about Tribal repatriation efforts. A Tribe asked for 
incentives for international dealers and buyers to repatriate items.
    Response: The Department does not propose an educational campaign 
nor an incentive program as part of the proposed regulatory text. The 
Department will explore these ideas as possible tools following 
publication of a final rule.
    38. Comment: Three Tribes and a Tribal organization commented that 
the Department should not create an exhaustive list of items protected 
under the STOP Act.
    Response: The Department agrees. The Department intends to publish 
a description of characteristics typical of Items Requiring Export 
Certification rather than a list of items, as set forth in proposed 
Sec.  1194.101.
    39. Comment: A Tribe and a Tribal organization asked that the 
Federal Register Notice be created in coordination with Indian Tribes. 
Both commenters suggested that this Notice be a live document and be 
updated over time. Both commenters asked that the Notice include 
practical assistance respectful to the fluidity of cultural items and 
be specific enough to notify exporters, customs officers and others 
encountering potentially sensitive items.
    Response: The Department has incorporated the Tribal suggestion 
into the Federal Register Notice regarding which items may require an 
export certification as set forth in proposed Sec.  1194.101.
    40. Comment: A Tribe asked for the ability to request an in camera 
hearing in any administrative appeal or penalty phase associated with a 
violation of the STOP Act to shield from the public items subject to 
these proceedings, because many cultural items can only be seen and 
handled by particular individuals. The Tribe explained that this will 
protect the items from further harm. Another Tribe commented that in 
its religion, sensitive items are only able to be touched and seen by 
certain people, and such items must be treated with respect when they 
are brought back.
    Response: The Department appreciates this feedback. In the 
administrative appeals provision of the proposed regulations, at 
proposed Sec.  1194.302, there is a mechanism for Tribes or Native 
Hawaiian organizations to provide sealed communications concerning the 
application for an export certification or detention. In the event of a 
hearing, the proposed regulations incorporate applicable rules from 43 
CFR part 4, at proposed Sec.  1194.303. Part 4, in turn, contemplates 
certain

[[Page 85084]]

proceedings occurring under seal or in camera.
    41. Comment: One Tribe asked for a single point of contact for all 
Native cultural heritage protection within the Department through which 
Tribes could access appropriate Federal agencies. A Tribal organization 
underscores that such Tribal liaisons should be equipped to provide 
trainings to Tribes about testing cultural heritage items for dangerous 
chemicals and assisting in the handling, moving, packing, and shipping 
of items internationally repatriated. The Tribal organization noted 
that Tribal cultural heritage items, including human remains, have 
often been subjected to chemicals harmful to humans by collectors or 
institutions for preservation and that can harm Tribal members that 
repatriate, handle, or reintegrate cultural heritage items for 
ceremonial use. The Tribal organization also asked that liaisons 
coordinate with Federal agencies and domestic institutions to ship 
fragile Tribal cultural heritage items safely and carefully.
    Response: The Department appreciates this feedback. Through the 
Interagency Working Group, the Department has endeavored to identify 
and centrally place the most relevant points of contact from the 
Department, as well as from the Departments of State, Justice, and 
Homeland Security. The Department welcomes feedback on the 
appropriateness of this solution.
    42. Comment: Two Tribes and a Tribal organization commented that 
the Department should provide more information on training materials 
that will be provided to Federal staff and officials. The Tribal 
organization asks if Tribes may reach out to the Department for 
technical assistance in developing training materials. The Tribes ask 
that Tribes be heavily involved in designing trainings.
    Response: The Department anticipates providing more information 
about training following a final rule implementing the STOP Act.
    43. Comment: Three Tribes asked for flow charts in the regulation 
to explain processes in the regulatory text. A Tribal consortium asked 
for a step-by-step guide for Federal officials within agencies to use 
in the event of a trafficking incident.
    Response: The Department does not propose any flow charts as part 
of the proposed regulatory text, either for Tribal, private, or Federal 
use. The Department will explore such flow charts as informational 
tools following publication of a final rule.
    44. Comment: Five Tribes and two Tribal organizations asked for 
guidance on the Tribal Working Group. Specific areas of inquiry 
included the process for nominations, a request for mandatory, regular 
meeting times, inclusion of compensation for the Tribal Working Group 
members, a mandatory process to implement judicial proceedings, and a 
requirement for timely responses from agencies.
    Response: The regulations governing the Native Working Group appear 
at proposed subpart G. These include guidance on nominations and 
eligibility. The Department declined to include mandatory meetings for 
the Native Working Group to promote maximum flexibility for this group. 
The Department is unable to compensate members of the Native Working 
Group based upon the language of the STOP Act. The Native Working Group 
may make a request that the Department of Justice initiate judicial 
proceedings, as set forth in proposed Sec.  1194.603(c) and (d), and 
Native Working Group requests for assistance and information are set 
forth in proposed Sec.  1194.603(e).
    45. Comment: One organization urged the Department to consult on 
the form of the export certification application. One Tribe asked that 
the regulations describe the minimum needed to apply for a 
certification, and also asked for a process or system where Tribes can 
learn about international or domestic auction yards where their items 
may be implicated. A Tribe and a Tribal organization asked that 
publication of characteristics typical of cultural heritage be general 
in nature and not require photographs or an exact description unless a 
Tribe consents to provide that information. The same commenters 
expressed that any descriptions should be more onerous than the 
Convention on Cultural Property Implementation Act, 19 U.S.C. 2601 et 
seq.
    Response: A draft of the application form is attached to this 
proposed rule; the Department invites comments on the form from 
interested Tribes and Native Hawaiian organizations. The form 
specifically requests the purpose and timeframe of the proposed export. 
The Department does not have a definitive list of possible auction 
houses. Consultation on the form will enable Tribes to provide direct 
feedback on inclusions of photographs and nature of descriptions 
required.
    46. Comment: One Tribe asks that the regulations provide a 
mechanism for Tribes to review export certification applications.
    Response: Under the proposed regulations, the Department will 
notify the impacted Tribes and Native Hawaiian organizations when an 
application is submitted and uploaded into the database and again once 
the Department finds that the application is complete.
    47. Comment: One Tribe asks that the Departments of State and 
Justice consult with and take direction from Tribes on repatriation 
efforts, especially as it pertains to legal efforts for violations of 
Federal law and engaging with foreign countries and institutions with a 
history of holding exported Tribal cultural heritage items.
    Response: The Department appreciates this feedback and has included 
guidance on consultation in a number of areas in the proposed rule.
    48. Comment: One Tribal organization asks that where dispute 
resolution systems exist to minimize burdens for Tribes and review 
committees, Tribes be proactively included at the outset. Ideally, this 
would include training and curriculum to stakeholders to promote the 
types of items to look for, and to teach officers how to return sacred 
objects or objects of patrimony.
    Response: The Department appreciates this feedback. The Department 
has included guidance on consultation in a number of areas in the 
proposed rule.
    49. Comment: A Tribe asks that the database follow the ``Do No 
Harm'' principle and that Tribes should have access to the system to 
remove or correct information since the information may be 
confidential, culturally sensitive, sacred, or secret information to a 
Tribe.
    Response: The Department appreciates this feedback. The proposed 
rule clarifies that information provided to the Department will be 
protected to the degree possible in accordance with applicable law, and 
that a Tribe or Native Hawaiian organization may request the deletion 
of material from the database.
    50. Comment: One Tribe asks that the Department focus enforcement 
efforts on private dealers and brokers rather than placing burdens onto 
Tribes when facing repatriation.
    Response: The Department appreciates this feedback. The Department 
has endeavored to craft the proposed rule in such a way that it will 
prevent illegal exportations, while allowing Tribes to authorize 
exportation at their discretion and facilitate the voluntary return of 
tangible cultural heritage.
    51. Comment: One Tribe asks that the Department create a specific 
tax form and associated paperwork for tax deductive gifts for those who 
voluntarily return Tribal cultural items.

[[Page 85085]]

    Response: The Department anticipates providing tax documentation to 
an individual who successfully completes a voluntary return, as set 
forth in proposed Sec.  1194.403. In doing so, the Department must 
comply with IRS rules and will work with the IRS on what documentation 
is needed.
    52. Comment: A Tribal organization asks that the United States make 
a worldwide announcement about the voluntary return provision and 
provide for acknowledgement of voluntary returns.
    Response: The Department has consulted with the Department of State 
about potential methods and mechanisms to provide notice to 
international entities. The Department has not proposed a uniform 
approach to publicizing voluntary returns because the Department 
understands that some Tribes may not wish to share information about 
their objects of patrimony returning home.
    53. Comment: One Commenter asked if the STOP Act will exempt or 
address how the Marine Mammal Protection Act (MMPA) challenges cultural 
practices.
    Response: The Department is grateful for this comment. Generally, 
the STOP Act and the MMPA exist in parallel and neither law exempts nor 
preempts the application of the other.
    54. Comment: One Commenter referenced Hawai[revaps]i state law and 
how it identifies objects of patrimony and protects certain categories 
of objects.
    Response: The Department is grateful for this comment and has 
considered it in the drafting of the proposed rule.
    55. Comment: One Commenter requested that the Interagency Working 
Group look to Office of Native Hawaiian Relations (ONHR) to provide 
information about Native Hawaiian organizations. The commenter also 
referenced including an authentication system that ensures NHOs meet 
the regulatory definition for consultations they are engaged in.
    Response: The Department anticipates calling upon ONHR's expertise 
as the Interagency Working Group commences its work.

