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tion. These costs may include, but need (8) Preparation of reports relating to not be limited to, the cost of preparing any of the above activities. a research design, conducting field work, carrying out laboratory analysis,
8 1104.14 Assessment of civil penalties. and preparing reports as would be nec- (a) The Commissioner may assess a essary to realize the information po- civil penalty against any person who tential.
has violated any prohibition contained (b) Commercial value. For purposes of in $1104.3 or who has violated any term this part, the commercial value of any or condition included in a permit isarchaeological resource involved in a sued in accordance with the Act and violation of the prohibitions in $1104.3 this part. of this part or conditions of a permit (b) Notice of violation. The Commisissued pursuant to this part shall be its sioner shall serve a notice of violation fair market value. Where the violation upon any person believed to be subject has resulted in damage to the archae- to a civil penalty, either in person or ological resource, the fair market by registered or certified mail (return value should be determined using the receipt requested). The Commissioner condition of the archaeological re
shall include in the notice: source prior to the violation, to the ex- (1) A concise statement of the facts tent that its prior condition can be
believed to show a violation; ascertained.
(2) A specific reference to the (c) Cost of restoration and repair. For
provision(s) of this part or to a permit purposes of this part, the cost of res
issued pursuant to this part allegedly toration and repair of archaeological
violated; resources damaged as a result of a vio
(3) The amount of penalty proposed lation of prohibitions or conditions
to be assessed, including any initial pursuant to this part, shall be the sum
proposal to mitigate or remit where apof the costs already incurred for emer
propriate, or a statement that notice of gency restoration or repair work, plus
a proposed penalty amount will be those costs projected to be necessary to
served after the damages associated complete restoration and repair, which
with the alleged violation have been may include, but need not be limited
ascertained; to, the costs of the following:
(4) Notification of the right to file a (1) Reconstruction of the archae
petition for relief pursuant to paraological resource;
graph (d) of this section, or to await
the Commissioner's notice of assess(2) Stabilization of the archaeologi
ment, and to request a hearing in accal resource;
cordance with paragraph (8) of this sec(3) Ground contour reconstruction
tion. The notice shall also inform the and surface stabilization;
person of the right to seek judicial re(4) Research necessary to carry out view of any final administrative decireconstruction or stabilization;
sion assessing a civil penalty. (5) Physical barriers or other protec- (c) The person served with a notice of tive devices, necessitated by the dis- violation shall have 45 calendar days turbance of the archaeological re
from the date of its service (or the date source, to protect it from further dis
of service of a proposed penalty turbance;
amount, if later) in which to respond. (6) Examination and analysis of the During this time the person may: archaeological resource including re- (1) Seek informal discussions with cording remaining archaeological in- the Commissioner; formation, where necessitated by dis- (2) File a petition for relief in accordturbance, in order to salvage remaining ance with paragraph (d) of this section; values which cannot be otherwise con- (3) Take no action and await the served;
Commissioner's notice of assessment; (7) Reinterment of human remains in (4) Accept in writing or by payment accordance with religious custom and the proposed penalty, or any mitigaState, local, or tribal law, where appro- tion or remission offered in the notice. priate, as determined by the Commis- Acceptance of the proposed penalty or sioner;
mitigation or remission shall be
deemed a waiver of the notice of assessment and of the right to request a hearing under paragraph (8) of this section.
(d) Petition for relief. The person served with a notice of violation may request that no penalty be assessed or that the amount be reduced, by filing a petition for relief with the Commissioner within 45 calendar days of the date of service of the notice of violation (or of a proposed penalty amount, if later). The petition shall be in writing and signed by the person served with the notice of violation. If the person is a corporation, the petition must be signed by an officer authorized to sign such documents. The petition shall set forth in full the legal or factual basis for the requested relief.
(e) Assessment of penalty. (1) The Commissioner shall assess a civil penalty upon expiration of the period for filing a petition for relief, upon completion of review of any petition filed, or upon completion of informal discussions, whichever is later.
(2) The Commissioner shall take into consideration all available information, including information provided pursuant to paragraphs (c) and (d) of this section or furnished upon further request by the Commissioner.
(3) If the facts warrant a conclusion that no violation has occurred, the Commissioner shall so notify the person served with a notice of violation, and no penalty shall be assessed.
(4) Where the facts warrant a conclusion that a violation has occurred, the Commissioner shall determine a penalty amount in accordance with $ 1104.15.
(1) Notice of assessment. The Commissioner shall notify the person served with a notice of violation of the penalty amount assessed by serving a written notice of assessment, either in person or by registered or certified mail (return receipt requested). The Commissioner shall include in the notice of assessment:
(1) The facts and conclusions from which it was determined that a violation did occur;
(2) The basis in $1104.15 for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and
(3) Notification of the right to request a hearing, including the procedures to be followed, and to seek judicial review of any final administrative decision assessing a civil penalty.
(g) Hearings. (1) Except where the right to request a hearing is deemed to have been waived as provided in paragraph (c)(4) of this section, the person served with a notice of assessment may file a written request for a hearing with the adjudicatory body specified in the notice. The person shall enclose with the request for hearing a copy of the notice of assessment, and shall deliver the request as specified in the notice of assessment, personally or by registered or certified mail (return receipt requested).
(2) Failure to deliver a written request for a hearing within 45 days of the date of service of the notice of assessment shall be deemed a waiver of tre the right to a hearing.
