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[CITE: 43CFR7]
[Page 169-185]
TITLE 43--PUBLIC LANDS: INTERIOR
Subtitle A--Office of the Secretary of the Interior
PART 7--PROTECTION OF ARCHAEOLOGICAL RESOURCES
Subpart A--Uniform Regulations
Sec.
7.1 Purpose.
7.2 Authority.
7.3 Definitions.
7.4 Prohibited acts and criminal penalties.
7.5 Permit requirements and exceptions.
7.6 Application for permits and information collection.
7.7 Notification to Indian tribes of possible harm to, or destruction
of, sites on public lands having religious or cultural
importance.
7.8 Issuance of permits.
7.9 Terms and conditions of permits.
7.10 Suspension and revocation of permits.
7.11 Appeals relating to permits.
7.12 Relationship to section 106 of the National Historic Preservation
Act.
7.13 Custody of archaeological resources.
7.14 Determination of archaeological or commercial value and cost of
restoration and repair.
7.15 Assessment of civil penalties.
7.16 Civil penalty amounts.
7.17 Other penalties and rewards.
7.18 Confidentiality of archaeological resource information.
7.19 Report.
7.20 Public awareness programs.
7.21 Surveys and schedules.
Subpart B--Department of the Interior Supplemental Regulations
7.31 Scope and authority.
7.32 Supplemental definitions.
7.33 Determination of loss or absence of archaeological interest.
7.34 Procedural information for securing permits.
7.35 Permitting procedures for Indian lands.
7.36 Permit reviews and disputes.
7.37 Civil penalty hearings procedures.
Authority: Pub. L. 96-95, 93 Stat. 721, as amended; 102 Stat. 2983
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related authority: Pub. L. 59-209, 34
Stat. 225 (16 U.S.C. 432,433); Pub. L. 86-523; 74 Stat. 220, 221 (16
U.S.C. 469), as amended; 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat.
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).
Subpart A--Uniform Regulations
Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.
Sec. 7.1 Purpose.
(a) The regulations in this part implement provisions of the
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C.
470aa-mm) by establishing the uniform definitions, standards, and
procedures to be followed by all Federal land managers in providing
protection for archaeological resources, located on public lands and
Indian lands of the United States. These regulations enable Federal land
managers to protect archaeological resources, taking into consideration
provisions of the American Indian Religious Freedom Act (92 Stat. 469;
42 U.S.C. 1996), through permits authorizing excavation and/or removal
of archaeological resources, through civil penalties for unauthorized
excavation and/or removal, through provisions for the preservation of
archaeological resource collections and data, and through provisions for
ensuring confidentiality of information about archaeological resources
when disclosure would threaten the archaeological resources.
(b) The regulations in this part do not impose any new restrictions
on activities permitted under other laws, authorities, and regulations
relating to mining, mineral leasing, reclamation, and other multiple
uses of the public lands.
[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]
Sec. 7.2 Authority.
(a) The regulations in this part are promulgated pursuant to section
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C.
470ii), which requires that the Secretaries of the Interior, Agriculture
and Defense
[[Page 170]]
and the Chairman of the Board of the Tennessee Valley Authority jointly
develop uniform rules and regulations for carrying out the purposes of
the Act.
(b) In addition to the regulations in this part, section 10(b) of
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall
promulgate such rules and regulations, consistent with the uniform rules
and regulations in this part, as may be necessary for carrying out the
purposes of the Act.
Sec. 7.3 Definitions.
As used for purposes of this part:
(a) Archaeological resource means any material remains of human life
or activities which are at least 100 years of age, and which are of
archaeological interest.
(1) Of archaeological interest means capable of providing scientific
or humanistic understandings of past human behavior, cultural
adaptation, and related topics through the application of scientific or
scholarly techniques such as controlled observation, contextual
measurement, controlled collection, analysis, interpretation and
explanation.
(2) Material remains means physical evidence of human habitation,
occupation, use, or activity, including the site, location, or context
in which such evidence is situated.
(3) The followiing classes of material remains (and illustrative
examples), if they are at least 100 years of age, are of archaeological
interest and shall be considered archaeological resources unless
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this
section:
(i) Surface or subsurface structures, shelters, facilities, or
features (including, but not limited to, domestic structures, storage
structures, cooking structures, ceremonial structures, artificial
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces,
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits,
burial pits or graves, hearths, kilns, post molds, wall trenches,
middens);
(ii) Surface or subsurface artifact concentrations or scatters;
(iii) Whole or fragmentary tools, implements, containers, weapons
and weapon projectiles, clothing, and ornaments (including, but not
limited to, pottery and other ceramics, cordage, basketry and other
weaving, bottles and other glassware, bone, ivory, shell, metal, wood,
hide, feathers, pigments, and flaked, ground, or pecked stone);
(iv) By-products, waste products, or debris resulting from
manufacture or use of human-made or natural materials;
(v) Organic waste (including, but not limited to, vegetal and animal
remains, coprolites);
(vi) Human remains (including, but not limited to, bone, teeth,
mummified flesh, burials, cremations);
(vii) Rock carvings, rock paintings, intaglios and other works of
artistic or symbolic representation;
(viii) Rockshelters and caves or portions thereof containing any of
the above material remains;
(ix) All portions of shipwrecks (including, but not limited to,
armaments, apparel, tackle, cargo);
(x) Any portion or piece of any of the foregoing.
