Proposed Rule2024-24332
Safeguard Tribal Objects of Patrimony
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 25, 2024
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
The Department of the Interior (Department) proposes new regulations that provide a framework to prevent the export for sale in foreign countries of Native American cultural items that are held in violation of current Federal laws; to repatriate such items from individuals and organizations having such items; and to improve coordination among Federal agencies, Indian Tribes, and Native Hawaiian organizations seeking to prevent the export and sale, and support the repatriation, of such items. The proposed rule would establish an export certification system, set forth procedures for detention and repatriation of items subject to the rule, establish a framework for voluntary return of items subject to the rule, and establish interagency and Native working groups.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 207 (Friday, October 25, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Proposed Rules]
[Pages 85078-85099]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24332]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 1194
[Docket No. BIA-2024-0002; 245A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF78
Safeguard Tribal Objects of Patrimony
AGENCY: Office of the Assistant Secretary, Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (Department) proposes new
regulations that provide a framework to prevent the export for sale in
foreign countries of Native American cultural items that are held in
violation of current Federal laws; to repatriate such items from
individuals and organizations having such items; and to improve
coordination among Federal agencies, Indian Tribes, and Native Hawaiian
organizations seeking to prevent the export and sale, and support the
repatriation, of such items. The proposed rule would establish an
export certification system, set forth procedures for detention and
repatriation of items subject to the rule, establish a framework for
voluntary return of items subject to the rule, and establish
interagency and Native working groups.
DATES:
Proposed regulations: Interested parties are invited to submit
comments, which must be received on or before December 24, 2024.
Information collection requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to OMB by November 25, 2024.
Tribal consultation sessions: The Department of the Interior will
conduct virtual consultation sessions with federally recognized Indian
Tribes on November 18, 2024, and November 19, 2024.
Native Hawaiian consultation sessions: The Department of the
Interior will conduct virtual consultation sessions with the Native
Hawaiian Community November 25, 2024, and November 26, 2024.
ADDRESSES:
Proposed regulations: You may submit comments on the proposed rule,
and information collection requirements in the proposed rule, by any
one of the following methods.
[cir] Please visit <a href="https://www.regulations.gov/docket/BIA-2024-0002">https://www.regulations.gov/docket/BIA-2024-0002</a>
or <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter ``RIN 1076-AF78'' in the
search box and click ``Search.'' Follow the instructions for sending
comments.
[cir] Mail: Please mail comments to Indian Affairs, RACA, 1001
Indian School Road NW, Suite 229, Albuquerque, NM 87104.
Tribal Consultation Sessions: Federally recognized Indian Tribes
may register for the November 18, 2024, virtual consultation session at
<a href="https://www.zoomgov.com/meeting/register/vJIsd-murTkrEoCEm5Y2To4t7GKtXSRhCnQ">https://www.zoomgov.com/meeting/register/vJIsd-murTkrEoCEm5Y2To4t7GKtXSRhCnQ</a>. Federally recognized Indian Tribes may
register for the November 19, 2024, virtual consultation session at
<a href="https://www.zoomgov.com/meeting/register/vJItdOmqqjkqHaI5eOnhZTOtLE2GojpXIow">https://www.zoomgov.com/meeting/register/vJItdOmqqjkqHaI5eOnhZTOtLE2GojpXIow</a>.
Native Hawaiian Consultation Sessions: The Native Hawaiian
Community may register for the November 25, 2024, virtual consultation
session at <a href="https://www.zoomgov.com/meeting/register/vJItceqvpz0uGDSfTDedEwLOmP5bvkGLjUA">https://www.zoomgov.com/meeting/register/vJItceqvpz0uGDSfTDedEwLOmP5bvkGLjUA</a>. The Native Hawaiian Community may
register for the November 26, 2024, virtual consultation session at
<a href="https://www.zoomgov.com/meeting/register/vJItfuurqj0rGIjrBn1_9KsywIdmkmIIjoY">https://www.zoomgov.com/meeting/register/vJItfuurqj0rGIjrBn1_9KsywIdmkmIIjoY</a>.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted to OMB at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find
this particular information collection by selecting ``Currently under
Review--Open for Public Comments'' and then scrolling down to the
``Department of the Interior.'' Please also provide a copy of your
comments to DOI at <a href="/cdn-cgi/l/email-protection#72111d1c01071e0613061b1d1c32101b135c151d04"><span class="__cf_email__" data-cfemail="8eede1e0fdfbe2faeffae7e1e0ceece7efa0e9e1f8">[email protected]</span></a>; and reference ``OMB Control
Number 1076-NEW STOP Act'' in the subject line of your email.
Accessibility: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT,
[[Page 85079]]
individuals can obtain this document in an alternate format, usable by
people with disabilities, at the Office of the Assistant Secretary--
Indian Affairs, Room 4660, 1849 C Street NW, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of
Regulatory Affairs and Collaborative Action (RACA), Office of the
Assistant Secretary--Indian Affairs; Department of the Interior,
telephone (202) 738-6065, <a href="/cdn-cgi/l/email-protection#dab9b5b4a9afb6aebbaeb3b5b49ab8b3bbf4bdb5ac"><span class="__cf_email__" data-cfemail="1d7e72736e6871697c697472735d7f747c337a726b">[email protected]</span></a>. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services.
SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise
of authority delegated by the Secretary of the Interior to the
Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209
DM 8.
Table of Contents
I. Statutory Authority and Background
II. Public Comments on the Development of the Rule and Response to
Comments
III. Subpart-by-Subpart Summary of the Proposed Rule
A. General Provisions
B. Export Certification System
C. Procedures for Detention, Forfeiture, Repatriation
D. Administrative Appeals
E. Voluntary Return of Tangible Cultural Heritage
F. Interagency Working Group
G. Native Working Group
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 14094 and 13563)
B. Regulatory Analysis
1. Regulatory Flexibility Act
2. Regulatory Impact Analysis
C. Unfunded Mandates Reform Act of 1995
D. Takings (E.O. 12630)
E. Federalism (E.O. 13132)
F. Civil Justice Reform (E.O. 12988)
G. Consultation With Indian Tribes (E.O. 13175)
H. Paperwork Reduction Act
I. National Environmental Policy Act (NEPA)
J. Energy Effects (E.O. 13211)
K. Clarity of This Regulation
L. Public Availability of Comments
M. Pay-As-You-Go Act of 2010
N. Privacy Act of 1974, System of Records
I. Statutory Authority and Background
Congress empowered the Secretary of the Interior, under section 10
of the Safeguard Tribal Objects of Patrimony Act (STOP Act) of 2021,
Public Law 117-258, codified at 25 U.S.C. 3071 et seq., to ``promulgate
rules and regulations to carry out this Act'' in consultation with the
Secretary of State, the Secretary of Homeland Security, and the
Attorney General, and after consultation with Indian Tribes and Native
Hawaiian organizations. See 25 U.S.C. 3078. The proposed regulations at
25 CFR part 1194 implement this authority.
The Department of the Interior (Department) issued a Dear Tribal
Leader Letter inviting input on the development of draft regulations
for the STOP Act on April 22, 2023, and a Dear Native Hawaiian
Community Leader Letter inviting input on the development of draft
regulations for the STOP Act on July 20, 2023. The Department held five
consultation sessions with Indian Tribes, and two consultation sessions
with the Native Hawaiian Community. The Department convened with Indian
Tribes for a first consultation in person on May 31, 2023, at U.S.
Geological Survey Oklahoma-Texas Walker Science Center in Oklahoma
City, OK; for a second consultation in person on July 14, 2023, at the
Bureau of Land Management Fairbanks District Office, in Fairbanks, AK;
and for a fifth consultation in person on August 18, 2023, at the
Bureau of Land Management New Mexico State Office, in Santa Fe, New
Mexico. The Department conducted the third and fourth consultations
with Indian Tribes virtually on Zoom on July 27, 2023, and August 8,
2023, respectively. The Department convened the first consultation with
the Native Hawaiian Community in person on August 23, 2023, at the
State of Hawai'i Office of Hawaiian Affairs in Honolulu, HI, and
conducted the next consultation virtually on Zoom on August 24, 2023.
The Department of State and the Department of Homeland Security joined
several of these consultations. Following the consultation sessions,
the Department accepted written comments until September 1, 2023.
Thereafter, beginning on August 31, 2023, the Department convened
multiple times per week with representatives of the Secretary of State,
the Secretary of Homeland Security, and the Attorney General, to
develop the proposed rule based on the feedback received in
consultation.
II. Public Comments on the Development of the Rule and Response to
Comments
Interior asked for answers to three framing questions during the
consultations. Individual comments were separated and categorized after
the closing of the comment period on September 1, 2023. In total, the
submissions were separated into 501 individual comments. Generally,
around 131 comments were exclusively supportive, no comments were not
supportive, and 370 provided constructive feedback on how the rule may
be improved. The Assistant Secretary for Indian Affairs (AS--IA) has
decided to proceed to the proposed rule stage after careful
consideration of all comments. The AS--IA's responses to significant
comments that provide constructive feedback, were neutral, or provided
general support along with constructive criticism are detailed below.
No responses are provided for comments that were exclusively
supportive.
A. Framing Question One: Which Assistant Secretary, Bureau or Office
within the Department of the Interior should be responsible for the
STOP Act program?
1. Comment: Fourteen Tribes and organizations recommended that the
STOP Act program be housed within the Assistant Secretary-Indian
Affairs. Five Tribes recommended that the STOP Act program be housed
within the Bureau of Indian Affairs, Office of Justice Services. Four
Tribes and organizations asked for one office to take central control
over implementation without identifying a specific office. One
commenter recommended the National Park Service. Some of these comments
came from the same letter.
Response: The Department believes the balance of comments support
placing the STOP Act program within the Office of the Assistant
Secretary-Indian Affairs.
2. Comment: One Tribe requested more information on the roles and
responsibilities of the various offices and bureaus within the
Department because the framing question alone was not helpful.
Response: The Department referred this individual to the
information about each of the Bureaus and Offices for the Department of
the Interior, which may be found at this link: <a href="https://www.doi.gov/bureaus">https://www.doi.gov/bureaus</a>.
3. Comment: One commenter asked that the Office of Native Hawaiian
Relations (ONHR) view itself as a centralized agency in this process.
Response: The Department appreciates ONHR's engagement in the
drafting of the proposed rule and looks forward to ONHR's active role
in implementation of these regulations following publication of a final
rule.
B. Framing Question Two: What types of interagency agreements would be
helpful for the program and for Act implementation?
4. Comment: One Tribe asked that the Department of State prioritize
engagement with any foreign
[[Page 85080]]
government or institution that has been identified by Tribes as holding
exported cultural items or ones that are primary markets for items. One
Tribe commented that foreign governments and entities that are open to
voluntarily returning items should require a different level of
engagement than those who are not willing to engage on repatriation.
Response: The Department has conferred with the Department of State
about the substance of these comments. The Department of State already
engages with international institutions on repatriation and will
continue this work in line with provisions in the STOP Act.
5. Comment: One organization and one Tribe asked that formation of
any agreements include Tribal consultation as early in the process of
development as possible to ensure seamless coordination and
harmonization of efforts.
Response: The Department agrees. As interagency agreements are
formed involving the Department, the Department commits to consultation
to the degree possible.
6. Comment: Two commenters asked that the United States military be
part of any interagency working group.
Response: The Department appreciates this feedback and will reach
out to the Department of Defense to seek engagement in implementation
of a final rule.
7. Comment: One commenter expressed that exporters who act in
violation of the STOP Act do not do so alone, and the Department should
consult with experts to examine whether the Racketeer Influenced and
Corrupt Organizations Act might apply in this situation.
Response: The process for an export certification in subpart B of
the proposed regulations, including discussions about potential exports
without a certification, was developed with input from the Department
of Justice.
8. Comment: One commenter expressed that the STOP Act cannot be a
barrier to repatriation and that getting through customs would continue
to be difficult.
Response: The process for voluntary return in subpart E of the
proposed regulations was developed with input from the Departments of
State and Homeland Security, including constituent agency, U.S. Customs
and Border Protection.
9. Comment: A Tribe asked that the Department of State notify
foreign nations of the STOP Act's passage to facilitate repatriations
under other nations' domestic laws and that the Department of State
designate a liaison to facilitate voluntary returns. A Tribe and a
Tribal Organization asked that the implementing regulations utilize the
UNESCO 1970 Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Ownership of Cultural Property
(1970 Convention) to advocate for stronger international cooperation,
and to encourage other countries to adopt measures similar to the STOP
Act.
Response: The STOP Act, and its implementing regulations, apply
primarily to items that a putative exporter seeks to take out of the
United States prior to their exit from the country. The STOP Act does
not contain mechanisms to persuade or obligate international
governments or institutions. The 1970 Convention provides a common
framework of measures each State Party may take, including some
included in the STOP Act, such as the prohibition of exportation of
designated cultural property and the establishment of export
certificates. The Department works with the Department of State to
raise awareness of the STOP Act in order to help other countries that
are party to the 1970 Convention to identify items that are prohibited
from exportation under the Act and, therefore, may be restricted from
import into those countries. The Department of State will designate a
liaison to facilitate voluntary returns.
10. Comment: One commenter expressed that international engagement
will be important based on processes that exist in international
conventions like a Hague Convention that was unspecified by the author.
The commenter expressed that establishing such processes could help
with international borders.
Response: The Department appreciates this feedback and will confer
with the Department of State on types of international engagement.
11. Comment: A collective of Tribes asked that the Department of
Justice direct all United States Attorneys to prosecute violations of
25 U.S.C. 3073(a)(2) that are referred to them by the Department of the
Interior, the Department of Homeland Security, or the Federal Bureau of
Investigation. The same collective asked that the Department of Justice
add the STOP Act, NAGPRA, and ARPA to the list of statutes enforced by
the Department of Justice Environmental Crimes Section.
Response: This comment is beyond the scope of these regulations.
However, the Department has conferred with the Department of Justice
about the substance of these comments.
