25 USC 3077 - Treatment under Freedom of Information Act

Collapse to view only § 3077. Treatment under Freedom of Information Act

§ 3071. Purposes
§ 3072. Definitions
§ 3073. Export prohibitions; export certification system; international agreements
§ 3074. Voluntary return of tangible cultural heritage
§ 3075. Interagency working group
§ 3076. Native working group
§ 3077. Treatment under Freedom of Information Act
§ 3078. Regulations
§ 3079. Authorization of appropriations

§ 3071. PurposesThe purposes of this chapter are—

(1) to carry out the trust responsibility of the United States to Indian Tribes;

(2) to increase the maximum penalty for actions taken in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act), in order to strengthen deterrence;

(3) to stop the export, and facilitate the international repatriation, of cultural items prohibited from being trafficked by the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act) and archaeological resources prohibited from being trafficked by the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.) by—

(A) explicitly prohibiting the export;

(B) creating an export certification system; and

(C) confirming the authority of the President to request from foreign nations agreements or provisional measures to prevent irremediable damage to Native American cultural heritage;

(4) to establish a Federal framework in order to support the voluntary return by individuals and organizations of items of tangible cultural heritage, including items covered by the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act) and the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.);

(5) to establish an interagency working group to ensure communication between Federal agencies to successfully implement this chapter, the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and other relevant Federal laws;

(6) to establish a Native working group of Indian Tribes and Native Hawaiian organizations to assist in the implementation of this chapter, the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), and other relevant Federal laws;

(7) to exempt from disclosure under section 552 of title 5 (commonly known as the “Freedom of Information Act”)—

(A) information submitted by Indian Tribes or Native Hawaiian organizations pursuant to this chapter; and

(B) information relating to an Item Requiring Export Certification for which an export certification was denied pursuant to this chapter; and

(8) to encourage buyers to purchase legal contemporary art made by Native artists for commercial purposes.

(Pub. L. 117–258, § 2, Dec. 21, 2022, 136 Stat. 2372.)

§ 3072. DefinitionsIn this chapter:

(1) Archaeological resource

(2) Cultural affiliation

(3) Cultural item

(4) Indian Tribe

(5) Item Prohibited from ExportationThe term “Item Prohibited from Exportation” means—

(A) a cultural item prohibited from being trafficked, including through sale, purchase, use for profit, or transport for sale or profit, by—

(i)section 1170(b) of title 18, as added by the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); or

(ii) any other Federal law or treaty; and

(B) an archaeological resource prohibited from being trafficked, including through sale, purchase, exchange, transport, receipt, or offer to sell, purchase, or exchange, including in interstate or foreign commerce, by—

(i) subsections (b) and (c) of section 470ee of title 16; or

(ii) any other Federal law or treaty.

(6) Item Requiring Export Certification

(A) In generalThe term “Item Requiring Export Certification” means—

(i) a cultural item; and

(ii) an archaeological resource.

(B) Exclusion

(7) Native AmericanThe term “Native American” means—

(A) Native American (as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001)); and

(B) Native Hawaiian (as so defined).

(8) Native Hawaiian organization

(9) Secretary

(10) Tangible cultural heritageThe term “tangible cultural heritage” means—

(A) Native American human remains; or

(B) culturally, historically, or archaeologically significant objects, resources, patrimony, or other items that are affiliated with a Native American culture.

(Pub. L. 117–258, § 3, Dec. 21, 2022, 136 Stat. 2373.)

§ 3073. Export prohibitions; export certification system; international agreements

(a) Export prohibitions

(1) In generalIt shall be unlawful for any person—

(A) to export, attempt to export, or otherwise transport from the United States any Item Prohibited from Exportation;

(B) to conspire with any person to engage in an activity described in subparagraph (A); or

(2) Penalties

(3) Detention, forfeiture, and repatriation

(A) Detention and deliveryThe Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall—

(i) detain any Item Prohibited from Exportation that is exported, attempted to be exported, or otherwise transported from the United States in violation of paragraph (1); and

(ii) deliver the Item Prohibited from Exportation to the Secretary.

(B) Forfeiture

(C) RepatriationAny Item Prohibited from Exportation that is forfeited under subparagraph (B) shall be expeditiously repatriated to the appropriate Indian Tribe or Native Hawaiian organization in accordance with, as applicable—

(i) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act); or

(ii) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.).

