Safeguard Tribal Objects of Patrimony

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. See25 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: https://www.doi.gov/bureaus .

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 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 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 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 § 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 § 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 § 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 § 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 § 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 § 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- 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 § 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 § 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 § 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 § 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 § 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 § 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 § 1194.303. Part 4, in turn, contemplates certain 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 § 1194.603(c) and (d), and Native Working Group requests for assistance and information are set forth in proposed § 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.

Response: The Department anticipates providing tax documentation to an individual who successfully completes a voluntary return, as set forth in proposed § 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'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 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 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 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 https://www.regulations.gov 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 https://www.sba.gov/document/support-table-size-standards: