Sec. 6. Export restrictions and authorities
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/bill/115/hr/7075/ih/section-6A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Whoever seeks to export a covered item without a required export certification but voluntarily returns the covered item to the Indian Tribe with a likely cultural affiliation prior to active investigation shall not be prosecuted for such violation with respect to the covered item. The process of obtaining an export certification does not qualify as active investigation. It shall be unlawful for any person to export or otherwise transport from the United States Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq. or 18 U.S.C. 1170 ), Native American archaeological resources obtained in violation of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and Native American objects of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code, and covered items under active Federal investigation.
Any person who violates paragraph
(1)knowing that the covered items were obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 et seq. or 18 U.S.C. 1170 ), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, shall be fined in accordance with section 3571 of title 18, United States Code, and shall be imprisoned for not more than 1 year for a first violation and not more than 10 years for a second or subsequent violation. No covered item may be exported from the United States without first having obtained an export certification in accordance with this subsection. The Secretary shall, in consultation with Indian Tribes, publish in the Federal Register a notice that includes— a description of characteristics typical of covered items which shall be sufficiently specific and precise to ensure export certification is required only of such covered items and that fair notice is given to exporters and other persons as to which items require an export certification; and a description of items that do not qualify as covered items and therefore do not require an export certification under this paragraph, which shall— clarify that objects made for commercial purposes generally do not qualify as a covered item; and clarify that in some circumstances receipts or certifications issued by Indian Tribes or Tribal artisans may be used as evidence to demonstrate a particular item does not qualify as a covered item. A covered item, absent an ongoing Federal investigation, shall be deemed eligible for export certification if it— was not obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 et seq. or 18 U.S.C. 1170 ), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, and the export of the covered item would not otherwise violate any other provision of Federal law; 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 ) or section 320302 of title 54, United States Code, or 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, and the export of the covered item would not otherwise violate any other provision of Federal law; or is accompanied with a confirmation from an Indian Tribe confirming the person’s right of possession, as defined in section 2 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 ), to the covered item, or confirming that the Indian Tribe has relinquished title or control, as provided for in section 3 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 ), of the covered item, and the export of the covered item would not otherwise violate any other provision of Federal law. An attestation shall be made by the exporter through one of the procedures set forth below stating that to the best of the applicant’s knowledge and belief, the applicant is not exporting a Native American cultural item obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq. or 18 U.S.C. 1170 ), a Native American archaeological resource obtained in violation of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or a Native American object of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code. An attestation form, which shall describe and provide a picture of the covered items, shall be submitted by an exporter as an electronic filing through the Automated Export System
(AES)for all commercial shipments including covered items. An exporter’s attestation shall be required for covered items prior to the issuance of an export certification under the AES system. U.S. Customs and Border Protection shall provide to the Secretary the information in electronic declarations that include covered items. All covered items must receive an export certification through the AES system regardless of monetary value. Any willful or knowing false statement made on an attestation document described in clauses
(i)through
(iv)shall— subject the applicant to criminal penalties pursuant to section 1001 of title 18, United States Code; and prohibit the applicant from receiving an export certification for covered items through attestation in the future. These penalties do not attach to the covered item for future exports but rather to the applicant. For commercial shipments valued at less than $2,500.00 that include covered items, the exporter shall complete the attestation process and will immediately receive an export certification from U.S. Customs and Border Protection through the AES system. The exporter is not required to obtain an Internal Transaction Number (ITN). For commercial shipments valued at $2,500 or more that include covered items— the exporter must complete the attestation process; U.S. Customs and Border Protection must consult with the Secretary and with Native American tribes and Native Hawaiian organizations regarding issuing an export certification; U.S. Customs and Border Protection will issue an export certification through the AES system— within 6 days of completion of the attestation process unless credible evidence is provided that indicates the covered item was obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 et seq. or 18 U.S.C. 1170 ), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, or of other United States law or the covered item is under active Federal investigation; or with notice to the exporter, U.S. Customs and Border Protection can extend the review of an application for certification for up to 30 days if credible evidence is provided which requires investigation, after which certification shall be approved or denied, consistent with clause (iii); and once U.S. Customs and Border Protection issues the export certification and upon completion of the AES application, the exporter will receive an Internal Transaction Number
(ITN)through AES. Denial of export certification shall not in itself enable seizure or in any way affect the legal status of an item under existing United States law. If an export certification is delayed or denied, notice shall be given to the exporter, who may provide U.S. Customs and Border Protection with evidence to establish that the covered item is not prohibited from export. If credible new evidence is provided that indicates a covered item that received an export certification was obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq. or 18 U.S.C. 1170 ), Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or Antiquities Act under section 1866(b) of title 18, United States Code, or other Federal law, or is under active Federal investigation, U.S. Customs and Border Protection may immediately revoke export certification if prior to export, and shall obtain approval of a United States court to revoke the export certification, after export has taken place. In making a determination about whether revocation is warranted, Indian Tribes and Native Hawaiian organizations shall be consulted. Any covered item that a person is attempting to export without an export certification described in this subsection shall be subject to seizure by United States customs officers and a Notice of Detention shall be issued to the exporter. A covered item seized under clause
(i)that is found to be obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 et seq. or 18 U.S.C. 1170 ), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, shall be forfeited, consistent with chapter 46 of title 18, United States Code, to the Federal Government or repatriated to the Indian Tribe pursuant to the process provided for under the law under which it is found to be obtained in violation. The provisions of section 983(c) of title 18, United States Code, shall apply to any forfeiture under this Act. A covered item seized under clause
(i)for which credible evidence does not establish within 60 days that it was obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002(c) et seq. or 18 U.S.C. 1170 ), the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), or the Antiquities Act under section 1866(b) of title 18, United States Code, shall be returned to the exporter but shall not receive an export certification at that time. If the U.S. Customs and Border Protection denies an export certification, issues a Detention Notice, or seizes a covered item under this subsection, the applicant shall, upon request, be given a hearing on the record. The Secretary shall make information on the covered items included in the filings available to Native American tribes and Native Hawaiian organizations via a secure website or other method in compliance with AES procedures. The President is authorized to request from a State Party agreements or provisional measures subject to the limitations of Article 9 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 823 U.N.T.S. 231 (1972), to request the return from the State Party cultural items that were obtained in violation of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq. or 18 U.S.C. 1170 ), Native American archaeological resources obtained in violation of the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq.), and Native American objects of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code.
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Sec. 6
Export restrictions and authorities
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