12. Comment: One Tribal commenter asked for memoranda of
understanding (MOUs) among DOI's National Park Service, Insular and
International Affairs, and the Office of the Inspector General that lay
out the purpose, duties and responsibilities, standards and procedures,
reporting requirements, confidentiality provisions, and other
resolutions. One Tribal commenter proposed an agreement between the
Departments of State and Homeland Security that focused upon NAGPRA and
repatriation and international repatriation. One Tribal commenter
proposed a memorandum between the State Department and the Federal
Bureau of Investigation that focused upon international auctions. A
Tribe proposed an agreement among the National NAGPRA Program, NAGPRA
Review Committee, Cultural Heritage Coordinating Committee, Bureau of
Indian Affairs' Office of Justice Services' Cultural Resources Unit,
and all other relevant Federal entities. A Tribe and a Tribal
organization proposed cooperative agreements be established among the
Department, other Federal agencies, Native Nations, and Native
organizations and institutions. A Tribe proposed an agreement among the
NPS, the Transportation Security Administration, the United States
Forest Service, and the Bureau of Land Management. Two Tribes proposed
an agreement among the NAGPRA Program, the Cultural Heritage
Coordinating Committee established by the Protect and Preserve
International Cultural Property Act, the Bureau of Indian Affairs'
Office of Justice Services' Cultural Resources Unit, and all other
relevant Federal entities. A collective of Tribes proposed an agreement
among the Department of Commerce, Department of Homeland Security,
Department of Justice, and Department of State regarding the export of
Native American cultural items. A Tribe asked that Cooperative
Agreements be established among the Interior, agencies, and Tribal
nations to foster collaboration, training, documentation, outreach, and
education. A Tribe requests agreements so that the Department of
Commerce creates a ``cultural items'' and ``archaeological resource''
list; Homeland Security notifies international travelers and shippers
and instructs all baggage and cargo inspectors to prepare to identify
any cultural items or archaeological resources; Justice notifies all
attorneys of their responsibilities to prosecute violations referred to
them; and the Department asks Congress for three million dollars for
STOP Act
[[Page 85081]]
implementation. A Tribe commented that Tribes may encounter problems
importing items back into the United States because of protected animal
parts in the items, or for other related reasons, and asks that
interagency agreements provide a way to avoid seizure or delays.
Response: The Department is grateful for the breadth and variety of
feedback received about parties to interagency agreements. Given the
diversity of agreements proposed, the Department will carefully
evaluate the efficacy and need for each of these agreements upon
implementation of the proposed rule. The scope of work for the
Interagency Working Group, set forth at proposed subpart F, includes
coordination of policy-making processes to facilitate repatriation. The
Department's goal is to establish broad regulatory authority, in
alignment with statutory authority, to allow for creation of inter-
Departmental MOUs, as appropriate, as these commenters have proposed.
13. Comment: A Tribe asked that any interagency agreements, when
read with the regulations, include all STOP Act action items and the
two should be written to carry out all action items needed. A Tribal
organization and a Tribe asked that any agreements include a step-by-
step guide, contacts for each agency with one single Federal point of
contact for Tribes, provisions that encourage Tribal collaboration with
all agencies, encourage the Native work group to advise Federal
agencies, facilitate voluntary return, and provide for Federal
monitoring. Another Tribe asked that agreements be set up quickly and
outline commitments of resources and responsibilities for agencies
involved, include a single point of contact for Tribes, and a regular
time period for review and revisions. Three Tribes and a Tribal
organization asked that interagency agreements include a step-by-step
guide or flow chart, and contacts for each agency. A Tribe asked that
interagency agreements should provide for regular and mandatory
meetings co-led by the Native Working Group and Interagency Working
Group. A Tribe asked that any agreements include training, funding to
Tribes for collaboration and travel to retrieve sacred items,
coordination among the various agencies, a framework for the safe
return of items, and guidelines and policies for how sacred items are
returned, including addressing privacy, photography, media requests,
and agency information provided to the public. A Tribe asked that any
agreements include appropriate steps and a chain of command, mandatory
training for agency officials and staff (semi-annual), consultation
requirements with Tribes, and agreements designed to facilitate the
importation of items voluntarily returned from foreign nations. A Tribe
asked that any agreements address safeguarding, protection and
inappropriate disclosure, or facilitation of misappropriation or misuse
of tangible or intangible cultural heritage. A Native Hawaiian
organization asked for an interagency agreement under which the
Executive Branch may engage counterpart governmental entities for
foreign countries directly and advocate for the return of stolen
cultural objects; and call on respective U.S. Embassies to engage
appropriate international government authorities and actively negotiate
a process for the return of cultural objects.
Response: The Department is grateful for the breadth and variety of
feedback received about the contents of interagency agreements. Given
the diversity of agreements proposed, the Department will carefully
evaluate the efficacy and what should go into each agreement upon
implementation of the proposed rule. The scope of work for the
Interagency Working Group, set forth at proposed subpart F, includes
coordination of policy-making processes to facilitate repatriation. The
Department's goal is to establish broad regulatory authority, in
alignment with statutory authority, to allow for specific inclusion in
various inter-Departmental MOUs such as those commenters have proposed.
14. Comment: A Tribe and a Tribal organization asked that
interagency consultation agreements be established to provide
meaningful consultation with Tribes and to provide consistent policies
for Federal agencies. A Tribe asked that Interagency Consultation
Policy and Agreement would specify the process and frequency of
consultation, the involvement of relevant agencies, and the sharing of
information and expertise related to the protection and repatriation of
Native cultural heritage. A Tribe asked that the Department follow the
Interagency Consultation Policy and Agreement to ensure meaningful
consultation with Indian Tribes, to address frequency of consultation,
involvement of agencies, and expertise related to protection and
repatriation of cultural heritage.
Response: The Department is grateful for the breadth and variety of
feedback received about the contents of interagency consultation
agreements. The STOP Act program will maintain a robust consultation
function and use of such an agreement may be practical. The scope of
work for the Interagency Working Group, set forth at proposed subpart
F, includes coordination of policy-making processes to facilitate
repatriation. The Department's goal is to establish broad regulatory
authority, in alignment with statutory authority, to allow for
potential use of an interagency consultation agreement as these
commenters have proposed.
15. Comment: A Tribe asked that any interagency agreements include
shared jurisdiction or deputization between Tribal Historic
Preservation Officers (THPO) and the Department.
Response: This comment is beyond the scope of these regulations;
however, the Department has conferred with the Department of Justice
about the substance of this comment.
16. Comment: A collective of Tribes commented that the Department
of Commerce should immediately amend the Commerce Control List to
include ``cultural item'' as defined by 18 U.S.C. 1170 and 25 U.S.C.
3001 et seq., and ``archaeological resource'' as defined at 16 U.S.C.
470ee.
Response: The Department has conferred with the Department of
Commerce about the substance of this comment.
17. Comment: A Native Hawaiian organization asked that the
Interagency Working Group prioritize work on programs and policies to
require that museums better establish the provenance of objects within
their collections. The Native Hawaiian organization requests that the
Department of State call for a closer examination of existing
provenance records at international institutions for cultural objects
and human remains that would be subject to NAGPRA in domestic
institutions as part of this agreement. The Native Hawaiian
organization notes that these updates may implicate updates to the
NAGPRA Program.
Response: The Department will relay this request to the Interagency
Working Group upon its formal establishment. The Department has
conferred with the Department of State and the National NAGPRA Program
about the balance of this comment.
C. Framing Question Three: What should or should not be included in the
draft regulations?
18. Comment: Several Tribes and Tribal organizations and a Native
Hawaiian organization reiterated that cultural resources have been
stolen from their homes for many years, resulting in long lasting and
devastating harm.
Response: The Department is grateful for this comment and bore it
in mind
[[Page 85082]]
throughout the drafting of the proposed rule.
19. Comment: Several Tribes and Tribal organizations and a Native
Hawaiian organization expressed a desire that implementation occur
immediately or as soon as possible, and that the Department takes
perspective of all Tribes into account and consults as much as possible
in the process. One Tribe noted the need to consider what can be done
immediately, given that there are items being trafficked currently and
encouraged the Department to ``chew gum and walk at the same time.''
Response: The Department appreciates the need to move quickly, and
this is one consideration for the Department issuing a proposed rule
rather than an interim rule at this time. The Department looks forward
to consulting with Tribes on this proposed rule and on implementation
of the STOP Act as set forth in the proposed rule.
20. Comment: One organization and two Tribes provided
recommendations and suggested language to be included in the purpose
section of the regulations. One organization recommended parallel
language to the Department's regulations implementing the Native
American Graves Protection and Repatriation Act. Another Tribe
recommended the regulations include information on the STOP Act, its
passage, and a description of its provisions.
Response: The Department appreciates this feedback. The Department
has incorporated the Tribal suggestion to the degree possible to the
Introduction as set forth in proposed Sec. 11941.1.
21. Comment: One Tribe commented about the need for sections on
fines and penalties to hold auction houses accountable. The same Tribe
explained its desire for a mechanism for Tribes to receive the names,
addresses, and information about where the items are going so that the
items do not go underground. This will aid Tribes in learning the
history of the item and how it moved into commerce. The Tribe commented
that this process should be triggered when items are taken outside of
reservation boundaries and would require sellers to remove items from
the auction block.
Response: The proposed schedule and process for civil penalties and
fines appears at proposed Sec. 1194.205. With regard to the mechanism
requested, the text of the STOP Act does not provide authority for the
Department to obtain information about an item after the sale of that
item has been completed. This means the Department's regulations
implementing the STOP Act consider primarily the detention and recovery
of items prior to export, and do not opine on collection of information
about items that have been exported.
22. Comment: One Tribal organization asked that enforcement of the
STOP Act commence immediately, even though regulations were still
forthcoming. A Tribe emphasized that heavy criminal charges would
represent a strong incentive to disincentivize the illicit trade of
Native artifacts.
Response: The STOP Act was signed into law in December 2022. The
law increased criminal penalties for stealing and illegally trafficking
in Tribal cultural property. The increased criminal penalties are
effective immediately, despite the need for regulations to implement
other parts of the STOP Act. Additionally, prosecutors may continue to
use other existing Federal criminal laws or Federal civil forfeiture
proceedings, as appropriate, to disincentivize the illicit trade of
native artifacts.
23. Comment: Two Tribes and one Tribal organization asked that the
Department ensure that a process to revoke wrongly issued export
certificates is part of any proposed rule. This is because revocation
would be important under treaties and other countries' laws to prevent
defendants from presenting evidence in domestic prosecutions for
illegal trafficking. The same Tribal organization asked that export
certifications contain language that they do not affirmatively
establish an item's legality.
Response: The Department appreciates this feedback. Procedures for
revocation of an export certification appear at proposed Sec.
1194.106. The Department anticipates consulting with Tribes and Native
Hawaiian organizations on the contents of certification applications,
which may include issues related to the legality of an item for which a
certification is sought.
24. Comment: Two Tribes asked that the proposed rule include
processes for the Department to assess civil penalties against
individuals attempting to export items without an export certification.
A Tribal collective asked that the Department implement the civil
penalties, and related appeals section, as an interim rule. The same
Tribal collective, another Tribal organization, and a Tribe asked that
civil penalties be uniformly applied and sufficient to completely
remove any financial incentive to illegally export, attempt to export,
or otherwise transport any item requiring export certification.
Response: The Department appreciates this feedback. Procedures for
assessment of civil penalties appear at proposed Sec. 1194.205. The
Department is issuing a proposed rule rather than an interim rule at
this time.
25. Comment: A collective of Tribes asked that the Department be
sure that Tribes and Native Hawaiian organizations receive adequate
notice of attempted export of objects prohibited from exportation.
Response: The Department appreciates this feedback. The Department
anticipates providing notice using current mechanisms for consultation
notices, including contact lists directed to THPOs. The Department
welcomes methods to improve its consultation processes.
26. Comment: A Tribe comments that an item attempted to be exported
without an export certification should be promptly returned to an
Indian Tribe rather than through a museum.
Response: The Department agrees. In the event of seizure of an
item, return of the item to a Tribe will be affected pursuant to NAGPRA
or ARPA under proposed Sec. 1194.206.
27. Comment: A Tribe and a Tribal organization asked that appeals
processes be assigned to the Department's Office of Hearing and Appeals
for adjudication.
Response: The Department appreciates this feedback. The Department
has incorporated the Tribal suggestion to the Tribal Authorization as
set forth in proposed subpart D.
28. Comment: Two Tribes and two Tribal organizations provided
recommendations on the contents of definitions of the terms ``Any other
Federal law or treaty,'' ``consultation,'' ``cultural affiliation,''
``tangible cultural heritage,'' ``repatriation,'' ``voluntary return,''
``credible evidence,'' and ``Indian lands.''
Response: The Department is grateful for this comment and the
Department sought to incorporate as much of this feedback as possible
in the proposed definitions section at proposed Sec. 1194.2.
29. Comment: A Tribe asked how the Department will address
potential conflicts between claimants of lineal descendent priority
versus Tribal priority, as established by NAGPRA.
Response: The Department's regulations implementing the STOP Act
consider primarily the detention and recovery of items prior to export,
and do not opine on the implementation of NAGPRA. Even if this comment
addressed a matter germane to the STOP Act regulations, the Department
generally is not able to provide pre-
[[Page 85083]]
decisional guidance or to opine on competing claims in the
hypothetical.
30. Comment: Several Tribes and a Tribal organization expressed
thoughts about the criteria and contents of an export certification
application and permit. These included, among others, establishing
criteria for granting export certification permits to individuals or
organizations with demonstrated expertise and a legitimate need to
handle and export cultural items, requiring exporters to exercise
reasonable care in verifying the legal origin and compliance of
cultural items, and consulting with Indian Tribes about the export
certification application.
Response: The Department appreciates this feedback. The Department
will develop the form by which an applicant Requests an Export
Certification in consultation with interested Tribes.
31. Comment: Three Tribes and one Tribal consortium asked for a
high degree of detail about how Tribes may access and view the database
of export certification applications. One Tribe asked for the ability
to limit sensitive information in databases. One Tribe expressed
concern about how the database would operate with respect to FOIA. An
individual expressed concern about the database and asked for a focus
on process instead. Another Tribe asked for the ability to flag
particular items in the database that a Tribe identifies as sensitive
or missing and circulating in the marketplace. An additional Tribe
asked for the ability to flag items that a Tribe has learned are in
circulation at present.