(4) The following material remains shall not be considered of
archaeological interest, and shall not be considered to be
archaeological resources for purposes of the Act and this part, unless
found in a direct physical relationship with archaeological resources as
defined in this section:
(i) Paleontological remains;
(ii) Coins, bullets, and unworked minerals and rocks.
(5) The Federal land manager may determine that certain material
remains, in specified areas under the Federal land manager's
jurisdiction, and under specified circumstances, are not or are no
longer of archaeological interest and are not to be considered
archaeological resources under this part. Any determination made
pursuant to this subparagraph shall be documented. Such determination
shall in no way affect the Federal land manager's obligations under
other applicable laws or regulations.
(6) For the disposition following lawful removal or excavations of
Native American human remains and ``cultural items'', as defined by the
Native
[[Page 171]]
American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 101-
601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is
referred to NAGPRA and its implementing regulations.
(b) Arrowhead means any projectile point which appears to have been
designed for use with an arrow.
(c) Federal land manager means:
(1) With respect to any public lands, the secretary of the
department, or the head of any other agency or instrumentality of the
United States, having primary management authority over such lands,
including persons to whom such management authority has been officially
delegated;
(2) In the case of Indian lands, or any public lands with respect to
which no department, agency or instrumentality has primary management
authority, such term means the Secretary of the Interior;
(3) The Secretary of the Interior, when the head of any other agency
or instrumentality has, pursuant to section 3(2) of the Act and with the
consent of the Secretary of the Interior, delegated to the Secretary of
the Interior the responsibilities (in whole or in part) in this part.
(d) Public lands means:
(1) Lands which are owned and administered by the United States as
part of the national park system, the national wildlife refuge system,
or the national forest system; and
(2) All other lands the fee title to which is held by the United
States, except lands on the Outer Continental Shelf, lands under the
jurisdiction of the Smithsonian Institution, and Indian lands.
(e) Indian lands means lands of Indian tribes, or Indian
individuals, which are either held in trust by the United States or
subject to a restriction against alienation imposed by the United
States, except for subsurface interests not owned or controlled by an
Indian tribe or Indian individual.
(f) Indian tribe as defined in the Act means any Indian tribe, band,
nation, or other organized group or community, including any Alaska
village or regional or village corporation as defined in, or established
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In
order to clarify this statutory definition for purposes of this part,
``Indian tribe'' means:
(1) Any tribal entity which is included in the annual list of
recognized tribes published in the Federal Register by the Secretary of
the Interior pursuant to 25 CFR part 54;
(2) Any other tribal entity acknowledged by the Secretary of the
Interior pursuant to 25 CFR part 54 since the most recent publication of
the annual list; and
(3) Any Alaska Native village or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe
which is recognized by the Secretary of the Interior as eligible for
services provided by the Bureau of Indian Affairs.
(g) Person means an individual, corporation, partnership, trust,
institution, association, or any other private entity, or any officer,
employee, agent, department, or instrumentality of the United States, or
of any Indian tribe, or of any State or political subdivision thereof.
(h) State means any of the fifty states, the District of Columbia,
Puerto Rico, Guam, and the Virgin Islands.
(i) Act means the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470aa-mm).
[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60
FR 5260, Jan. 26, 1995]
Sec. 7.4 Prohibited acts and criminal penalties.
(a) Under section 6(a) of the Act, no person may excavate, remove,
damage, or otherwise alter or deface, or attempt to excavate, remove,
damage, or otherwise alter or deface any archaeological resource located
on public lands or Indian lands unless such activity is pursuant to a
permit issued under Sec. 7.8 or exempted by Sec. 7.5(b) of this part.
(b) No person may sell, purchase, exchange, transport, or receive
any archaeological resource, if such resource was excavated or removed
in violation of:
(1) The prohibitions contained in paragraph (a) of this section; or
[[Page 172]]
(2) Any provision, rule, regulation, ordinance, or permit in effect
under any other provision of Federal law.
