Section

[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR10.12]

[Page 213-217]

TITLE 43--PUBLIC LANDS: INTERIOR

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS--Table of Contents

Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony in Museums and Federal Collections

Sec. 10.12 Civil penalties.

(a) The Secretary's authority to assess civil penalties. The
Secretary is authorized by section 9 of the Act to assess civil
penalties on any museum that fails to comply with the requirements of
the Act. As used in this section, ``failure to comply with requirements
of the Act'' also means failure to comply with applicable portions of
the regulations set forth in this part. As used in this section ``you''
refers to the museum or the museum official designated responsible for
matters related to implementation of the Act.
(b) Definition of ``failure to comply''. (1) Your museum has failed
to comply with the requirements of the Act if it:
(i) After November 16, 1990, sells or otherwise transfers human
remains, funerary objects, sacred objects, or objects of cultural
patrimony in violation of the Act, including, but not limited to, an
unlawful sale or transfer to any individual or institution that is not
required to comply with the Act; or
(ii) After November 16, 1993, has not completed summaries as
required by the Act; or
(iii) After November 16, 1995, or the date specified in an extension
issued by the Secretary, whichever is later, has not completed
inventories as required by the Act; or
(iv) After May 16, 1996, or six months after completion of an
inventory under

[[Page 214]]

an extension issued by the Secretary, whichever is later, has not
notified culturally affiliated Indian tribes and Native Hawaiian
organizations; or
(v) Refuses to repatriate human remains, funerary object, sacred
object, or object of cultural patrimony to a lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian organization
pursuant to the requirements of the Act; or
(vi) Repatriates human remains, funerary object, sacred object, or
object of cultural patrimony before publishing a notice in the Federal
Register as required by the Act.
(2) Each violation will constitute a separate offense.
(c) How to notify the Secretary of a failure to comply. (1) Any
person may bring an allegation of failure to comply to the attention of
the Secretary.
(2) The Secretary may take the following steps upon receiving such
an allegation:
(i) Review the alleged failure to comply;
(ii) Identify the specific provisions of the Act which allegedly
have not been complied with;
(iii) Determine if the institution of a civil penalty action is in
the public interest in the circumstances; and
(iv) If appropriate, estimate the proposed penalty.
(d) How the Secretary determines the penalty amount. (1) The penalty
amount will be .25% of your museum's annual budget, or $5000, whichever
is less, and, such additional sum as the Secretary may determine is
appropriate after taking into account:
(i) The archeological, historical, or commercial value of the human
remains, funerary object, sacred object, or object of cultural patrimony
involved including, but not limited to, consideration of their
importance to performing traditional practices; and
(ii) The damages suffered, both economic and non-economic, by the
aggrieved party or parties including, but not limited to, the costs of
attorney and expert witness fees, investigations, and administrative
expenses related to efforts to compel compliance with the Act; and
(iii) The number of violations that have occurred.
(2) An additional penalty of $100 per day after the date the final
administrative decision takes effect if your museum continues to violate
the Act.
(3) The Secretary may reduce the penalty amount if there is:
(i) A determination that you did not willfully fail to comply; or
(ii) An agreement by you to mitigate the violation, including, but
not limited to, payment of restitution to the aggrieved party or
parties; or
(iii) A demonstration of hardship or inability to pay, provided that
this factor will only apply when you have not been previously found to
have failed to comply with the regulations in this part; or
(iv) A determination that the proposed penalty would constitute
excessive punishment under the circumstances.
(e) How the Secretary notifies you of a failure to comply. (1) If
the allegations are verified, the Secretary serves you with a notice of
failure to comply either by personal delivery or by registered or
certified mail (return receipt requested). The notice includes:
(i) A concise statement of the facts believed to show a failure to
comply;
(ii) A specific reference to the provisions of the Act and/or the
regulations in this part that you have allegedly not complied with;
(iii) The amount of the proposed penalty, including any initial
proposal to mitigate or remit where appropriate, or a statement that the
Secretary will serve notice of a proposed penalty amount after
ascertaining the damages associated with the alleged failure to comply;
and
(iv) Notification of the right to file a petition for relief as
provided in this section below, or to await the Secretary's notice of
assessment and to request a hearing. The notice will also inform you of
your right to seek judicial review of any final administrative decision
assessing a civil penalty.
(2) The Secretary also sends a copy of the notice of failure to
comply to:
(i) Any lineal descendant of a known Native American individual
whose human remains or cultural items are in question; and
(ii) Any Indian tribes or Native Hawaiian organizations that are, or
are

