Civil penalties.
§ 10.12 Civil penalties.
(a) The Secretary's authority to assess civil penalties. The Secretary is authorized by section 9 of the Act to assess civil penalties on any museum that fails to comply with the requirements of the Act. The Assistant Secretary for Fish and Wildlife and Parks may act on behalf of the Secretary.
(b) Definition of “failure to comply.”
(1) Your museum has failed to comply with the requirements of the Act if it:
(i) After November 16, 1990, sells or otherwise transfers human remains, funerary objects, sacred objects, or objects of cultural patrimony contrary to provisions of the Act, including, but not limited to, an unlawful sale or transfer to any individual or institution that is not required to comply with the Act; or
(ii) After November 16, 1993, or a date specified under § 10.13, whichever deadline is applicable, has not completed summaries as required by the Act; or
(iii) After November 16, 1995, or a date specified under § 10.13, or the date specified in an extension issued by the Secretary, whichever deadline is applicable, has not completed inventories as required by the Act; or
(iv) After May 16, 1996, or 6 months after completion of an inventory under an extension issued by the Secretary, or 6 months after the date specified for completion of an inventory under § 10.13, whichever deadline is applicable, has not notified culturally affiliated Indian tribes and Native Hawaiian organizations; or
(v) Refuses, absent any of the exemptions specified in § 10.10(c) of this part, to repatriate human remains, funerary object, sacred object, or object of cultural patrimony to a lineal descendant or culturally affiliated Indian tribe or Native Hawaiian; or
(vi) Repatriates a human remains, funerary object, sacred object, or object of cultural patrimony before publishing the required notice in the Federal Register;
(vii) Does not consult with lineal descendants, Indian tribe officials, and traditional religious leaders as required; or
(viii) Does not inform the recipients of repatriations of any presently known treatment of the human remains, funerary objects, sacred objects, or objects of cultural patrimony with pesticides, preservatives, or other substances that represent a potential hazard to the objects or to persons handling the objects.
(ix) Upon receipt of a claim consistent with § 10.11(c)(1), refuses to offer to transfer control of culturally unidentifiable human remains for which it cannot prove right of possession.
(2) Each instance of failure to comply will constitute a separate violation.
(c) How to notify the Secretary of a failure to comply. Any person may file an allegation of failure to comply. Allegations are to be sent to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at the mailing address listed on the National NAGPRA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation must be in writing, and should:
(1) Identify each provision of the Act with which there has been a failure to comply by a museum;
(2) Include facts supporting the allegation;
(3) Include evidence that the museum has possession or control of Native American cultural items; and
(4) Include evidence that the museum receives Federal funds.
(d) Steps the Secretary may take upon receiving such an allegation.
(1) The Secretary must acknowledge receipt of the allegation in writing.
(2) The Secretary also may:
(i) Compile and review information relevant to the alleged failure to comply. The Secretary may request additional information, such as declarations and relevant papers, books, and documents, from the person making the allegation, the museum, and other parties;
(ii) Identify the specific provisions of the Act with which you have allegedly failed to comply; and
(iii) Determine if the institution of a civil penalty action is an appropriate remedy.
(3) The Secretary must provide written notification to the person making the allegation and the museum if the review of the evidence does not show a failure comply.
(e) How the Secretary notifies you of a failure to comply.
(1) If the allegations are verified, the Secretary must serve you with a written notice of failure to comply either by personal delivery or by registered or certified mail (return receipt requested). The notice of failure to comply must include:
(i) A concise statement of the facts believed to show a failure to comply;
(ii) A specific reference to the provisions of the Act and/or these regulations with which you allegedly have not complied; and
(iii) Notification of the right to request an informal discussion with the Secretary or a designee, to request a hearing, as provided below, or to await the Secretary's notice of assessment. The notice of failure to comply also must inform you of your right to seek judicial review of any final administrative decision assessing a civil penalty.
(2) With your consent, the Secretary may combine the notice of failure to comply with the notice of assessment described in paragraph (h) of this section.
(3) The Secretary also must send a copy of the notice of failure to comply to:
(i) Any lineal descendant of a known Native American individual whose human remains, funerary objects, or sacred objects are in question; and
(ii) Any Indian tribes or Native Hawaiian organizations that are, or are likely to be, culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony in question.