(c) Under section (d) of the Act, any person who knowingly violates
or counsels, procures, solicits, or employs any other person to violate
any prohibition contained in section 6 (a), (b), or (c) of the Act will,
upon conviction, be fined not more than $10,000.00 or imprisoned not
more than one year, or both: provided, however, that if the commercial
or archaeological value of the archaeological resources involved and the
cost of restoration and repair of such resources exceeds the sum of
$500.00, such person will be fined not more than $20,000.00 or
imprisoned not more than two years, or both. In the case of a second or
subsequent such violation upon conviction such person will be fined not
more than $100,000.00, or imprisoned not more than five years, or both.
[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]
Sec. 7.5 Permit requirements and exceptions.
(a) Any person proposing to excavate and/or remove archaeological
resources from public lands or Indian lands, and to carry out activities
associated with such excavation and/or removal, shall apply to the
Federal land manager for a permit for the proposed work, and shall not
begin the proposed work until a permit has been issued. The Federal land
manager may issue a permit to any qualified person, subject to
appropriate terms and conditions, provided that the person applying for
a permit meets conditions in Sec. 7.8(a) of this part.
(b) Exceptions:
(1) No permit shall be required under this part for any person
conducting activities on the public lands under other permits, leases,
licenses, or entitlements for use, when those activities are exclusively
for purposes other than the excavation and/or removal of archaeological
resources, even though those activities might incidentally result in the
disturbance of archaeological resources. General earth-moving excavation
conducted under a permit or other authorization shall not be construed
to mean excavation and/or removal as used in this part. This exception
does not, however, affect the Federal land manager's responsibility to
comply with other authorities which protect archaeological resources
prior to approving permits, leases, licenses, or entitlements for use;
any excavation and/or removal of archaeological resources required for
compliance with those authorities shall be conducted in accordance with
the permit requirements of this part.
(2) No permit shall be required under this part for any person
collecting for private purposes any rock, coin, bullet, or mineral which
is not an archaeological resource as defined in this part, provided that
such collecting does not result in disturbance of any archaelogical
resource.
(3) No permit shall be required under this part or under section 3
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or
removal by any Indian tribe or member thereof of any archaeological
resource located on Indian lands of such Indian tribe, except that in
the absence of tribal law regulating the excavation or removal or
archaeological resources on Indian lands, an individual tribal member
shall be required to obtain a permit under this part;
(4) No permit shall be required under this part for any person to
carry out any archaeological activity authorized by a permit issued
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the
enactment of the Archaeological Resources Protection Act of 1979. Such
permit shall remain in effect according to its terms and conditions
until expiration.
(5) No permit shall be required under section 3 of the Act of June
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit
is issued under this part.
(c) Persons carrying out official agency duties under the Federal
land manager's direction, associated with the management of
archaeological resources, need not follow the permit application
procedures of Sec. 7.6. However, the Federal land manager shall insure
that provisions of Secs. 7.8 and 7.9 have been met by other documented
means, and that any official duties which might result in harm to or
destruction
[[Page 173]]
of any Indian tribal religious or cultural site, as determined by the
Federal land manager, have been the subject of consideration under
Sec. 7.7.
(d) Upon the written request of the Governor of any State, on behalf
of the State or its educational institutions, the Federal land manager
shall issue a permit, subject to the provisions of Secs. 7.5(b)(5), 7.7,
7.8(a) (3), (4), (5), (6), and (7), 7.9, 7.10, 7.12, and 7.13(a) to such
Governor or to such designee as the Governor deems qualified to carry
out the intent of the Act, for purposes of conducting archaeological
research, excavating and/or removing archaeological resources, and
safeguarding and preserving any materials and data collected in a
university, museum, or other scientific or educational institution
approved by the Federal land manager.
(e) Under other statutory, regulatory, or administrative authorities
governing the use of public lands and Indian lands, authorizations may
be required for activities which do not require a permit under this
part. Any person wishing to conduct on public lands or Indian lands any
activities related to but believed to fall outside the scope of this
part should consult with the Federal land manager, for the purpose of
determining whether any authorization is required, prior to beginning
such activities.
Sec. 7.6 Application for permits and information collection.
(a) Any person may apply to the appropriate Federal land manager for
a permit to excavate and/or remove archaeological resources from public
lands or Indian lands and to carry out activities associated with such
excavation and/or removal.
(b) Each application for a permit shall include:
(1) The nature and extent of the work proposed, including how and
why it is proposed to be conducted, proposed time of performance,
locational maps, and proposed outlet for public written dissemination of
the results.
(2) The name and address of the individual(s) proposed to be
responsible for conducting the work, institutional affiliation, if any,
and evidence of education, training, and experience in accord with the
minimal qualifications listed in Sec. 7.8(a).
(3) The name and address of the individual(s), if different from the
individual(s) named in paragraph (b)(2) of this section, proposed to be
responsible for carrying out the terms and conditions of the permit.