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likely to be, culturally affiliated with the human remains or cultural
items in question.
(f) Actions you may take upon receipt of a notice. If you are served
with a notice of failure to comply, you may: (1) Seek informal
discussions with the Secretary;
(2) File a petition for relief. You may file a petition for relief
with the Secretary within 45 calendar days of receiving the notice of
failure to comply (or of a proposed penalty amount, if later). Your
petition for relief may request the Secretary to assess no penalty or to
reduce the amount. Your petition must be in writing and signed by an
official authorized to sign such documents. Your petition must set forth
in full the legal or factual basis for the requested relief.
(3) Take no action and await the Secretary's notice of assessment;
or
(4) Accept in writing or by payment the proposed penalty, or any
mitigation or remission offered in the notice. If you accept the
proposed penalty or mitigation or remission, you waive the notice of
assessment and the right to request a hearing.
(g) How the Secretary assesses the penalty. (1) The Secretary
assesses the civil penalty when the period for filing a petition for
relief expires, or upon completing the review of any petition filed, or
upon completing informal discussions, whichever is later.
(2) The Secretary considers all available information, including
information provided during the process of assessing civil penalties or
furnished upon further request by the Secretary.
(3) If the facts warrant a conclusion that you have not failed to
comply, the Secretary notifies you that you will have no penalty
assessed.
(4) If the facts warrant a conclusion that you have failed to
comply, the Secretary may determine a penalty according to the standards
in paragraph (d) of this section.
(5) The Secretary notifies you of the penalty amount assessed by
serving a written notice of assessment, either in person or by
registered or certified mail (return receipt requested). The notice of
assessment includes:
(i) The facts and conclusions from which the Secretary determined
that you have failed to comply;
(ii) The basis for determining the penalty amount assessed and/or
any offer to mitigate or remit the penalty; and
(iii) Notification of the right to request a hearing, including the
procedures to follow, and to seek judicial review of any final
administrative decision assessing a civil penalty.
(h) How you request a hearing. (1) You may file a written, dated
request for a hearing on a notice of assessment with the Hearings
Division, Office of Hearings and Appeals, U.S. Department of the
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. You
must enclose a copy of the notice of failure to comply and a copy of the
notice of assessment. Your request must state the relief sought, the
basis for challenging the facts used as the basis for determining the
failure to comply and fixing the assessment, and your preference as to
the place and date for a hearing. You must serve a copy of the request
upon the Solicitor of the Department of the Interior personally or by
registered or certified mail (return receipt requested) at the address
specified in the notice of assessment. Hearings will take place
following procedures set forth in 43 CFR part 4, subparts A and B.
(2) Your failure to file a written request for a hearing within 45
days of the date of service of a notice of assessment waives your right
to a hearing.
(i) Hearing appearance and practice. (1) Upon receiving a request
for a hearing, the Hearings Division assigns an administrative law judge
to the case, gives notice of assignment promptly to the parties, and
files all pleadings, papers, and other documents in the proceeding
directly with the administrative law judge, with copies served on the
opposing party.
(2) Subject to the provisions of 43 CFR 1.3, you may appear by
representative, or by counsel, and may participate fully in those
proceedings. If you fail to appear and the administrative law judge
determines this failure is without good cause, the administrative law
judge may, in his/her discretion, determine that this failure waives
your

[[Page 216]]

right to a hearing and consent to the making of a decision on the
record.
(3) Departmental counsel, designated by the Solicitor of the
Department, represents the Secretary in the proceedings. Upon notice to
the Secretary of the assignment of an administrative law judge to the
case, this counsel must enter his/her appearance on behalf of the
Secretary and files all petitions and correspondence exchanges by the
Secretary and the respondent which become part of the hearing record.
Thereafter, you must serve all documents for the Secretary to his/her
counsel.
(4) Hearing administration. (i) The administrative law judge has all
powers accorded by law and necessary to preside over the parties and the
proceedings and to make decisions under 5 U.S.C. 554-557.
(ii) The transcript of testimony, the exhibits, and all papers,
documents and requests filed in the proceedings constitute the record
for decision. The administrative law judge renders a written decision
upon the record, which sets forth his/her findings of fact and
conclusions of law, and the reasons and basis for them, and an
assessment of a penalty, if any.
(iii) Unless you file a notice of appeal described in the
regulations in this part, the administrative law judge's decision
constitutes the final administrative determination of the Secretary in
the matter and takes effect 30 calendar days from this decision.
(iv) In this hearing, the amount of civil penalty assessed will be
determined in accordance with paragraph (d) of this section, and will
not be limited by the amount assessed by the Secretary or any offer of
mitigation or remission made by the Secretary.
(j) How you appeal a decision. (1) Either you or the Secretary may
appeal the decision of an administrative law judge by filing a ``Notice
of Appeal'' with the Director, Office of Hearings and Appeals, U.S.
Department of Interior, 801 North Quincy Street, Arlington, Virginia
22203-1923, within 30 calendar days of the date of the administrative
law judge's decision. This notice must be accompanied by proof of
service on the administrative law judge and the opposing party.
(2) Upon receiving this notice, the Director, Office of Hearings and
Appeals, appoints an ad hoc appeals board to hear and decide an appeal.
To the extent they are not inconsistent with the regulations in this
part the provision of the Department of Hearings and Appeals Procedures
in 43 CFR part 4, subparts A, B, and G apply to such appeal proceedings.
The appeal board's decision on the appeal must be in writing and takes
effect as the final administrative determination of the Secretary on the
date it is rendered, unless otherwise specified in the decision.
(3) You may obtain copies of decisions in civil penalty proceedings
instituted under the Act by sending a request to the Director, Office of
Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy
Street, Arlington, Virginia 22203-1923. Fees for this service are
established by the Director of that Office.
(k) The final administrative decision. (1) When you have been served
with a notice of a failure to comply and have accepted the penalty as
provided in the regulations in this part, the notice constitutes the
final administrative decision;
(2) When you have been served with a notice of assessment and have
not filed a timely request for a hearing as provided in the regulations
in this part, the notice of assessment constitutes the final
administrative decision.
(3) When you have been served with a notice of assessment and have
filed a timely request for a hearing as provided in these regulations in
this part, the decision resulting from the hearing or any applicable
administrative appeal from it constitutes the final administrative
decision.
(l) How you pay the penalty. (1) If you are assessed a civil
penalty, you have 45 calendar days from the date of issuance of the
final administrative decision to make full payment of the penalty
assessed to the Secretary, unless you have filed a timely request for
appeal with a court of competent jurisdiction.
(2) If you fail to pay the penalty, the Secretary may request the
Attorney General to institute a civil action to collect the penalty in
the U.S. District Court for the district in which your

[[Page 217]]

museum is located. Where the Secretary is not represented by the
Attorney General, the Secretary may start civil action directly. In
these actions, the validity and amount of the penalty will not be
subject to review by the court.
(3) Assessing a penalty under this section is not a waiver by the
Secretary of the right to pursue other available legal or administrative
remedies.

[62 FR 1821, Jan. 13, 1997, as amended at 67 FR 4368, Jan. 30, 2002]