D. Other Comments

    57. Comment: Multiple Tribes expressed support for the STOP Act and 
prompt implementation of the regulations.
    Response: The Department appreciates this feedback and is pleased 
to offer this proposed rule for additional Tribal feedback.
    58. Comment: Three Tribes and two Tribal organizations noted that 
implementation of the STOP Act requires funding for Tribal Historic 
Preservation Offices (THPO) to ensure capacity to implement the STOP 
Act and to have staff to track items. One Tribe noted that the Tribe 
did not have enough funding to get patrimony back or to bid for it, in 
the worst-case scenario. Another Tribe noted the need for funds for 
Tribes to implement, identify, and store items subject to the STOP Act, 
including travel to locations of items, securing means of safe return, 
and ongoing storage and safekeeping of items after return.
    Response: The Department notes that funding is authorized in the 
statutory text of the STOP Act. However, that funding is not 
appropriated. If and when funds are appropriated, the Department will 
explore best ways to implement in line with these comments.
    59. Comment: One Tribal organization and one Tribe encouraged 
regulatory language to utilize more than NAGPRA and ARPA where the STOP 
Act references ``other applicable law.'' The commentors cite Tribal 
law, the Lacey Act, applicable Executive Orders, the Antiquities Act, 
and the Endangered Species Act.
    Response: The Department concurs with Tribes that these and other 
in-effect laws comprise the ``other applicable law'' referenced in the 
STOP Act. However, the Department declines to include a particularized 
list because all laws in effect may apply depending on a particular 
factual pattern that arises.
    60. Comment: A Tribe asked for monitoring of international 
institutions likely to house or traffic Tribal cultural heritage items, 
and that information gained from monitoring be made available to 
Tribes. The same Tribe asked that State officials be directed to 
monitor international auctions and sales.
    Response: The Department's authority under the STOP Act does not 
provide a mechanism for the Department to direct monitoring of 
institutions, either by Federal or State authorities.
    61. Comment: A Tribe expressed questions on the Indian Arts and 
Crafts Act and whether there might be space for that Act and the STOP 
Act to work together.
    Response: The Department notes that the text of the STOP Act allows 
for an agreement with a foreign country ``to expand the market for the 
products of Indian art and craftsmanship in accordance with section 2 
of the Act of August 27, 1935.'' Outside of this statutory reference, 
the Department has not included references to the Indian Arts and 
Crafts Act in the text of the proposed rule.
    62. Comment: A Tribe asked what would happen if a foreign 
government, entity, or individual is uncooperative, and what recourse 
the United States has to ensure strong enforcement to persuade 
uncooperative institutions or governments.
    Response: The STOP Act, and its implementing regulations, apply 
primarily to items that a putative exporter seeks to take out of the 
United States prior to their exit from the country. The STOP Act does 
not contain mechanisms to persuade or obligate international 
governments or institutions to repatriate items.
    63. Comment: A Tribal organization asked that the implementing 
regulations include an intellectual property provision because there 
continues to be harm to Tribes from the misappropriation, misuse, and 
exploitation of traditional knowledge, genetic resources associated 
with traditional knowledge, and traditional cultural expressions 
because of the lack of protection within the United States' 
intellectual property system.
    Response: The Department's authority under the STOP Act does not 
provide a mechanism for the Department to propose an intellectual 
property provision in this proposed rule.
    64. Comment: A Tribal organization asked that the United States, 
through the Department, call on countries to participate in a concerted 
international effort with necessary concrete measures and implement 
bilateral agreements to obligate countries to monitor imports and 
facilitate repatriations.
    Response: The STOP Act confirms the authority of the President to 
request agreements with foreign countries to discourage commerce in and 
collection of certain items, encourage voluntary return of tangible 
cultural heritage, and expand markets for products of Indian art and 
craftsmanship. The Department of State approves the negotiation and 
conclusion of all international agreements to which the United States 
will become a party. The STOP Act does not contain mechanisms to 
persuade or obligate international governments or institutions to 
repatriate items. However, the existence of the STOP Act, including 
implementing regulations, may be influential under international 
mechanisms, such as the UNESCO 1970 Convention on the Means of 
Prohibiting and Preventing the Illicit Import, Export and Transfer of 
Ownership of Cultural Property.
    65. Comment: One Tribe shared that the application of ARPA was 
complex on the Tribe's allotted lands, resulting in a scenario where a 
landholder moved forward with excavation with no permit

[[Page 85086]]

because ARPA did not apply to Tribal lands and because no Tribal law 
regulated the excavation. The Tribe wanted the Department to consider 
this example of complex situations in Indian Country to inform drafting 
of the proposed regulation.
    Response: The Department is grateful to the Tribe for sharing this 
story as it exemplifies the complex legal issues that manifest in 
Indian country. ARPA does apply on trust and restricted Indian land. 
The application for an Export Certification requires presentation of an 
ARPA permit authorizing export of the resource or attestation that ARPA 
does not apply.
    66. Comment: A Tribal organization asked whether the Department 
would consult on a draft before a proposed rule, or whether the next 
draft would be a proposed rulemaking.
    Response: The Department is issuing a proposed rule rather than an 
interim rule at this time.
    67. Comment: One commenter expressed concern with the ``most 
appropriate claimant'' language used in the STOP Act. The commenter 
asked to envision alternative approaches.
    Response: The Department appreciates this concern. As required, 
these implementing regulations have been drafted consistent with the 
STOP Act's express language and Congress' intent in enacting the 
statute.
    68. Comment: A Native Hawaiian commenter asked what would happen if 
a museum in Europe voluntarily returned an item, and whether that item 
would return to its community or to the national museum. The same 
commenter asked who determined the item's ultimate resting place.
    Response: The proposed regulations contemplate that the voluntary 
return of an item would occur as agreed by the individual or 
organization wishing to return the item and the appropriate Indian 
Tribe or Native Hawaiian organization.
    69. Comment: A Native Hawaiian commenter asked if the STOP Act 
addressed how items are stored or displayed. Another commenter asked if 
the STOP Act protected items found on public or private lands.
    Response: Manner of storage of items, and items from private lands 
outside the exterior boundaries of a reservation are outside the scope 
of the STOP Act and this regulation. The definitions of archaeological 
resource and cultural item includes resources and items from Federal 
land.
    70. Comment: One commenter expressed concern with the Federal 
Government's role in identifying who could be criminalized and 
therefore who may be seen as a legitimate practitioner, particularly 
with regard to the Native Hawaiian Community.
    Response: The Department appreciates this concern and will endeavor 
to follow its obligations under the statute.
    71. Comment: Two commenters reiterated that Native Hawaiian 
organizations are different from Indian Tribes, and requested the 
Department avoid making one look like the other.
    Response: The Department agrees that Native Hawaiian organizations 
are different than Indian Tribes and will continue to strive to ensure 
that its regulations and guidance reflect that difference.
    72. Comment: One commenter asked that the proposed rule include 
``the provision of technical assistance if NHOs lack sufficient 
resource[s].''
    Response: The Department appreciates this concern and has included 
a broad offer of technical assistance in the proposed rule.
    73. Comment: Two commenters expressed concern about traditional 
divisions between the political and the spiritual.
    Response: The Department appreciates this concern and has 
considered it in drafting the proposed rule.
    74. Comment: One commenter asked the Department to amend the 
definition of Native Hawaiian organization in the STOP Act regulations 
to include any organization that has Native Hawaiians in substantive 
and policymaking positions within the organization. Another commenter 
asked that specific organizations not be listed in applicable 
definitions.
    Response: The Department appreciate these concerns. However, the 
definition provided in the proposed STOP Act regulations aligns with 
the terminology utilized in the recently amended NAGPRA regulations.
    75. Comment: One commenter asked how NHOs may be recognized. 
Several other commenters provided comments about recognition of NHOs 
and the Secretary's list of recognized NHOs.
    Response: Recognition of NHOs is outside the scope of the Act and 
this regulation. The Department respectfully refers the inquirer to 
ONHR, which is well positioned to provide information about applicable 
processes.

III. Subpart-by-Subpart Summary of the Proposed Rule

    This section summarizes the seven subparts of the proposed rule.

A. General Provisions

    Subpart A includes an introductory section setting forth the 
purpose of the regulations, definitions for terms in the regulations, 
and provisions concerning filing of documents and severability. The 
definitions are mostly from the Act or, as directed in the Act, from 
the regulations implementing NAGPRA at 43 CFR part 10 or the 
Department's uniform regulations implementing the Archaeological 
Resources Protection Act (ARPA) at 43 CFR part 7. The Department 
proposes to add Native American human remains to the Act's definition 
of ``items prohibited from exportation.'' This is consistent with the 
provision later in the proposed rule that the Secretary will not issue 
an export certification for native American human remains. The only 
major change to the NAGPRA and ARPA definitions is that proposed for 
``repatriation.'' Under NAGPRA that term refers to the transfer of 
possession or control of a cultural item or human remains, but not 
necessarily physical custody. One of the purposes of the STOP Act, 
however, is to return tangible cultural heritage to the physical 
custody of the Indian Tribe or Native Hawaiian organization. This 
section also includes a placeholder definition for the ``Office,'' the 
entity within the Department of the Interior that will be delegated the 
responsibility for implementing the export certification and other 
programs under the Act. As noted above, as of this notice, the 
Department has not yet established that entity. This definition will be 
replaced with one for that entity once the Department establishes it.
    As noted, the Department is also proposing a provision concerning 
severability. In enacting the Act, Congress created several different 
ways to stop the export of cultural items and archaeological resources 
and facilitate the repatriation of tangible cultural heritage. While 
this rule is intended to create systematic processes for those methods, 
if a court holds any provision of one part of this rule invalid, it 
should not impact the other parts of the rule. For example, a decision 
finding invalid a portion of subpart B should not impact subpart C, 
because the detention, forfeiture, and repatriation of items not having 
a necessary export certification would not be affected by a problem in 
the process for obtaining a certification. Similarly, a decision 
finding invalid part of the export certification process should not 
impact the process for voluntary return of tangible cultural heritage 
or the provisions for the Native Working Group. Any decision finding 
any provisions in this rule to be invalid would not impact the 
remaining provisions, which would remain in force. The intent of this 
rule is to stop

[[Page 85087]]

exports and facilitate repatriation as a whole, but the rule is not an 
interdependent whole--other provisions of the rule would implement that 
intent even if a court declared certain provisions invalid.

B. Export Certification System

    The Act directs the Department to establish a system to issue 
export certifications, which are required to export cultural items and 
archaeological resources. In deference to the cultural sensitivity for 
Indian Tribes and Native Hawaiian organizations surrounding Native 
American human remains and recognition of the common law rule that 
human remains cannot be owned, the Department is proposing that it will 
not issue an export certification for the export of Native American 
human remains.
    The proposed export certification process begins with the 
submission of an application and supporting documents, together with 
the application fee. Because of the broad variety of such items and 
variations in the cultural importance of such items to Indian Tribes 
and Native Hawaiian organizations, the Department is proposing to 
require a separate application and certification for each item proposed 
to be exported. A draft application is included with this proposed 
rule; we invite comment on its contents. To make the Department's 
review and the subsequent review and consultation with the relevant 
Indian Tribes and Native Hawaiian organizations as efficient as 
possible (given the extremely tight decision-making deadlines in the 
Act), the Department is proposing to require submission of supplemental 
documents in addition to the application. Such supplemental documents 
are designed to establish that the item is not an item prohibited from 
export and to give the Department and the Indian Tribe or Native 
Hawaiian organization sufficient information to decide what Indian 
Tribe or Native Hawaiian organization is culturally affiliated with the 
item and whether the Secretary should issue an export certification.
    After the exporter has filed the application and all supporting 
documents, the Department will upload the application and supporting 
documents into the Export Certification Database for review by Indian 
Tribes and Native Hawaiian organizations, with notification to the 
relevant Tribes and organizations; review the application for 
completeness; and begin coordination with relevant Federal agencies. 
Once the Department has determined that the application and all 
supporting documents are complete, the statutory process and timeframes 
for consultation and approval or disapproval begins.
    At the end of that process, the Department will notify the 
applicant and any relevant Indian Tribe or Native Hawaiian organization 
of its determination to issue or deny an export certification. That 
notification will include notice of the right to administratively 
appeal that determination under subpart D. Upon the expiration of the 
period for appeal, or the final exhaustion of administrative remedies, 
the Department will issue the Export Certification or decline to issue 
it. That decision may be further appealed to a United States District 
Court. If the Department issues an Export Certification, the exporter 
must provide U.S. Customs and Border Protection (CBP) with a copy of 
the Certification by following the process in these regulations.
    The proposed regulations also provide for an Indian Tribe or Native 
Hawaiian organization to issue, at its sole discretion, a Tribal 
Authorization that is equivalent to an Export Certification.