(4) Evidence of the applicant's ability to initiate, conduct, and
complete the proposed work, including evidence of logistical support and
laboratory facilities.
(5) Where the application is for the excavation and/or removal of
archaeological resources on public lands, the names of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store all collections, and copies of records,
data, photographs, and other documents derived from the proposed work.
Applicants shall submit written certification, signed by an authorized
official of the institution, of willingness to assume curatorial
responsibility for the collections, records, data, photographs and other
documents and to safeguard and preserve these materials as property of
the United States.
(6) Where the application is for the excavation and/or removal of
archaeological resources on Indian lands, the name of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store copies of records, data, photographs, and
other documents derived from the proposed work, and all collections in
the event the Indian owners do not wish to take custody or otherwise
dispose of the archaeological resources. Applicants shall submit written
certification, signed by an authorized official of the institution, or
willingness to assume curatorial responsibility for the collections, if
applicable, and/or the records, data, photographs, and other documents
derived from the proposed work.
(c) The Federal land manager may require additional information,
pertinent to land management responsibilities, to be included in the
application for permit and shall so inform the applicant.
(d) Paperwork Reduction Act. The information collection requirement
contained in Sec. 7.6 of these regulations has
[[Page 174]]
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1024-0037. The purpose of the
information collection is to meet statutory and administrative
requirements in the public interest. The information will be used to
assist Federal land managers in determining that applicants for permits
are qualified, that the work proposed would further archaeological
knowledge, that archaeological resources and associated records and data
will be properly preserved, and that the permitted activity would not
conflict with the management of the public lands involved. Response to
the information requirement is necessary in order for an applicant to
obtain a benefit.
Sec. 7.7 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or
cultural importance.
(a) If the issuance of a permit under this part may result in harm
to, or destruction of, any Indian tribal religious or cultural site on
public lands, as determined by the Federal land manager, at least 30
days before issuing such a permit the Federal land manager shall notify
any Indian tribe which may consider the site as having religious or
cultural importance. Such notice shall not be deemed a disclosure to the
public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be
sent to the chief executive officer or other designated official of the
tribe. Indian tribes are encouraged to designate a tribal official to be
the focal point for any notification and discussion between the tribe
and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native
American group that is known by the Federal land manager to consider
sites potentially affected as being of religious or cultural importance.
(3) Upon request during the 30-day period, the Federal land manager
may meet with official representatives of any Indian tribe or group to
discuss their interests, including ways to avoid or mitigate potential
harm or destruction such as excluding sites from the permit area. Any
mitigation measures which are adopted shall be incorporated into the
terms and conditions of the permit under Sec. 7.9.
(4) When the Federal land manager detemines that a permit applied
for under this part must be issued immediately because of an imminent
threat of loss or destruction of an archaeological resource, the Federal
land manager shall so notify the appropriate tribe.
(b)(1) In order to identify sites of religious or cultural
importance, the Federal land manager shall seek to identify all Indian
tribes having aboriginal or historic ties to the lands under the Federal
land manager's jurisdiction and seek to determine, from the chief
executive officer or other designated official of any such tribe, the
location and nature of specific sites of religious or cultural
importance so that such information may be on file for land management
purposes. Information on sites eligible for or included in the National
Register of Historic Places may be withheld from public disclosure
pursuant to section 304 of the Act of October 15, 1966, as amended (16
U.S.C. 470w-3).
(2) If the Federal land manager becomes aware of a Native American
group that is not an Indian tribe as defined in this part but has
aboriginal or historic ties to public lands under the Federal land
manager's jurisdiction, the Federal land manager may seek to communicate
with official representatives of that group to obtain information on
sites they may consider to be of religious or cultural importance.
(3) The Federal land manager may enter into agreement with any
Indian tribe or other Native American group for determining locations
for which such tribe or group wishes to receive notice under this
section.
(4) The Federal land manager should also seek to determine, in
consultation with official representatives of Indian tribes or other
Native American groups, what circumstances should be the subject of
special notification to the tribe or group after a permit has been
issued. Circumstances calling for notification might include the
discovery of human remains. When circumstances for special notification
have been determined by the Federal
[[Page 175]]
land manager, the Federal land manager will include a requirement in the
terms and conditions of permits, under Sec. 7.9(c), for permittees to
notify the Federal land manger immediately upon the occurrence of such
circumstances. Following the permittee's notification, the Federal land
manager will notify and consult with the tribe or group as appropriate.
In cases involving Native American human remains and other ``cultural
items'', as defined by NAGPRA, the Federal land manager is referred to
NAGPRA and its implementing regulations.
[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26,
1995]
Sec. 7.8 Issuance of permits.
