[Code of Federal Regulations]

[Title 43, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR10.12]



[Page 239-244]

 

                    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. The Assistant Secretary for Fish and Wildlife and Parks may act 

on behalf of the Secretary.

    (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 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



[[Page 240]]



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.



[[Page 241]]



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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



[[Page 242]]



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



[[Page 243]]



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.

    (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



[[Page 244]]



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, as amended at 70 FR 57179, Sept. 30, 2005]