C. Procedures for Detention, Forfeiture, Repatriation

    The Act provides for detention by CBP, and forfeiture, and 
repatriation by the Department of (1) any item that may be an Item 
Prohibited from Exportation that is exported, attempted to be exported, 
or otherwise transported from the United States; or (2) any item that 
may be an Item Requiring Export Certification that is exported, 
attempted to be exported, or otherwise transported from the United 
States without an Export Certification or Tribal Authorization. 
Proposed procedures for such actions are in subpart C of the proposed 
rule. Under the proposed procedures, CBP will detain any such item and 
contact the Department. The Department will then inform CBP whether the 
item is within the scope of the Act and should continue to be detained. 
If the Department advises CBP that the item is within the scope of the 
Act and should be detained, CBP will continue to detain the item and 
provide a detention form to the exporter together with a notice the 
Department provides to CBP of its right to appeal the detention under 
subpart D of this part. The Department, within 10 days of detention, 
will retrieve the detained item from the CBP Port of detention and 
execute the appropriate CBP Chain of Custody form. The Department is 
responsible for storage of the item in an appropriate manner based on 
consultation with the relevant Indian Tribe or Native Hawaiian 
organization.
    Upon the expiration of the period for appeal, or the final 
exhaustion of administrative remedies, the Department may refer the 
item to an appropriate Federal agency or U.S. Attorney's Office for 
forfeiture proceedings, or the Department may follow abandonment 
procedures. If the exporter abandons the item, the Department will 
repatriate the item to (1) the Indian Tribe or Native Hawaiian 
organization from whose Tribal Land the item was removed or who is 
culturally affiliated with the item, for cultural items under NAGPRA; 
or (2) the Indian Tribe from whose Indian Land the item was removed, 
for archaeological resources under ARPA. Similarly, after an 
administrative declaration of forfeiture or a final order of forfeiture 
in a judicial proceeding, the Department may, consistent with 
applicable law and regulations governing the remission and mitigation 
of forfeitures, seek the item and repatriate it to (1) the Indian Tribe 
or Native Hawaiian organization from whose Tribal Land the item was 
removed or who is culturally affiliated with the item, for cultural 
items under NAGPRA; or (2) the Indian Tribe from whose Indian Land the 
item was removed, for archaeological resources under ARPA.

D. Administrative Appeals

    The Act provides that the Department afford an exporter the 
opportunity for a hearing concerning certain actions in the export 
certification and detention processes. As proposed in subpart D, that 
hearing would be before the Departmental Cases Hearings Division in the 
Department's Office of Hearings and Appeals, followed by an appeal to 
the Interior Board of Indian Appeals. Consistent with the exemption 
under the Act from the Freedom of Information Act, all proceedings 
before DCHD or the IBIA would be under seal. The proposed regulations 
provide that the hearing and appeals process must be exhausted before 
any appeal to a United States District Court.

E. Voluntary Return of Tangible Cultural Heritage

    The Act tasks the Departments of the Interior and State with 
creating a process for the voluntary return of tangible cultural 
heritage to Indian Tribes and Native Hawaiian organizations. That 
proposed process is in subpart E of the proposed rule. The process 
begins with the individual or organization wishing to return the items 
submitting a simple list of the items to

[[Page 85088]]

the Department, with certain information concerning the items, to the 
extent that the individual or organization has that information. The 
Department will then conduct the consultation required for it to 
determine which Indian Tribe(s) or Native Hawaiian organization(s) 
would potentially be culturally affiliated with the items. Once the 
Department makes that determination, it will supply contact information 
and the list to the parties, and will provide assistance, as needed, to 
the parties to arrange for the return. The Departments of Homeland 
Security and State will facilitate both foreign and domestic 
transportation of the items, and at the request of the Indian Tribe or 
Native Hawaiian organization, the Interagency Working Group will 
explore funding mechanisms or use of in-kind resources to assist the 
Indian Tribe or Native Hawaiian organization. The goal of this process 
is for the Federal government to facilitate the return, not to obstruct 
or delay it. As noted by the Act, this process does not apply to a 
return of an object subject to NAGPRA by a museum as that term is 
defined in NAGPRA.

F. Interagency Working Group

    The Act formalizes an existing informal Interagency Working Group 
of staff from the Departments of Justice, State, Homeland Security, and 
the Interior. This subpart sets out the purpose and duties of that 
group.

G. Native Working Group

    The Act also creates a Native Working Group to provide 
recommendations to Federal agencies on certain areas in implementing 
the Act. Subpart G of the proposed rule sets out a proposed process for 
the Secretary to choose the members of the Native Working Group. Under 
that process, the Native Working Group would consist of thirteen 
members--one from each of the BIA's twelve regions, plus one 
representing Native Hawaiian organizations. The members would be 
nominated by Indian Tribes and Native Hawaiian organizations. Any Tribe 
or organization could nominate someone as a member of the Working 
Group, even if that Tribe or organization is not in the same region or 
State as the nominee. The proposed rule also provides for consideration 
by the Federal Government of requests from the Native Working Group for 
agency actions, with specific processes by the Departments of Justice 
and State, and for the Native Working Group to request information and 
assistance from Federal agencies, committees, and working groups.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 14094 and E.O. 13563)

    Executive Order (E.O.) 12866, as amended by E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) at the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is significant.
    E.O. 14094 amends E.O. 12866 and reaffirms the principles of E.O. 
12866 and E.O. 13563 and states that that regulatory analysis should 
facilitate agency efforts to develop regulations that serve the public 
interest, advance statutory objectives, and be consistent with E.O. 
12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 
(Modernizing Regulatory Review). Regulatory analysis, as practicable 
and appropriate, shall recognize distributive impacts and equity, to 
the extent permitted by law.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and lease burdensome tools for achieving regulatory ends. 
E.O. 13563 directs agencies to consider regulatory approaches that 
reduce burdens and maintain flexibility and freedom of choice for the 
public where these approaches are relevant, feasible, and consistent 
with regulatory objectives. E.O. 13563 emphasizes further that 
regulations must be based on the best available science and that the 
rulemaking process must allow for public participation and an open 
exchange of ideas. The DOI has developed this rule in a manner 
consistent with these requirements.
    In accordance with 5 U.S.C. 553(b)(4), a summary of this rule may 
be found at https://www.regulations.gov by searching for ``RIN 1076-
AF78.''

B. Regulatory Analysis

1. Regulatory Flexibility Act
    The Department certifies that this document would not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). For the 
final rule stage, DOI will prepare a final analysis using the public 
comments received. For the proposed rule stage, DOI welcomes additional 
data regarding anticipated compliance costs, and impacts to the annual 
revenues, for small entities.
    The following table lists small business size standards, matched to 
industries described in the North American Industry Classification 
System (NAICS), as modified by the OMB, effective January 1, 2022, and 
published March 17, 2023 at https://www.sba.gov/document/support-table-size-standards:

------------------------------------------------------------------------
                                    Size standards in  Size standards in
    NAICS code      NAICS industry     millions of         number of
                     description         dollars           employees
------------------------------------------------------------------------
458310...........  Jewelry                      $20.5  .................
                    Retailers.
459130...........  Sewing,                       34.0  .................
                    Needlework,
                    and Piece
                    Goods
                    Retailers.
459420...........  Gift, Novelty,                13.5  .................
                    and Souvenir
                    Retailers.
459920...........  Art Dealers....               16.5  .................
------------------------------------------------------------------------

    DOI's preliminary threshold analysis included the small entity 
communities (and industries) for retailers and dealers listed in the 
above table. The proposed regulations would not have a significant 
economic impact on these small entities. During Tribal consultations 
held in fall 2023 on its draft proposed rule, DOI received feedback 
from stakeholders in these industries but did not receive any 
information or comments specific to the development of this preliminary 
threshold analysis. Consequently, DOI has developed a list of questions 
located at the end of this section to obtain more information from 
these small entity communities (and industries) for retailers and 
dealers to aid in further developing this analysis.
    The rule DOI proposes creates a minimal burden on select market 
participants who voluntarily opt to participate in stopping the export 
of cultural items, and aid in facilitating the international 
repatriation of cultural items prohibited from being trafficked by the 
NAGPRA, and archeological resources prohibited from being trafficked by 
the ARPA. The burden on

[[Page 85089]]

a participant includes the administrative fee DOI will assess and 
potentially an appraisal the IRS would require for cultural items that 
participants claim as a tax-deductible gift if they have a monetary 
value of $5,000.00 or more. The proposed regulations would not have an 
impact on a substantial number of these small entities. DOI's threshold 
analysis identified:
     no increase to regulatory compliance costs;
     no decreases to annual revenue;
     no increases to the risk of short-term or long-term 
insolvency; and
     no disproportional impacts to small businesses.

            Initial/Threshold Regulatory Flexibility Analysis
------------------------------------------------------------------------
                    NAICS industry      Regulatory        Decrease to
    NAICS code       description     compliance costs    annual revenue
------------------------------------------------------------------------
458310...........  Jewelry                      $0.00              $0.00
                    Retailers.
459130...........  Sewing,                       0.00               0.00
                    Needlework,
                    and Piece
                    Goods
                    Retailers.
459420...........  Gift, Novelty,                0.00               0.00
                    and Souvenir
                    Retailers.
459920...........  Art Dealers....               0.00               0.00
------------------------------------------------------------------------

2. Regulatory Impact Analysis
Alternatives
    As this rule is required by the STOP Act, the Department considered 
no other alternatives to the proposed rule.
Burdens, Benefits and Costs
    The Department is proposing new regulations to establish an export 
certification system, set forth procedures for detention of items 
subject to the rule and repatriation of those items, establish a 
framework for voluntary return of items subject to the rule, and 
establish interagency and Native working groups. The Preamble discusses 
the rationale for all the changes, which we assume will have no major 
economic effects, small business impacts, or distributional effects. 
Overall, the rule is expected to prevent the export of Native American 
cultural items that are held in violation of current Federal laws for 
sale in foreign countries; to repatriate such items from individuals 
and organizations having such items; and to improve coordination 
between Federal agencies, Indian Tribes, and Native Hawaiian 
organizations (NHOs) seeking to prevent the export and sale of such 
items.
    This regulation will benefit Tribes, NHOs, and individuals who have 
their patrimony returned, and reduce future illegal trade in patrimony. 
This will also benefit buyers and sellers of items that qualify for 
certification, who can be confident of the legality of holding, 
trading, and owning these items.
    Costs related to this regulation may include the time and fees 
potential exporters spend to obtain certification, higher prices for 
purchasers of these items (whether certified or not), and the time and 
expense required for Tribes and NHOs to participate in certification. 
There may also be costs for purchasers who make a voluntary return of 
items, and for Tribes and NHOs to receive and curate returned items. 
Under the Act, the Secretary may assess reasonable fees to process 
export certification applications and may collect fees to the extent 
and in the amounts provided in advance in appropriations Acts.
    Distributional effects could depend on how fees collected from 
exporters are used. Distributional effects may be minimal if the fee is 
set solely to offset the Government costs of administering the program. 
Under proposed Section 1194.107(e), ``if an Indian Tribe or Native 
Hawaiian organization lacks sufficient resources to access the database 
or respond to agency communications in a timely manner, the Secretary, 
in consultation with Indian Tribes and Native Hawaiian organizations, 
will provide technical assistance to facilitate that access or 
response, as applicable.'' Thus, the Secretary will be able to lessen 
any distributional effects on Tribes and NHOs.
    DOI currently lacks information to describe the baseline, or state 
of the world in the absence of the regulation. Some priority learning 
questions where we seek information include:
     What data or estimates do we have to describe the 
``without-regulation'' baseline?
    [cir] How many items are currently exported that will be subject to 
the regulation?
    [cir] How many firms and individuals are currently engaged in this 
export?
     What will change as a result of the regulation?
    [cir] Which groups will experience costs and benefits?
    [cir] How can we quantify and value those costs and benefits?
    [cir] What are time and monetary costs of complying with the 
regulation for the individuals and groups involved?
     What are the likely effects for exporters applying for 
certification?
    [cir] What are likely scenarios for the proportion of compliant and 
non-compliant exporters?
     What are the likely effects for purchasers completing a 
voluntary return?
     What are the roles of Tribes and NHOs in verifying 
certifications?
     What is the role of Federal government staff?