(a) The Federal land manager may issue a permit, for a specified
period of time appropriate to the work to be conducted, upon determining
that:
(1) The applicant is appropriately qualified, as evidenced by
training, education, and/or experience, and possesses demonstrable
competence in archaeological theory and methods, and in collecting,
handling, analyzing, evaluating, and reporting archaeological data,
relative to the type and scope of the work proposed, and also meets the
following minimum qualifications:
(i) A graduate degree in anthropology or archaeology, or equivalent
training and experience;
(ii) The demonstrated ability to plan, equip, staff, organize, and
supervise activity of the type and scope proposed;
(iii) The demonstrated ability to carry research to completion, as
evidenced by timely completion of theses, research reports, or similar
documents;
(iv) Completion of at least 16 months of professional experience
and/or specialized training in archaeological field, laboratory, or
library research, administration, or management, including at least 4
months experience and/or specialized training in the kind of activity
the individual proposes to conduct under authority of a permit; and
(v) Applicants proposing to engage in historical archaeology should
have had at least one year of experience in research concerning
archaeological resources of the historic period. Applicants proposing to
engage in prehistoric archaeology should have had at least one year of
experience in research concerning archaeological resources of the
prehistoric period.
(2) The proposed work is to be undertaken for the purpose of
furthering archaeological knowledge in the public interest, which may
include but need not be limited to, scientific or scholarly research,
and preservation of archaeological data;
(3) The proposed work, including time, scope, location, and purpose,
is not inconsistent with any management plan or established policy,
objectives, or requirements applicable to the management of the public
lands concerned;
(4) Where the proposed work consists of archaelogical survey and/or
data recovery undertaken in accordance with other approved uses of the
public lands or Indian lands, and the proposed work has been agreed to
in writing by the Federal land manager pursuant to section 106 of the
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2)
and (a)(3) shall be deemed satisfied by the prior approval.
(5) Written consent has been obtained, for work proposed on Indian
lands, from the Indian landowner and the Indian tribe having
jurisdiction over such lands;
(6) Evidence is submitted to the Federal land manager that any
university, museum, or other scientific or educational institution
proposed in the application as the repository possesses adequate
curatorial capability for safeguarding and preserving the archaeological
resources and all associated records; and
(7) The applicant has certified that, not later than 90 days after
the date the final report is submitted to the Federal land manager, the
following will be delivered to the appropriate official of the approved
university, museum, or other scientific or educational institution,
which shall be named in the permit:
(i) All artifacts, samples, collections, and copies of records,
data, photographs, and other documents resulting from work conducted
under the requested permit where the permit is for the excavation and/or
removal of archaeological resources from public lands.
[[Page 176]]
(ii) All artifacts, samples and collections resulting from work
under the requested permit for which the custody or disposition is not
undertaken by the Indian owners, and copies of records, data,
photographs, and other documents resulting from work conducted under the
requested permit, where the permit is for the excavation and/or removal
of archaeological resources from Indian lands.
(b) When the area of the proposed work would cross jurisdictional
boundaries, so that permit applications must be submitted to more than
one Federal land manager, the Federal land managers shall coordinate the
review and evaluation of applications and the issuance of permits.
[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]
Sec. 7.9 Terms and conditions of permits.
(a) In all permits issued, the Federal land manager shall specify:
(1) The nature and extent of work allowed and required under the
permit, including the time, duration, scope, location, and purpose of
the work;
(2) The name of the individual(s) responsible for conducting the
work and, if different, the name of the individual(s) responsible for
carrying out the terms and conditions of the permit;
(3) The name of any university, museum, or other scientific or
educational insitutions in which any collected materials and data shall
be deposited; and
(4) Reporting requirements.
(b) The Federal land manager may specify such terms and conditions
as deemed necessary, consistent with this part, to protect public safety
and other values and/or resources, to secure work areas, to safeguard
other legitimate land uses, and to limit activities incidental to work
authorized under a permit.
(c) The Federal land manager shall include in permits issued for
archaeological work on Indian lands such terms and conditions as may be
requested by the Indian landowner and the Indian tribe having
jurisdiction over the lands, and for archaeological work on public lands
shall include such terms and conditions as may have been developed
pursuant to Sec. 7.7.
(d) Initiation of work or other activities under the authority of a
permit signifies the permittee's acceptance of the terms and conditions
of the permit.
(e) The permittee shall not be released from requirements of a
permit until all outstanding obligations have been satisfied, whether or
not the term of the permit has expired.
(f) The permittee may request that the Federal land manager extend
or modify a permit.
(g) The permittee's performance under any permit issued for a period
greater than 1 year shall be subject to review by the Federal land
manager, at least annually.
Sec. 7.10 Suspension and revocation of permits.