(f) Actions you may take upon receipt of a notice of failure to comply. If you are served with a notice of failure to comply, you may:
(1) Seek informal discussions with the Secretary;
(2) Request a hearing. Figure 1 outlines the civil penalty hearing and appeal process. Where the Secretary has issued a combined notice of failure to comply and notice of assessment, the hearing and appeal processes will also be combined.
(3) Take no action and await the Secretary's notice of assessment.
(g) How the Secretary determines the penalty amount.
(1) The penalty amount must be determined on the record;
(2) The penalty amount must be .25 percent of your museum's annual budget, or $7,475, whichever is less, and such additional sum as the Secretary may determine is appropriate after taking into account:
(i) The archeological, historical, or commercial value of the human remains, funerary object, sacred object, or object of cultural patrimony involved; and
(ii) The damages suffered, both economic and non-economic, by the aggrieved party or parties including, but not limited to, expenditures by the aggrieved party to compel the museum to comply with the Act; and
(iii) The number of violations that have occurred at your museum.
(3) An additional penalty of up to $1,496 per day after the date that the final administrative decision takes effect may be assessed if your museum continues to violate the Act.
(4) The Secretary may reduce the penalty amount if there is:
(i) A determination that you did not willfully fail to comply; or
(ii) An agreement by you to mitigate the violation, including, but not limited to, payment of restitution to the aggrieved party or parties; or
(iii) A determination that you are unable to pay, provided that this factor may not apply if you have been previously found to have failed to comply with these regulations; or,
(iv) A determination that the penalty constitutes excessive punishment under the circumstances.
(h) How the Secretary assesses the penalty.
(1) The Secretary considers all available information, including information provided during the process of assessing civil penalties or furnished upon further request by the Secretary.
(2) The Secretary may assess the civil penalty upon completing informal discussions or when the period for requesting a hearing expires, whichever is later.
(3) The Secretary notifies you in writing of the penalty amount assessed by serving a written notice of assessment, either in person or by registered or certified mail (return receipt requested). The notice of assessment includes:
(i) The basis for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and
(ii) Notification of the right to request a hearing, including the procedures to follow, and to seek judicial review of any final administrative decision that assesses a civil penalty.
(i) Actions that you may take upon receipt of a notice of assessment. If you are served with a notice of assessment, you may do one of the following:
(1) Accept in writing or by payment of the proposed penalty, or any mitigation or remission offered in the notice of assessment. If you accept the proposed penalty, mitigation, or remission, you waive the right to request a hearing.
(2) Seek informal discussions with the Secretary.
(3) File a petition for relief. You may file a petition for relief within 45 calendar days of receiving the notice of assessment. A petition for relief is to be sent to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at the mailing address listed on the National NAGRPA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. Your petition may ask the Secretary not to assess a penalty or to reduce the penalty amount. Your petition must:
(i) Be in writing and signed by an official authorized to sign such documents; and
(ii) Fully explain the legal or factual basis for the requested relief.
(4) Request a hearing. Figure 1 outlines the civil penalty hearing and appeal process.
(i) In addition to the documentation required in paragraph (g) of this section, your request must include a copy of the notice of assessment and must identify the basis for challenging the assessment.
(ii) In this hearing, the amount of the civil penalty assessed must be determined in accordance with paragraph (h) of this section, and will not be limited to the amount assessed by the Secretary or any offer of mitigation or remission made by the Secretary.
(j) How you request a hearing. You may file a written, dated request for a hearing on a notice of failure to comply or notice of assessment with the Departmental Cases Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 405 South Main Street, Suite 400, Salt Lake City, UT 84111. You must also serve a copy of the request on the Solicitor of the Department of the Interior personally or by registered or certified mail (return receipt requested) at the address specified in the notice.
(1) Your request for a hearing must:
(i) Include a copy of the notice of failure to comply or the notice of assessment;
(ii) State the relief sought;
(iii) State the basis for challenging the facts used as the basis for determining the failure to comply or fixing the assessment; and
(iv) State your preferred place and date for a hearing.
(2) Your failure to file a written request for a hearing within 45 days of the date of service of a notice of failure to comply or notice of assessment waives your right to a hearing.
(3) Upon receiving a request for a hearing, the Hearings Division assigns an administrative law judge to the case, gives notice of assignment promptly to the parties, and files all pleadings, papers, and other documents in the proceeding directly with the administrative law judge, with copies served on the opposing party.
(4) Subject to the provisions of 43 CFR 1.3, you may appear by representative or by counsel, and may participate fully in the proceedings. If you fail to appear and the administrative law judge determines that this failure is without good cause, the administrative law judge may, in his/her discretion, determine that this failure waives your right to a hearing and consent to the making of a decision on the record.
(5) Departmental counsel, designated by the Solicitor of the Department of the Interior, represents the Secretary in the proceedings. Upon notice to the Secretary of the assignment of an administrative law judge to the case, this counsel must enter his/her appearance on behalf of the Secretary and must file all petitions and correspondence exchanges by the Secretary and the respondent that become part of the hearing record. Thereafter, you must serve all documents for the Secretary on his/her counsel.
(6) Hearing Administration. Hearings must take place following the procedures in 43 CFR Part 4, Subparts A and B.
(i) The administrative law judge has all powers accorded by law and necessary to preside over the parties and the proceedings and to make decisions under 5 U.S.C. 554-557.
(ii) The transcript of testimony; the exhibits; and all papers, documents, and requests filed in the proceedings constitute the record for decision. The administrative law judge renders a written decision upon the record, which sets forth his/her findings of fact and conclusions of law, and the reasons and basis for them.
(iii) Unless you file a notice of appeal described in these regulations, the administrative law judge's decision constitutes the final administrative determination of the Secretary in the matter and takes effect 30 calendar days from this decision.
(k) How you appeal a decision.
(1) Either you or the Secretary may appeal the decision of an administrative law judge by filing a Notice of Appeal. Send your Notice of Appeal to the Interior Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203, within 30 calendar days of the date of the administrative law judge's decision. The notice must be accompanied by proof of service on the administrative law judge and the opposing party.
(2) To the extent they are not inconsistent with these regulations, the provisions of the Department of the Interior Hearings and Appeals Procedures in 43 CFR part 4, subpart D, apply to such appeal proceedings. The appeal board's decision on the appeal must be in writing and takes effect as the final administrative determination of the Secretary on the date that the decision is rendered, unless otherwise specified in the decision.
(3) You may obtain copies of decisions in civil penalty proceedings instituted under the Act by sending a request to the Interior Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees for this service are established by the director of that office.
(l) The final administrative decision.
(1) When you have been served with a notice of assessment and have accepted the penalty as provided in these regulations, the notice constitutes the final administrative decision.
(2) When you have been served with a notice of assessment and have not filed a timely request for a hearing as provided in these regulations, the notice of assessment constitutes the final administrative decision.
(3) When you have been served with a notice of assessment and have filed a timely request for a hearing as provided in these regulations, the decision resulting from the hearing or any applicable administrative appeal from it constitutes the final administrative decision.
(m) How you pay the penalty.
(1) If you are assessed a civil penalty, you have 45 calendar days from the date of issuance of the final administrative decision to make full payment of the penalty assessed to the Secretary, unless you have filed a timely request for appeal with a court of competent jurisdiction.
(2) If you fail to pay the penalty, the Secretary may request the Attorney General of the United States to collect the penalty by instituting a civil action in the U.S. District Court for the district in which your museum is located. In these actions, the validity and amount of the penalty is not subject to review by the court.
(3) Assessing a penalty under this section is not a waiver by the Secretary of the right to pursue other available legal or administrative remedies.
[68 FR 16360, Apr. 3, 2003, as amended at 70 FR 57179, Sept. 30, 2005; 75 FR 12404, Mar. 15, 2010; 75 FR 64670, Oct. 20, 2010; 78 FR 27083, May 9, 2013; 81 FR 41859, June 28, 2016; 81 FR 64356, Sept. 20, 2016; 82 FR 10866, Feb. 16, 2017; 83 FR 4152, Jan. 30, 2018; 84 FR 6977, Mar. 1, 2019; 85 FR 8190, Feb. 13, 2020; 86 FR 7655, Feb. 1, 2021; 87 FR 4817, Jan. 31, 2022]
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