C. Unfunded Mandates Reform Act of 1995

    This rule would not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule would not have a significant or unique effect on State, 
local, or Tribal governments or the private sector because this rule 
affects only putative exporters and their related businesses. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

D. Takings (E.O. 12630)

    This rule would not affect a taking of private property or 
otherwise have taking implications under E.O. 12630. A takings 
implication assessment is not required.

E. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule would not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. A federalism summary impact 
statement is not required.

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

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule: (a) meets the criteria of section 3(a) 
requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to

[[Page 85090]]

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

G. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-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. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in E.O. 13175 and have hosted extensive consultation with federally 
recognized Indian Tribes in preparation of this proposed rule, 
including through a Dear Tribal Leader letter delivered to every 
federally recognized Tribe in the country, and through three 
consultation sessions held on May 9, 13, and 23, 2022.

H. Paperwork Reduction Act

    This proposed rule contains new information collections. All 
information collections require approval under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid Office of Management and Budget (OMB) 
control number. The Department is seeking approval of a new information 
collection, as follows.
    Brief Description of Collection: The Act requires the Department to 
promulgate regulations to implement the Native Working Group; export 
certification application and issuance procedures; and secure central 
Federal database information system for the purpose of making export 
certification applications available to Indian Tribes and Native 
Hawaiian organizations. We estimate that the annual cost to the Federal 
Government to administer this information collection is $3,000,000.
    Title: Export Certification System, 25 CFR 1194.
    OMB Control Number: 1076-NEW.
    Form Number: Export Certification Application.
    Type of Review: New collection.
    Respondents/Affected Public: Individuals, Private Sector, 
Government.
    Total Estimated Number of Annual Respondents: 122.
    Total Estimated Number of Annual Responses: 122.
    Estimated Completion Time per Response: Varies from 2 to 18 hours.
    Total Estimated Number of Annual Burden Hours: 2,504.
    Respondents' Obligation: Required to obtain a benefit.
    Frequency of Response: On occasion.
    Total Estimated Annual Non-Hour Burden Cost: $50,044.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Written comments and recommendations for the proposed information 
collection should be sent within 30 days of publication of this notice 
to https://www.reginfo.gov/public/do/PRAMain.
    Find this particular information collection by selecting 
``Currently under 30-day Review--Open for Public Comments'' or by using 
the search function. Please provide a copy of your comments to 
[email protected]. Please reference OMB Control Number 1076-NEW in 
the subject line of your comments.

I. National Environmental Policy Act (NEPA)

    Under NEPA, categories of Federal actions that normally do not 
significantly impact the human environment may be categorically 
excluded from the requirement to prepare an environmental assessment or 
impact statement. (40 CFR 1501.4) Under the Department, regulations 
that are administrative or procedural are categorially excluded from 
NEPA analysis because they normally do not significantly impact the 
human environment. (43 CFR 46.210(i)) This rule is administrative and 
procedural in nature. Consequently, it is categorically excluded from 
the NEPA requirement to prepare a detailed environmental analysis. 
Further, the Department also determined that the rule would not involve 
any of the extraordinary circumstances under a categorical exclusion 
that would necessitate environmental analysis. (43 CFR 46.215.)

J. Energy Effects (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

K. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(l)(B)), and 13563 (section l(a)), and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
and so forth.

L. Public Availability of Comments

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

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

    Public Law 117-258: There is authorized to be appropriated to carry 
out this Act $3,000,000 for each of fiscal years 2022 through 2027.

N. Privacy Act of 1974, System of Records

    The Privacy Act of 1974, as amended, embodies fair information 
practice principles in a statutory framework

[[Page 85091]]

governing the means by which Federal agencies collect, maintain, use, 
and disseminate individuals' records. The Privacy Act applies to 
records about individuals that are maintained in a ``system of 
records.'' A ``system of records'' is a group of any records under the 
control of an agency from which information is retrieved by the name of 
an individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual. The Privacy Act 
defines an individual as a United States citizen or lawful permanent 
resident. The Privacy Act requires each agency to publish in the 
Federal Register a description denoting the existence and character of 
each system of records that the agency maintains, and the routine uses 
of each system.
    This proposed rule contains recordkeeping requirements subject to 
the Privacy Act. The Department will publish in the Federal Register a 
description denoting the existence and character of system of record, 
and the routine uses of the system.

List of Subjects in 25 CFR Part 1194

    Administrative practice and procedure, Alaska, Hawaiian Natives, 
Historic preservation, Human remains, Indians, Indians--claims, 
Indians--law.


0
For the reasons set forth in the preamble above, the Department of the 
Interior, Assistant Secretary--Indian Affairs, proposes to add 25 CFR 
part 1194 to read as follows:

PART 1194--SAFEGUARD TRIBAL OBJECTS OF PATRIMONY

Sec.
Subpart A--General Provisions
1194.1 What is the purpose of this part?
1194.2 How are key terms defined in the part?
1194.3 What are the timeframes and methods of delivery of documents 
under this part?
1194.4 How does severability apply under this regulation?
Subpart B--Export Certification System
1194.101 What is the purpose of the Federal Register Notice under 
this part?
1194.102 When do I need an Export Certification?
1194.103 What is the process for applying for an Export 
Certification?
1194.104 What is the process for the Office to review an Export 
Certification?
1194.105 What is the process for the Office to approve an Export 
Certification?
1194.106 What is the process for the Secretary to revoke an Export 
Certification?
1194.107 What is the Export Certification Database?
1194.108 When are Export Certification Fees assessed?
1194.109 Under what circumstances may a Tribal Authorization be 
issued?
1194.110 How does the Paperwork Reduction Act affect this part?
Subpart C--Procedures for Detention, Forfeiture, Repatriation, and 
Return
1194.201 When can CBP detain certain items?
1194.202 How does CBP deliver items to the Office?
1194.203 What is the process for forfeiture proceedings?
1194.204 Does safe harbor apply this regulation?
1194.205 What are civil penalties for violations of this regulation?
1194.206 How is an item repatriated or returned?
Subpart D--Administrative Appeals
1194.301 What is the purpose of this section?
1194.302 How do I request a hearing?
1194.303 What are the hearing procedures?
1194.304 How do I appeal a decision?
Subpart E--Voluntary Return of Tangible Cultural Heritage
1194.401 What is the purpose of this section?
1194.402 When is consultation initiated?
1194.403 What is the process for consultation and return of items 
under this regulation?
Subpart F--Interagency Working Group
1194.501 What is the Interagency Working Group?
1194.502 What is the membership of Interagency Working Group?
1194.503 What are the duties of Interagency Working Group?
Subpart G--Native Working Group
1194.601 What is the relationship between the Office and the Native 
Working Group?
1194.602 What is the membership of the Native Working Group?
1194.603 What are the duties of the Native Working Group?

    Authority:  16 U.S.C. 470aaa-470aaa11; 25 U.S.C. 9, 25 U.S.C. 
3001-3013; 25 U.S.C. 3071; 25 U.S.C. 3078.

Subpart A--General Provisions


Sec.  1194.1  What is the purpose of this part?

    In stopping the export of cultural items and archaeological 
resources and facilitating the repatriation of tangible cultural 
heritage, the Safeguard Tribal Objects of Patrimony (STOP) Act, Public 
Law 117-258, codified at 25 U.S.C. 3071, et seq., recognizes the 
inherent rights of Indian Tribes and Native Hawaiian organizations in 
their own cultural heritage, wherever their cultural heritage is 
located. Consistent with the STOP Act's express language and Congress' 
intent in enacting the statute, these regulations require the Secretary 
and others to make decisions for the benefit of Indian Tribes and 
Native Hawaiian organizations, through consultation and collaboration 
with them. In implementing this systematic process, the Secretary must 
defer and give preference to the expertise, customs, traditions, and 
Native American traditional knowledge of lineal descendants, Indian 
Tribes, and Native Hawaiian organizations, as Indian Tribes and Native 
Hawaiian organizations understand them.


Sec.  1194.2  How are key terms defined in the part?