(a) Suspension or revocation for cause. (1) The Federal land manager
may suspend a permit issued pursuant to this part upon determining that
the permittee has failed to meet any of the terms and conditions of the
permit or has violated any prohibition of the Act or Sec. 7.4. The
Federal land manager shall provide written notice to the permittee of
the suspension, the cause thereof, and the requirements which must be
met before the suspension will be removed.
(2) The Federal land manager may revoke a permit upon assessment of
a civil penalty under Sec. 7.15 upon the permittee's conviction under
section 6 of the Act, or upon determining that the permittee has failed
after notice under this section to correct the situation which led to
suspension of the permit.
(b) Suspension or revocation for management purposes. The Federal
land manager may suspend or revoke a permit, without liability to the
United States, its agents, or employees, when continuation of work under
the permit would be in conflict with management requirements not in
effect when the permit was issued. The Federal land manager shall
provide written notice to the permittee stating the nature of and basis
for the suspension or revocation.
[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]
[[Page 177]]
Sec. 7.11 Appeals relating to permits.
Any affected person may appeal permit issuance, denial of permit
issuance, suspension, revocation, and terms and conditions of a permit
through existing administrative appeal procedures, or through procedures
which may be established by the Federal land manager pursuant to section
10(b) of the Act and this part.
Sec. 7.12 Relationship to section 106 of the National Historic
Preservation Act.
Issuance of a permit in accordance with the Act and this part does
not constitute an undertaking requiring compliance with section 106 of
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance
of such a permit does not excuse the Federal land manager from
compliance with section 106 where otherwise required.
Sec. 7.13 Custody of archaeological resources.
(a) Archaeological resources excavated or removed from the public
lands remain the property of the United States.
(b) Archaeological resources excavated or removed from Indian lands
remain the property of the Indian or Indian tribe having rights of
ownership over such resources.
(c) The Secretary of the Interior may promulgate regulations
providing for the exchange of archaeological resources among suitable
universities, museums, or other scientific or educational institutions,
for the ultimate disposition of archaeological resources, and for
standards by which archaeological resources shall be preserved and
maintained, when such resources have been excavated or removed from
public lands and Indian lands.
(d) In the absence of regulations referenced in paragraph (c) of
this section, the Federal land manager may provide for the exchange of
archaeological resources among suitable universities, museums, or other
scientific or educational institutions, when such resources have been
excavated or removed from public lands under the authority of a permit
issued by the Federal land manager.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of
this section, the Federal land manager will follow the procedures
required by NAGPRA and its implementing regulations for determining the
disposition of Native American human remains and other ``cultural
items'', as defined by NAGPRA, that have been excavated, removed, or
discovered on public lands.
[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26,
1995]
Sec. 7.14 Determination of archaeological or commercial value and cost
of restoration and repair.
(a) Archaeological value. For purposes of this part, the
archaeological value of any archaeological resource involved in a
violation of the prohibitions in Sec. 7.4 of this part or conditions of
a permit issued pursuant to this part shall be the value of the
information associated with the archaeological resource. This value
shall be appraised in terms of the costs of the retrieval of the
scientific information which would have been obtainable prior to the
violation. These costs may include, but need not be limited to, the cost
of preparing a research design, conducting field work, carrying out
laboratory analysis, and preparing reports as would be necessary to
realize the information potential.
(b) Commercial value. For purposes of this part, the commercial
value of any archaeological resource involved in a violation of the
prohibitions in Sec. 7.4 of this part or conditions of a permit issued
pursuant to this part shall be its fair market value. Where the
violation has resulted in damage to the archaeological resource, the
fair market value should be determined using the condition of the
archaeological resource prior to the violation, to the extent that its
prior condition can be ascertained.
(c) Cost of restoration and repair. For purposes of this part, the
cost of restoration and repair of archaeological resources damaged as a
result of a violation of prohibitions or conditions pursuant to this
part, shall be the sum of the costs already incurred for emergency
restoration or repair work, plus those costs projected to be necessary
to complete restoration and repair, which
[[Page 178]]
may include, but need not be limited to, the costs of the following:
(1) Reconstruction of the archaeological resource;
(2) Stabilization of the archaeological resource;
(3) Ground contour reconstruction and surface stabilization;
(4) Research necessary to carry out reconstruction or stabilization;
(5) Physical barriers or other protective devices, necessitated by
the disturbance of the archaeological resource, to protect it from
further disturbance;
(6) Examination and analysis of the archaeological resource
including recording remaining archaeological information, where
necessitated by disturbance, in order to salvage remaining values which
cannot be otherwise conserved;
(7) Reinterment of human remains in accordance with religious custom
and State, local, or tribal law, where appropriate, as determined by the
Federal land manager.
(8) Preparation of reports relating to any of the above activities.
Sec. 7.15 Assessment of civil penalties.
