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Final Civil Penalties Rule

43 CFR 10.12

April 3, 2003

 

[Federal Register: April 3, 2003 (Volume 68, Number 64)]
[Rules and Regulations]
[Page 16353-16364]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ap03-16]


[[Page 16353]]

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Part II

Department of the Interior

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43 CFR Part 10

Native American Graves Protection and Repatriation Act Regulations--
Civil Penalties; Final Rule


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AC84


Native American Graves Protection and Repatriation Act
Regulations--Civil Penalties

AGENCY: Department of the Interior.

ACTION: Final rule.

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SUMMARY: This final rule relates to regulations implementing the Native
American Graves Protection and Repatriation Act of 1990 (``the Act'' or
``NAGPRA''). This section outlines procedures for assessing civil
penalties on museums that fail to comply with applicable provisions of
the Act.

EFFECTIVE DATE: This final rule becomes effective on May 5, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. John Robbins, Assistant Director,
Cultural Resources Stewardship and Partnerships, National Park Service,
1849 C Street NW (2253), Washington, DC 20240. Telephone: (202) 354-
2269.

SUPPLEMENTARY INFORMATION: On November 16, 1990, President George Bush
signed the Act into law. The Act addresses the rights of lineal
descendants, Indian tribes, and Native Hawaiian organizations to Native
American human remains, funerary objects, sacred objects, and objects
of cultural patrimony with which they are affiliated. Section 13 of the
Act requires the Secretary of the Interior (``the Secretary'') to
promulgate regulations to carry out provisions of the Act [25 U.S.C.
3011]. Final regulations implementing the Act were published in the
Federal Register on December 4, 1995, and went into effect on January
3, 1996. The final regulations had five sections reserved for later
publication.
Section 9 of the Act authorizes the Secretary to assess a civil
penalty against any museum that fails to comply with the requirements
of the Act [25 U.S.C. 3007]. Such penalties must be assessed according
to procedures established by the Secretary through regulation. An
interim rule establishing civil penalty procedures was published in the
Federal Register on January 13, 1997 (62 FR 1820), and went into effect
on February 12, 1997. Written comments on the interim rule were
solicited from Indian tribes, Native Hawaiian organizations, museums,
Federal agencies, and members of the public. The extended period
between the receipt of comments and publication of this final rule is
attributed to administrative processing delays and National NAGPRA
program organizational changes. Despite the delay, the comments
continue to be relevant as there has been no significant developments
regarding NAGPRA civil penalties since publication of the interim rule.
Twenty-four written comments were received representing 28
organizations and individuals. These included one Indian tribe, four
Native American organizations, eight museums, one university, three
national scientific organizations, three state agencies, two Federal
agencies, four other organizations, and two individuals. Several
letters represented more than one organization. Comments addressed most
of the interim rule. All comments were fully considered when revising
the interim rule for publication as a final rule.

Primary Changes

There are two primary changes to the interim rule.
The first change concerns the relationship between the notice of
failure to comply and the notice of assessment. As explained in the
preamble of the interim rule, the administrative procedures for
providing notice, holding a hearing, appealing an administrative
decision, and issuing a final administrative decision were patterned
after the regulatory procedures currently used in assessing civil
penalties under the Archaeological Resources Protection Act (ARPA).
Further consideration revealed a statutory distinction between the ARPA
and NAGPRA civil penalty procedures, particularly regarding the
relationship between the notice of failure to comply and the notice of
assessment. ARPA specifies that no penalty may be assessed until the
person who violates the ARPA is given notice and opportunity for a
hearing [16 U.S.C. 470 ff (a)(1)]. Regulations implementing the ARPA
civil penalty provisions require that the notice of violation include a
proposed penalty amount, which may be addressed at the hearing [43 CFR
7.15 (b)(3)]. NAGPRA is different. Section 9 (a) of NAGPRA stipulates
that both the determination and assessment of the penalty can occur
only after the museum has an opportunity for an agency hearing [25
U.S.C. 3007]. The regulatory text has been revised to indicate that the
notice of failure to comply must be issued first, followed by a period
during which the museum may request a hearing. A notice of assessment
may be issued after the first period for requesting a hearing has
expired. The possibility of a second hearing on the notice of
assessment has been added to the regulations. Figure 1 outlines the
civil penalty hearing and appeal process. If the museum consents, the
Secretary may also combine the two notices, in which case the two
opportunities for hearing will also be combined.
The second change concerns the amount of the per-day penalty that
may be assessed if the museum continues to violate NAGPRA after the
date of the final administrative decision on the notice of assessment.
Several commenters considered the $100-per-day amount too low. Others
recommended that the Secretary should have some discretion depending on
the nature of failure to comply and the human remains, funerary object,
sacred object, or object of cultural patrimony in question. The amount
has been changed from a set $100 per day to a range not to exceed
$1,000 per day.

Section-by-Section

General

Five commenters offered no specific changes to the text. Two
commenters encouraged the Department of the Interior to remain flexible
in its application of civil penalties and to refrain from penalizing
museums that have attempted, in good faith, to comply with the Act.
Whether a museum has failed to comply is determined under a strict
liability standard. Mitigating factors, such as whether the museum has
made a good faith attempt to comply, may be used by the Secretary to
determine the penalty amount.

Paragraph 10.12 (a)

This paragraph outlines the Secretary's authority to assess civil
penalties. Several comments concerned applicability of the rule to
specific types of institutions. One commenter recommended amending the
rule to apply to Federal agencies that fail to comply with provisions
of the Act. One commenter recommended amending the rule to apply to
non-Federally-funded institutions that refuse to return human remains,
funerary objects, sacred objects, or objects of cultural patrimony
controlled by a Federal agency or museum. One commenter recommended
amending the rule to apply to museums in other countries that control
human remains, funerary objects, sacred objects, and objects of
cultural patrimony.
Section 9 of the Act authorizes the Secretary to assess civil
penalties on any museum that fails to comply with the requirements of
the Act [25 U.S.C. 3007]. Section 2 (8) of the Act defines