    Act means the Safeguard Tribal Objects of Patrimony Act, Public Law 
No. 117-258 (136 Stat. 2372) as codified at 25 U.S.C. 3071 et seq.
    Archaeological resource means any material remains of past human 
life or activities which are of archaeological interest as described in 
uniform regulations for the Archaeological Resources Protection Act 
pursuant to 16 U.S.C. 470bb, 43 CFR 7.3; are Native American in origin; 
and are at least 100 years of age.
    Business day means Monday through Friday, excluding federally 
recognized holidays; other days that the applicable office of the 
Federal Government is closed to the public; and holidays or other days 
when the Indian Tribe or Native Hawaiian organization that could be 
culturally affiliated with the relevant item is closed to the public.
    CBP means the Secretary of the U.S. Department of Homeland 
Security, acting through the Commissioner of U.S. Customs and Border 
Protection.
    Consultation or Consult means the exchange of information, open 
discussion, and joint deliberations made between all parties in good-
faith and in order to:
    (1) Seek, discuss, and consider the views of all parties;
    (2) Strive for consensus, agreement, or mutually acceptable 
alternatives; and
    (3) Enable meaningful consideration of the Native American 
traditional knowledge, including oral history, of lineal descendants, 
Indian Tribes, and Native Hawaiian organizations.
    Cultural affiliation means there is a reasonable connection between 
human remains or cultural items and an Indian Tribe or Native Hawaiian 
organization based on a relationship of shared group identity. Cultural 
affiliation may be clearly identified by the information available or 
reasonably identified by the geographical location or acquisition 
history of the human remains or cultural items.
    Cultural item means a funerary object, sacred object, or object of 
cultural

[[Page 85092]]

patrimony according to the Native American traditional knowledge of a 
lineal descendant, Indian Tribe, or Native Hawaiian organization.
    Detention means the holding for further investigation of cultural 
items or archaeological resources and any associated property that is 
neither immediately released nor seized but is temporarily held by CBP.
    Export certification means the authorization issued by the Office 
allowing an exporter to export an item requiring an export 
certification.
    Funerary object means any object reasonably believed to have been 
placed intentionally with or near human remains. A funerary object is 
any object connected, either at the time of death or later, to a death 
rite or ceremony of a Native American culture according to the Native 
American traditional knowledge of a lineal descendant, Indian Tribe, or 
Native Hawaiian organization. This term does not include any object 
returned or distributed to living persons according to traditional 
custom after a death rite or ceremony. Funerary objects are either 
associated funerary objects or unassociated funerary objects.
    (1) Associated funerary object means any funerary object related to 
human remains that were removed and the location of the human remains 
is known. Any object made exclusively for burial purposes or to contain 
human remains is always an associated funerary object regardless of the 
physical location or existence of any related human remains.
    (2) Unassociated funerary object means any funerary object that is 
not an associated funerary object and is identified by a preponderance 
of the evidence as one or more of the following:
    (i) Related to human remains but the human remains were not 
removed, or the location of the human remains is unknown,
    (ii) Related to specific individuals or families,
    (iii) Removed from a specific burial site of an individual or 
individuals with cultural affiliation to an Indian Tribe or Native 
Hawaiian organization, or
    (iv) Removed from a specific area where a burial site of an 
individual or individuals with cultural affiliation to an Indian Tribe 
or Native Hawaiian organization is known to have existed, but the 
burial site is no longer extant.
    Human remains means any physical part of the body of a Native 
American individual. This term does not include human remains to which 
a museum or Federal agency can prove it has a right of possession.
    (1) Human remains reasonably believed to be comingled with other 
materials (such as soil or faunal remains) may be treated as human 
remains.
    (2) Human remains incorporated into a funerary object, sacred 
object, or object of cultural patrimony are considered part of the 
cultural item rather than human remains.
    (3) Human remains incorporated into an object or item that is not a 
funerary object, sacred object, or object of cultural patrimony are 
considered human remains.
    Indian land means lands of Indian Tribes, or Indian individuals, 
which are either held in trust by the United States or subject to a 
restriction against alienation imposed by the United States, except for 
subsurface interests not owned or controlled by an Indian Tribe or 
Indian individual.
    Indian Tribe means any Tribe, band, nation, or other organized 
group or community of Indians, including any Alaska Native village (as 
defined in, or established pursuant to, the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for 
the special programs and services provided by the United States 
Government to Indians because of their status as Indians by its 
inclusion on the list of recognized Indian Tribes published by the 
Secretary of the Interior under the Act of November 2, 1994 (25 U.S.C. 
5131).
    Item prohibited from exportation means--
    (1) A cultural item prohibited from being trafficked, including 
through sale, purchase, use for profit, or transport for sale or 
profit, by--
    (i) Section 1170 of title 18, United States Code, as added by the 
Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 
et seq.); or
    (ii) Any other Federal law or treaty;
    (2) An archaeological resource prohibited from being trafficked, 
including through sale, purchase, exchange, transport, receipt 
(including as a gift), or offer to sell, purchase, or exchange, 
including in interstate or foreign commerce, by--
    (i) Section 6(b) and (c) of the Archaeological Resources Protection 
Act of 1979 (16 U.S.C. 470ee); or
    (ii) Any other Federal law or treaty; and
    (3) Native American human remains.
    Item requiring export certification means a cultural item and an 
archaeological resource, but does not include any item or resource for 
which an Indian Tribe or Native Hawaiian organization with a cultural 
affiliation with the item has provided a Tribal Authorization.
    Native American means of, or relating to, a Tribe, people, or 
culture that is indigenous to the United States. To be considered 
Native American under this part, human remains or cultural items must 
bear some relationship to a Tribe, people, or culture indigenous to the 
United States.
    (1) A Tribe is an Indian Tribe.
    (2) A people comprise the entire body of persons who constitute a 
community, Tribe, nation, or other group by virtue of a common culture, 
history, religion, language, race, ethnicity, or similar feature. The 
Native Hawaiian Community is a ``people.''
    (3) A culture comprises the characteristic features of everyday 
existence shared by people in a place or time.
    Native American traditional knowledge means knowledge, 
philosophies, beliefs, traditions, skills, and practices that are 
developed, embedded, and often safeguarded by or confidential to 
individual Native Americans, Indian Tribes, or the Native Hawaiian 
Community. Native American traditional knowledge contextualizes 
relationships between and among people, the places they inhabit, and 
the broader world around them, covering a wide variety of information, 
including, but not limited to, cultural, ecological, linguistic, 
religious, scientific, societal, spiritual, and technical knowledge. 
Native American traditional knowledge may be, but is not required to 
be, developed, sustained, and passed through time, often forming part 
of a cultural or spiritual identity. Native American traditional 
knowledge is expert opinion. Other terms such as Indigenous Knowledge, 
Traditional Knowledge(s), Traditional Ecological Knowledge, Tribal 
Ecological Knowledge, Native Science, Indigenous Science, and others, 
are sometimes used to describe this knowledge system.
    Native Hawaiian organization means any organization that:
    (1) Serves and represents the interests of Native Hawaiians, who 
are descendants of the indigenous people who, before 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawai[revaps]i;
    (2) Has as a primary and stated purpose the provision of services 
to Native Hawaiians; and
    (3) Has expertise in Native Hawaiian affairs, and includes but is 
not limited to:
    (i) The Office of Hawaiian Affairs established by the constitution 
of the State of Hawai[revaps]i,

[[Page 85093]]

    (ii) Native Hawaiian organizations (including `ohana) who are 
registered with the Secretary of the Interior's Office of Native 
Hawaiian Relations, and
    (iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations 
and Homestead Associations as defined under 43 CFR 47.10.
    Object of cultural patrimony means an object that has ongoing 
historical, traditional, or cultural importance central to a Native 
American group, including any constituent sub-group (such as a band, 
clan, lineage, ceremonial society, or other subdivision), according to 
the Native American traditional knowledge of an Indian Tribe or Native 
Hawaiian organization. An object of cultural patrimony may have been 
entrusted to a caretaker, along with the authority to confer that 
responsibility to another caretaker. The object must be reasonably 
identified as being of such importance central to the group that it:
    (1) Cannot or could not be alienated, appropriated, or conveyed by 
any person, including its caretaker, regardless of whether the person 
is a member of the group, and
    (2) Must have been considered inalienable by the group at the time 
the object was separated from the group.
    Office means the Office in the Department of the Interior that the 
Secretary has designated as responsible for exercising the duties of 
the Secretary under the Act.
    Repatriation means return of cultural items, archaeological 
resources, or tangible cultural heritage to a culturally affiliated 
Indian Tribe or Native Hawaiian organization.
    Right of possession means possession or control obtained with the 
voluntary consent of a person or group that had authority of 
alienation. Right of possession is given through the original 
acquisition of:
    (1) An unassociated funerary object, a sacred object, or an object 
of cultural patrimony from an Indian Tribe or Native Hawaiian 
organization with the voluntary consent of a person or group with 
authority to alienate the object; or
    (2) An associated funerary object that was exhumed, removed, or 
otherwise obtained with full knowledge and consent of the next of kin 
or, when no next of kin is ascertainable, the official governing body 
of the appropriate Indian Tribe or Native Hawaiian organization.
    Sacred object means a specific ceremonial object needed by a 
traditional religious leader for present-day adherents to practice 
traditional Native American religion, according to the Native American 
traditional knowledge of a lineal descendant, Indian Tribe, or Native 
Hawaiian organization. While many items might be imbued with sacredness 
in a culture, this term is specifically limited to an object needed for 
the observance or renewal of a Native American religious ceremony.
    Secretary means the Secretary of the Interior.
    Tangible cultural heritage means--
    (1) Native American human remains; or
    (2) Culturally, historically, or archaeologically significant 
objects, resources, patrimony, or other items that are affiliated with 
a Native American culture.
    Tribal authorization means the authorization issued by a culturally 
affiliated Indian Tribe or Native Hawaiian organization, at the sole 
discretion of the Tribe or organization, stating that an item does not 
require an Export Certification from the Secretary.
    Tribal land means
    (1) All lands within the exterior boundaries of any Indian 
reservation;
    (2) All dependent Indian communities; and
    (3) Any lands administered for the benefit of Native Hawaiians 
pursuant to the Hawaiian Homes Commission Act, 1920, and section 4 of 
Public Law 86-3.


Sec.  1194.3  What are the timeframes and methods of delivery of 
documents under this part?

    (a) Whenever this part requires or allows the exporter to file a 
document on or before a certain date, the exporter is responsible for 
submitting that document so as to reach the Government office 
designated for receipt by the time specified. The exporter may use the 
U.S. Postal Office (USPS), a commercial carrier, or electronic or 
facsimile transmission. The Office will consider the document filed on 
the date on which the document is received by the Government office 
designated for receipt. Acceptable evidence to establish the time of 
receipt by the Government office includes any official USPS receipt, 
commercial carrier signature log, time/date stamp placed by the 
Government on the document, other documentary evidence of receipt 
maintained by that Government office, or oral testimony or statements 
of Government personnel.
    (b) Whenever this part requires or allows the Government to issue 
or file a document on or before a certain date, the document will be 
considered to be issued or filed on the date on which the document was 
placed in the USPS system, delivered to a commercial carrier, or sent 
by electronic or facsimile transmission. Acceptable evidence to 
establish the time of filing or issuance by the Government includes any 
official USPS sender's receipt, commercial carrier receipt log, and 
time/date stamp placed by the government office on the document, other 
documentary evidence of receipt maintained by that office, or oral 
testimony or statements of Government personnel.


Sec.  1194.4  How does severability apply under this regulation?

    If a court holds any provisions of the regulations in this part or 
their applicability to any person or circumstances invalid, the 
remainder of the regulations and their applicability to other people or 
circumstances will not be affected.

Subpart B--Export Certification System


Sec.  1194.101  What is the purpose of the Federal Register notice 
under this part?