(a) The Federal land manager may assess a civil penalty against any
person who has violated any prohibition contained in Sec. 7.4 or who has
violated any term or condition included in a permit issued in accordance
with the Act and this part.
(b) Notice of violation. The Federal land manager shall serve a
notice of violation upon any person believed to be subject to a civil
penalty, either in person or by registered or certified mail (return
receipt requested). The Federal land manager shall include in the
notice:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provision(s) of this part or to a
permit issued pursuant to this part allegedly violated;
(3) The amount of penalty proposed to be assessed, including any
initial proposal to mitigate or remit where appropriate, or a statement
that notice of a proposed penalty amount will be served after the
damages associated with the alleged violation have been ascertained;
(4) Notification of the right to file a petition for relief pursuant
to paragraph (d) of this section, or to await the Federal land manager's
notice of assessment, and to request a hearing in accordance with
paragraph (g) of this section. The notice shall also inform the person
of the right to seek judicial review of any final administrative
decision assessing a civil penalty.
(c) The person served with a notice of violation shall have 45
calendar days from the date of its service (or the date of service of a
proposed penalty amount, if later) in which to respond. During this time
the person may:
(1) Seek informal discussions with the Federal land manager;
(2) File a petition for relief in accordance with paragraph (d) of
this section;
(3) Take no action and await the Federal land manager's notice of
assessment;
(4) Accept in writing or by payment the proposed penalty, or any
mitigation or remission offered in the notice. Acceptance of the
proposed penalty or mitigation or remission shall be deemed a waiver of
the notice of assessment and of the right to request a hearing under
paragraph (g) 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 Federal land manager
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 Federal land manager 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 Federal land manager shall take into consideration all
available
[[Page 179]]
information, including information provided pursuant to paragraphs (c)
and (d) of this section or furnished upon further request by the Federal
land manager.
(3) If the facts warrant a conclusion that no violation has
occurred, the Federal land manager 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 Federal land manager shall determine a penalty amount in
accordance with Sec. 7.16.
(f) Notice of assessment. The Federal land manager 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 Federal
land manager 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 Sec. 7.16 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 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 assessed shall be determined in accordance with this part, and
shall not be limited by the amount assessed by the Federal land manager
under paragraph (f) of this section or any offer of mitigation or
remission made by the Federal land manager.
(h) Final administrative decision. (1) 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 applicable
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 which to make full payment of the penalty
assessed, unless a timely request for appeal has been filed with a U.S.
District Court as provided in section 7(b)(1) of the Act.
(2) Upon failure to pay the penalty, the Federal land manager may
request the Attorney General to institute a civil action to collect the
penalty in a U.S. District Court for any district in which the person
assessed a civil penalty is found, resides, or transacts business. Where
the Federal land manager is not represented by the Attorney General, a
civil action may be initiated directly by the Federal land manager.
(j) Other remedies not waived. Assessment of a penalty under this
section shall not be deemed a waiver of the right to pursue other
available legal or administrative remedies.
Sec. 7.16 Civil penalty amounts.
(a) Maximum amount of penalty. (1) Where the person being assessed a
civil
[[Page 180]]
penalty has not committed any previous violation of any prohibition in
Sec. 7.4 or of any term or condition included in a permit issued
pursuant to this part, the maximum amount of the penalty shall be the
full cost of restoration and repair of archaeological resources damaged
plus the archaeological or commercial value of archaeological resources
destroyed or not recovered.
(2) Where the person being assessed a civil penalty has committed
any previous violation of any prohibition in Sec. 7.4 or of any term or
condition included in a permit issued pursuant to this part, the maximum
amount of the penalty shall be double the cost of restoration and repair
plus double the archaeological or commercial value of archaeological
resources destroyed or not recovered.
(3) Violations limited to the removal of arrowheads located on the
surface of the ground shall not be subject to the penalties prescribed
in this section.
(b) Determination of penalty amount, mitigation, and remission. The
Federal land manager may assess a penalty amount less than the maximum
amount of penalty and may offer to mitigate or remit the penalty.
(1) Determination of the penalty amount and/or a proposal to
mitigate or remit the penalty may be based upon any of the following
factors:
(i) Agreement by the person being assessed a civil penalty to return
to the Federal land manager archaeological resources removed from public
lands or Indian lands;
(ii) Agreement by the person being assessed a civil penalty to
assist the Federal land manager in activity to preserve, restore, or
otherwise contribute to the protection and study of archaeological
resources on public lands or Indian lands;
(iii) Agreement by the person being assessed a civil penalty to
provide information which will assist in the detection, prevention, or
prosecution of violations of the Act or this part;
(iv) Demonstration of hardship or inability to pay, provided that
this factor shall only be considered when the person being assessed a
civil penalty has not been found to have previously violated the
regulations in this part;
(v) Determination that the person being assessed a civil penalty did
not willfully commit the violation;
(vi) Determination that the proposed penalty would constitute
excessive punishment under the circumstances;
(vii) Determination of other mitigating circumstances appropriate to
consideration in reaching a fair and expeditious assessment.