Response: The Department has endeavored to include as much detail
as is possible about the database of export certification applications
in the regulations. The Act's FOIA exemption is codified in regulation
at proposed Sec. 1194.107(b), and Tribes may request removal of any
application from the database. At this proposed stage, all data to be
included in the database is categorized similarly and no identifiers
are proposed. The Department anticipates generating more information,
including possible trainings, on the database of export certification
applications following publication of a final rule.
32. Comment: A Tribal consortium asked for a receipt template for
Tribes to issue to purchasers that would exempt an item from these
regulations.
Response: The Department has incorporated the Tribal suggestion to
the Tribal Authorization as set forth in proposed Sec. 1194.109.
33. Comment: A Tribe asked that export certification fees not apply
to Indian Tribes.
Response: The Department has implemented a process for Tribal
Authorization as set forth in proposed Sec. 1194.109. Such a Tribal
Authorization would exempt an item from the need for an export
certification, and the attendant fee.
34. Comment: One Tribe asked for a process by which a revocation of
an export certification could be affected without harming any DOJ
processes.
Response: The Department has included a provision in the
regulations related to revocation of an export certification. The
Department further notes that any administrative revocation of an
export certification is, based upon these regulations, an
administrative procedure different from actions law enforcement may
take as part of an active Federal criminal or civil investigation. The
Department will also be closely coordinating with the Department of
Justice in implementing the STOP Act.
35. Comment: Two Tribes and an organization asked for a presumption
that if an item is cultural heritage or fits the category of
archaeological resource under ARPA, that item is held and not provided
an Export Certification until further evidence is shown that the
exporter has a right of possession.
Response: The Department has proposed that an applicant for Export
Certification must demonstrate the right of possession as part of the
application process.
36. Comment: A Tribe asked that protection for items under the STOP
Act include both objects of matrimony and patrimony and that Tribes be
the only ones determining which items are deserving of protection.
Another Tribe asked that Tribal consultation inform which items are
categorized as cultural items under the STOP Act.
Response: The Department agrees. The STOP Act applies to all
``cultural items'' as that term is defined in the Native American
Graves Protection and Repatriation Act (NAGPRA) (including objects of
cultural patrimony) and the proposed rule contemplates alerting Tribes
for any request for an export certification and, to the degree
possible, treating as determinative Tribal input on the application.
37. Comment: A Tribe and two Tribal consortia asked for development
of public education campaigns to encourage the purchase of contemporary
Native art and emphasize the illegality of taking certain artifacts. A
Tribe asked for the Department of State to conduct public awareness
campaigns about Tribal repatriation efforts. A Tribe asked for
incentives for international dealers and buyers to repatriate items.
Response: The Department does not propose an educational campaign
nor an incentive program as part of the proposed regulatory text. The
Department will explore these ideas as possible tools following
publication of a final rule.
38. Comment: Three Tribes and a Tribal organization commented that
the Department should not create an exhaustive list of items protected
under the STOP Act.
Response: The Department agrees. The Department intends to publish
a description of characteristics typical of Items Requiring Export
Certification rather than a list of items, as set forth in proposed
Sec. 1194.101.
39. Comment: A Tribe and a Tribal organization asked that the
Federal Register Notice be created in coordination with Indian Tribes.
Both commenters suggested that this Notice be a live document and be
updated over time. Both commenters asked that the Notice include
practical assistance respectful to the fluidity of cultural items and
be specific enough to notify exporters, customs officers and others
encountering potentially sensitive items.
Response: The Department has incorporated the Tribal suggestion
into the Federal Register Notice regarding which items may require an
export certification as set forth in proposed Sec. 1194.101.
40. Comment: A Tribe asked for the ability to request an in camera
hearing in any administrative appeal or penalty phase associated with a
violation of the STOP Act to shield from the public items subject to
these proceedings, because many cultural items can only be seen and
handled by particular individuals. The Tribe explained that this will
protect the items from further harm. Another Tribe commented that in
its religion, sensitive items are only able to be touched and seen by
certain people, and such items must be treated with respect when they
are brought back.
Response: The Department appreciates this feedback. In the
administrative appeals provision of the proposed regulations, at
proposed Sec. 1194.302, there is a mechanism for Tribes or Native
Hawaiian organizations to provide sealed communications concerning the
application for an export certification or detention. In the event of a
hearing, the proposed regulations incorporate applicable rules from 43
CFR part 4, at proposed Sec. 1194.303. Part 4, in turn, contemplates
certain
[[Page 85084]]
proceedings occurring under seal or in camera.
41. Comment: One Tribe asked for a single point of contact for all
Native cultural heritage protection within the Department through which
Tribes could access appropriate Federal agencies. A Tribal organization
underscores that such Tribal liaisons should be equipped to provide
trainings to Tribes about testing cultural heritage items for dangerous
chemicals and assisting in the handling, moving, packing, and shipping
of items internationally repatriated. The Tribal organization noted
that Tribal cultural heritage items, including human remains, have
often been subjected to chemicals harmful to humans by collectors or
institutions for preservation and that can harm Tribal members that
repatriate, handle, or reintegrate cultural heritage items for
ceremonial use. The Tribal organization also asked that liaisons
coordinate with Federal agencies and domestic institutions to ship
fragile Tribal cultural heritage items safely and carefully.
Response: The Department appreciates this feedback. Through the
Interagency Working Group, the Department has endeavored to identify
and centrally place the most relevant points of contact from the
Department, as well as from the Departments of State, Justice, and
Homeland Security. The Department welcomes feedback on the
appropriateness of this solution.
42. Comment: Two Tribes and a Tribal organization commented that
the Department should provide more information on training materials
that will be provided to Federal staff and officials. The Tribal
organization asks if Tribes may reach out to the Department for
technical assistance in developing training materials. The Tribes ask
that Tribes be heavily involved in designing trainings.
Response: The Department anticipates providing more information
about training following a final rule implementing the STOP Act.
43. Comment: Three Tribes asked for flow charts in the regulation
to explain processes in the regulatory text. A Tribal consortium asked
for a step-by-step guide for Federal officials within agencies to use
in the event of a trafficking incident.
Response: The Department does not propose any flow charts as part
of the proposed regulatory text, either for Tribal, private, or Federal
use. The Department will explore such flow charts as informational
tools following publication of a final rule.
44. Comment: Five Tribes and two Tribal organizations asked for
guidance on the Tribal Working Group. Specific areas of inquiry
included the process for nominations, a request for mandatory, regular
meeting times, inclusion of compensation for the Tribal Working Group
members, a mandatory process to implement judicial proceedings, and a
requirement for timely responses from agencies.
Response: The regulations governing the Native Working Group appear
at proposed subpart G. These include guidance on nominations and
eligibility. The Department declined to include mandatory meetings for
the Native Working Group to promote maximum flexibility for this group.
The Department is unable to compensate members of the Native Working
Group based upon the language of the STOP Act. The Native Working Group
may make a request that the Department of Justice initiate judicial
proceedings, as set forth in proposed Sec. 1194.603(c) and (d), and
Native Working Group requests for assistance and information are set
forth in proposed Sec. 1194.603(e).
45. Comment: One organization urged the Department to consult on
the form of the export certification application. One Tribe asked that
the regulations describe the minimum needed to apply for a
certification, and also asked for a process or system where Tribes can
learn about international or domestic auction yards where their items
may be implicated. A Tribe and a Tribal organization asked that
publication of characteristics typical of cultural heritage be general
in nature and not require photographs or an exact description unless a
Tribe consents to provide that information. The same commenters
expressed that any descriptions should be more onerous than the
Convention on Cultural Property Implementation Act, 19 U.S.C. 2601 et
seq.
Response: A draft of the application form is attached to this
proposed rule; the Department invites comments on the form from
interested Tribes and Native Hawaiian organizations. The form
specifically requests the purpose and timeframe of the proposed export.
The Department does not have a definitive list of possible auction
houses. Consultation on the form will enable Tribes to provide direct
feedback on inclusions of photographs and nature of descriptions
required.
46. Comment: One Tribe asks that the regulations provide a
mechanism for Tribes to review export certification applications.
Response: Under the proposed regulations, the Department will
notify the impacted Tribes and Native Hawaiian organizations when an
application is submitted and uploaded into the database and again once
the Department finds that the application is complete.
47. Comment: One Tribe asks that the Departments of State and
Justice consult with and take direction from Tribes on repatriation
efforts, especially as it pertains to legal efforts for violations of
Federal law and engaging with foreign countries and institutions with a
history of holding exported Tribal cultural heritage items.
Response: The Department appreciates this feedback and has included
guidance on consultation in a number of areas in the proposed rule.
48. Comment: One Tribal organization asks that where dispute
resolution systems exist to minimize burdens for Tribes and review
committees, Tribes be proactively included at the outset. Ideally, this
would include training and curriculum to stakeholders to promote the
types of items to look for, and to teach officers how to return sacred
objects or objects of patrimony.
Response: The Department appreciates this feedback. The Department
has included guidance on consultation in a number of areas in the
proposed rule.
49. Comment: A Tribe asks that the database follow the ``Do No
Harm'' principle and that Tribes should have access to the system to
remove or correct information since the information may be
confidential, culturally sensitive, sacred, or secret information to a
Tribe.
Response: The Department appreciates this feedback. The proposed
rule clarifies that information provided to the Department will be
protected to the degree possible in accordance with applicable law, and
that a Tribe or Native Hawaiian organization may request the deletion
of material from the database.
50. Comment: One Tribe asks that the Department focus enforcement
efforts on private dealers and brokers rather than placing burdens onto
Tribes when facing repatriation.
Response: The Department appreciates this feedback. The Department
has endeavored to craft the proposed rule in such a way that it will
prevent illegal exportations, while allowing Tribes to authorize
exportation at their discretion and facilitate the voluntary return of
tangible cultural heritage.
51. Comment: One Tribe asks that the Department create a specific
tax form and associated paperwork for tax deductive gifts for those who
voluntarily return Tribal cultural items.
[[Page 85085]]
Response: The Department anticipates providing tax documentation to
an individual who successfully completes a voluntary return, as set
forth in proposed Sec. 1194.403. In doing so, the Department must
comply with IRS rules and will work with the IRS on what documentation
is needed.
52. Comment: A Tribal organization asks that the United States make
a worldwide announcement about the voluntary return provision and
provide for acknowledgement of voluntary returns.
Response: The Department has consulted with the Department of State
about potential methods and mechanisms to provide notice to
international entities. The Department has not proposed a uniform
approach to publicizing voluntary returns because the Department
understands that some Tribes may not wish to share information about
their objects of patrimony returning home.
53. Comment: One Commenter asked if the STOP Act will exempt or
address how the Marine Mammal Protection Act (MMPA) challenges cultural
practices.
Response: The Department is grateful for this comment. Generally,
the STOP Act and the MMPA exist in parallel and neither law exempts nor
preempts the application of the other.
54. Comment: One Commenter referenced Hawai[revaps]i state law and
how it identifies objects of patrimony and protects certain categories
of objects.
Response: The Department is grateful for this comment and has
considered it in the drafting of the proposed rule.
55. Comment: One Commenter requested that the Interagency Working
Group look to Office of Native Hawaiian Relations (ONHR) to provide
information about Native Hawaiian organizations. The commenter also
referenced including an authentication system that ensures NHOs meet
the regulatory definition for consultations they are engaged in.
Response: The Department anticipates calling upon ONHR's expertise
as the Interagency Working Group commences its work.
D. Other Comments
57. Comment: Multiple Tribes expressed support for the STOP Act and
prompt implementation of the regulations.
Response: The Department appreciates this feedback and is pleased
to offer this proposed rule for additional Tribal feedback.
58. Comment: Three Tribes and two Tribal organizations noted that
implementation of the STOP Act requires funding for Tribal Historic
Preservation Offices (THPO) to ensure capacity to implement the STOP
Act and to have staff to track items. One Tribe noted that the Tribe
did not have enough funding to get patrimony back or to bid for it, in
the worst-case scenario. Another Tribe noted the need for funds for
Tribes to implement, identify, and store items subject to the STOP Act,
including travel to locations of items, securing means of safe return,
and ongoing storage and safekeeping of items after return.
Response: The Department notes that funding is authorized in the
statutory text of the STOP Act. However, that funding is not
appropriated. If and when funds are appropriated, the Department will
explore best ways to implement in line with these comments.
59. Comment: One Tribal organization and one Tribe encouraged
regulatory language to utilize more than NAGPRA and ARPA where the STOP
Act references ``other applicable law.'' The commentors cite Tribal
law, the Lacey Act, applicable Executive Orders, the Antiquities Act,
and the Endangered Species Act.
Response: The Department concurs with Tribes that these and other
in-effect laws comprise the ``other applicable law'' referenced in the
STOP Act. However, the Department declines to include a particularized
list because all laws in effect may apply depending on a particular
factual pattern that arises.
60. Comment: A Tribe asked for monitoring of international
institutions likely to house or traffic Tribal cultural heritage items,
and that information gained from monitoring be made available to
Tribes. The same Tribe asked that State officials be directed to
monitor international auctions and sales.
Response: The Department's authority under the STOP Act does not
provide a mechanism for the Department to direct monitoring of
institutions, either by Federal or State authorities.
61. Comment: A Tribe expressed questions on the Indian Arts and
Crafts Act and whether there might be space for that Act and the STOP
Act to work together.
Response: The Department notes that the text of the STOP Act allows
for an agreement with a foreign country ``to expand the market for the
products of Indian art and craftsmanship in accordance with section 2
of the Act of August 27, 1935.'' Outside of this statutory reference,
the Department has not included references to the Indian Arts and
Crafts Act in the text of the proposed rule.
62. Comment: A Tribe asked what would happen if a foreign
government, entity, or individual is uncooperative, and what recourse
the United States has to ensure strong enforcement to persuade
uncooperative institutions or governments.
Response: The STOP Act, and its implementing regulations, apply
primarily to items that a putative exporter seeks to take out of the
United States prior to their exit from the country. The STOP Act does
not contain mechanisms to persuade or obligate international
governments or institutions to repatriate items.
63. Comment: A Tribal organization asked that the implementing
regulations include an intellectual property provision because there
continues to be harm to Tribes from the misappropriation, misuse, and
exploitation of traditional knowledge, genetic resources associated
with traditional knowledge, and traditional cultural expressions
because of the lack of protection within the United States'
intellectual property system.
Response: The Department's authority under the STOP Act does not
provide a mechanism for the Department to propose an intellectual
property provision in this proposed rule.