[[Page 16355]]

a ``museum'' as any institution or State or local government agency
(including any institution of higher learning) that receives Federal
funds and has possession of, or control over, Native American human
remains, funerary objects, sacred objects, or objects of cultural
patrimony [25 U.S.C. 3001 (8)]. The definition of museum specifically
excludes the Smithsonian Institution or any other Federal agency. The
definition of museum is further clarified by regulation [paragraph 10.2
(a)(3) of this part]. The Act does not authorize the Secretary to
assess civil penalties on a Federal agency that fails to comply with
the Act. Section 15 of the Act does specifically grant the United
States district courts jurisdiction over any action brought by any
person alleging a violation of the Act, including violations by a
Federal agency [25 U.S.C. 3013]. Institutions that do not receive
Federal funds are not required to comply with the Act. However, human
remains, funerary objects, sacred objects, and objects of cultural
patrimony recovered from Federal lands generally fall under provisions
of the Act regardless of where they currently are curated.
One commenter recommended amending the definition of the term
``you'' to exclude ``the museum official designated responsible for
matters related to implementation of the Act.'' The term is used in the
rule only to advise the museum official designated responsible for
matters related to implementation of the Act of actions that they may
take in the notification and appeal process. Section 9 of the Act
authorizes the Secretary to assess civil penalties on any museum that
fails to comply with the requirements of the Act, not on an individual
employee of that institution.

Paragraph 10.12 (b)

This paragraph defines the term ``failure to comply.''
Paragraph 10.12 (b)(1)(i) of this section stipulates that a museum
has failed to comply if, after November 16, 1990, the museum sells or
otherwise transfers human remains, funerary objects, sacred objects, or
objects of cultural patrimony in violation of the Act, including, but
not limited to, an unlawful sale or transfer to any individual or
institution that is not required to comply with the Act. Six commenters
recommended inserting the word ``knowingly'' before the phrase ``sells
or otherwise transfers'' to be consistent with the criminal provisions
in section 4 of the Act [18 U.S.C. 1170]. The criminal provisions in
section 4 of the Act require mens rea or criminal intent. The civil
penalty provisions in section 9 of the Act do not include such a
requirement. Nothing precluded Congress from specifically requiring an
element of knowledge or intent to the civil penalty provisions, but
this was not done. The text has not been changed.
One commenter recommended deleting the phrase ``or otherwise
transfers,'' as this concept does not appear in the Act. Another
commenter recommended clarifying that this phrase applies to transfers
where the intent was avoiding compliance with the Act. This phrase is
intended to identify instances where human remains, funerary objects,
sacred objects, or objects of cultural patrimony are conveyed from one
party to another, without reciprocal financial consideration, to avoid
compliance with provisions of the Act. The phrase has been retained.
One commenter considered use of the term ``in violation of'' to be
tautological, that is, defining a term with reference to itself. The
term has been replaced with ``contrary to provisions of.''
One commenter recommended deleting the word ``unlawful'' referring
to the sale or transfer of human remains, funerary objects, sacred
objects, or objects of cultural patrimony. Since museums may sell or
otherwise transfer such items if they can prove a right of possession,
the term has been retained to distinguish sales or transfers that
violate provisions of the Act from sales or transfers of items for
which the museum has right of possession.
One commenter recommended adding provisions to specifically
prohibit the sale or transfer of human remains, funerary objects,
sacred objects, or objects of cultural patrimony across State lines.
The criminal provisions of the Act already apply to the sale, purchase,
use for profit, or transport for sale or profit of Native American
human remains, funerary objects, sacred objects, or objects of cultural
patrimony within the United States. Transfer across a State boundary is
not a necessary element of this crime.
One commenter questioned whether assessing civil penalties on
museums that acquire items that are otherwise widely available for sale
to the general public might actually encourage the growth of private
collections and restrict Federally funded institutions from adding to
their collections. Section 4 of the Act makes it a crime under certain
conditions to knowingly sell, purchase, use for profit, or transport
for sale or profit Native American human remains, funerary objects,
sacred objects, or objects of cultural patrimony. The rule in part
provides an alternative administrative mechanism to prosecute museums
that violate these criminal provisions.
No comments were received regarding paragraphs 10.12 (b)(1)(ii),
(b)(1)(iii), or (b)(1)(iv) of this section.
Paragraph 10.12 (b)(1)(v) of this section stipulates that a museum
has failed to comply if it refuses to repatriate human remains,
funerary objects, sacred objects, or objects of cultural patrimony to a
lineal descendant or culturally affiliated Indian tribe or Native
Hawaiian organization pursuant to the requirements of the Act. Two
commenters requested clarification of the relevant requirements of the
Act, particularly as it applies to disputes. The section has been
rewritten to apply to any museum that, absent any of the exemptions
specified at paragraph 10.10 (c) of this part, refuses to repatriate
human remains, funerary objects, sacred objects, or objects of cultural
patrimony to a lineal descendant or culturally affiliated Indian tribe
or Native Hawaiian organization.
Paragraph 10.12 (b)(1)(vi) of this section stipulates that a museum
has failed to comply if it repatriates human remains, funerary objects,
sacred objects, or objects of cultural patrimony before publication of
a notice in the Federal Register as required by the Act. One commenter
pointed out that the regulations require publication of two separate
types of notice, depending on the type of cultural item. Publication of
a notice of intent to repatriate is required prior to repatriation of
an unassociated funerary object, sacred object, or object of cultural
patrimony [paragraph 10.10 (a)(3) of this part]. Publication of a
notice of inventory completion is required prior to repatriation of
human remains or an associated funerary object [paragraph 10.10 (b)(2)
of this part]. The text has been rewritten to refer to publication of
the required notice in the Federal Register. Another commenter
suggested deleting this section since the Secretary ultimately is
responsible for publication of notices in the Federal Register, not the
submitting museum. The Secretary is responsible for publishing the
museum's notice in the Federal Register. However, as the regulations
make clear, repatriation may not occur until at least 30 days after the
notice is published [paragraphs 10.10 (a)(3) and (b)(2) of this part].
The section has been retained.
One commenter recommended that failure to adequately consult with
the relevant lineal descendants, Indian tribe officials, and
traditional religious leaders also should constitute a ``failure to
comply.'' Other sections of the