    The Secretary shall publish in the Federal Register, after 
consultation with Indian Tribes and Native Hawaiian organizations, an 
announcement that provides fair notice to exporters and other persons 
regarding which items require an export certification under this 
section, and:
    (a) Includes a description of characteristics typical of items 
requiring export certification and definitions for ``archeological 
resource'' and ``cultural item'';
    (b) Describes the provenance requirements associated with the 
trafficking prohibition of 18 U.S.C. 1170 and 16 U.S.C. 470ee(b)-(c), 
and describes the characteristics of items prohibited from exportation;
    (c) Includes the definitions of Indian Tribe, Native American, and 
Native Hawaiian organization in Sec.  1194.2 and a description of how 
those terms apply to archaeological resources and cultural items 
subject to these regulations; and
    (d) Includes a description of characteristics typical of items that 
do not qualify as items requiring export certification and therefore do 
not require an export certification under this section, including 
clarification that:
    (1) An item made solely for commercial purposes is presumed to not 
qualify as an item requiring export certification, unless an Indian 
Tribe or Native Hawaiian organization challenges that presumption 
during the process for obtaining an export certification under Sec.  
1194.102;
    (2) A Tribal authorization may be used as evidence to demonstrate 
that an

[[Page 85094]]

item would not qualify as an Item Requiring Export Certification; and
    (e) Information on consulting with Indian Tribes and Native 
Hawaiian organizations. Such information would include information on 
how to contact Indian Tribes and Native Hawaiian organizations and the 
possibility, in the sole discretion of the Indian Tribe or Native 
Hawaiian organization, of obtaining a Tribal Authorization.


Sec.  1194.102  When do I need an export certification?

    (a) Any person attempting to export an item that may be an item 
requiring export certification must apply to the Office for an export 
certification covering that item before transporting or shipping the 
item to any foreign country.
    (b) Each item to be transported requires a separate application, 
and the Office will process each application separately.
    (c) No item requiring export certification may be exported from the 
United States without first having obtained an export certification in 
accordance with this subpart. The Office will not issue an export 
certification for Native American human remains.
    (d) Exporters may apply for an export certification by filing the 
application described in Sec.  1194.103 with all required supporting 
documentation.
    (e) The Office will process the application using the procedure in 
Sec.  1194.104 of this part, and will assess exporters who submit an 
application the fee in Sec.  1194.108 of this part.


Sec.  1194.103  What is the process for applying for an export 
certification?

    (a) Who may apply:
    (1) An exporter seeking to export an item that may be an item 
requiring export certification from the United States must submit to 
the Office an export certification application.
    (2) An Indian Tribe or a Native Hawaiian organization with an 
interest in a particular item requiring export certification may submit 
to the Office an export certification application.
    (b) How to apply:
    (1) Requests for an export certification shall be made on an export 
certification application. The application must be accompanied by the 
fee required under Sec.  1194.108.
    (2) In addition to completing the application under Sec.  
1194.103(b)(1), an application to the Office must include:
    (i) Description and pictures (if culturally appropriate) of the 
item requiring export certification;
    (ii) All available information regarding the provenance of the item 
requiring export certification;
    (iii) The presence of any potentially hazardous substances used to 
treat the item requiring export certification, if known;
    (iv) An attestation that, to the best of the knowledge and belief 
of the exporter, the exporter is not attempting to export an item 
prohibited from exportation;
    (v) Substantial evidence of consultation with possibly culturally 
affiliated Indian Tribes or Native Hawaiian organizations, including, 
but not limited to, written correspondence between the exporter and the 
leader of the Indian Tribe or Native Hawaiian organization and 
agreement from the leader of the Indian Tribe or Native Hawaiian 
organization that the Office should issue an export certification;
    (vi) Evidence, for an archaeological resource, of a permit under 
section 4 of the Archaeological Resources Protection Act, 16 U.S.C. 
470cc, that authorizes export or that a permit is not necessary;
    (vii) Evidence, for Native American cultural items, of a 
disposition statement (43 CFR 10.7(b) or (c)(5)); a repatriation 
statement (43 CFR 10.9(g)); or that a disposition statement or 
repatriation statement is not necessary, with written confirmation from 
the Indian Tribe or Native Hawaiian organization with authority to 
alienate the item requiring export certification that the exporter has 
a right of possession of the item requiring export certification or the 
Indian Tribe or Native Hawaiian organization has relinquished title or 
control of the item requiring export certification in accordance with 
section 3 of NAGPRA;
    (viii) If the item was excavated or removed, evidence concerning 
the ownership of the land that the item was removed from at the time 
the item was removed;
    (ix) Evidence adequate to show that the Indian Tribes or Native 
Hawaiian organizations are culturally affiliated with the item under 43 
CFR 10.3; and
    (x) The purpose and timeframe for the proposed exportation of the 
item.
    (3) The exporter must submit all documents supporting the 
application in the format(s) required for upload into the export 
certification database established by Sec.  1194.107. The Office will 
publish the requirements for upload on its website.
    (4) When the Office receives an export certification application 
and supporting documents, the Office will immediately include the 
application and supporting documents in the export certification 
database established by Sec.  1194.107. Any further documents that the 
exporter submits to support an incomplete application under Sec.  
1194.104 will be added to the database upon receipt by the Office.


Sec.  1194.104  What is the process for the Office to review an export 
certification?

    (a) Upon receipt of an export certification application, the Office 
shall review the application for completeness in compliance with Sec.  
1194.103 of this part. That review will include coordination with 
relevant Federal agencies to identify whether there are active Federal 
investigations into the trafficking of cultural items or archaeological 
resources by the applicant. The Office will also notify the relevant 
Indian Tribes and Native Hawaiian organizations of the receipt of the 
application.
    (b) Within 20 business days of receipt, the Office will notify the 
exporter by mail or overnight carrier whether the application meets the 
criteria of Sec.  1194.103.
    (c) If the application package is not complete, the Office's 
notification will identify the missing information or documents 
required for a complete package.
    (d) Upon a determination that the export certification application 
is complete, the Office will notify the relevant Indian Tribes and 
Native Hawaiian organizations the following business day that the 
application is complete.
    (e) After receiving the notification from the Office under Sec.  
1194.104(d), the relevant Indian Tribes and Native Hawaiian 
organizations will have 9 business days to review the application and 
supporting documents.
    (f) If an Indian Tribe or Native Hawaiian organization notifies the 
Office that the item requiring export certification may not be eligible 
for an export certification, the Office will have 7 business days to 
review the application and supporting documents. If no Indian Tribe or 
Native Hawaiian organization so notifies the Office, the Office will 
have 1 business day to review the application and supporting documents.
    (g) With notice to the exporter, the Office may extend the review 
of an application and supporting documents for up to 30 business days 
if credible evidence is provided that the item requiring export 
certification may not be eligible for an export certification.


Sec.  1194.105  What is the process for the Office to approve an Export 
Certification?

    (a) Following completion of the process under Sec.  1194.104(a) 
through (f), and any extension under Sec.  1194.104(g), the Office will 
make a determination to approve or deny the export certification

[[Page 85095]]

application. The Office will notify the applicant and any relevant 
Indian Tribe or Native Hawaiian organization of the determination and 
the right to administratively appeal the determination under subpart D 
of this part. Upon the expiration of the period for appeal, or the 
final exhaustion of administrative remedies, the Secretary will issue 
the export certification or decline to issue it.
    (b) The exporter must provide CBP with a copy of the export 
certification within 48 hours before presentation of the item to CBP at 
the border by uploading the electronic export information (including 
the export certification) or successor to the CBP Automated Commercial 
System or successor system.


Sec.  1194.106  What is the process for the Secretary to revoke an 
export certification?

    (a) If the Office receives credible evidence indicating that an 
item that received an export certification is not eligible for an 
export certification, then the Secretary, after consultation with 
relevant Indian Tribes and Native Hawaiian organizations, may 
immediately revoke a previously issued export certification.
    (b) Any revocation will be effective immediately, notwithstanding 
any administrative appeal under subpart D of this part.


Sec.  1194.107  What is the export certification database?

    (a) The Office will enter all Applications for export certification 
and supporting documents in a secure database information system for 
the purpose of making export certification applications available to 
Indian Tribes, Native Hawaiian organizations, and other Federal 
agencies, including the Departments of Homeland Security, Justice, and 
State. Access to the database will be limited to users within Indian 
Tribes, Native Hawaiian organizations, and relevant Federal agencies.
    (b) Under the Act, the following information will be exempt from 
disclosure under the Freedom of Information Act, 5 U.S.C. 552:
    (1) Information that a representative of an Indian Tribe or Native 
Hawaiian organization--
    (i) Submits to a Federal agency pursuant to the Act, an amendment 
made by the Act, or these regulations; and
    (ii) Designates as sensitive or private according to Native 
American custom, law, culture, or religion; or
    (2) Information that any person submits to a Federal agency 
pursuant to the Act or an amendment made by the Act or these 
regulations that relates to an item for which an Export Certification 
is denied under this Act.
    (c) All information in the database other than that under Sec.  
1194.107(b) will be treated by the Secretary as controlled unclassified 
information and will be protected in accordance with applicable law.
    (d) If an Indian Tribe or Native Hawaiian organization requests 
that the Office delete an application and supporting documents or any 
portion thereof from the database, the Office will immediately do so. 
The review of the Application will continue off-line.
    (e) If an Indian Tribe or Native Hawaiian organization lacks 
sufficient resources to access the database or respond to agency 
communications in a timely manner, the Office, in consultation with 
Indian Tribes and Native Hawaiian organizations, will provide technical 
assistance to facilitate that access or response, as applicable.


Sec.  1194.108  When are export certification fees assessed?

    (a) As of [EFFECTIVE DATE OF FINAL RULE], the fee for applying for 
an export certification is $500.00 per application. Federal, Indian 
Tribe, State, and local government agencies and Native Hawaiian 
organizations are exempt from the processing fee.
    (b) The fee will be paid when the application is submitted, and is 
not refundable. The Office will keep the fee as a service charge even 
if the Secretary does not issue an Export Certification or the 
applicant withdraws the application.
    (c) The application fee will be adjusted annually according to the 
change in the implicit price deflator for gross domestic product 
(published by the Department of Commerce) since the previous adjustment 
and will subsequently be posted on the Office website before October 1 
each year. Revised fees are effective each year on October 1. Because 
the fee adjustments are simply based on a mathematical formula, the 
adjustments will not be subject to notice and comment.


Sec.  1194.109  Under what circumstances may a Tribal authorization be 
issued?

    (a) In some circumstances, and at the sole discretion of the Indian 
Tribe or Native Hawaiian organization, an Indian Tribe or Native 
Hawaiian organization may issue a Tribal authorization that may be used 
as evidence to demonstrate a particular item does not qualify as an 
item requiring export certification.
    (1) The Tribal authorization will be in a letter signed by the 
Tribal leader or a duly adopted Tribal resolution, Tribal ordinance, or 
other, similar act of the Tribal government or Native Hawaiian 
organization.
    (2) The Tribe or Native Hawaiian organization must provide a copy 
of the Tribal Authorization to the Office.
    (3) The Office may publish a template for Indian Tribes or Native 
Hawaiian organizations to use for the Tribal authorization.
    (b) The exporter must provide CBP with a copy of the Tribal 
authorization within 48 hours before presentation of the item to CBP at 
the border by uploading the electronic export information (including 
the Tribal authorization) or successor to the CBP automated commercial 
system or successor system.