(b) Export certification system

(1) Export certification requirement

(A) In general

(B) PublicationThe Secretary, in consultation with Indian Tribes and Native Hawaiian organizations, shall publish in the Federal Register a notice that includes—

(i) a description of characteristics typical of Items Requiring Export Certification, which shall—(I) include the definitions of the terms—(aa) “cultural items” in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and(bb) “archaeological resource” in section 3 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb);(II) describe the provenance requirements associated with the trafficking prohibition applicable to—(aa) cultural items under section 1170(b) of title 18; and(bb) archaeological resources under subsections (b) and (c) of section 6 of Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ee);(III)(aa) include the definitions of the terms “Native American” and “Native Hawaiian” in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001); and(bb) describe how those terms apply to archaeological resources under this chapter; and(IV) be sufficiently specific and precise to ensure that—(aa) an export certification is required only for Items Requiring Export Certification; and(bb) fair notice is given to exporters and other persons regarding which items require an export certification under this subsection; and

(ii) a description of characteristics typical of items that do not qualify as Items Requiring Export Certification and therefore do not require an export certification under this subsection, which shall clarify that—(I) an item made solely for commercial purposes is presumed to not qualify as an Item Requiring Export Certification, unless an Indian Tribe or Native Hawaiian organization challenges that presumption; and(II) in some circumstances, receipts or certifications issued by Indian Tribes or Native Hawaiian organizations with a cultural affiliation with an item may be used as evidence to demonstrate a particular item does not qualify as an Item Requiring Export Certification.

(2) Eligibility for export certificationAn Item Requiring Export Certification is eligible for an export certification under this subsection if—

(A) the Item Requiring Export Certification is not under ongoing Federal investigation;

(B) the export of the Item Requiring Export Certification would not otherwise violate any other provision of law; and

(i) is not an Item Prohibited from Exportation;

(ii) was excavated or removed pursuant to a permit issued under section 4 of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470cc) and in compliance with section 3(c) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002(c)), if the permit for excavation or removal authorizes export; or

(iii) is accompanied by written confirmation from the Indian Tribe or Native Hawaiian organization with authority to alienate the Item Requiring Export Certification that—(I) the exporter has a right of possession (as defined in section 2 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001)) of the Item Requiring Export Certification; or(II) the Indian Tribe or Native Hawaiian organization has relinquished title or control of the Item Requiring Export Certification in accordance with section 3 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3002).

(3) Export certification application and issuance procedures

(A) Applications for export certification

(i) In general

(ii) Consequences of false statementAny willful or knowing false statement made on an export certification application form under clause (i) shall—(I) subject the exporter to criminal penalties pursuant to section 1001 of title 18; and(II) prohibit the exporter from receiving an export certification for any Item Requiring Export Certification in the future unless the exporter submits additional evidence in accordance with subparagraph (B)(iii)(I).

(iii) Form of export certification applicationThe Secretary, in consultation with Indian Tribes and Native Hawaiian organizations, and at the discretion of the Secretary, in consultation with third parties with relevant expertise, including institutions of higher education, museums, dealers, and collector organizations, shall develop an export certification application form, which shall require that an applicant—(I) describe, and provide pictures of, each Item Requiring Export Certification that the applicant seeks to export;(II) include all available information regarding the provenance of each such Item Requiring Export Certification; and(III) include the attestation described in subparagraph (B)(i).

(B) Evidence

(i) In general

(ii) Sufficiency of attestation

(iii) Additional requirements(I) In general(II) Delays or denialsThe Secretary shall give notice to an exporter that submits an export certification application under subparagraph (A)(i) that the exporter may submit additional evidence in accordance with subclause (III) if the issuance of an export certification is—(aa) delayed pursuant to the examination by the Secretary of the eligibility of the Item Requiring Export Certification for an export certification; or(bb) denied by the Secretary because the Secretary determined that the Item Requiring Export Certification is not eligible for an export certification under this subsection.(III) Additional evidence

(i) In general

(ii) Collaboration required

(iii) Availability

(iv) Deletion from database

(v) Technical assistance

(D) Issuance of export certification

(i) On receipt of an export certification application for an Item Requiring Export Certification that meets the requirements of subparagraphs (A) and (B), if the Secretary, in consultation with Indian Tribes and Native Hawaiian organizations with a cultural affiliation with the Item Requiring Export Certification, determines that the Item Requiring Export Certification is eligible for an export certification under paragraph (2), the Secretary may issue an export certification for the Item Requiring Export Certification.

