[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR10.12]

[Page 232-237]
 
                    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 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

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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 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

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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.
    [GRAPHIC] [TIFF OMITTED] TR03AP03.002
    

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    (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

[[Page 236]]

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 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.

[[Page 237]]

    (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.

[68 FR 16360, Apr. 3, 2003]