Sec.  1194.110  How does the Paperwork Reduction Act affect this part?

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned 
control number 1076-XXXX. A Federal agency may not conduct or sponsor, 
and you are not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

Subpart C--Procedures for Detention, Forfeiture, Repatriation, and 
Return


Sec.  1194.201  When can CBP detain certain items?

    (a) The Act authorizes CBP to detain certain items specified in 
Sec.  1194.201(b), and through this regulation, the Secretary requests 
that CBP do so in accordance with the procedures specified below.
    (b) CBP will detain, using procedures under this section:
    (1) Any item that may be an item prohibited from exportation that 
is exported, attempted to be exported, or otherwise transported from 
the United States; or
    (2) Any item that may be an item requiring export certification 
that is exported, attempted to be exported, or otherwise transported 
from the United States without an export certification or Tribal 
authorization.
    (c) Upon discovery of an item specified in Sec.  1194.201(b), CBP 
will contact the Office within 24 hours for the Office to determine 
whether the item may be lawfully exported in accordance with the Act 
and these regulations.
    (d) Upon the request of the Office, CBP may provide additional

[[Page 85096]]

information such as photographs of the item to assist the Office in 
determining whether the item falls within the scope of the Act.
    (e) The Office will provide to CBP a written statement within five 
calendar days of initial CBP contact stating whether the item falls 
within the scope of the Act, whether the item requires an Export 
Certification, and whether the Secretary has issued an export 
certification or an Indian Tribe or Native Hawaiian organization has 
issued a Tribal authorization for the item. The statement will be 
accompanied by a notification of the appeal procedures in subpart D of 
this part for CBP to provide to the exporter. The Office may provide 
the statement and notification to the exporter by email.
    (f) If the Office provides the written statement under Sec.  
1194.201(e), CBP will detain the item.
    (g) If the Office fails to timely provide the written statement 
under Sec.  1194.201(e), and assuming no other legal restrictions 
apply, CBP will provide notice to the exporter that the item is being 
released back to the exporter.
    (h) The exporter will have five calendar days following the 
issuance of the notice under Sec.  1194.201(g) to arrange retrieval of 
the detained item. If, after five calendar days, no arrangement has 
been made, the item will be deemed abandoned and surrendered to the 
Office.
    (i) If the exporter voluntarily abandons the detained good(s) or 
the goods are deemed abandoned under paragraph (h) of this section, the 
shipment will be surrendered to the Office for repatriation under Sec.  
1194.206. Such voluntary return may be eligible for the safe harbor 
from prosecution under Sec.  1194.204.
    (j) Detained item(s) will be held in a secure location at the port 
consistent with current CBP regulations and policy, until they are 
turned over to the Office for disposition.


Sec.  1194.202  How does CBP deliver items to the Office?

    (a) Within 48 hours after the Office notifies CBP under Sec.  
1194.201 of this part that an item is subject to detention, CBP will 
record the detention on a CBP Form 6051D or equivalent detention form. 
CBP will provide a copy of that form to the exporter with the 
notification of appeal procedures provided by the Office under Sec.  
1194.201. Once the item has been formally detained by CBP, CBP will 
notify the Office that the item is available for the Office to 
retrieve.
    (b) The Office will retrieve the item in-person within five days 
after the notification under Sec.  1194.202(a).
    (c) The Office will also notify the exporter within five days that 
it has custody of the detained items. The Office will also provide a 
notification to the exporter for purposes of appealing the detention 
under subpart D of this part.
    (d) The Office will hold any items retrieved from CBP in a secure 
location in a manner based on consultation with the appropriate Indian 
Tribe or Native Hawaiian organization.
    (e) Within 60 days after the Office retrieves an item detained 
under Sec.  1194.201(b)(2) to the Office, and in consultation with 
appropriate Indian Tribes and Native Hawaiian organizations, the Office 
will determine whether the item is an Item Prohibited from Exportation.
    (f) If the Office determines under Sec.  1194.202(e) that the item 
is an Item Prohibited from Exportation subject to forfeiture, the 
exporter may appeal that determination under subpart D of this part.


Sec.  1194.203  What is the process for forfeiture proceedings?

    Property seized for violations of the Act and subject to forfeiture 
may be forfeited, depending upon the nature of the property, through 
civil administrative procedures, civil judicial procedures, or criminal 
forfeiture proceedings. Upon the expiration of the period for appeal of 
detention under Sec.  1194.202(f), or the final exhaustion of 
Department administrative remedies, the Office may refer the item to an 
appropriate Federal agency or U.S. Attorney's Office for forfeiture 
proceedings under the appropriate administrative or judicial 
authorities. The Office will retain the item in its custody unless the 
agency or U.S. Attorney's Office needs the item for its investigation.


Sec.  1194.204  Does safe harbor apply to this regulation?

    (a) If the exporter voluntarily returns the item or directs that 
the item be returned to the appropriate Indian Tribe or Native Hawaiian 
organization, in accordance with Sec.  1194.201(i) of this part prior 
to the commencement of an active Federal investigation into the 
trafficking of the item or into the trafficking of cultural items or 
archeological resources by the applicant, the exporter shall not be 
prosecuted for a violation of the Act with respect to the item.
    (b) For purposes of Sec.  1194.204(a), the following actions shall 
not be considered to be actions that commence an active Federal 
investigation:
    (1) The submission by the exporter of an export certification 
application for the item under Sec.  1194.103;
    (2) The detention of the item by CBP under Sec.  1194.201;
    (3) The retrieval of the detained item by the Office from CBP under 
Sec.  1194.202; or
    (4) The seizure by the Office of the item under Sec.  1194.202.


Sec.  1194.205  What are civil penalties for violations of this 
regulation?

    (a) If the item is an item prohibited from exportation, the base 
penalty amount is $800.
    (b) If the item is an item requiring export certification, the base 
penalty amount is $8,000.
    (1) The Act authorizes the assessment of civil penalties for 
violations of the Act, subject to annual adjustments based on inflation 
under the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 (Pub. L. 114-74).
    (2) The base penalty amount may be increased after considering:
    (i) The ceremonial or cultural value of the item requiring export 
certification involved, as identified by any aggrieved Indian Tribe or 
Native Hawaiian organization;
    (ii) The archaeological, historical, or commercial value of the 
item requiring export certification involved;
    (iii) The economic and non-economic damages suffered by any 
aggrieved Indian Tribe or Native Hawaiian organization, including 
expenditures by the aggrieved party to compel the exporter to comply 
with the Act or this regulation;
    (iv) The number of prior violations by the exporter that have 
occurred;
    (v) The cost of storing and repatriating the item, or
    (vi) Any other appropriate factor justifying an increase.


Sec.  1194.206  How is an item repatriated or returned?

    (a) If an item is deemed abandoned under Sec.  1194.201(h) or (i), 
the Office will expeditiously repatriate the item prohibited from 
exportation to:
    (1) the Indian Tribe or Native Hawaiian organization from whose 
Tribal land the item was removed or who is culturally affiliated with 
the item, for cultural items under NAGPRA; or
    (2) the Indian Tribe from whose Indian land the item was removed, 
for archaeological resources under ARPA.
    (b) After an administrative declaration of forfeiture or a final 
order of forfeiture

[[Page 85097]]

in a judicial proceeding, the Department may, consistent with 
applicable law and regulations governing the remission and mitigation 
of forfeitures, seek the item prohibited from exportation and 
repatriate it to:
    (1) The Indian Tribe or Native Hawaiian organization from whose 
Tribal land the item was removed or who is culturally affiliated with 
the item, for cultural items under NAGPRA; or
    (2) The Indian Tribe from whose Indian land the item was removed, 
for archaeological resources under ARPA.
    (c) The Office will return the item requiring export certification 
to the exporter if:
    (1) The Office does not make the required determination by the 
deadline under Sec.  1194.202(e);
    (2) The Office determines under Sec.  1194.15(e) that the item is 
not an Item Prohibited from Exportation;
    (3) The exporter is successful in the appeal under Sec.  
1194.202(f).
    (d) The Office will issue a letter or other document authorizing 
the return of the property. This letter or other document will be 
delivered personally or sent by registered or certified mail, return 
receipt requested, and will identify the owner or consignee, the seized 
property, and, if appropriate, the custodian of the seized property. It 
will also provide that, upon presentation of the letter or other 
document and proper identification, and the signing of a receipt 
provided by the Office, the seized property is authorized to be 
released, provided it is properly marked in accordance with applicable 
State or Federal requirements.
    (e) The return of an item under Sec.  1194.206(d) does not mean 
that the item is eligible for an export certification, nor does it 
substitute for an export certification. To export the item, the 
exporter must apply for, and receive an export certification under 
subpart B of this part.

Subpart D--Administrative Appeals


Sec.  1194.301  What is the purpose of this section?

    Any exporter wishing to appeal the Office's denial of an export 
certification application under Sec.  1194.105 or detention of an item 
requiring export certification under Sec.  1194.202 part must follow 
the procedures in this regulation. The provisions of 25 CFR part 2 do 
not apply to decisions under this regulation. No decision, which at the 
time of its rendition is subject to appeal under this subpart, shall be 
considered final so as to constitute agency action subject to judicial 
review. The decision being appealed shall not be effective during the 
pendency of the appeal.


Sec.  1194.302  How do I request a hearing?