(3) Any hearing conducted pursuant to this section shall be held in accordance with 5 U.S.C. 554. In any such hearing, the amount of civil penalty is assessed shall be determined in accordance with this part, and shall not be limited by the amount assessed by the Commissioner under paragraph (f) of this section or any offer of mitigation or remission made by the Commissioner.
(h) Final administrative decision. (1) pa Where the person served with a notice of violation has accepted the penalty pursuant to paragraph (c)(4) of this section, the notice of violation shall constitute the final administrative decision;
(2) Where the person served with a notice of assessment has not filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the notice of assessment shall constitute the final administrative decision;
(3) Where the person served with a notice of assessment has filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the decision resulting from the hearing or any ap plicable administrative appeal therefrom shall constitute the final administrative decision.
(i) Payment of penalty. (1) The person assessed a civil penalty shall have 45 calendar days from the date of issuance
of the final administrative decision in (1) Determination of the penalty
which to make full payment of the pen- amount and/or a proposal to mitigate * alty assessed, unless a timely request or remit the penalty may be based
for appeal has been filed with a United upon any of the following factors: States District Court as provided in (i) Agreement by the person being assection 7(b)(1) of the Act.
sessed a civil penalty to return to the (2) Upon failure to pay the penalty, Commissioner archaeological resources - the Commissioner may request the At- removed from public lands;
torney General to institute a civil ac- (ii) Agreement by the person being tion to collect the penalty in a United
assessed a civil penalty to assist the 228? States District Court for any district Commissioner in activity to preserve, in which the person assessed a civil
restore, or otherwise contribute to the penalty is found, resides, or transacts
protection and study of archaeological business. Where the Commissioner is resources on public lands; not represented by the Attorney Gen
(iii) Agreement by the person being eral, a civil action may be initiated di
assessed a civil penalty to provide inrectly by the Commissioner.
formation which will assist in the de(1) Other remedies not waived. Assess
tection, prevention, or prosecution of ment of a penalty under this section
violations of the Act or this part; shall not be deemed a waiver of the
(iv) Demonstration of hardship or inright to pursue other available legal or
ability to pay, provided that this factor administrative remedies.
shall only be considered when the per
son being assessed a civil penalty has (1104.15 Civil penalty amounts.
not been found to have previously vio
lated the regulations in this part; (a) Marimum amount of penalty. (1) (v) Determination that the person Where the person being assessed a civil
being assessed a civil penalty did not penalty has not committed any previous violation of any prohibition in
willfully commit the violation;
(vi) Determination that the proposed $1104.3 or of any term or condition in
penalty would constitute excessive cluded in a permit issued pursuant to punishment under the circumstances; this part, the maximum amount of the
(vii) Determination of other mitigatpenalty shall be the full cost of res- ing circumstances appropriate to contoration and repair of archaeological sideration in reaching a fair and experesources damaged plus the archae- ditious assessment. ological or commercial value of archae
(2) When the penalty is for a violaological resources destroyed or not re- tion which may have had an effect on a
known Indian tribal religious or cul(2) Where the person being assessed a tural site on public lands, the Commiscivil penalty has committed any pre- sioner should consult with and consider nous violation of any prohibition in the interests of the affected tribe(s) (1104.3 or of any term or condition in- prior to proposing to mitigate or remit cluded in a permit issued pursuant to the penalty. this part, the maximum amount of the penalty shall be double the cost of res- § 1104.16 Other penalties and rewards. toration and repair plus double the ar- (a) Section 6 of the Act contains chaeological or commercial value of archaeological resources destroyed or not
criminal prohibitions and provisions for criminal penalties. Section 8(b) of
the Act provides that archaeological (3) Violations limited to the removal resources, vehicles, or equipment inof arrowheads located on the surface of volved in a violation may be subject to the ground shall not be subject to the forfeiture. penalties prescribed in this section.
(b) Section 8(a) of the Act provides (b) Determination of penalty amount, for rewards to be made to persons who mitigation, and remission. The Commis- furnish information which leads to conşioner may assess a penalty amount viction for a criminal violation or to less than the maximum amount of pen- assessment of a civil penalty. The alty and may offer to mitigate or remit Commissioner may certify to the Sec
retary of the Treasury that a person is
eligible to receive payment. Officers and employees of Federal, State, or local government who furnish information or render service in the performance of their official duties, and persons who have provided information under $1104.15(b)(1)(iii) shall not be certified eligible to receive payment of rewards.
chaeological resource or to the site in which it is located.
(2) The Commissioner shall make information available, when the Governor of any State has submitted to the Commissioner a written request for information, concerning the archaeological resources within the requesting Governor's State, provided that the request includes:
(i) The specific archaeological resource or area about which information is sought;
(11) The purpose for which the information is sought; and
(iii) The Governor's written commitment to adequately protect the confidentiality of the information.
$ 1104.17 Confidentiality of archae
ological resource information. (a) The Commissioner shall not make available to the public, under subchapter II of chapter 5 of title 5 of the United States Code or any other provision of law, information concerning the nature and location of any archaeological resource, with the following exceptions:
(1) The Commissioner may make information available, provided that the disclosure will further the purposes of the Act and this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469 469c), without risking harm to the ar
g 1104.18 Report to the Secretary of
the Interior. The Commissioner, when requested by the Secretary of the Interior, shall submit such information as is necessary to enable the Secretary to comply with section 13 of the Act.