(ii) On receipt of an export certification application for an Item Requiring Export Certification that meets the requirements of subparagraphs (A) and (B)—(I) the Secretary shall have 1 business day to notify the relevant Indian Tribes and Native Hawaiian Organizations of an application for export of an Item Requiring Export Certification;(II) Indian Tribes and Native Hawaiian organizations shall have 9 business days to review the export certification application;(III) if an Indian Tribe or Native Hawaiian organization notifies the Secretary that the Item Requiring Export Certification may not be eligible for an export certification under paragraph (2), the Secretary shall have 7 business days to review the application;(IV) if no Indian Tribe or Native Hawaiian organization so notifies the Secretary, the Secretary shall have 1 business day to review the application;(V) with notice to the exporter, the Secretary may extend the review of an application for up to 30 business days if credible evidence is provided that the Item Requiring Export Certification may not be eligible for an export certification under paragraph (2); and(VI) the Secretary shall make a determination to approve or deny the export certification application within the time allotted.

(E) Revocation of export certification

(i) In general

(ii) Determination

(4) Detention, forfeiture, repatriation, and return

(A) Detention and deliveryThe Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall—

(i) detain any Item Requiring Export Certification that an exporter attempts to export or otherwise transport without an export certification; and

(ii) deliver the Item Requiring Export Certification to the Secretary, for seizure by the Secretary.

(B) Forfeiture

(i) In general

(ii) RepatriationIf an Item Requiring Export Certification is determined by the Secretary to be an Item Prohibited from Exportation and is forfeited under subparagraph (B), the item shall be expeditiously repatriated to the appropriate Indian Tribe or Native Hawaiian organization in accordance with, as applicable—(I) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act); or(II) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.).

(iii) Return to exporter(I) In general(II) Effect

(5) Penalties

(A) Items requiring export certification

(i) In general

(ii) PenaltiesExcept as provided in subparagraph (D), any person who violates clause (i) shall be—(I) assessed a civil penalty in accordance with such regulations as the Secretary promulgates pursuant to section 3078 of this title; and(II) subject to any other applicable penalties under this chapter.

(B) Items prohibited from exportation

(C) Use of fines collectedAny amounts collected by the Secretary as a civil penalty under subparagraph (A)(ii)(I) or (B) shall be credited to the currently applicable appropriation, account, or fund of the Department of the Interior as discretionary offsetting collections and shall be available only to the extent and in the amounts provided in advance in appropriations Acts—

(i) to process export certification applications under this subsection; and

(ii) to store and repatriate the Item Prohibited from Exportation.

(D) Voluntary return

(i) In general

(ii) Actions not commencing a Federal investigationFor purposes of clause (i), the following actions shall not be considered to be actions that commence an active Federal investigation:(I) The submission by the exporter of an export certification application for the Item Requiring Export Certification under paragraph (3)(A)(i).(II) The detention of the Item Requiring Export Certification by the Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, under paragraph (4)(A)(i).(III) The delivery to the Secretary of the Item Requiring Export Certification by the Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, under paragraph (4)(A)(ii).(IV) The seizure by the Secretary of the Item Requiring Export Certification under paragraph (4)(A)(ii).

(6) Fees

(A) In general

(B) Availability of amounts collected

(7) Administrative appeal

(8) Training

(A) In general

(B) U.S. Customs and Border Protection training

(c) Agreements to request return from foreign countriesThe President may request from foreign nations agreements that specify concrete measures that the foreign nation will carry out—

(1) to discourage commerce in, and collection of, Items Prohibited from Exportation;

(2) to encourage the voluntary return of tangible cultural heritage; and

(3) to expand the market for the products of Indian art and craftsmanship in accordance with section 305a of this title.

(Pub. L. 117–258, § 5, Dec. 21, 2022, 136 Stat. 2374.)