64. Comment: A Tribal organization asked that the United States,
through the Department, call on countries to participate in a concerted
international effort with necessary concrete measures and implement
bilateral agreements to obligate countries to monitor imports and
facilitate repatriations.
Response: The STOP Act confirms the authority of the President to
request agreements with foreign countries to discourage commerce in and
collection of certain items, encourage voluntary return of tangible
cultural heritage, and expand markets for products of Indian art and
craftsmanship. The Department of State approves the negotiation and
conclusion of all international agreements to which the United States
will become a party. The STOP Act does not contain mechanisms to
persuade or obligate international governments or institutions to
repatriate items. However, the existence of the STOP Act, including
implementing regulations, may be influential under international
mechanisms, such as the UNESCO 1970 Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property.
65. Comment: One Tribe shared that the application of ARPA was
complex on the Tribe's allotted lands, resulting in a scenario where a
landholder moved forward with excavation with no permit
[[Page 85086]]
because ARPA did not apply to Tribal lands and because no Tribal law
regulated the excavation. The Tribe wanted the Department to consider
this example of complex situations in Indian Country to inform drafting
of the proposed regulation.
Response: The Department is grateful to the Tribe for sharing this
story as it exemplifies the complex legal issues that manifest in
Indian country. ARPA does apply on trust and restricted Indian land.
The application for an Export Certification requires presentation of an
ARPA permit authorizing export of the resource or attestation that ARPA
does not apply.
66. Comment: A Tribal organization asked whether the Department
would consult on a draft before a proposed rule, or whether the next
draft would be a proposed rulemaking.
Response: The Department is issuing a proposed rule rather than an
interim rule at this time.
67. Comment: One commenter expressed concern with the ``most
appropriate claimant'' language used in the STOP Act. The commenter
asked to envision alternative approaches.
Response: The Department appreciates this concern. As required,
these implementing regulations have been drafted consistent with the
STOP Act's express language and Congress' intent in enacting the
statute.
68. Comment: A Native Hawaiian commenter asked what would happen if
a museum in Europe voluntarily returned an item, and whether that item
would return to its community or to the national museum. The same
commenter asked who determined the item's ultimate resting place.
Response: The proposed regulations contemplate that the voluntary
return of an item would occur as agreed by the individual or
organization wishing to return the item and the appropriate Indian
Tribe or Native Hawaiian organization.
69. Comment: A Native Hawaiian commenter asked if the STOP Act
addressed how items are stored or displayed. Another commenter asked if
the STOP Act protected items found on public or private lands.
Response: Manner of storage of items, and items from private lands
outside the exterior boundaries of a reservation are outside the scope
of the STOP Act and this regulation. The definitions of archaeological
resource and cultural item includes resources and items from Federal
land.
70. Comment: One commenter expressed concern with the Federal
Government's role in identifying who could be criminalized and
therefore who may be seen as a legitimate practitioner, particularly
with regard to the Native Hawaiian Community.
Response: The Department appreciates this concern and will endeavor
to follow its obligations under the statute.
71. Comment: Two commenters reiterated that Native Hawaiian
organizations are different from Indian Tribes, and requested the
Department avoid making one look like the other.
Response: The Department agrees that Native Hawaiian organizations
are different than Indian Tribes and will continue to strive to ensure
that its regulations and guidance reflect that difference.
72. Comment: One commenter asked that the proposed rule include
``the provision of technical assistance if NHOs lack sufficient
resource[s].''
Response: The Department appreciates this concern and has included
a broad offer of technical assistance in the proposed rule.
73. Comment: Two commenters expressed concern about traditional
divisions between the political and the spiritual.
Response: The Department appreciates this concern and has
considered it in drafting the proposed rule.
74. Comment: One commenter asked the Department to amend the
definition of Native Hawaiian organization in the STOP Act regulations
to include any organization that has Native Hawaiians in substantive
and policymaking positions within the organization. Another commenter
asked that specific organizations not be listed in applicable
definitions.
Response: The Department appreciate these concerns. However, the
definition provided in the proposed STOP Act regulations aligns with
the terminology utilized in the recently amended NAGPRA regulations.
75. Comment: One commenter asked how NHOs may be recognized.
Several other commenters provided comments about recognition of NHOs
and the Secretary's list of recognized NHOs.
Response: Recognition of NHOs is outside the scope of the Act and
this regulation. The Department respectfully refers the inquirer to
ONHR, which is well positioned to provide information about applicable
processes.
III. Subpart-by-Subpart Summary of the Proposed Rule
This section summarizes the seven subparts of the proposed rule.
A. General Provisions
Subpart A includes an introductory section setting forth the
purpose of the regulations, definitions for terms in the regulations,
and provisions concerning filing of documents and severability. The
definitions are mostly from the Act or, as directed in the Act, from
the regulations implementing NAGPRA at 43 CFR part 10 or the
Department's uniform regulations implementing the Archaeological
Resources Protection Act (ARPA) at 43 CFR part 7. The Department
proposes to add Native American human remains to the Act's definition
of ``items prohibited from exportation.'' This is consistent with the
provision later in the proposed rule that the Secretary will not issue
an export certification for native American human remains. The only
major change to the NAGPRA and ARPA definitions is that proposed for
``repatriation.'' Under NAGPRA that term refers to the transfer of
possession or control of a cultural item or human remains, but not
necessarily physical custody. One of the purposes of the STOP Act,
however, is to return tangible cultural heritage to the physical
custody of the Indian Tribe or Native Hawaiian organization. This
section also includes a placeholder definition for the ``Office,'' the
entity within the Department of the Interior that will be delegated the
responsibility for implementing the export certification and other
programs under the Act. As noted above, as of this notice, the
Department has not yet established that entity. This definition will be
replaced with one for that entity once the Department establishes it.
As noted, the Department is also proposing a provision concerning
severability. In enacting the Act, Congress created several different
ways to stop the export of cultural items and archaeological resources
and facilitate the repatriation of tangible cultural heritage. While
this rule is intended to create systematic processes for those methods,
if a court holds any provision of one part of this rule invalid, it
should not impact the other parts of the rule. For example, a decision
finding invalid a portion of subpart B should not impact subpart C,
because the detention, forfeiture, and repatriation of items not having
a necessary export certification would not be affected by a problem in
the process for obtaining a certification. Similarly, a decision
finding invalid part of the export certification process should not
impact the process for voluntary return of tangible cultural heritage
or the provisions for the Native Working Group. Any decision finding
any provisions in this rule to be invalid would not impact the
remaining provisions, which would remain in force. The intent of this
rule is to stop
[[Page 85087]]
exports and facilitate repatriation as a whole, but the rule is not an
interdependent whole--other provisions of the rule would implement that
intent even if a court declared certain provisions invalid.
B. Export Certification System
The Act directs the Department to establish a system to issue
export certifications, which are required to export cultural items and
archaeological resources. In deference to the cultural sensitivity for
Indian Tribes and Native Hawaiian organizations surrounding Native
American human remains and recognition of the common law rule that
human remains cannot be owned, the Department is proposing that it will
not issue an export certification for the export of Native American
human remains.
The proposed export certification process begins with the
submission of an application and supporting documents, together with
the application fee. Because of the broad variety of such items and
variations in the cultural importance of such items to Indian Tribes
and Native Hawaiian organizations, the Department is proposing to
require a separate application and certification for each item proposed
to be exported. A draft application is included with this proposed
rule; we invite comment on its contents. To make the Department's
review and the subsequent review and consultation with the relevant
Indian Tribes and Native Hawaiian organizations as efficient as
possible (given the extremely tight decision-making deadlines in the
Act), the Department is proposing to require submission of supplemental
documents in addition to the application. Such supplemental documents
are designed to establish that the item is not an item prohibited from
export and to give the Department and the Indian Tribe or Native
Hawaiian organization sufficient information to decide what Indian
Tribe or Native Hawaiian organization is culturally affiliated with the
item and whether the Secretary should issue an export certification.
After the exporter has filed the application and all supporting
documents, the Department will upload the application and supporting
documents into the Export Certification Database for review by Indian
Tribes and Native Hawaiian organizations, with notification to the
relevant Tribes and organizations; review the application for
completeness; and begin coordination with relevant Federal agencies.
Once the Department has determined that the application and all
supporting documents are complete, the statutory process and timeframes
for consultation and approval or disapproval begins.
At the end of that process, the Department will notify the
applicant and any relevant Indian Tribe or Native Hawaiian organization
of its determination to issue or deny an export certification. That
notification will include notice of the right to administratively
appeal that determination under subpart D. Upon the expiration of the
period for appeal, or the final exhaustion of administrative remedies,
the Department will issue the Export Certification or decline to issue
it. That decision may be further appealed to a United States District
Court. If the Department issues an Export Certification, the exporter
must provide U.S. Customs and Border Protection (CBP) with a copy of
the Certification by following the process in these regulations.
The proposed regulations also provide for an Indian Tribe or Native
Hawaiian organization to issue, at its sole discretion, a Tribal
Authorization that is equivalent to an Export Certification.
C. Procedures for Detention, Forfeiture, Repatriation
The Act provides for detention by CBP, and forfeiture, and
repatriation by the Department of (1) any item that may be an Item
Prohibited from Exportation that is exported, attempted to be exported,
or otherwise transported from the United States; or (2) any item that
may be an Item Requiring Export Certification that is exported,
attempted to be exported, or otherwise transported from the United
States without an Export Certification or Tribal Authorization.
Proposed procedures for such actions are in subpart C of the proposed
rule. Under the proposed procedures, CBP will detain any such item and
contact the Department. The Department will then inform CBP whether the
item is within the scope of the Act and should continue to be detained.
If the Department advises CBP that the item is within the scope of the
Act and should be detained, CBP will continue to detain the item and
provide a detention form to the exporter together with a notice the
Department provides to CBP of its right to appeal the detention under
subpart D of this part. The Department, within 10 days of detention,
will retrieve the detained item from the CBP Port of detention and
execute the appropriate CBP Chain of Custody form. The Department is
responsible for storage of the item in an appropriate manner based on
consultation with the relevant Indian Tribe or Native Hawaiian
organization.
Upon the expiration of the period for appeal, or the final
exhaustion of administrative remedies, the Department may refer the
item to an appropriate Federal agency or U.S. Attorney's Office for
forfeiture proceedings, or the Department may follow abandonment
procedures. If the exporter abandons the item, the Department will
repatriate the item to (1) the Indian Tribe or Native Hawaiian
organization from whose Tribal Land the item was removed or who is
culturally affiliated with the item, for cultural items under NAGPRA;
or (2) the Indian Tribe from whose Indian Land the item was removed,
for archaeological resources under ARPA. Similarly, after an
administrative declaration of forfeiture or a final order of forfeiture
in a judicial proceeding, the Department may, consistent with
applicable law and regulations governing the remission and mitigation
of forfeitures, seek the item and repatriate it to (1) the Indian Tribe
or Native Hawaiian organization from whose Tribal Land the item was
removed or who is culturally affiliated with the item, for cultural
items under NAGPRA; or (2) the Indian Tribe from whose Indian Land the
item was removed, for archaeological resources under ARPA.
D. Administrative Appeals
The Act provides that the Department afford an exporter the
opportunity for a hearing concerning certain actions in the export
certification and detention processes. As proposed in subpart D, that
hearing would be before the Departmental Cases Hearings Division in the
Department's Office of Hearings and Appeals, followed by an appeal to
the Interior Board of Indian Appeals. Consistent with the exemption
under the Act from the Freedom of Information Act, all proceedings
before DCHD or the IBIA would be under seal. The proposed regulations
provide that the hearing and appeals process must be exhausted before
any appeal to a United States District Court.
E. Voluntary Return of Tangible Cultural Heritage
The Act tasks the Departments of the Interior and State with
creating a process for the voluntary return of tangible cultural
heritage to Indian Tribes and Native Hawaiian organizations. That
proposed process is in subpart E of the proposed rule. The process
begins with the individual or organization wishing to return the items
submitting a simple list of the items to
[[Page 85088]]
the Department, with certain information concerning the items, to the
extent that the individual or organization has that information. The
Department will then conduct the consultation required for it to
determine which Indian Tribe(s) or Native Hawaiian organization(s)
would potentially be culturally affiliated with the items. Once the
Department makes that determination, it will supply contact information
and the list to the parties, and will provide assistance, as needed, to
the parties to arrange for the return. The Departments of Homeland
Security and State will facilitate both foreign and domestic
transportation of the items, and at the request of the Indian Tribe or
Native Hawaiian organization, the Interagency Working Group will
explore funding mechanisms or use of in-kind resources to assist the
Indian Tribe or Native Hawaiian organization. The goal of this process
is for the Federal government to facilitate the return, not to obstruct
or delay it. As noted by the Act, this process does not apply to a
return of an object subject to NAGPRA by a museum as that term is
defined in NAGPRA.
F. Interagency Working Group
The Act formalizes an existing informal Interagency Working Group
of staff from the Departments of Justice, State, Homeland Security, and
the Interior. This subpart sets out the purpose and duties of that
group.
G. Native Working Group
The Act also creates a Native Working Group to provide
recommendations to Federal agencies on certain areas in implementing
the Act. Subpart G of the proposed rule sets out a proposed process for
the Secretary to choose the members of the Native Working Group. Under
that process, the Native Working Group would consist of thirteen
members--one from each of the BIA's twelve regions, plus one
representing Native Hawaiian organizations. The members would be
nominated by Indian Tribes and Native Hawaiian organizations. Any Tribe
or organization could nominate someone as a member of the Working
Group, even if that Tribe or organization is not in the same region or
State as the nominee. The proposed rule also provides for consideration
by the Federal Government of requests from the Native Working Group for
agency actions, with specific processes by the Departments of Justice
and State, and for the Native Working Group to request information and
assistance from Federal agencies, committees, and working groups.
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 14094 and E.O. 13563)
Executive Order (E.O.) 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) at the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is significant.
E.O. 14094 amends E.O. 12866 and reaffirms the principles of E.O.
12866 and E.O. 13563 and states that that regulatory analysis should
facilitate agency efforts to develop regulations that serve the public
interest, advance statutory objectives, and be consistent with E.O.
12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021
(Modernizing Regulatory Review). Regulatory analysis, as practicable
and appropriate, shall recognize distributive impacts and equity, to
the extent permitted by law.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and lease burdensome tools for achieving regulatory ends.
E.O. 13563 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. The DOI has developed this rule in a manner
consistent with these requirements.
In accordance with 5 U.S.C. 553(b)(4), a summary of this rule may
be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by searching for ``RIN 1076-
AF78.''
B. Regulatory Analysis
1. Regulatory Flexibility Act
The Department certifies that this document would not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). For the
final rule stage, DOI will prepare a final analysis using the public
comments received. For the proposed rule stage, DOI welcomes additional
data regarding anticipated compliance costs, and impacts to the annual
revenues, for small entities.
The following table lists small business size standards, matched to
industries described in the North American Industry Classification
System (NAICS), as modified by the OMB, effective January 1, 2022, and
published March 17, 2023 at <a href="https://www.sba.gov/document/support-table-size-standards:">https://www.sba.gov/document/support-table-size-standards:</a>
------------------------------------------------------------------------
Size standards in Size standards in
NAICS code NAICS industry millions of number of
description dollars employees
------------------------------------------------------------------------
458310........... Jewelry $20.5 .................
Retailers.
459130........... Sewing, 34.0 .................
Needlework,
and Piece
Goods
Retailers.
459420........... Gift, Novelty, 13.5 .................
and Souvenir
Retailers.
459920........... Art Dealers.... 16.5 .................
------------------------------------------------------------------------
DOI's preliminary threshold analysis included the small entity
communities (and industries) for retailers and dealers listed in the
above table. The proposed regulations would not have a significant
economic impact on these small entities. During Tribal consultations
held in fall 2023 on its draft proposed rule, DOI received feedback
from stakeholders in these industries but did not receive any
information or comments specific to the development of this preliminary
threshold analysis. Consequently, DOI has developed a list of questions
located at the end of this section to obtain more information from
these small entity communities (and industries) for retailers and
dealers to aid in further developing this analysis.
The rule DOI proposes creates a minimal burden on select market
participants who voluntarily opt to participate in stopping the export
of cultural items, and aid in facilitating the international
repatriation of cultural items prohibited from being trafficked by the
NAGPRA, and archeological resources prohibited from being trafficked by
the ARPA. The burden on
[[Page 85089]]
a participant includes the administrative fee DOI will assess and
potentially an appraisal the IRS would require for cultural items that
participants claim as a tax-deductible gift if they have a monetary
value of $5,000.00 or more. The proposed regulations would not have an
impact on a substantial number of these small entities. DOI's threshold
analysis identified:
<bullet> no increase to regulatory compliance costs;
<bullet> no decreases to annual revenue;
<bullet> no increases to the risk of short-term or long-term
insolvency; and
<bullet> no disproportional impacts to small businesses.
Initial/Threshold Regulatory Flexibility Analysis
------------------------------------------------------------------------
NAICS industry Regulatory Decrease to
NAICS code description compliance costs annual revenue
------------------------------------------------------------------------
458310........... Jewelry $0.00 $0.00
Retailers.
459130........... Sewing, 0.00 0.00
Needlework,
and Piece
Goods
Retailers.
459420........... Gift, Novelty, 0.00 0.00
and Souvenir
Retailers.
459920........... Art Dealers.... 0.00 0.00
------------------------------------------------------------------------
2. Regulatory Impact Analysis
Alternatives
As this rule is required by the STOP Act, the Department considered
no other alternatives to the proposed rule.
Burdens, Benefits and Costs
The Department is proposing new regulations to establish an export
certification system, set forth procedures for detention of items
subject to the rule and repatriation of those items, establish a
framework for voluntary return of items subject to the rule, and
establish interagency and Native working groups. The Preamble discusses
the rationale for all the changes, which we assume will have no major
economic effects, small business impacts, or distributional effects.
Overall, the rule is expected to prevent the export of Native American
cultural items that are held in violation of current Federal laws for
sale in foreign countries; to repatriate such items from individuals
and organizations having such items; and to improve coordination
between Federal agencies, Indian Tribes, and Native Hawaiian
organizations (NHOs) seeking to prevent the export and sale of such
items.
This regulation will benefit Tribes, NHOs, and individuals who have
their patrimony returned, and reduce future illegal trade in patrimony.
This will also benefit buyers and sellers of items that qualify for
certification, who can be confident of the legality of holding,
trading, and owning these items.
Costs related to this regulation may include the time and fees
potential exporters spend to obtain certification, higher prices for
purchasers of these items (whether certified or not), and the time and
expense required for Tribes and NHOs to participate in certification.
There may also be costs for purchasers who make a voluntary return of
items, and for Tribes and NHOs to receive and curate returned items.
Under the Act, the Secretary may assess reasonable fees to process
export certification applications and may collect fees to the extent
and in the amounts provided in advance in appropriations Acts.
Distributional effects could depend on how fees collected from
exporters are used. Distributional effects may be minimal if the fee is
set solely to offset the Government costs of administering the program.
Under proposed Section 1194.107(e), ``if an Indian Tribe or Native
Hawaiian organization lacks sufficient resources to access the database
or respond to agency communications in a timely manner, the Secretary,
in consultation with Indian Tribes and Native Hawaiian organizations,
will provide technical assistance to facilitate that access or
response, as applicable.'' Thus, the Secretary will be able to lessen
any distributional effects on Tribes and NHOs.
DOI currently lacks information to describe the baseline, or state
of the world in the absence of the regulation. Some priority learning
questions where we seek information include:
<bullet> What data or estimates do we have to describe the
``without-regulation'' baseline?
[cir] How many items are currently exported that will be subject to
the regulation?
[cir] How many firms and individuals are currently engaged in this
export?
<bullet> What will change as a result of the regulation?
[cir] Which groups will experience costs and benefits?
[cir] How can we quantify and value those costs and benefits?
[cir] What are time and monetary costs of complying with the
regulation for the individuals and groups involved?
<bullet> What are the likely effects for exporters applying for
certification?
[cir] What are likely scenarios for the proportion of compliant and
non-compliant exporters?
<bullet> What are the likely effects for purchasers completing a
voluntary return?
<bullet> What are the roles of Tribes and NHOs in verifying
certifications?
<bullet> What is the role of Federal government staff?
C. Unfunded Mandates Reform Act of 1995
This rule would not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule would not have a significant or unique effect on State,
local, or Tribal governments or the private sector because this rule
affects only putative exporters and their related businesses. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
D. Takings (E.O. 12630)
This rule would not affect a taking of private property or
otherwise have taking implications under E.O. 12630. A takings
implication assessment is not required.
E. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule would not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
F. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to
[[Page 85090]]
minimize litigation; and (b) meets the criteria of section 3(b)(2)
requiring that all regulations be written in clear language and contain
clear legal standards.
G. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have hosted extensive consultation with federally
recognized Indian Tribes in preparation of this proposed rule,
including through a Dear Tribal Leader letter delivered to every
federally recognized Tribe in the country, and through three
consultation sessions held on May 9, 13, and 23, 2022.
H. Paperwork Reduction Act
This proposed rule contains new information collections. All
information collections require approval under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and
you are not required to respond to a collection of information unless
it displays a currently valid Office of Management and Budget (OMB)
control number. The Department is seeking approval of a new information
collection, as follows.
Brief Description of Collection: The Act requires the Department to
promulgate regulations to implement the Native Working Group; export
certification application and issuance procedures; and secure central
Federal database information system for the purpose of making export
certification applications available to Indian Tribes and Native
Hawaiian organizations. We estimate that the annual cost to the Federal
Government to administer this information collection is $3,000,000.
Title: Export Certification System, 25 CFR 1194.
OMB Control Number: 1076-NEW.
Form Number: Export Certification Application.
Type of Review: New collection.
Respondents/Affected Public: Individuals, Private Sector,
Government.
Total Estimated Number of Annual Respondents: 122.
Total Estimated Number of Annual Responses: 122.
Estimated Completion Time per Response: Varies from 2 to 18 hours.
Total Estimated Number of Annual Burden Hours: 2,504.
Respondents' Obligation: Required to obtain a benefit.
Frequency of Response: On occasion.
Total Estimated Annual Non-Hour Burden Cost: $50,044.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>.
Find this particular information collection by selecting
``Currently under 30-day Review--Open for Public Comments'' or by using
the search function. Please provide a copy of your comments to
<a href="/cdn-cgi/l/email-protection#3754585944425b4356435e585977555e5619505841"><span class="__cf_email__" data-cfemail="11727e7f62647d657065787e7f517378703f767e67">[email protected]</span></a>. Please reference OMB Control Number 1076-NEW in
the subject line of your comments.
I. National Environmental Policy Act (NEPA)
Under NEPA, categories of Federal actions that normally do not
significantly impact the human environment may be categorically
excluded from the requirement to prepare an environmental assessment or
impact statement. (40 CFR 1501.4) Under the Department, regulations
that are administrative or procedural are categorially excluded from
NEPA analysis because they normally do not significantly impact the
human environment. (43 CFR 46.210(i)) This rule is administrative and
procedural in nature. Consequently, it is categorically excluded from
the NEPA requirement to prepare a detailed environmental analysis.
Further, the Department also determined that the rule would not involve
any of the extraordinary circumstances under a categorical exclusion
that would necessitate environmental analysis. (43 CFR 46.215.)
J. Energy Effects (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
K. Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(l)(B)), and 13563 (section l(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
and so forth.
L. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
M. Pay-As-You-Go Act of 2010
Public Law 117-258: There is authorized to be appropriated to carry
out this Act $3,000,000 for each of fiscal years 2022 through 2027.
N. Privacy Act of 1974, System of Records
The Privacy Act of 1974, as amended, embodies fair information
practice principles in a statutory framework
[[Page 85091]]
governing the means by which Federal agencies collect, maintain, use,
and disseminate individuals' records. The Privacy Act applies to
records about individuals that are maintained in a ``system of
records.'' A ``system of records'' is a group of any records under the
control of an agency from which information is retrieved by the name of
an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. The Privacy Act
defines an individual as a United States citizen or lawful permanent
resident. The Privacy Act requires each agency to publish in the
Federal Register a description denoting the existence and character of
each system of records that the agency maintains, and the routine uses
of each system.
This proposed rule contains recordkeeping requirements subject to
the Privacy Act. The Department will publish in the Federal Register a
description denoting the existence and character of system of record,
and the routine uses of the system.
List of Subjects in 25 CFR Part 1194
Administrative practice and procedure, Alaska, Hawaiian Natives,
Historic preservation, Human remains, Indians, Indians--claims,
Indians--law.
0
For the reasons set forth in the preamble above, the Department of the
Interior, Assistant Secretary--Indian Affairs, proposes to add 25 CFR
part 1194 to read as follows:
PART 1194--SAFEGUARD TRIBAL OBJECTS OF PATRIMONY
Sec.
Subpart A--General Provisions
1194.1 What is the purpose of this part?
1194.2 How are key terms defined in the part?
1194.3 What are the timeframes and methods of delivery of documents
under this part?
1194.4 How does severability apply under this regulation?
Subpart B--Export Certification System
1194.101 What is the purpose of the Federal Register Notice under
this part?
1194.102 When do I need an Export Certification?
1194.103 What is the process for applying for an Export
Certification?
1194.104 What is the process for the Office to review an Export
Certification?
1194.105 What is the process for the Office to approve an Export
Certification?
1194.106 What is the process for the Secretary to revoke an Export
Certification?
1194.107 What is the Export Certification Database?
1194.108 When are Export Certification Fees assessed?
1194.109 Under what circumstances may a Tribal Authorization be
issued?
1194.110 How does the Paperwork Reduction Act affect this part?
Subpart C--Procedures for Detention, Forfeiture, Repatriation, and
Return
1194.201 When can CBP detain certain items?
1194.202 How does CBP deliver items to the Office?
1194.203 What is the process for forfeiture proceedings?
1194.204 Does safe harbor apply this regulation?
1194.205 What are civil penalties for violations of this regulation?
1194.206 How is an item repatriated or returned?
Subpart D--Administrative Appeals
1194.301 What is the purpose of this section?
1194.302 How do I request a hearing?
1194.303 What are the hearing procedures?
1194.304 How do I appeal a decision?
Subpart E--Voluntary Return of Tangible Cultural Heritage
1194.401 What is the purpose of this section?
1194.402 When is consultation initiated?
1194.403 What is the process for consultation and return of items
under this regulation?
Subpart F--Interagency Working Group
1194.501 What is the Interagency Working Group?
1194.502 What is the membership of Interagency Working Group?
1194.503 What are the duties of Interagency Working Group?
Subpart G--Native Working Group
1194.601 What is the relationship between the Office and the Native
Working Group?
1194.602 What is the membership of the Native Working Group?
1194.603 What are the duties of the Native Working Group?
Authority: 16 U.S.C. 470aaa-470aaa11; 25 U.S.C. 9, 25 U.S.C.
3001-3013; 25 U.S.C. 3071; 25 U.S.C. 3078.
Subpart A--General Provisions
Sec. 1194.1 What is the purpose of this part?
In stopping the export of cultural items and archaeological
resources and facilitating the repatriation of tangible cultural
heritage, the Safeguard Tribal Objects of Patrimony (STOP) Act, Public
Law 117-258, codified at 25 U.S.C. 3071, et seq., recognizes the
inherent rights of Indian Tribes and Native Hawaiian organizations in
their own cultural heritage, wherever their cultural heritage is
located. Consistent with the STOP Act's express language and Congress'
intent in enacting the statute, these regulations require the Secretary
and others to make decisions for the benefit of Indian Tribes and
Native Hawaiian organizations, through consultation and collaboration
with them. In implementing this systematic process, the Secretary must
defer and give preference to the expertise, customs, traditions, and
Native American traditional knowledge of lineal descendants, Indian
Tribes, and Native Hawaiian organizations, as Indian Tribes and Native
Hawaiian organizations understand them.
Sec. 1194.2 How are key terms defined in the part?
Act means the Safeguard Tribal Objects of Patrimony Act, Public Law
No. 117-258 (136 Stat. 2372) as codified at 25 U.S.C. 3071 et seq.
Archaeological resource means any material remains of past human
life or activities which are of archaeological interest as described in
uniform regulations for the Archaeological Resources Protection Act
pursuant to 16 U.S.C. 470bb, 43 CFR 7.3; are Native American in origin;
and are at least 100 years of age.