    (a) To begin an appeal under this subpart, the exporter must file a 
written request for a hearing under Sec.  1194.302(b). The request for 
hearing and any document filed thereafter with the Departmental Cases 
Hearings Division (DCHD) under this section are subject to the rules 
that govern the method and effective date of filing and service under 
the subparts applicable to DCHD in 43 CFR part 4. If the exporter does 
not file a written request for a hearing in 45 days from the date of 
the denial or detention, the exporter waives the right to request a 
hearing and has failed to exhaust administrative remedies.
    (b) The exporter must file the written request for a hearing with 
the DCHD, Office of Hearings and Appeals (OHA), U.S. Department of the 
Interior, at the mailing address specified in the OHA Standing Orders 
on Contact Information, or by electronic means under the terms 
specified in the OHA Standing Orders on Electronic Transmissions. A 
copy of the request must be served on the Solicitor of the Department 
of the Interior at the address specified in the OHA Standing Orders on 
Contact Information and on any culturally affiliated Indian Tribe or 
Native Hawaiian organization using the contact information in the 
Federal Register notice published by the Secretary under Sec.  
1194.101. The Standing Orders are available on the Department of the 
Interior OHA's website at https://www.doi.gov/oha.
    (c) The request for a hearing must:
    (1) Include a copy of the denial of the export certification 
application or the notice of detention;
    (2) State the relief sought by the exporter; and
    (3) Include the basis for challenging the facts used to deny the 
application or detain the Item.
    (d) Upon receiving a request for a hearing, DCHD will assign an 
administrative law judge to the case and promptly give notice of the 
assignment to the exporter, the Office of the Solicitor, and any 
culturally affiliated Indian Tribe or Native Hawaiian organization. 
Thereafter, each filing must be addressed to the administrative law 
judge and a copy served on each opposing party or its counsel.
    (1) Subject to the provisions of 43 CFR 1.3, an exporter may appear 
by authorized representative or by counsel and may participate fully in 
the proceedings. If the exporter does not appear and the administrative 
law judge determines that this absence is without good cause, the 
administrative law judge may, at the judge's discretion, determine that 
the exporter has waived the right to a hearing and consents to the 
making of a decision on the record.
    (2) The Department of the Interior counsel is designated by the 
Office of the Solicitor of the Department of the Interior. No later 
than 20 days after receipt of its copy of the written request for 
hearing, Departmental counsel must file with the DCHD an entry of 
appearance on behalf of the Office and the following:
    (i) Any Application for Export Certification with all supporting 
documents. The Application and supporting documents will be filed under 
seal and available only to the administrative law judge. Alternatively, 
the Office may provide the administrative law judge with read-only 
access to the appropriate records in the database under Sec.  1194.107;
    (ii) Any written communications between the Office and the exporter 
concerning the application;
    (iii) Any written communications between the Office and culturally 
affiliated Indian Tribes or Native Hawaiian organizations concerning 
the application or detention. Such communications will be filed under 
seal and treated as confidential information available to the exporter 
only under a protective order;
    (iv) A written description of any item requiring export 
certification that has been detained. The description may include 
photographs of the item, but only with the consent of the culturally 
affiliated Indian Tribe or Native Hawaiian organization. The 
description and any photographs will be filed under seal and treated as 
confidential information available to the exporter only under a 
protective order; and
    (v) Any other information considered by the Office in reaching the 
decision being challenged.
    (3) Any Indian Tribe or Native Hawaiian organization that is 
culturally affiliated with the item that has been detained or the item 
requiring export certification is a required party to the hearing and 
any appeal.


Sec.  1194.303  What are the hearing procedures?

    (a) To the extent they are not inconsistent with this section, the 
rules in the subparts applicable to DCHD in 43 CFR part 4 apply to the 
hearing process.
    (b) The administrative law judge has all powers necessary to 
conduct a fair, orderly, expeditious, and impartial hearing process, 
and to render a

[[Page 85098]]

decision under 5 U.S.C. 554 through 557.
    (c) The administrative law judge will render a written decision. 
The decision must set forth the findings of fact and conclusions of 
law, and the reasons and basis for them.
    (d) The administrative law judge's decision shall be the final 
administrative decision of the Secretary and will take effect 31 days 
from the date of the decision unless the exporter or the Indian Tribe 
or Native Hawaiian organization files a notice of appeal as described 
in Sec.  1194.302. If the exporter does not file a notice of appeal 30 
days from the date of the administrative law judge's decision, the 
exporter has failed to exhaust administrative remedies.


Sec.  1194.304  How do I appeal a decision?

    (a) The exporter or culturally affiliated Indian Tribe or Native 
Hawaiian organization seeking review of the decision of the 
administrative law judge must file a written notice of appeal no later 
than 30 days after the date of the decision. The notice of appeal must 
be filed with the Interior Board of Indian Appeals (IBIA), Office of 
Hearings and Appeals (OHA), U.S. Department of the Interior, at the 
mailing address specified in the OHA Standing Orders on Contact 
Information, or by electronic means under the terms specified in the 
OHA Standing Orders on Electronic Transmission. The Standing Orders are 
available on the Department of the Interior OHA's website at https://www.doi.gov/oha. The notice of appeal must be accompanied by proof of 
service on the administrative law judge and each opposing party. The 
notice of appeal and any document filed thereafter with the IBIA are 
subject to the rules that govern the method and effective date of 
filing under 43 CFR 4.310.
    (b) To the extent they are not inconsistent with this section, the 
provisions of 43 CFR part 4, subpart D, apply to the appeal process.
    (c) The IBIA's decision will be in writing and takes effect as the 
final administrative decision of the Secretary on the date that the 
IBIA's decision is rendered, unless otherwise specified in the 
decision.
    (d) OHA decisions in proceedings instituted under this subpart are 
posted on OHA's website.
    (e) The final administrative decision of the Secretary will be 
final agency action for purposes of 5 U.S.C. 704, only if the exporter 
has exhausted all administrative remedies under this subpart.

Subpart E--Voluntary Return of Tangible Cultural Heritage


Sec.  1194.401  What is the purpose of this section?

    An individual or organization may return tangible cultural heritage 
under this part. The goal of this subpart is to facilitate the return 
of cultural items and Native American human remains to Indian Tribes 
and Native Hawaiian organizations. If the voluntary return is of an 
item subject to NAGPRA by a museum as that term is defined in NAGPRA, 
the return of that item will follow the process under section 7 of 
NAGPRA (25 U.S.C. 3005) rather than the process in this regulation.


Sec.  1194.402  When is consultation initiated?

    (a) An individual or organization that is seeking to voluntarily 
return tangible cultural heritage under this subpart must compile a 
simple itemized list and description of any tangible cultural heritage. 
The simple itemized list must include, to the extent that the 
individual or organization has the required information:
    (1) The geographical location (provenance) by county or State where 
the tangible cultural heritage was removed;
    (2) The acquisition history (provenance) of the tangible cultural 
heritage;
    (3) Other information available for identifying a culturally 
affiliated Indian Tribe or Native Hawaiian organization; and
    (4) The presence of any potentially hazardous substances used to 
treat the tangible cultural heritage, if known.
    (b) The individual or organization should submit this list to the 
Office. In consultation with Indian Tribes, Native Hawaiian 
organizations, and the Native Working Group convened under subpart G of 
this part, the Office will determine what Indian Tribe or Native 
Hawaiian organization is potentially culturally affiliated with the 
tangible cultural heritage, and provide its contact information to the 
individual or organization. The Office will also provide the contact 
information of the individual or organization to the identified Indian 
Tribe or Native Hawaiian organization with the list compiled under 
Sec.  1194.402(a).


Sec.  1194.403  What is the process for consultation and return of 
items under this regulation?

    (a) After the Office transmits the contact information under Sec.  
1194.402, the individual or organization and the Indian Tribe or Native 
Hawaiian organization will contact each other and arrange for 
consultation and return of the tangible cultural heritage.
    (b) At the request of the Indian Tribe or Native Hawaiian 
organization, the Departments of Homeland Security and State will 
facilitate the transportation and importation of the tangible cultural 
heritage.
    (c) At the request of the Indian Tribe or Native Hawaiian 
organization, the Interagency Working Group convened under subpart F of 
this part will explore funding mechanisms to pay the expenses of the 
Indian Tribe or Native Hawaiian organization for the return of tangible 
cultural heritage. Assistance to the Indian Tribe or Native Hawaiian 
organization could also be in the form of in-kind resources.
    (d) Upon a successful voluntary return, and with the consent of the 
Indian Tribe or Native Hawaiian organization, the Office will provide 
the individual or organization with tax documentation for a charitable 
gift to the Indian Tribe or Native Hawaiian organization that may be 
tax deductible if the requirements under 26 U.S.C. 170 and 26 CFR part 
1 are satisfied.

Subpart F--Interagency Working Group


Sec.  1194.501  What is the Interagency Working Group?

    The Office will convene the Interagency Working Group to coordinate 
the policy-making process with respect to facilitation of the 
repatriation to Indian Tribes and Native Hawaiian organizations of 
items that have been illegally removed or trafficked in violation of 
applicable law; protection of tangible cultural heritage, cultural 
items, Native American human remains, and archaeological resources 
still owned or controlled by Indian Tribes and Native Hawaiian 
organizations; and support for improvements in implementation of 
NAGPRA, ARPA, and other relevant Federal law.


Sec.  1194.502  What is the membership of Interagency Working Group?

    The Departments of Justice, State, and Homeland Security shall each 
designate a responsible office and individual to serve on the 
Interagency Working Group. The Office will represent the Secretary of 
the Interior on the Working Group.


Sec.  1194.503  What are the duties of the Interagency Working Group?

    The Interagency Working Group will aid in implementation of the Act 
by, including but not limited to, facilitating the voluntary return of 
tangible cultural heritage, attempting to prevent

[[Page 85099]]

international sales of items that are prohibited from being trafficked 
under Federal law, and collaborating with the Native Working Group, the 
NAGPRA Review Committee, and the Cultural Heritage Coordinating 
Committee.

Subpart G--Native Working Group


Sec.  1194.601  What is the relationship between the Office and the 
Native Working Group?

    The Office will provide administrative support to the Native 
Working Group.


Sec.  1194.602  What is the membership of the Native Working Group?

    (a) The Native Working Group is composed of representatives of 
Indian Tribes and Native Hawaiian organizations with relevant 
expertise.
    (b) There are thirteen members of the Native Working Group: one 
representing Indian Tribes in each Bureau of Indian Affairs Region, and 
one representing Native Hawaiian organizations.
    (c) The members of the Native Working Group are appointed by the 
Secretary for an initial term of four years. A member may be 
reappointed for a term of two years.
    (d) Any Indian Tribe or Native Hawaiian organization may nominate a 
person from a particular BIA Region or Hawai[revaps]i for membership, 
even if that Indian Tribe or Native Hawaiian organization is not in 
that Region or in Hawai[revaps]i. The Office will recommend a list of 
candidates to the Secretary, in coordination with the Interagency 
Working Group convened under subpart F of this part.


Sec.  1194.603  What are the duties of the Native Working Group?

    (a) The Native Working Group may provide recommendations for 
Federal agency action regarding:
    (1) The voluntary return of tangible cultural heritage by 
collectors, dealers, and other individuals and non-Federal 
organizations that hold such tangible cultural heritage; and
    (2) The elimination of illegal commerce of cultural items and 
archaeological resources in the United States and foreign markets.
    (b) Such recommendations shall be considered fully by affected 
agencies, but shall not be binding upon any affected agency.
    (c) The Office of Tribal Justice shall represent the Department of 
Justice with regard to relevant matters before the Native Working Group 
including receiving formal requests to initiate agency actions and to 
provide information and assistance to the Native Working Group. 
Requests to initiate litigation will be directed by the Office of 
Tribal Justice to the appropriate litigation component within the 
Department of Justice.
    (d) Upon request from the Native Working Group, the Department of 
State, in coordination with the Department of Justice when judicial 
proceedings are initiated either domestically or abroad, may initiate 
dialog through U.S. missions abroad, in coordination with the 
Department of State's Cultural Heritage Center, with appropriate 
foreign government offices.
    (e) The Native Working Group may also request information or 
assistance from:
    (1) The Department of the Interior;
    (2) The Department of Justice;
    (3) The Department of Homeland Security;
    (4) The Department of State;
    (5) The Review Committee established under section 8(a) of NAGPRA;
    (6) The Cultural Heritage Coordinating Committee established 
pursuant to section 2 of the Protect and Preserve International 
Cultural Property Act; or
    (7) Any other relevant Federal agency, committee, or working group.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2024-24332 Filed 10-24-24; 8:45 am]
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