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regulations already require museum and Federal agency officials to
consult with Indian tribe officials and traditional religious leaders
by the completion of the summary process [paragraph 10.8 (d)(2) of this
part]. The regulations also require museum and Federal agency officials
to consult with lineal descendants, Indian tribe officials, and
traditional religious leaders at the point in the inventory process
when investigation into the cultural affiliation is being conducted
[paragraph 10.9 (b)(2) of this part], and prior to repatriation in
order to determine the place and manner of repatriation [paragraph
10.10 (d) of this part]. Text has been added as paragraph 10.12
(b)(1)(vii) of this section specifically identifying as a failure to
comply a museum official's failure to consult with lineal descendants,
Indian tribe officials, and traditional religious leaders as required.
Text also has been added as paragraph 10.12 (b)(1)(viii) of this
section specifically identifying as a failure to comply a museum
official's failure to inform the recipients of repatriations of any
presently known treatment of the human remains, funerary objects,
sacred objects, or objects of cultural patrimony with pesticides,
preservatives, or other substances that represent a potential hazard to
the objects or to persons handling the objects as required in paragraph
10.10 (e) of this part.
One commenter asked whether failure to comply with regulations
regarding the curation of Federally owned and administered
archeological collections would constitute a failure to comply under 36
CFR Part 79. Federal agencies are responsible for the administration of
all collections within their control, including Federal collections in
the possession of non-Federal repositories. This includes the curation
of archeological collections -- artifacts, objects, specimens, and
other physical evidence -- that are excavated or removed under the
authority of the Antiquities Act [16 U.S.C. 431-433], the Reservoir
Salvage Act [16 U.S.C. 469-469c], the National Historic Preservation
Act [16 U.S.C. 470-2], or the Archaeological Resources Protection Act
[16 U.S.C. 40aa-mm]. Federal agencies also are responsible for
completion of summaries and inventories, publication of notices, and
other activities under the Native American Graves Protection and
Repatriation Act [25 U.S.C. 3001 et seq.]. A Federal agency's failure
to comply with curation regulations is a matter separate and unrelated
to compliance with NAGPRA.
Paragraph 10.12 (b)(2) of this section stipulates that each
violation constitutes a separate offense. One commenter requested
clarification of what would constitute separate violations.
Determination of the number of separate violations of unlawful sale or
transfer [paragraph 10.12 (b)(1)(i) of this section], refusal to
repatriate [paragraph 10.12 (b)(1)(v) of this section], or repatriate
prior to publication of the required notice [paragraph 10.12 (b)(1)(vi)
of this section] will be based on the number of human remains, funerary
objects, sacred objects, or objects of cultural patrimony involved.
Determination of the number of separate violations of failure to
provide summaries [paragraph 10.12 (b)(1)(ii) of this section],
inventories [paragraph 10.12 (b)(1)(iii) of this section],
notifications [paragraph 10.12 (b)(1)(iv) of this section],
consultations [paragraph 10.12 (b)(1)(vii) of this section], or
information regarding potentially hazardous human remains, funerary
objects, sacred objects, or objects of cultural patrimony [paragraph
10.12 (b)(1)(viii) of this section] will be based on the number of
lineal descendants, Indian tribes, or Native Hawaiian organizations
involved.

Paragraph 10.12 (c)

This paragraph explains how to notify the Secretary of a failure to
comply.
Paragraph 10.12 (c) of this section stipulates that any person may
bring an allegation of failure to comply to the Secretary's attention.
One commenter suggested requiring the person who makes the allegation
to provide credible evidence of a failure to comply. Text has been
added stipulating that allegations must be in writing, and should
include documentation of the alleged failure to comply. This
documentation might include evidence that: the museum has possession or
control of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony; receives Federal funds; and
has failed to comply with specific provisions of the Act.
``Possession'' is defined in paragraph 10.2 (a)(3)(i) of this section.
``Control'' is defined in paragraph 10.2 (a)(3)(ii) of this section.
``Native American,'' ``human remains,'' ``funerary objects,'' ``sacred
objects,'' and ``objects of cultural patrimony'' are defined in
paragraph 10.2 (d) of this section. ``Receives Federal funds'' is
defined in paragraph 10.2 (b) of this section.

Paragraph 10.12 (d)

Paragraph 10.12 (d) of this section, designated paragraph 10.12
(c)(2) in the interim rule, explains what steps the Secretary must take
upon receiving an allegation.
One commenter requested that the person making the allegation be
notified that the allegation has been received. Text specifying this
required action has been added to paragraph 10.12 (d)(1) of this
section. Six commenters requested that the Secretary also be required
to notify the museum that the allegation has been received. It is
anticipated that the Secretary usually will notify the museum upon
receipt of an allegation. However, this decision must be made on a
case-by-case basis in order to avoid jeopardizing investigation of the
alleged failure to comply or any other ongoing law enforcement
investigation.
Paragraph 10.12 (d)(2) of this section, designated paragraph 10.12
(c)(2) in the interim rule, outlines the steps that the Secretary may
take upon receiving an allegation of failure to comply. These include:
(i) reviewing the alleged failure to comply; (ii) identifying the
specific provisions of the Act with which the museum allegedly failed
to comply; (iii) determining if the institution of a civil penalty
action is in the public interest; and (iv) if appropriate, estimating
the proposed penalty.
Seven commenters requested clarification of the procedures by which
the Secretary will investigate an allegation of failure to comply. One
commenter stressed that such an investigation must be conducted fully
and fairly before the Secretary commences with the determination of the
penalty. Investigation of an allegation of failure to comply must
necessarily be done on a case-by-case basis. Paragraph 10.12 (d)(2) of
this section outlines the basic steps necessary to complete such an
investigation.
One commenter considered the language in paragraph 10.12 (d)(2)(i)
of this section, designated paragraph 10.12 (c)(2)(i) in the interim
rule, too vague and offered revised wording. One commenter objected
that no provision was made to involve the alleging party in the
process. Text has been added to this section to indicate that
additional information may be requested from the person making the
allegation, the museum that has allegedly failed to comply, and other
parties. Subpoenas may be issued if the Secretary's request for
information is resisted.
Section 9 (a) of the Act stipulates that the penalty may only be
determined after the museum is provided with an opportunity for an
agency hearing [25 U.S.C. 3007 (a)]. Paragraph 10.12 (c)(2)(iv) of the
interim rule has been deleted.
One commenter objected to the investigatory procedure's being at
the Secretary's discretion. Section 9 (a) of

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the Act makes it clear that assessment of a civil penalty is completely
at the Secretary's discretion [25 U.S.C. 3007 (a)]. However, consistent
with the Department of the Interior's continuing responsibility to keep
constituents and the general public informed of its activities [43 DM
1.1], the regulations require certain investigatory steps.
Six commenters requested that the Secretary be required to provide
notification if, after consideration of the allegation, no further
action will be taken. Text has been added as paragraph 10.12 (d)(3) of
this section requiring notification of the person making the allegation
and the museum if the available evidence does not show a failure to
comply.
One commenter requested clarification of how long the Secretary
might take in determining whether a museum has failed to comply.
Generally, a civil penalty must be assessed within five years of when
facts material to the failure to comply become known, unless the
assessment: 1) is founded upon a tort on behalf of a Federally
recognized Indian tribe [28 U.S.C. 2415 (b)], or 2) is intended to
establish title to, or right of possession of, a human remains,
funerary object, sacred object, or object of cultural patrimony [28
U.S.C. 2415 (c)], in which case a longer period may apply.