Business day means Monday through Friday, excluding federally
recognized holidays; other days that the applicable office of the
Federal Government is closed to the public; and holidays or other days
when the Indian Tribe or Native Hawaiian organization that could be
culturally affiliated with the relevant item is closed to the public.
CBP means the Secretary of the U.S. Department of Homeland
Security, acting through the Commissioner of U.S. Customs and Border
Protection.
Consultation or Consult means the exchange of information, open
discussion, and joint deliberations made between all parties in good-
faith and in order to:
(1) Seek, discuss, and consider the views of all parties;
(2) Strive for consensus, agreement, or mutually acceptable
alternatives; and
(3) Enable meaningful consideration of the Native American
traditional knowledge, including oral history, of lineal descendants,
Indian Tribes, and Native Hawaiian organizations.
Cultural affiliation means there is a reasonable connection between
human remains or cultural items and an Indian Tribe or Native Hawaiian
organization based on a relationship of shared group identity. Cultural
affiliation may be clearly identified by the information available or
reasonably identified by the geographical location or acquisition
history of the human remains or cultural items.
Cultural item means a funerary object, sacred object, or object of
cultural
[[Page 85092]]
patrimony according to the Native American traditional knowledge of a
lineal descendant, Indian Tribe, or Native Hawaiian organization.
Detention means the holding for further investigation of cultural
items or archaeological resources and any associated property that is
neither immediately released nor seized but is temporarily held by CBP.
Export certification means the authorization issued by the Office
allowing an exporter to export an item requiring an export
certification.
Funerary object means any object reasonably believed to have been
placed intentionally with or near human remains. A funerary object is
any object connected, either at the time of death or later, to a death
rite or ceremony of a Native American culture according to the Native
American traditional knowledge of a lineal descendant, Indian Tribe, or
Native Hawaiian organization. This term does not include any object
returned or distributed to living persons according to traditional
custom after a death rite or ceremony. Funerary objects are either
associated funerary objects or unassociated funerary objects.
(1) Associated funerary object means any funerary object related to
human remains that were removed and the location of the human remains
is known. Any object made exclusively for burial purposes or to contain
human remains is always an associated funerary object regardless of the
physical location or existence of any related human remains.
(2) Unassociated funerary object means any funerary object that is
not an associated funerary object and is identified by a preponderance
of the evidence as one or more of the following:
(i) Related to human remains but the human remains were not
removed, or the location of the human remains is unknown,
(ii) Related to specific individuals or families,
(iii) Removed from a specific burial site of an individual or
individuals with cultural affiliation to an Indian Tribe or Native
Hawaiian organization, or
(iv) Removed from a specific area where a burial site of an
individual or individuals with cultural affiliation to an Indian Tribe
or Native Hawaiian organization is known to have existed, but the
burial site is no longer extant.
Human remains means any physical part of the body of a Native
American individual. This term does not include human remains to which
a museum or Federal agency can prove it has a right of possession.
(1) Human remains reasonably believed to be comingled with other
materials (such as soil or faunal remains) may be treated as human
remains.
(2) Human remains incorporated into a funerary object, sacred
object, or object of cultural patrimony are considered part of the
cultural item rather than human remains.
(3) Human remains incorporated into an object or item that is not a
funerary object, sacred object, or object of cultural patrimony are
considered human remains.
Indian land means lands of Indian Tribes, or Indian individuals,
which are either held in trust by the United States or subject to a
restriction against alienation imposed by the United States, except for
subsurface interests not owned or controlled by an Indian Tribe or
Indian individual.
Indian Tribe means any Tribe, band, nation, or other organized
group or community of Indians, including any Alaska Native village (as
defined in, or established pursuant to, the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for
the special programs and services provided by the United States
Government to Indians because of their status as Indians by its
inclusion on the list of recognized Indian Tribes published by the
Secretary of the Interior under the Act of November 2, 1994 (25 U.S.C.
5131).
Item prohibited from exportation means--
(1) A cultural item prohibited from being trafficked, including
through sale, purchase, use for profit, or transport for sale or
profit, by--
(i) Section 1170 of title 18, United States Code, as added by the
Native American Graves Protection and Repatriation Act (25 U.S.C. 3001
et seq.); or
(ii) Any other Federal law or treaty;
(2) An archaeological resource prohibited from being trafficked,
including through sale, purchase, exchange, transport, receipt
(including as a gift), or offer to sell, purchase, or exchange,
including in interstate or foreign commerce, by--
(i) Section 6(b) and (c) of the Archaeological Resources Protection
Act of 1979 (16 U.S.C. 470ee); or
(ii) Any other Federal law or treaty; and
(3) Native American human remains.
Item requiring export certification means a cultural item and an
archaeological resource, but does not include any item or resource for
which an Indian Tribe or Native Hawaiian organization with a cultural
affiliation with the item has provided a Tribal Authorization.
Native American means of, or relating to, a Tribe, people, or
culture that is indigenous to the United States. To be considered
Native American under this part, human remains or cultural items must
bear some relationship to a Tribe, people, or culture indigenous to the
United States.
(1) A Tribe is an Indian Tribe.
(2) A people comprise the entire body of persons who constitute a
community, Tribe, nation, or other group by virtue of a common culture,
history, religion, language, race, ethnicity, or similar feature. The
Native Hawaiian Community is a ``people.''
(3) A culture comprises the characteristic features of everyday
existence shared by people in a place or time.
Native American traditional knowledge means knowledge,
philosophies, beliefs, traditions, skills, and practices that are
developed, embedded, and often safeguarded by or confidential to
individual Native Americans, Indian Tribes, or the Native Hawaiian
Community. Native American traditional knowledge contextualizes
relationships between and among people, the places they inhabit, and
the broader world around them, covering a wide variety of information,
including, but not limited to, cultural, ecological, linguistic,
religious, scientific, societal, spiritual, and technical knowledge.
Native American traditional knowledge may be, but is not required to
be, developed, sustained, and passed through time, often forming part
of a cultural or spiritual identity. Native American traditional
knowledge is expert opinion. Other terms such as Indigenous Knowledge,
Traditional Knowledge(s), Traditional Ecological Knowledge, Tribal
Ecological Knowledge, Native Science, Indigenous Science, and others,
are sometimes used to describe this knowledge system.
Native Hawaiian organization means any organization that:
(1) Serves and represents the interests of Native Hawaiians, who
are descendants of the indigenous people who, before 1778, occupied and
exercised sovereignty in the area that now constitutes the State of
Hawai[revaps]i;
(2) Has as a primary and stated purpose the provision of services
to Native Hawaiians; and
(3) Has expertise in Native Hawaiian affairs, and includes but is
not limited to:
(i) The Office of Hawaiian Affairs established by the constitution
of the State of Hawai[revaps]i,
[[Page 85093]]
(ii) Native Hawaiian organizations (including `ohana) who are
registered with the Secretary of the Interior's Office of Native
Hawaiian Relations, and
(iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations
and Homestead Associations as defined under 43 CFR 47.10.
Object of cultural patrimony means an object that has ongoing
historical, traditional, or cultural importance central to a Native
American group, including any constituent sub-group (such as a band,
clan, lineage, ceremonial society, or other subdivision), according to
the Native American traditional knowledge of an Indian Tribe or Native
Hawaiian organization. An object of cultural patrimony may have been
entrusted to a caretaker, along with the authority to confer that
responsibility to another caretaker. The object must be reasonably
identified as being of such importance central to the group that it:
(1) Cannot or could not be alienated, appropriated, or conveyed by
any person, including its caretaker, regardless of whether the person
is a member of the group, and
(2) Must have been considered inalienable by the group at the time
the object was separated from the group.
Office means the Office in the Department of the Interior that the
Secretary has designated as responsible for exercising the duties of
the Secretary under the Act.
Repatriation means return of cultural items, archaeological
resources, or tangible cultural heritage to a culturally affiliated
Indian Tribe or Native Hawaiian organization.
Right of possession means possession or control obtained with the
voluntary consent of a person or group that had authority of
alienation. Right of possession is given through the original
acquisition of:
(1) An unassociated funerary object, a sacred object, or an object
of cultural patrimony from an Indian Tribe or Native Hawaiian
organization with the voluntary consent of a person or group with
authority to alienate the object; or
(2) An associated funerary object that was exhumed, removed, or
otherwise obtained with full knowledge and consent of the next of kin
or, when no next of kin is ascertainable, the official governing body
of the appropriate Indian Tribe or Native Hawaiian organization.
Sacred object means a specific ceremonial object needed by a
traditional religious leader for present-day adherents to practice
traditional Native American religion, according to the Native American
traditional knowledge of a lineal descendant, Indian Tribe, or Native
Hawaiian organization. While many items might be imbued with sacredness
in a culture, this term is specifically limited to an object needed for
the observance or renewal of a Native American religious ceremony.
Secretary means the Secretary of the Interior.
Tangible cultural heritage means--
(1) Native American human remains; or
(2) Culturally, historically, or archaeologically significant
objects, resources, patrimony, or other items that are affiliated with
a Native American culture.
Tribal authorization means the authorization issued by a culturally
affiliated Indian Tribe or Native Hawaiian organization, at the sole
discretion of the Tribe or organization, stating that an item does not
require an Export Certification from the Secretary.
Tribal land means
(1) All lands within the exterior boundaries of any Indian
reservation;
(2) All dependent Indian communities; and
(3) Any lands administered for the benefit of Native Hawaiians
pursuant to the Hawaiian Homes Commission Act, 1920, and section 4 of
Public Law 86-3.
Sec. 1194.3 What are the timeframes and methods of delivery of
documents under this part?
(a) Whenever this part requires or allows the exporter to file a
document on or before a certain date, the exporter is responsible for
submitting that document so as to reach the Government office
designated for receipt by the time specified. The exporter may use the
U.S. Postal Office (USPS), a commercial carrier, or electronic or
facsimile transmission. The Office will consider the document filed on
the date on which the document is received by the Government office
designated for receipt. Acceptable evidence to establish the time of
receipt by the Government office includes any official USPS receipt,
commercial carrier signature log, time/date stamp placed by the
Government on the document, other documentary evidence of receipt
maintained by that Government office, or oral testimony or statements
of Government personnel.
(b) Whenever this part requires or allows the Government to issue
or file a document on or before a certain date, the document will be
considered to be issued or filed on the date on which the document was
placed in the USPS system, delivered to a commercial carrier, or sent
by electronic or facsimile transmission. Acceptable evidence to
establish the time of filing or issuance by the Government includes any
official USPS sender's receipt, commercial carrier receipt log, and
time/date stamp placed by the government office on the document, other
documentary evidence of receipt maintained by that office, or oral
testimony or statements of Government personnel.
Sec. 1194.4 How does severability apply under this regulation?
If a court holds any provisions of the regulations in this part or
their applicability to any person or circumstances invalid, the
remainder of the regulations and their applicability to other people or
circumstances will not be affected.
Subpart B--Export Certification System
Sec. 1194.101 What is the purpose of the Federal Register notice
under this part?
The Secretary shall publish in the Federal Register, after
consultation with Indian Tribes and Native Hawaiian organizations, an
announcement that provides fair notice to exporters and other persons
regarding which items require an export certification under this
section, and:
(a) Includes a description of characteristics typical of items
requiring export certification and definitions for ``archeological
resource'' and ``cultural item'';
(b) Describes the provenance requirements associated with the
trafficking prohibition of 18 U.S.C. 1170 and 16 U.S.C. 470ee(b)-(c),
and describes the characteristics of items prohibited from exportation;
(c) Includes the definitions of Indian Tribe, Native American, and
Native Hawaiian organization in Sec. 1194.2 and a description of how
those terms apply to archaeological resources and cultural items
subject to these regulations; and
(d) Includes a description of characteristics typical of items that
do not qualify as items requiring export certification and therefore do
not require an export certification under this section, including
clarification that:
(1) An item made solely for commercial purposes is presumed to not
qualify as an item requiring export certification, unless an Indian
Tribe or Native Hawaiian organization challenges that presumption
during the process for obtaining an export certification under Sec.
1194.102;
(2) A Tribal authorization may be used as evidence to demonstrate
that an
[[Page 85094]]
item would not qualify as an Item Requiring Export Certification; and
(e) Information on consulting with Indian Tribes and Native
Hawaiian organizations. Such information would include information on
how to contact Indian Tribes and Native Hawaiian organizations and the
possibility, in the sole discretion of the Indian Tribe or Native
Hawaiian organization, of obtaining a Tribal Authorization.
Sec. 1194.102 When do I need an export certification?
(a) Any person attempting to export an item that may be an item
requiring export certification must apply to the Office for an export
certification covering that item before transporting or shipping the
item to any foreign country.
(b) Each item to be transported requires a separate application,
and the Office will process each application separately.
(c) No item requiring export certification may be exported from the
United States without first having obtained an export certification in
accordance with this subpart. The Office will not issue an export
certification for Native American human remains.
(d) Exporters may apply for an export certification by filing the
application described in Sec. 1194.103 with all required supporting
documentation.
(e) The Office will process the application using the procedure in
Sec. 1194.104 of this part, and will assess exporters who submit an
application the fee in Sec. 1194.108 of this part.
Sec. 1194.103 What is the process for applying for an export
certification?
(a) Who may apply:
(1) An exporter seeking to export an item that may be an item
requiring export certification from the United States must submit to
the Office an export certification application.
(2) An Indian Tribe or a Native Hawaiian organization with an
interest in a particular item requiring export certification may submit
to the Office an export certification application.
(b) How to apply:
(1) Requests for an export certification shall be made on an export
certification application. The application must be accompanied by the
fee required under Sec. 1194.108.
(2) In addition to completing the application under Sec.
1194.103(b)(1), an application to the Office must include:
(i) Description and pictures (if culturally appropriate) of the
item requiring export certification;
(ii) All available information regarding the provenance of the item
requiring export certification;
(iii) The presence of any potentially hazardous substances used to
treat the item requiring export certification, if known;
(iv) An attestation that, to the best of the knowledge and belief
of the exporter, the exporter is not attempting to export an item
prohibited from exportation;
(v) Substantial evidence of consultation with possibly culturally
affiliated Indian Tribes or Native Hawaiian organizations, including,
but not limited to, written correspondence between the exporter and the
leader of the Indian Tribe or Native Hawaiian organization and
agreement from the leader of the Indian Tribe or Native Hawaiian
organization that the Office should issue an export certification;
(vi) Evidence, for an archaeological resource, of a permit under
section 4 of the Archaeological Resources Protection Act, 16 U.S.C.