§ 3074. Voluntary return of tangible cultural heritage

(a) Liaison

(b) Trainings and workshops

(1) In general

(2) Referral representatives

(3) Consultation

(4) Third-party experts

(d) Legal liability

(e) Tax documentation

(f) Repatriation under Native American Graves Protection and Repatriation Act

(Pub. L. 117–258, § 6, Dec. 21, 2022, 136 Stat. 2382.)

§ 3075. Interagency working group

(a) In general

(b) GoalsThe goals of the interagency working group convened under subsection (a) are—

(1) to facilitate the repatriation to Indian Tribes and Native Hawaiian organizations of items that have been illegally removed or trafficked in violation of applicable law;

(2) to protect tangible cultural heritage, cultural items, and archaeological resources still in the possession of Indian Tribes and Native Hawaiian organizations; and

(3) to improve the implementation by the applicable Federal agencies of—

(A) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.) (including section 1170 of title 18, as added by that Act);

(B) the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.); and

(1) aid in implementation of this chapter and the amendments made by this Act, including by aiding in—

(A) the voluntary return of tangible cultural heritage under section 3074 of this title; and

(B) halting international sales of items that are prohibited from being trafficked under Federal law; and

(2) collaborate with—

(A) the Native working group convened under section 3076(a) of this title;

(B) the review committee established under section 8(a) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006(a));

(C) the Cultural Heritage Coordinating Committee established pursuant to section 2 of the Protect and Preserve International Cultural Property Act (Public Law 114–151; 19 U.S.C. 2601 note); and

(D) any other relevant committees and working groups.

(Pub. L. 117–258, § 7, Dec. 21, 2022, 136 Stat. 2383.)

§ 3076. Native working group

(a) In general

(b) Recommendations

The Native working group convened under subsection (a) may provide recommendations regarding—

(1) the voluntary return of tangible cultural heritage by collectors, dealers, and other individuals and non-Federal organizations that hold such tangible cultural heritage; and

(2) the elimination of illegal commerce of cultural items and archaeological resources in the United States and foreign markets.

The Native working group convened under subsection (a) may make formal requests to initiate certain agency actions, including requests that—

(1) the Department of Justice initiate judicial proceedings domestically or abroad to aid in the repatriation cultural items and archaeological resources; and

(2) the Department of State initiate dialogue through diplomatic channels to aid in that repatriation.

(d) Agency and committee assistance

(1) In general

(2) Description of agencies and committees

The agencies and committees referred to in paragraph (1) are the following:

(A) The Department of the Interior.

(B) The Department of Justice.

(D) The Department of State.

(E) The review committee established under section 3006(a) of this title.

(F) The Cultural Heritage Coordinating Committee established pursuant to section 2 of the Protect and Preserve International Cultural Property Act (Public Law 114–151; 19 U.S.C. 2601 note).

(G) Any other relevant Federal agency, committee, or working group.

(e) Applicability of Federal Advisory Committee Act

(Pub. L. 117–258, § 8, Dec. 21, 2022, 136 Stat. 2384.)

§ 3077. Treatment under Freedom of Information Act

(a) In generalExcept as provided in subsection (c), the following information shall be exempt from disclosure under section 552 of title 5:

(1) Information that a representative of an Indian Tribe or Native Hawaiian organization—

(A) submits to a Federal agency pursuant to this chapter or an amendment made by this Act; and

(B) designates as sensitive or private according to Native American custom, law, culture, or religion.

(2) Information that any person submits to a Federal agency pursuant to this chapter or an amendment made by this Act that relates to an item for which an export certification is denied under this chapter.

(b) Applicability

(Pub. L. 117–258, § 9, Dec. 21, 2022, 136 Stat. 2385.)

§ 3078. Regulations

Not later than 1 year after December 21, 2022, the Secretary, 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, shall promulgate rules and regulations to carry out this chapter.

(Pub. L. 117–258, § 10, Dec. 21, 2022, 136 Stat. 2385.)

§ 3079. Authorization of appropriations

There is authorized to be appropriated to carry out this chapter $3,000,000 for each of fiscal years 2022 through 2027.

(Pub. L. 117–258, § 11, Dec. 21, 2022, 136 Stat. 2385.)