Paragraph 10.12 (e)

This section explains how the Secretary notifies the museum and
potentially aggrieved parties if the alleged failure to comply is
verified.
One commenter recommended that written notice of failure to comply
be explicitly required. The word ``written'' has been inserted before
phrase ``notice of failure to comply'' in paragraph 10.12 (e)(1) of
this section.
Section 9 (a) of the Act stipulates that the determination of the
penalty may only occur after the museum is provided with an opportunity
for an agency hearing [25 U.S.C. 3007 (a)]. Paragraph 10.12 (e)(1)(iii)
of this section has been deleted and subsequent sections renumbered.
Paragraph 10.12 (e)(1)(iii) of this section, designated paragraph
10.12 (e)(1)(iv) in the interim rule, has been revised to reflect the
options available in paragraph 10.12 (f) of this section.
Paragraph 10.12 (e)(2) of this section allows the Secretary, with
the consent of the museum, to combine the notice of failure to comply
and notice of assessment.

Paragraph 10.12 (f)

This Paragraph outlines the actions that the museum may take upon
receipt of a notice of failure to comply. Four options were outlined in
the interim rule: (1) seek informal discussions with the Secretary; (2)
file a petition for relief; (3) take no action and await the
Secretary's notice of assessment; or (4) accept the proposed penalty.
Paragraphs 10.12 (f)(1) and (f)(3) of this section have been
retained. Paragraph 10.12 (f)(2) of this section described the process
for filing a petition for relief of the penalty amount. Because the
Notice of Failure to Comply will not necessarily include a
determination of penalty amount, paragraph 10.12 (f)(2) of this section
has been deleted and replaced with the option of requesting a hearing.
The process for requesting a hearing is described in paragraph 10.12
(j) of this section. Paragraph 10.12 (f)(4) of the interim rule, which
also dealt with the proposed penalty, has been deleted.

Paragraph 10.12 (g)

This paragraph, designated paragraph 10.12 (d) in the interim rule,
explains how the Secretary determines the penalty amount.
Section 9 (b) of the Act stipulates that the amount of a penalty
assessed must be determined taking into account, in addition to other
factors: (1) the archeological, historical, or commercial value of the
item involved; (2) the damages suffered, both economic and non-
economic, by an aggrieved party; and (3) the number of violations [25
U.S.C. 3007 (b)].
The interim rule outlined a two-stage approach to implementing
these statutory criteria. The first stage, outlined in paragraph 10.12
(g)(1) of this section, designated paragraph 10.12 (d)(1) in the
interim rule, stipulated that the initial assessment is based on an
amount equal to .25 percent of the museum's annual budget, or $5,000,
whichever is less, plus an additional sum determined after taking into
account: (1) the archeological, historical, and commercial value of the
human remains, funerary object, sacred object, or object of cultural
patrimony, including, but not limited to, consideration of their
importance to performing traditional practices; (2) damages suffered,
both economic and non-economic, by the aggrieved party or parties
including, but not limited to, the costs of attorney and expert witness
fees, investigations, and administrative expenses related to efforts to
compel compliance with the Act; and (3) the number of violations that
have occurred. The second stage, outlined in paragraph 10.12 (g)(2) of
this section, designated paragraph 10.12 (d)(2) in the interim rule,
provided for an additional penalty amount of $100 per day if the museum
continues to violate the Act after the date that the final
administrative decision takes effect.
Five commenters considered the base penalty amount stipulated in
paragraph 10.12 (g)(1) of this section, designated paragraph 10.12
(d)(1) in the interim rule, insufficient to encourage compliance. One
commenter considered the base penalty amount too severe. While the base
penalty amount of $5000 or less might be considered overly modest by
some, the Secretary is authorized to assess a penalty based on the sum
of the listed factors. This amount might be substantial depending on
the situation.
Three commenters requested clarification of the process by which
the archeological, historical, or commercial value of the human
remains, funerary object, sacred object or object of cultural patrimony
in paragraph 10.12 (g)(1)(i) of this section, designated paragraph
10.12 (d)(1)(i) in the interim rule, will be determined by the
Secretary. In calculating civil penalties, the Secretary will consider
the value to be the benefit derived by the museum through control of
the particular human remains, funerary object, sacred object, or object
of cultural patrimony. This value can be calculated in a variety of
ways. Archeological and historical values focus on the benefits derived
by the museum through the study or exhibition of the human remains,
funerary object, sacred object, or object of cultural patrimony. These
values might include research fees and grants obtained to study the
cultural items, admission fees or donations obtained for the public
display of the human remains, funerary object, sacred object, or object
of cultural patrimony, and royalties obtained from publication of
information related to or images of the cultural items. Commercial
value means the price a willing buyer would pay, and a willing seller
accept, for the human remains, funerary object, sacred object, or
object of cultural patrimony in the open market.
One commenter objected to using the value of the cultural item in
calculating part of the penalty amount and the subsequent assumption
that, after paying such a penalty, the museum also will be forced to
relinquish control of the cultural item. The Act addresses the rights
of lineal descendants, Indian tribes, and Native Hawaiian organizations
to Native American human remains, funerary objects, sacred objects, or
objects of cultural patrimony with which they are affiliated. By
failing to comply with the Act, the museum is depriving lineal
descendants, Indian

[[Page 16358]]

tribes, and Native Hawaiian organizations of these rights. The value
portion of the penalty calculation is intended to deprive the museum of
any benefit derived through control of the particular cultural item.
This assessment in no way reduces the lineal descendant's, Indian
tribe's, or Native Hawaiian organization's right to the cultural item.
One commenter questioned whether the importance of a cultural item
to performing traditional practices is a reasonable criterion for
calculating its archeological, historical, or commercial value. We
agree that consideration of the importance of a cultural item should
not be used in calculating its archeological, historical, or commercial
value. The phrase has been deleted.
One commenter requested clarification of how the damages suffered
by aggrieved parties in paragraph 10.12 (g)(ii) of this section,
designated paragraph 10.12 (d)(ii) in the interim rule, will be
calculated. Section 9 (b)(2) of the Act stipulates that both economic
and non-economic damages suffered by an aggrieved party be taken into
account in determining the penalty amount.
Two classes of aggrieved parties must be considered. The first
class consists of lineal descendants, Indian tribes, or Native Hawaiian
organizations that are denied access, by the museum's failure to
comply, to human remains, funerary objects, sacred objects, or objects
of cultural patrimony with which they are affiliated. The museum's
failure to comply with the Act denies these parties a property right
that may result in both economic and non-economic damages. Economic
damages might include expenditures by the aggrieved party to compel the
museum to comply with the Act, such as the cost of activities taken
after November 16, 1993, to compel the museum to complete the required
summary. Non-economic damages might include loss of use of or damage to
the cultural item. One commenter recommended that non-Federally
recognized Indian groups also must be consulted in determining the
penalty amount. The Act addresses the rights of lineal descendants,
Indian tribes, and Native Hawaiian organizations. While a non-Federally
recognized Indian group also may have a property interest in cultural
item, the Act and these regulations do not directly address that
interest.
The second class of aggrieved parties consists of the people of the
United States who, due to the museum's failure to comply, are burdened
with an obligation to investigate and, if appropriate, assess a civil
penalty against a museum that has failed to comply. This burden could
include expenditures by the Department of the Interior related to
assessing the archeological, historical, or commercial value of a
cultural item and the economic and non-economic damages to the
aggrieved lineal descendants, Indian tribes, or Native Hawaiian
organizations.
Two commenters objected to including attorney's fees in calculating
economic damages. One commenter cited the case of Alyeska Pipeline
Service Company v. Wilderness Society [421 U.S. 247, 250 (1975)] in
which the court found that parties must bear all of their own costs of
litigation absent a specific fee-shifting statute. Another commenter
recommended that a museum must be required to pay all attorney fees,
expert witness fees, investigation costs, and any other expenses that
are required to compel compliance if the museum was found to be in
noncompliance. The example in paragraph 10.12 (g)(1)(ii) of this
section, designated paragraph 10.12 (d)(1)(ii) in the interim rule, has
been revised to omit explicit reference to attorney's fees and
rewritten as ``expenditures by the aggrieved party to compel the museum
to comply with the Act.'' We recognize that such activities may in fact
include expenditures for an attorney or other staff to prepare, review,
and file documents, but do not intend that this category include
litigation costs.
Two commenters considered requiring the museum to pay damages
unreasonably punitive. Section 9 (b)(2) requires that both economic and
non-economic damages to the aggrieved party must be taken into account
in assessing the penalty amount. We consider this requirement a strong
indication that Congress intended museums to comply with the Act. The
damages component of the penalty amount is, in fact, purely
compensatory, being explicitly based on the expenditures of the
aggrieved parties. Punitive damages would be damages assessed over and
above the compensatory amount, such as additional penalties based on
the number of violations that have occurred as authorized in section 9
(b)(3) of the Act. Two commenters requested that museums lose Federal
funding if they are identified as failing to comply with the Act. The
legislative history of the Act indicates that although Congress
considered such a penalty, loss of Federal funding was not included in
the final bill. We generally are precluded from including a provision
in regulation that previously was considered and rejected by Congress.
Three commenters requested clarification of the process by which an
additional penalty amount will be assessed after the day that the final
administrative decision takes effect if the museum continues to violate
the Act. One commenter identified this provision as imposing
prohibitive costs upon a museum that seeks judicial review of the final
administrative decision. Another commenter considered the $100-per-day
penalty insufficient to compel compliance with the Act, recommending
instead a flexible amount ranging from $100 to $10,000 per day. Another
commenter considered this provision to be punitive rather than serving
to compel further compliance with the Act. The drafters agree that the
per-day assessment is in fact a punitive damage intended to compel
compliance with the Act, but not based on any actual damage to an
aggrieved party. The per-day assessment will not be imposed until the
final administrative decision, providing ample opportunity to
participate in an agency hearing, request a hearing before an
administrative law judge, appeal the administrative law judge's
decision, or comply with the Act. The penalty amount has been increased
to $1,000 maximum per day in order to provide the Secretary with some
flexibility in tailoring a penalty to the situation.
Paragraph 10.12 (g)(4) of this section, designated paragraph 10.12
(d)(3) in the interim rule, outlined provisions by which the Secretary
may reduce the penalty amount. Reasons for reducing the amount include:
1) the failure to comply is determined to be not willful; 2) the museum
agrees to adequately mitigate the violation; 3) the museum demonstrates
a hardship or inability to pay; or 4) the penalty would constitute
excessive punishment under the circumstances.
The provision in paragraph 10.12 (g)(3)(i) of this section,
designated paragraph 10.12 (d)(3)(i) in the interim rule, allows the
Secretary to reduce the penalty if it is determined that the museum did
not willfully fail to comply with the Act. Three commenters felt that
the provisions did not go far enough. One commenter requested an
explicit statement that a penalty must be imposed only on museums that
willfully and knowingly fail to comply with the Act. Evidence of a good
faith effort to comply with the Act must be considered when deciding
whether the penalty amount should be reduced.
The provision in paragraph 10.12 (g)(3)(ii) of this section,
designated paragraph 10.12 (d)(3)(ii) in the interim rule, allows the
Secretary to reduce the penalty if the museum agrees to mitigate

[[Page 16359]]

the violation by, among other things, paying restitution to the
aggrieved party or parties. One commenter felt that the Secretary
should pay all actual damages to the aggrieved parties. Another
commenter recommended that the Secretary seek an amendment to the Act
that would permit the Secretary to distribute collected penalties via
the NAGPRA grants program. Direct payment of restitution by the United
States to an aggrieved party generally requires explicit statutory
authority. Absent such authority, and when appropriate, the Secretary
may mitigate the penalty amount when the museum agrees to pay
restitution directly to that aggrieved party. In their 1995-1997 and
1998 reports to Congress, the Native American Graves Protection and
Repatriation Review Committee recommended amending the Act to provide
monies collected as civil penalties to the Secretary to further
enforcement activities.
One commenter requested clarification of how hardship will be
defined in paragraph 10.12 (g)(3)(iii) of this section, designated
paragraph 10.12 (d)(3)(iii) in the interim rule. The sentence has been
rewritten to clarify that the Secretary may reduce the penalty amount
if the museum is unable to pay, provided that this factor will not
apply if the museum has previously failed to comply with these
regulations.
One commenter requested clarification of how excessive punishment
will be defined in paragraph 10.12 (g)(3)(iv) of this section,
designated paragraph 10.12 (d)(3)(iv) of this section in the interim
rule. The eighth amendment to the Constitution of the United States
prohibits excessive fines. A civil penalty might be considered
excessive if it seriously impairs the museum's capacity of gaining a
business livelihood.
One commenter questioned how the funds collected from the fines and
penalties would be used. Another commenter questioned whether funds
collected from civil penalty fines could be directed towards helping to
bring museums into compliance or channeled into an account to fund
Federal actions pertaining to the Act. Under the current statutory
authority, civil penalties must be paid directly to the United States
Treasury.