470cc, that authorizes export or that a permit is not necessary;
(vii) Evidence, for Native American cultural items, of a
disposition statement (43 CFR 10.7(b) or (c)(5)); a repatriation
statement (43 CFR 10.9(g)); or that a disposition statement or
repatriation statement is not necessary, with written confirmation from
the Indian Tribe or Native Hawaiian organization with authority to
alienate the item requiring export certification that the exporter has
a right of possession of the item requiring export certification or the
Indian Tribe or Native Hawaiian organization has relinquished title or
control of the item requiring export certification in accordance with
section 3 of NAGPRA;
(viii) If the item was excavated or removed, evidence concerning
the ownership of the land that the item was removed from at the time
the item was removed;
(ix) Evidence adequate to show that the Indian Tribes or Native
Hawaiian organizations are culturally affiliated with the item under 43
CFR 10.3; and
(x) The purpose and timeframe for the proposed exportation of the
item.
(3) The exporter must submit all documents supporting the
application in the format(s) required for upload into the export
certification database established by Sec. 1194.107. The Office will
publish the requirements for upload on its website.
(4) When the Office receives an export certification application
and supporting documents, the Office will immediately include the
application and supporting documents in the export certification
database established by Sec. 1194.107. Any further documents that the
exporter submits to support an incomplete application under Sec.
1194.104 will be added to the database upon receipt by the Office.
Sec. 1194.104 What is the process for the Office to review an export
certification?
(a) Upon receipt of an export certification application, the Office
shall review the application for completeness in compliance with Sec.
1194.103 of this part. That review will include coordination with
relevant Federal agencies to identify whether there are active Federal
investigations into the trafficking of cultural items or archaeological
resources by the applicant. The Office will also notify the relevant
Indian Tribes and Native Hawaiian organizations of the receipt of the
application.
(b) Within 20 business days of receipt, the Office will notify the
exporter by mail or overnight carrier whether the application meets the
criteria of Sec. 1194.103.
(c) If the application package is not complete, the Office's
notification will identify the missing information or documents
required for a complete package.
(d) Upon a determination that the export certification application
is complete, the Office will notify the relevant Indian Tribes and
Native Hawaiian organizations the following business day that the
application is complete.
(e) After receiving the notification from the Office under Sec.
1194.104(d), the relevant Indian Tribes and Native Hawaiian
organizations will have 9 business days to review the application and
supporting documents.
(f) If an Indian Tribe or Native Hawaiian organization notifies the
Office that the item requiring export certification may not be eligible
for an export certification, the Office will have 7 business days to
review the application and supporting documents. If no Indian Tribe or
Native Hawaiian organization so notifies the Office, the Office will
have 1 business day to review the application and supporting documents.
(g) With notice to the exporter, the Office may extend the review
of an application and supporting documents for up to 30 business days
if credible evidence is provided that the item requiring export
certification may not be eligible for an export certification.
Sec. 1194.105 What is the process for the Office to approve an Export
Certification?
(a) Following completion of the process under Sec. 1194.104(a)
through (f), and any extension under Sec. 1194.104(g), the Office will
make a determination to approve or deny the export certification
[[Page 85095]]
application. The Office will notify the applicant and any relevant
Indian Tribe or Native Hawaiian organization of the determination and
the right to administratively appeal the determination under subpart D
of this part. Upon the expiration of the period for appeal, or the
final exhaustion of administrative remedies, the Secretary will issue
the export certification or decline to issue it.
(b) The exporter must provide CBP with a copy of the export
certification within 48 hours before presentation of the item to CBP at
the border by uploading the electronic export information (including
the export certification) or successor to the CBP Automated Commercial
System or successor system.
Sec. 1194.106 What is the process for the Secretary to revoke an
export certification?
(a) If the Office receives credible evidence indicating that an
item that received an export certification is not eligible for an
export certification, then the Secretary, after consultation with
relevant Indian Tribes and Native Hawaiian organizations, may
immediately revoke a previously issued export certification.
(b) Any revocation will be effective immediately, notwithstanding
any administrative appeal under subpart D of this part.
Sec. 1194.107 What is the export certification database?
(a) The Office will enter all Applications for export certification
and supporting documents in a secure database information system for
the purpose of making export certification applications available to
Indian Tribes, Native Hawaiian organizations, and other Federal
agencies, including the Departments of Homeland Security, Justice, and
State. Access to the database will be limited to users within Indian
Tribes, Native Hawaiian organizations, and relevant Federal agencies.
(b) Under the Act, the following information will be exempt from
disclosure under the Freedom of Information Act, 5 U.S.C. 552:
(1) Information that a representative of an Indian Tribe or Native
Hawaiian organization--
(i) Submits to a Federal agency pursuant to the Act, an amendment
made by the Act, or these regulations; and
(ii) Designates as sensitive or private according to Native
American custom, law, culture, or religion; or
(2) Information that any person submits to a Federal agency
pursuant to the Act or an amendment made by the Act or these
regulations that relates to an item for which an Export Certification
is denied under this Act.
(c) All information in the database other than that under Sec.
1194.107(b) will be treated by the Secretary as controlled unclassified
information and will be protected in accordance with applicable law.
(d) If an Indian Tribe or Native Hawaiian organization requests
that the Office delete an application and supporting documents or any
portion thereof from the database, the Office will immediately do so.
The review of the Application will continue off-line.
(e) If an Indian Tribe or Native Hawaiian organization lacks
sufficient resources to access the database or respond to agency
communications in a timely manner, the Office, in consultation with
Indian Tribes and Native Hawaiian organizations, will provide technical
assistance to facilitate that access or response, as applicable.
Sec. 1194.108 When are export certification fees assessed?
(a) As of [EFFECTIVE DATE OF FINAL RULE], the fee for applying for
an export certification is $500.00 per application. Federal, Indian
Tribe, State, and local government agencies and Native Hawaiian
organizations are exempt from the processing fee.
(b) The fee will be paid when the application is submitted, and is
not refundable. The Office will keep the fee as a service charge even
if the Secretary does not issue an Export Certification or the
applicant withdraws the application.
(c) The application fee will be adjusted annually according to the
change in the implicit price deflator for gross domestic product
(published by the Department of Commerce) since the previous adjustment
and will subsequently be posted on the Office website before October 1
each year. Revised fees are effective each year on October 1. Because
the fee adjustments are simply based on a mathematical formula, the
adjustments will not be subject to notice and comment.
Sec. 1194.109 Under what circumstances may a Tribal authorization be
issued?
(a) In some circumstances, and at the sole discretion of the Indian
Tribe or Native Hawaiian organization, an Indian Tribe or Native
Hawaiian organization may issue a Tribal authorization that may be used
as evidence to demonstrate a particular item does not qualify as an
item requiring export certification.
(1) The Tribal authorization will be in a letter signed by the
Tribal leader or a duly adopted Tribal resolution, Tribal ordinance, or
other, similar act of the Tribal government or Native Hawaiian
organization.
(2) The Tribe or Native Hawaiian organization must provide a copy
of the Tribal Authorization to the Office.
(3) The Office may publish a template for Indian Tribes or Native
Hawaiian organizations to use for the Tribal authorization.
(b) The exporter must provide CBP with a copy of the Tribal
authorization within 48 hours before presentation of the item to CBP at
the border by uploading the electronic export information (including
the Tribal authorization) or successor to the CBP automated commercial
system or successor system.
Sec. 1194.110 How does the Paperwork Reduction Act affect this part?
The information collection requirements contained in this part have
been approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned
control number 1076-XXXX. A Federal agency may not conduct or sponsor,
and you are not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
Subpart C--Procedures for Detention, Forfeiture, Repatriation, and
Return
Sec. 1194.201 When can CBP detain certain items?
(a) The Act authorizes CBP to detain certain items specified in
Sec. 1194.201(b), and through this regulation, the Secretary requests
that CBP do so in accordance with the procedures specified below.
(b) CBP will detain, using procedures under this section:
(1) Any item that may be an item prohibited from exportation that
is exported, attempted to be exported, or otherwise transported from
the United States; or
(2) Any item that may be an item requiring export certification
that is exported, attempted to be exported, or otherwise transported
from the United States without an export certification or Tribal
authorization.
(c) Upon discovery of an item specified in Sec. 1194.201(b), CBP
will contact the Office within 24 hours for the Office to determine
whether the item may be lawfully exported in accordance with the Act
and these regulations.
(d) Upon the request of the Office, CBP may provide additional
[[Page 85096]]
information such as photographs of the item to assist the Office in
determining whether the item falls within the scope of the Act.
(e) The Office will provide to CBP a written statement within five
calendar days of initial CBP contact stating whether the item falls
within the scope of the Act, whether the item requires an Export
Certification, and whether the Secretary has issued an export
certification or an Indian Tribe or Native Hawaiian organization has
issued a Tribal authorization for the item. The statement will be
accompanied by a notification of the appeal procedures in subpart D of
this part for CBP to provide to the exporter. The Office may provide
the statement and notification to the exporter by email.
(f) If the Office provides the written statement under Sec.
1194.201(e), CBP will detain the item.
(g) If the Office fails to timely provide the written statement
under Sec. 1194.201(e), and assuming no other legal restrictions
apply, CBP will provide notice to the exporter that the item is being
released back to the exporter.
(h) The exporter will have five calendar days following the
issuance of the notice under Sec. 1194.201(g) to arrange retrieval of
the detained item. If, after five calendar days, no arrangement has
been made, the item will be deemed abandoned and surrendered to the
Office.
(i) If the exporter voluntarily abandons the detained good(s) or
the goods are deemed abandoned under paragraph (h) of this section, the
shipment will be surrendered to the Office for repatriation under Sec.
1194.206. Such voluntary return may be eligible for the safe harbor
from prosecution under Sec. 1194.204.
(j) Detained item(s) will be held in a secure location at the port
consistent with current CBP regulations and policy, until they are
turned over to the Office for disposition.
Sec. 1194.202 How does CBP deliver items to the Office?
(a) Within 48 hours after the Office notifies CBP under Sec.
1194.201 of this part that an item is subject to detention, CBP will
record the detention on a CBP Form 6051D or equivalent detention form.
CBP will provide a copy of that form to the exporter with the
notification of appeal procedures provided by the Office under Sec.
1194.201. Once the item has been formally detained by CBP, CBP will
notify the Office that the item is available for the Office to
retrieve.
(b) The Office will retrieve the item in-person within five days
after the notification under Sec. 1194.202(a).
(c) The Office will also notify the exporter within five days that
it has custody of the detained items. The Office will also provide a
notification to the exporter for purposes of appealing the detention
under subpart D of this part.
(d) The Office will hold any items retrieved from CBP in a secure
location in a manner based on consultation with the appropriate Indian
Tribe or Native Hawaiian organization.
(e) Within 60 days after the Office retrieves an item detained
under Sec. 1194.201(b)(2) to the Office, and in consultation with
appropriate Indian Tribes and Native Hawaiian organizations, the Office
will determine whether the item is an Item Prohibited from Exportation.
(f) If the Office determines under Sec. 1194.202(e) that the item
is an Item Prohibited from Exportation subject to forfeiture, the
exporter may appeal that determination under subpart D of this part.
Sec. 1194.203 What is the process for forfeiture proceedings?
Property seized for violations of the Act and subject to forfeiture
may be forfeited, depending upon the nature of the property, through
civil administrative procedures, civil judicial procedures, or criminal
forfeiture proceedings. Upon the expiration of the period for appeal of
detention under Sec. 1194.202(f), or the final exhaustion of
Department administrative remedies, the Office may refer the item to an
appropriate Federal agency or U.S. Attorney's Office for forfeiture
proceedings under the appropriate administrative or judicial
authorities. The Office will retain the item in its custody unless the
agency or U.S. Attorney's Office needs the item for its investigation.
Sec. 1194.204 Does safe harbor apply to this regulation?
(a) If the exporter voluntarily returns the item or directs that
the item be returned to the appropriate Indian Tribe or Native Hawaiian
organization, in accordance with Sec. 1194.201(i) of this part prior
to the commencement of an active Federal investigation into the
trafficking of the item or into the trafficking of cultural items or
archeological resources by the applicant, the exporter shall not be
prosecuted for a violation of the Act with respect to the item.
(b) For purposes of Sec. 1194.204(a), the following actions shall
not be considered to be actions that commence an active Federal
investigation:
(1) The submission by the exporter of an export certification
application for the item under Sec. 1194.103;
(2) The detention of the item by CBP under Sec. 1194.201;
(3) The retrieval of the detained item by the Office from CBP under
Sec. 1194.202; or
(4) The seizure by the Office of the item under Sec. 1194.202.
Sec. 1194.205 What are civil penalties for violations of this
regulation?
(a) If the item is an item prohibited from exportation, the base
penalty amount is $800.
(b) If the item is an item requiring export certification, the base
penalty amount is $8,000.
(1) The Act authorizes the assessment of civil penalties for
violations of the Act, subject to annual adjustments based on inflation
under the Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (Pub. L. 114-74).
(2) The base penalty amount may be increased after considering:
(i) The ceremonial or cultural value of the item requiring export
certification involved, as identified by any aggrieved Indian Tribe or
Native Hawaiian organization;
(ii) The archaeological, historical, or commercial value of the
item requiring export certification involved;
(iii) The economic and non-economic damages suffered by any
aggrieved Indian Tribe or Native Hawaiian organization, including
expenditures by the aggrieved party to compel the exporter to comply
with the Act or this regulation;
(iv) The number of prior violations by the exporter that have
occurred;
(v) The cost of storing and repatriating the item, or
(vi) Any other appropriate factor justifying an increase.
Sec. 1194.206 How is an item repatriated or returned?
(a) If an item is deemed abandoned under Sec. 1194.201(h) or (i),
the Office will expeditiously repatriate the item prohibited from
exportation to:
(1) the Indian Tribe or Native Hawaiian organization from whose
Tribal land the item was removed or who is culturally affiliated with
the item, for cultural items under NAGPRA; or
(2) the Indian Tribe from whose Indian land the item was removed,
for archaeological resources under ARPA.
