05-19547. Native American Graves Protection and Repatriation Act Regulations

AGENCY:

Department of the Interior.

ACTION:

Final rule; Technical amendment.

SUMMARY:

The Native American Graves Protection and Repatriation Act of 1990 (the Act) assigns responsibility for implementation to the Secretary of the Interior. Secretarial Order 3261 assigns some of these responsibilities to other positions in the Department of the Interior and National Park Service. This technical amendment amends the rule to be consistent with the new assignment of responsibilities.

DATES:

Effective September 30, 2005.

FOR FURTHER INFORMATION CONTACT:

Dr. Sherry Hutt, Manager, National NAGPRA Program, National Park Service, 1849 C Street NW., (2253), Washington, DC 20240, telephone [phone], facsimile [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Background

On November 16, 1990, President George H.W. Bush signed the Native American Graves Protection and Repatriation Act of 1990 (the Act) into law. The Act addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony with which they are affiliated. The Act assigns implementation responsibilities to the Secretary of the Interior.

Technical Amendment

Secretarial Order 3261 reassigns some of these implementation responsibilities to other positions in the Department of the Interior and National Park Service to ensure efficient and effective implementation of the statutory requirements.

Pursuant to the Secretarial Order, the Assistant Secretary for Fish and Wildlife and Parks is responsible for issuing regulations to carry out the Act after consultation with the Assistant Secretary for Indian Affairs; granting extensions of inventory deadlines; awarding grants to assist in implementation of NAGPRA to Indian tribes, Native Hawaiian organizations, and museums. In consultation with the Office of the Solicitor, the Assistant Secretary for Fish and Wildlife and Parks is also responsible for executing provisions of the Act regarding civil penalties against museums that fail to comply with NAGPRA, including investigating allegations of failure to comply with NAGPRA requirements and developing and assessing civil penalties.

The Manager, National NAGPRA Program, reporting to the National Park Service Director through the Associate Director for Cultural Resources, is responsible for managing the operations of the National NAGPRA Program and provides staff support to the Assistant Secretary for Fish and Wildlife and Parks. Such duties include preparing regulations for issuance by the Assistant Secretary for Fish and Wildlife and Parks; reviewing and recommending disposition of requests for extensions of the inventory deadline; publishing notices in the Federal Register; serving as the Designated Federal Official for the Native American Graves Protection and Repatriation Review Committee; in consultation with the Office of the Solicitor, providing technical assistance to the Department of Justice in implementation of the trafficking provisions of NAGPRA; developing and issuing guidelines, technical information, training and other programs; and administering grants to assist Indian tribes, Native Hawaiian organizations and museums in meeting their NAGPRA obligations. The National NAGPRA Program Manager is also responsible for providing staff to support the civil penalty responsibilities of the Assistant Secretary for Fish and Wildlife and Parks, who will report directly to the Assistant Secretary in the performance of these duties.

Some of the abovementioned responsibilities were previously assigned by regulation to the National Park Service Director or the Departmental Consulting Archeologist. This technical amendment revises the rule to be consistent with the realignment of implementation responsibilities in the Secretarial Order.

Good Cause for Immediate Adoption

The Department of the Interior is issuing this technical amendment without prior notice and opportunity for comment as allowed by the Administrative Procedure Act (APA) (5 U.S.C. 553(B)). This provision allows an agency to issue a regulatory action without notice and opportunity for comment when the agency for good cause finds that notice and comment procedures are “impracticable, unnecessary or contrary to the public interest.” This technical amendment will clarify the delegation implementation responsibilities. Immediate implementation of the provisions of this amendment will benefit the public by ensuring efficient administration of the provisions of the Act. Failure to implement this amendment immediately could result in confusion and inefficiency that would adversely affect the public interest. For this reason, the Department of the Interior has determined that prior notice and an opportunity for comment would be impracticable, unnecessary, and contrary to the public interest. This same rationale provides good cause to make the technical amendment effective immediately upon publication, as allowed by the Administrative Procedure Act (553 U.S.C. (d)(3)).

Compliance With Laws and Executive Orders

Regulatory Planning and Review (Executive Order 12866)

This document is not a significant rule and has not been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies or controls. This rule is an agency-specific rule.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

The Department of the Interior certifies that this rulemaking will 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.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and does not impose any other requirements on other agencies, governments, or the private sector.

Takings (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on Federally recognized Indian tribes and have determined that there are no potential effects.

List of Subjects in 43 CFR Part 10

• Administrative practices and procedure
• Hawaiian Natives
• Historic Preservation
• Indians—Claims,

For the reasons stated in the preamble, the Department of the Interior amends title 43, Code of Federal Regulations, as follows:

PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT REGULATIONS

1. The authority citation for Part 10 continues to read as follows:

Authority: 25 U.S.C. 3001 et seq.

2. Amend § 10.2 by revising the second sentence of paragraph (b)(2) and revising paragraph (c)(3) to read as follows:

§ 10.2

Definitions.

(b) * * *

(2) * * * The Secretary will make available a list of Indian tribes and Indian tribal officials for the purposes of carrying out this statute through the Manager, National NAGPRA Program.

* * * * *

(c) * * *

(3) Manager, National NAGPRA Program means the official of the Department of the Interior designated by the Secretary as responsible for administration of matters relating to this part. Communications to the Manager, National NAGPRA Program, should be addressed to: Manager, National NAGPRA Program, National Park Service (MS 2253 MIB), 1849 C Street NW., Washington, DC 20240.

3. Revise paragraph (a) of § 10.12 to read as follows:

§ 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.

* * * * *

Subpart D to Part 10—[Nomenclature Change]

4. In Subpart D, remove the words “Departmental Consulting Archeologist” wherever they appear and add in their place the words “Manager, National NAGPRA Program”.

Dated: September 14, 2005.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.