Paragraph 10.12 (h)

This paragraph, designated paragraph 10.12 (g) in the interim rule,
explains how the Secretary assesses the penalty.
One commenter recommended text acknowledging that ongoing legal
proceedings would be sufficient to delay a museum's response to a
notice of failure to comply. A museum may have recourse to the Federal
courts regarding the Secretary's issuance of a notice of failure to
comply. However, the Secretary is not bound by the status of ongoing
litigation when assessing a civil penalty on a museum for failing to
comply with the Act.
One commenter recommended that written notice be required if the
Secretary concludes that the museum has not failed to comply. The
phrase ``in writing'' has been added after the phrase ``the Secretary
notified you'' in paragraph10.12 (h)(3) of this section.

Paragraph 10.12 (j)

This paragraph, combining two paragraphs in the interim rule
designated as 10.12 (h) and (i), describes how the museum may request a
hearing regarding a notice of failure to comply or a notice of
assessment.
One commenter recommended adding a provision that would allow for
the involvement of lineal descendants, culturally affiliated tribes,
and/or the complaining party or parties in the hearing process where
appropriate. The involvement of lineal descendants, tribal
representatives, or the complaining person may be necessary as
determined by the parties in the hearing. Participation of these and
other persons can be compelled by means of a subpoena [25 U.S.C. 3007
(d)]. Agency hearings generally are open to the public.
Paragraph 10.12 (h)(4)(iv) of the interim rule, which dealt with
the amount of the civil penalty assessment, has been deleted.

Paragraph 10.12 (k)

This paragraph, designated paragraph 10.12 (j) in this interim
rule, explains how a hearing decision may be appealed.

Paragraph 10.12 (l)

This paragraph, designated paragraph 10.12 (k) in this interim
rule, explains what constitutes a final administrative action regarding
a notice of assessment.

Paragraph 10.12 (m)

This paragraph, designated paragraph 10.12 (l) in this interim
rule, explains how a museum pays the civil penalty. The sentence
authorizing the Secretary to start civil penalty action in U.S.
District Court without the authorization of the Attorney General of the
United States has been deleted. In Mehle v. American Management
Systems, Inc., [01-1544 (JR), D. D.C. Nov 30, 2001] the district court
ruled that the Attorney General must represent the United States, an
agency, or officer thereof in litigation, unless Congress has expressly
directed otherwise. NAGPRA does not confer independent litigating
authority on the Secretary.

Drafting Information

This final rule was prepared by Dr. C. Timothy McKeown in
consultation with the Native American Graves Protection and
Repatriation Review Committee as directed by section 8 (c)(7) of the
Act.

Compliance with Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Order 12866)

This rule has been reviewed by the Office of Management and Budget
under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. We expect to assess civil penalties on a small number of
museums that have failed to comply with the Act. The Secretary may
exercise discretion to reduce the penalty amount if it seriously
impairs the museum's capacity of gaining a business livelihood.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. Section 9
of the Act delegates exclusive responsibility for implementing the
civil penalty provisions to the Secretary. This rule has been reviewed
by the U.S. Department of the Interior, Office of the Solicitor and the
Office of Hearings and Appeals, and the U.S. Department of Justice.
(3) This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs, or the rights or obligations of
their recipients. Assessment of civil penalties under this rule is
limited to museums that fail to comply with the requirements of the
Act. Consistent with the legislative history of the Act, museums that
have failed to comply continue to be eligible for Federal funds.
(4) This rule does not raise novel legal or policy issues. All
substantive comments received on the interim rule have been addressed
in the preamble and changes made in the regulatory text if necessary.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities

[[Page 16360]]

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). We expect
to assess civil penalties on a small number of museums that have failed
to comply with the Act. The Secretary may exercise discretion to reduce
the penalty amount if it seriously impairs the museum's capacity of
gaining a business livelihood.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804 (2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(1) Does not have an annual effect on the economy of $100 million
or more.
(2) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local or tribal
government agencies, or geographic regions;.
(3) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. We
expect to assess civil penalties on a small number of museums that have
failed to comply with the Act. The Secretary may exercise discretion to
reduce the penalty amount if it seriously impairs the museum's capacity
of gaining a business livelihood.

Unfunded Mandates Reform Act

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

Takings (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have
significant takings implications. Museums are only required to
repatriate human remains, funerary objects, sacred objects, or objects
of cultural patrimony for which they can not prove right of possession
[25 U.S.C. 3005 (c)]. This rule applies to museums that fail to comply
with the administrative provisions of the Act.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and does not meet the requirements of sections 3 (a)
and 3 (b) of the order.

Paperwork Reduction Act

This final rule does not require an information collection of 10 or
more parties and a submission under the Paperwork Reduction Act is not
required. An OMB form 83-I is not required.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly
affecting the quality of the human environment.

Government-to-Government Relationship with Tribes

In accordance with Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249), the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951), and
512 DM 2 we have evaluated potential effects on Federally recognized
Indian tribes and have determined that there are no potential effects.
NAGPRA makes provisions for the return to lineal descendants, Indian
tribes and Native Hawaiian organizations of Native American human
remains, funerary objects, sacred objects, and objects of cultural
patrimony. Native American organizations participated in the drafting
of this rule.

List of Subjects in 43 CFR Part 10

Administrative practice and procedure, Hawaiian Natives, Historic
preservation, Indians -- Claims, Museums, Reporting and record-keeping
requirements.