(b) After an administrative declaration of forfeiture or a final
order of forfeiture
[[Page 85097]]
in a judicial proceeding, the Department may, consistent with
applicable law and regulations governing the remission and mitigation
of forfeitures, seek the item prohibited from exportation and
repatriate it to:
(1) The Indian Tribe or Native Hawaiian organization from whose
Tribal land the item was removed or who is culturally affiliated with
the item, for cultural items under NAGPRA; or
(2) The Indian Tribe from whose Indian land the item was removed,
for archaeological resources under ARPA.
(c) The Office will return the item requiring export certification
to the exporter if:
(1) The Office does not make the required determination by the
deadline under Sec. 1194.202(e);
(2) The Office determines under Sec. 1194.15(e) that the item is
not an Item Prohibited from Exportation;
(3) The exporter is successful in the appeal under Sec.
1194.202(f).
(d) The Office will issue a letter or other document authorizing
the return of the property. This letter or other document will be
delivered personally or sent by registered or certified mail, return
receipt requested, and will identify the owner or consignee, the seized
property, and, if appropriate, the custodian of the seized property. It
will also provide that, upon presentation of the letter or other
document and proper identification, and the signing of a receipt
provided by the Office, the seized property is authorized to be
released, provided it is properly marked in accordance with applicable
State or Federal requirements.
(e) The return of an item under Sec. 1194.206(d) does not mean
that the item is eligible for an export certification, nor does it
substitute for an export certification. To export the item, the
exporter must apply for, and receive an export certification under
subpart B of this part.
Subpart D--Administrative Appeals
Sec. 1194.301 What is the purpose of this section?
Any exporter wishing to appeal the Office's denial of an export
certification application under Sec. 1194.105 or detention of an item
requiring export certification under Sec. 1194.202 part must follow
the procedures in this regulation. The provisions of 25 CFR part 2 do
not apply to decisions under this regulation. No decision, which at the
time of its rendition is subject to appeal under this subpart, shall be
considered final so as to constitute agency action subject to judicial
review. The decision being appealed shall not be effective during the
pendency of the appeal.
Sec. 1194.302 How do I request a hearing?
(a) To begin an appeal under this subpart, the exporter must file a
written request for a hearing under Sec. 1194.302(b). The request for
hearing and any document filed thereafter with the Departmental Cases
Hearings Division (DCHD) under this section are subject to the rules
that govern the method and effective date of filing and service under
the subparts applicable to DCHD in 43 CFR part 4. If the exporter does
not file a written request for a hearing in 45 days from the date of
the denial or detention, the exporter waives the right to request a
hearing and has failed to exhaust administrative remedies.
(b) The exporter must file the written request for a hearing with
the DCHD, Office of Hearings and Appeals (OHA), U.S. Department of the
Interior, at the mailing address specified in the OHA Standing Orders
on Contact Information, or by electronic means under the terms
specified in the OHA Standing Orders on Electronic Transmissions. A
copy of the request must be served on the Solicitor of the Department
of the Interior at the address specified in the OHA Standing Orders on
Contact Information and on any culturally affiliated Indian Tribe or
Native Hawaiian organization using the contact information in the
Federal Register notice published by the Secretary under Sec.
1194.101. The Standing Orders are available on the Department of the
Interior OHA's website at <a href="https://www.doi.gov/oha">https://www.doi.gov/oha</a>.
(c) The request for a hearing must:
(1) Include a copy of the denial of the export certification
application or the notice of detention;
(2) State the relief sought by the exporter; and
(3) Include the basis for challenging the facts used to deny the
application or detain the Item.
(d) Upon receiving a request for a hearing, DCHD will assign an
administrative law judge to the case and promptly give notice of the
assignment to the exporter, the Office of the Solicitor, and any
culturally affiliated Indian Tribe or Native Hawaiian organization.
Thereafter, each filing must be addressed to the administrative law
judge and a copy served on each opposing party or its counsel.
(1) Subject to the provisions of 43 CFR 1.3, an exporter may appear
by authorized representative or by counsel and may participate fully in
the proceedings. If the exporter does not appear and the administrative
law judge determines that this absence is without good cause, the
administrative law judge may, at the judge's discretion, determine that
the exporter has waived the right to a hearing and consents to the
making of a decision on the record.
(2) The Department of the Interior counsel is designated by the
Office of the Solicitor of the Department of the Interior. No later
than 20 days after receipt of its copy of the written request for
hearing, Departmental counsel must file with the DCHD an entry of
appearance on behalf of the Office and the following:
(i) Any Application for Export Certification with all supporting
documents. The Application and supporting documents will be filed under
seal and available only to the administrative law judge. Alternatively,
the Office may provide the administrative law judge with read-only
access to the appropriate records in the database under Sec. 1194.107;
(ii) Any written communications between the Office and the exporter
concerning the application;
(iii) Any written communications between the Office and culturally
affiliated Indian Tribes or Native Hawaiian organizations concerning
the application or detention. Such communications will be filed under
seal and treated as confidential information available to the exporter
only under a protective order;
(iv) A written description of any item requiring export
certification that has been detained. The description may include
photographs of the item, but only with the consent of the culturally
affiliated Indian Tribe or Native Hawaiian organization. The
description and any photographs will be filed under seal and treated as
confidential information available to the exporter only under a
protective order; and
(v) Any other information considered by the Office in reaching the
decision being challenged.
(3) Any Indian Tribe or Native Hawaiian organization that is
culturally affiliated with the item that has been detained or the item
requiring export certification is a required party to the hearing and
any appeal.
Sec. 1194.303 What are the hearing procedures?
(a) To the extent they are not inconsistent with this section, the
rules in the subparts applicable to DCHD in 43 CFR part 4 apply to the
hearing process.
(b) The administrative law judge has all powers necessary to
conduct a fair, orderly, expeditious, and impartial hearing process,
and to render a
[[Page 85098]]
decision under 5 U.S.C. 554 through 557.
(c) The administrative law judge will render a written decision.
The decision must set forth the findings of fact and conclusions of
law, and the reasons and basis for them.
(d) The administrative law judge's decision shall be the final
administrative decision of the Secretary and will take effect 31 days
from the date of the decision unless the exporter or the Indian Tribe
or Native Hawaiian organization files a notice of appeal as described
in Sec. 1194.302. If the exporter does not file a notice of appeal 30
days from the date of the administrative law judge's decision, the
exporter has failed to exhaust administrative remedies.
Sec. 1194.304 How do I appeal a decision?
(a) The exporter or culturally affiliated Indian Tribe or Native
Hawaiian organization seeking review of the decision of the
administrative law judge must file a written notice of appeal no later
than 30 days after the date of the decision. The notice of appeal must
be filed with the Interior Board of Indian Appeals (IBIA), Office of
Hearings and Appeals (OHA), U.S. Department of the Interior, at the
mailing address specified in the OHA Standing Orders on Contact
Information, or by electronic means under the terms specified in the
OHA Standing Orders on Electronic Transmission. The Standing Orders are
available on the Department of the Interior OHA's website at <a href="https://www.doi.gov/oha">https://www.doi.gov/oha</a>. The notice of appeal must be accompanied by proof of
service on the administrative law judge and each opposing party. The
notice of appeal and any document filed thereafter with the IBIA are
subject to the rules that govern the method and effective date of
filing under 43 CFR 4.310.
(b) To the extent they are not inconsistent with this section, the
provisions of 43 CFR part 4, subpart D, apply to the appeal process.
(c) The IBIA's decision will be in writing and takes effect as the
final administrative decision of the Secretary on the date that the
IBIA's decision is rendered, unless otherwise specified in the
decision.
(d) OHA decisions in proceedings instituted under this subpart are
posted on OHA's website.
(e) The final administrative decision of the Secretary will be
final agency action for purposes of 5 U.S.C. 704, only if the exporter
has exhausted all administrative remedies under this subpart.
Subpart E--Voluntary Return of Tangible Cultural Heritage
Sec. 1194.401 What is the purpose of this section?
An individual or organization may return tangible cultural heritage
under this part. The goal of this subpart is to facilitate the return
of cultural items and Native American human remains to Indian Tribes
and Native Hawaiian organizations. If the voluntary return is of an
item subject to NAGPRA by a museum as that term is defined in NAGPRA,
the return of that item will follow the process under section 7 of
NAGPRA (25 U.S.C. 3005) rather than the process in this regulation.
Sec. 1194.402 When is consultation initiated?
(a) An individual or organization that is seeking to voluntarily
return tangible cultural heritage under this subpart must compile a
simple itemized list and description of any tangible cultural heritage.
The simple itemized list must include, to the extent that the
individual or organization has the required information:
(1) The geographical location (provenance) by county or State where
the tangible cultural heritage was removed;
(2) The acquisition history (provenance) of the tangible cultural
heritage;
(3) Other information available for identifying a culturally
affiliated Indian Tribe or Native Hawaiian organization; and
(4) The presence of any potentially hazardous substances used to
treat the tangible cultural heritage, if known.
(b) The individual or organization should submit this list to the
Office. In consultation with Indian Tribes, Native Hawaiian
organizations, and the Native Working Group convened under subpart G of
this part, the Office will determine what Indian Tribe or Native
Hawaiian organization is potentially culturally affiliated with the
tangible cultural heritage, and provide its contact information to the
individual or organization. The Office will also provide the contact
information of the individual or organization to the identified Indian
Tribe or Native Hawaiian organization with the list compiled under
Sec. 1194.402(a).
Sec. 1194.403 What is the process for consultation and return of
items under this regulation?
(a) After the Office transmits the contact information under Sec.
1194.402, the individual or organization and the Indian Tribe or Native
Hawaiian organization will contact each other and arrange for
consultation and return of the tangible cultural heritage.
(b) At the request of the Indian Tribe or Native Hawaiian
organization, the Departments of Homeland Security and State will
facilitate the transportation and importation of the tangible cultural
heritage.
(c) At the request of the Indian Tribe or Native Hawaiian
organization, the Interagency Working Group convened under subpart F of
this part will explore funding mechanisms to pay the expenses of the
Indian Tribe or Native Hawaiian organization for the return of tangible
cultural heritage. Assistance to the Indian Tribe or Native Hawaiian
organization could also be in the form of in-kind resources.
(d) Upon a successful voluntary return, and with the consent of the
Indian Tribe or Native Hawaiian organization, the Office will provide
the individual or organization with tax documentation for a charitable
gift to the Indian Tribe or Native Hawaiian organization that may be
tax deductible if the requirements under 26 U.S.C. 170 and 26 CFR part
1 are satisfied.
Subpart F--Interagency Working Group
Sec. 1194.501 What is the Interagency Working Group?
The Office will convene the Interagency Working Group to coordinate
the policy-making process with respect to facilitation of the
repatriation to Indian Tribes and Native Hawaiian organizations of
items that have been illegally removed or trafficked in violation of
applicable law; protection of tangible cultural heritage, cultural
items, Native American human remains, and archaeological resources
still owned or controlled by Indian Tribes and Native Hawaiian
organizations; and support for improvements in implementation of
NAGPRA, ARPA, and other relevant Federal law.
Sec. 1194.502 What is the membership of Interagency Working Group?
The Departments of Justice, State, and Homeland Security shall each
designate a responsible office and individual to serve on the
Interagency Working Group. The Office will represent the Secretary of
the Interior on the Working Group.
Sec. 1194.503 What are the duties of the Interagency Working Group?
The Interagency Working Group will aid in implementation of the Act
by, including but not limited to, facilitating the voluntary return of
tangible cultural heritage, attempting to prevent
[[Page 85099]]
international sales of items that are prohibited from being trafficked
under Federal law, and collaborating with the Native Working Group, the
NAGPRA Review Committee, and the Cultural Heritage Coordinating
Committee.
Subpart G--Native Working Group
Sec. 1194.601 What is the relationship between the Office and the
Native Working Group?
The Office will provide administrative support to the Native
Working Group.
Sec. 1194.602 What is the membership of the Native Working Group?
(a) The Native Working Group is composed of representatives of
Indian Tribes and Native Hawaiian organizations with relevant
expertise.
(b) There are thirteen members of the Native Working Group: one
representing Indian Tribes in each Bureau of Indian Affairs Region, and
one representing Native Hawaiian organizations.
(c) The members of the Native Working Group are appointed by the
Secretary for an initial term of four years. A member may be
reappointed for a term of two years.
(d) Any Indian Tribe or Native Hawaiian organization may nominate a
person from a particular BIA Region or Hawai[revaps]i for membership,
even if that Indian Tribe or Native Hawaiian organization is not in
that Region or in Hawai[revaps]i. The Office will recommend a list of
candidates to the Secretary, in coordination with the Interagency
Working Group convened under subpart F of this part.
Sec. 1194.603 What are the duties of the Native Working Group?
(a) The Native Working Group may provide recommendations for
Federal agency action regarding:
(1) The voluntary return of tangible cultural heritage by
collectors, dealers, and other individuals and non-Federal
organizations that hold such tangible cultural heritage; and
(2) The elimination of illegal commerce of cultural items and
archaeological resources in the United States and foreign markets.
(b) Such recommendations shall be considered fully by affected
agencies, but shall not be binding upon any affected agency.
(c) The Office of Tribal Justice shall represent the Department of
Justice with regard to relevant matters before the Native Working Group
including receiving formal requests to initiate agency actions and to
provide information and assistance to the Native Working Group.
Requests to initiate litigation will be directed by the Office of
Tribal Justice to the appropriate litigation component within the
Department of Justice.
(d) Upon request from the Native Working Group, the Department of
State, in coordination with the Department of Justice when judicial
proceedings are initiated either domestically or abroad, may initiate
dialog through U.S. missions abroad, in coordination with the
Department of State's Cultural Heritage Center, with appropriate
foreign government offices.
(e) The Native Working Group may also request information or
assistance from:
(1) The Department of the Interior;
(2) The Department of Justice;
(3) The Department of Homeland Security;
(4) The Department of State;
(5) The Review Committee established under section 8(a) of NAGPRA;
(6) The Cultural Heritage Coordinating Committee established
pursuant to section 2 of the Protect and Preserve International
Cultural Property Act; or
(7) Any other relevant Federal agency, committee, or working group.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2024-24332 Filed 10-24-24; 8:45 am]
BILLING CODE 4337-15-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 25, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.