0
In consideration of the forgoing, 43 CFR Subpart A is amended as
follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT
REGULATIONS

0
1. The authority citation for Part 10 continues to read as follows:

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

0
Part 10 is amended by adding Sec. 10.12 to read as follows:


Sec. 10.12 Civil penalties.

(a) The Secretary's Authority to Assess Civil Penalties. The
Secretary is authorized by section 9 of the Act to assess civil
penalties on any museum that fails to comply with the requirements of
the Act. As used in this Paragraph, ``failure to comply with
requirements of the Act'' also means failure to comply with applicable
portions of the regulations set forth in this Part. As used in this
Paragraph ``you'' refers to the museum or the museum official
designated responsible for matters related to implementation of the
Act.
(b) Definition of ``failure to comply.'' (1) Your museum has failed
to comply with the requirements of the Act if it:
(i) After November 16, 1990, sells or otherwise transfers human
remains, funerary objects, sacred objects, or objects of cultural
patrimony contrary to provisions of the Act, including, but not limited
to, an unlawful sale or transfer to any individual or institution that
is not required to comply with the Act; or
(ii) After November 16, 1993, has not completed summaries as
required by the Act; or
(iii) After November 16, 1995, or the date specified in an
extension issued by the Secretary, whichever is later, has not
completed inventories as required by the Act; or
(iv) After May 16, 1996, or 6 months after completion of an
inventory under an extension issued by the Secretary, whichever is
later, has not notified culturally affiliated Indian tribes and Native
Hawaiian organizations; or
(v) Refuses, absent any of the exemptions specified in Sec.
10.10(c) of this part, to repatriate human remains, funerary object,
sacred object, or object of cultural patrimony to a lineal descendant
or culturally affiliated Indian tribe or Native Hawaiian; or
(vi) Repatriates a human remains, funerary object, sacred object,
or object of cultural patrimony before publishing the required notice
in the Federal Register;
(vii) Does not consult with lineal descendants, Indian tribe
officials, and traditional religious leaders as required; or
(viii) Does not inform the recipients of repatriations of any
presently known treatment of the human remains, funerary objects,
sacred objects, or objects of cultural patrimony with pesticides,
preservatives, or other substances that represent a potential hazard to
the objects or to persons handling the objects.
(2) Each instance of failure to comply will constitute a separate
violation.
(c) How to Notify the Secretary of a Failure to Comply. Any person
may bring an allegation of failure to comply to the attention of the
Secretary. Allegations must be in writing, and should include
documentation

[[Page 16361]]

identifying the provision of the Act with which there has been a
failure to comply and supporting facts of the alleged failure to
comply. Documentation should include evidence that the museum has
possession or control of Native American cultural items, receives
Federal funds, and has failed to comply with specific provisions of the
Act. Written allegations should be sent to the attention of the
Director, National Park Service, 1849 C Street, NW, Washington, D.C.
20240.
(d) Steps the Secretary may take upon receiving such an allegation.
(1) The Secretary must acknowledge receipt of the allegation in
writing.
(2) The Secretary also may:
(i) Compile and review information relevant to the alleged failure
to comply. The Secretary may request additional information, such as
declarations and relevant papers, books, and documents, from the person
making the allegation, the museum, and other parties;
(ii) Identify the specific provisions of the Act with which you
have allegedly failed to comply; and
(iii) Determine if the institution of a civil penalty action is an
appropriate remedy.
(3) The Secretary must provide written notification to the person
making the allegation and the museum if the review of the evidence does
not show a failure comply.
(e) How the Secretary notifies you of a failure to comply. (1) If
the allegations are verified, the Secretary must serve you with a
written notice of failure to comply either by personal delivery or by
registered or certified mail (return receipt requested). The notice of
failure to comply must include:
(i) A concise statement of the facts believed to show a failure to
comply;
(ii) A specific reference to the provisions of the Act and/or these
regulations with which you allegedly have not complied; and
(iii) Notification of the right to request an informal discussion
with the Secretary or a designee, to request a hearing, as provided
below, or to await the Secretary's notice of assessment. The notice of
failure to comply also must inform you of your right to seek judicial
review of any final administrative decision assessing a civil penalty.
(2) With your consent, the Secretary may combine the notice of
failure to comply with the notice of assessment described in paragraph
(h) of this section.
(3) The Secretary also must send a copy of the notice of failure to
comply to:
(i) Any lineal descendant of a known Native American individual
whose human remains, funerary objects, or sacred objects are in
question; and
(ii) Any Indian tribes or Native Hawaiian organizations that are,
or are likely to be, culturally affiliated with the human remains,
funerary objects, sacred objects, or objects of cultural patrimony in
question.
(f) Actions you may take upon receipt of a notice of failure to
comply. If you are served with a notice of failure to comply, you may:
(1) Seek informal discussions with the Secretary;
(2) Request a hearing. Figure 1 outlines the civil penalty hearing
and appeal process. Where the Secretary has issued a combined notice of
failure to comply and notice of assessment, the hearing and appeal
processes will also be combined.
(3) Take no action and await the Secretary's notice of assessment.
BILLING CODE 4310-70-S

[[Page 16362]]

[GRAPHIC] [TIFF OMITTED] TR03AP03.002

BILLING CODE 4310-70-C

[[Page 16363]]

(g) How the Secretary determines the penalty amount.
(1) The penalty amount must be determined on the record;
(2) The penalty amount must be .25 percent of your museum's annual
budget, or $5,000, whichever is less, and such additional sum as the
Secretary may determine is appropriate after taking into account:
(i) The archeological, historical, or commercial value of the human
remains, funerary object, sacred object, or object of cultural
patrimony involved; and
(ii) The damages suffered, both economic and non-economic, by the
aggrieved party or parties including, but not limited to, expenditures
by the aggrieved party to compel the museum to comply with the Act; and
(iii) The number of violations that have occurred at your museum.
(3) An additional penalty of up to $1,000 per day after the date
that the final administrative decision takes effect may be assessed if
your museum continues to violate the Act.
(4) The Secretary may reduce the penalty amount if there is:
(i) A determination that you did not willfully fail to comply; or
(ii) An agreement by you to mitigate the violation, including, but
not limited to, payment of restitution to the aggrieved party or
parties; or
(iii) A determination that you are unable to pay, provided that
this factor may not apply if you have been previously found to have
failed to comply with these regulations; or,
(iv) A determination that the penalty constitutes excessive
punishment under the circumstances.
(h) How the Secretary assesses the penalty. (1) The Secretary
considers all available information, including information provided
during the process of assessing civil penalties or furnished upon
further request by the Secretary.
(2) The Secretary may assess the civil penalty upon completing
informal discussions or when the period for requesting a hearing
expires, whichever is later.
(3) The Secretary notifies you in writing of the penalty amount
assessed by serving a written notice of assessment, either in person or
by registered or certified mail (return receipt requested). The notice
of assessment includes:
(i) The basis for determining the penalty amount assessed and/or
any offer to mitigate or remit the penalty; and
(ii) Notification of the right to request a hearing, including the
procedures to follow, and to seek judicial review of any final
administrative decision that assesses a civil penalty.
(i) Actions that you may take upon receipt of a notice of
assessment. If you are served with a notice of assessment, you may do
one of the following:
(1) Accept in writing or by payment of the proposed penalty, or any
mitigation or remission offered in the notice of assessment. If you
accept the proposed penalty, mitigation, or remission, you waive the
right to request a hearing.
(2) Seek informal discussions with the Secretary.
(3) File a petition for relief. You may file a petition for relief
with the Secretary within 45 calendar days of receiving the notice of
assessment. Your petition for relief may request the Secretary to
assess no penalty or to reduce the amount. Your petition must be in
writing and signed by an official authorized to sign such documents.
Your petition must set forth in full the legal or factual basis for the
requested relief.
(4) Request a hearing. Figure 1 outlines the civil penalty hearing
and appeal process.
(i) In addition to the documentation required in paragraph (g) of
this section, your request must include a copy of the notice of
assessment and must identify the basis for challenging the assessment.
(ii) In this hearing, the amount of the civil penalty assessed must
be determined in accordance with paragraph (h) of this section, and
will not be limited to the amount assessed by the Secretary or any
offer of mitigation or remission made by the Secretary.
(j) How you request a hearing. (1) You may file a written, dated
request for a hearing on a notice of failure to comply or notice of
assessment with the Hearings Division, Office of Hearings and Appeals,
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA
22203-1923. You must enclose a copy of the notice of failure to comply
or the notice of assessment. Your request must state the relief sought,
the basis for challenging the facts used as the basis for determining
the failure to comply or fixing the assessment, and your preference of
the place and date for a hearing. You must serve a copy of the request
on the Solicitor of the Department of the Interior personally or by
registered or certified mail (return receipt requested) at the address
specified in the notice of failure to comply or notice of assessment.
Hearings must take place following procedures set forth in 43 CFR part
4, subparts A and B.
(2) Your failure to file a written request for a hearing within 45
days of the date of service of a notice of failure to comply or notice
of assessment waives your right to a hearing.
(3) Upon receiving a request for a hearing, the Hearings Division
assigns an administrative law judge to the case, gives notice of
assignment promptly to the parties, and files all pleadings, papers,
and other documents in the proceeding directly with the administrative
law judge, with copies served on the opposing party.
(4) Subject to the provisions of 43 CFR 1.3, you may appear by
representative or by counsel, and may participate fully in the
proceedings. If you fail to appear and the administrative law judge
determines that this failure is without good cause, the administrative
law judge may, in his/her discretion, determine that this failure
waives your right to a hearing and consent to the making of a decision
on the record.
(5) Departmental counsel, designated by the Solicitor of the
Department of the Interior, represents the Secretary in the
proceedings. Upon notice to the Secretary of the assignment of an
administrative law judge to the case, this counsel must enter his/her
appearance on behalf of the Secretary and must file all petitions and
correspondence exchanges by the Secretary and the respondent that
become part of the hearing record. Thereafter, you must serve all
documents for the Secretary on his/her counsel.
(6) Hearing administration. (i) The administrative law judge has
all powers accorded by law and necessary to preside over the parties
and the proceedings and to make decisions under 5 U.S.C. 554-557.
(ii) The transcript of testimony; the exhibits; and all papers,
documents, and requests filed in the proceedings constitute the record
for decision. The administrative law judge renders a written decision
upon the record, which sets forth his/her findings of fact and
conclusions of law, and the reasons and basis for them.
(iii) Unless you file a notice of appeal described in these
regulations, the administrative law judge's decision constitutes the
final administrative determination of the Secretary in the matter and
takes effect 30 calendar days from this decision.
(k) How you appeal a decision. (1) Either you or the Secretary may
appeal the decision of an administrative law judge by filing a ``Notice
of Appeal'' with the Interior Board of Indian Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954,
within 30 calendar days of the date of the

[[Page 16364]]

administrative law judge's decision. This notice must be accompanied by
proof of service on the administrative law judge and the opposing
party.
(2) To the extent they are not inconsistent with these regulations,
the provisions of the Department of the Interior Hearings and Appeals
Procedures in 43 CFR part 4, subpart D, apply to such appeal
proceedings. The appeal board's decision on the appeal must be in
writing and takes effect as the final administrative determination of
the Secretary on the date that the decision is rendered, unless
otherwise specified in the decision.
(3) You may obtain copies of decisions in civil penalty proceedings
instituted under the Act by sending a request to the Interior Board of
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954. Fees for
this service are established by the director of that office.
(l) The final administrative decision. (1) When you have been
served with a notice of assessment and have accepted the penalty as
provided in these regulations, the notice constitutes the final
administrative decision.
(2) When you have been served with a notice of assessment and have
not filed a timely request for a hearing as provided in these
regulations, the notice of assessment constitutes the final
administrative decision.
(3) When you have been served with a notice of assessment and have
filed a timely request for a hearing as provided in these regulations,
the decision resulting from the hearing or any applicable
administrative appeal from it constitutes the final administrative
decision.
(m) How you pay the penalty. (1) If you are assessed a civil
penalty, you have 45 calendar days from the date of issuance of the
final administrative decision to make full payment of the penalty
assessed to the Secretary, unless you have filed a timely request for
appeal with a court of competent jurisdiction.
(2) If you fail to pay the penalty, the Secretary may request the
Attorney General of the United States to collect the penalty by
instituting a civil action in the U.S. District Court for the district
in which your museum is located. In these actions, the validity and
amount of the penalty is not subject to review by the court.
(3) Assessing a penalty under this section is not a waiver by the
Secretary of the right to pursue other available legal or
administrative remedies.

Dated: December 16, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-7947 Filed 4-2-03; 8:45 am]

BILLING CODE 4310-70-S

 
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