(2) When the penalty is for a violation on Indian lands, the Federal
land manager shall consult with and consider the interests of the Indian
landowner and the Indian tribe having jurisdiction over the Indian lands
prior to proposing to mitigate or remit the penalty.
(3) When the penalty is for a violation which may have had an effect
on a known Indian tribal religious or cultural site on public lands, the
Federal land manager should consult with and consider the interests of
the affected tribe(s) prior to proposing to mitigate or remit the
penalty.
[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]
Sec. 7.17 Other penalties and rewards.
(a) Section 6 of the Act contains criminal prohibitions and
provisions for criminal penalties. Section 8(b) of the Act provides that
archaeological resources, vehicles, or equipment involved in a violation
may be subject to forfeiture.
(b) Section 8(a) of the Act provides for rewards to be made to
persons who furnish information which leads to conviction for a criminal
violation or to assessment of a civil penalty. The Federal land manager
may certify to the Secretary 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 Sec. 7.16(b)(1)(iii) shall not be certified eligible to receive
payment of rewards.
(c) In cases involving Indian lands, all civil penalty monies and
any item forfeited under the provisions of this section shall be
transferred to the appropriate Indian or Indian tribe.
[[Page 181]]
Sec. 7.18 Confidentiality of archaeological resource information.
(a) The Federal land manager 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 Federal land manager 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
through 469c), without risking harm to the archaeological resource or to
the site in which it is located.
(2) The Federal land manager shall make information available, when
the Governor of any State has submitted to the Federal land manager 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;
(ii) The purpose for which the information is sought; and
(iii) The Governor's written commitment to adequately protect the
confidentiality of the information.
(b) [Reserved]
[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]
Sec. 7.19 Report.
(a) Each Federal land manager, when requested by the Secretary of
the Interior, will submit such information as is necessary to enable the
Secretary to comply with section 13 of the Act and comprehensively
report on activities carried out under provisions of the Act.
(b) The Secretary of the Interior will include in the annual
comprehensive report, submitted to the Committee on Interior and Insular
Affairs of the United States House of Representatives and to the
Committee on Energy and Natural Resources of the United States Senate
under section 13 of the Act, information on public awareness programs
submitted by each Federal land manager under Sec. 7.20(b). Such
submittal will fulfill the Federal land manager's responsibility under
section 10(c) of the Act to report on public awareness programs.
(c) The comprehensive report by the Secretary of the Interior also
will include information on the activities carried out under section 14
of the Act. Each Federal land manager, when requested by the Secretary,
will submit any available information on surveys and schedules and
suspected violations in order to enable the Secretary to summarize in
the comprehensive report actions taken pursuant to section 14 of the
Act.
[60 FR 5260, 5261, Jan. 26, 1995]
Sec. 7.20 Public awareness programs.
(a) Each Federal land manager will establish a program to increase
public awareness of the need to protect important archaeological
resources located on public and Indian lands. Educational activities
required by section 10(c) of the Act should be incorporated into other
current agency public education and interpretation programs where
appropriate.
(b) Each Federal land manager annually will submit to the Secretary
of the Interior the relevant information on public awareness activities
required by section 10(c) of the Act for inclusion in the comprehensive
report on activities required by section 13 of the Act.
[60 FR 5260, 5261, Jan. 26, 1995]
Sec. 7.21 Surveys and schedules.
(a) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Board of the Tennessee Valley Authority will develop
plans for surveying lands under each agency's control to determine the
nature and extent of archaeological resources pursuant to section 14(a)
of the Act. Such activities should be consistent with Federal agency
planning policies and other historic preservation program
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared
under this section will be designed to comply with the purpose of the
Act regarding the protection of archaeological resources.
(b) The Secretaries of the Interior, Agriculture, and Defense and
the
[[Page 182]]
Chairman of the Tennessee Valley Authority will prepare schedules for
surveying lands under each agency's control that are likely to contain
the most scientifically valuable archaeological resources pursuant to
section 14(b) of the Act. Such schedules will be developed based on
objectives and information identified in survey plans described in
paragraph (a) of this section and implemented systematically to cover
areas where the most scientifically valuable archaeological resources
are likely to exist.
(c) Guidance for the activities undertaken as part of paragraphs (a)
through (b) of this section is provided by the Secretary of the
Interior's Standards and Guidelines for Archeology and Historic
Preservation.
(d) Other Federal land managing agencies are encouraged to develop
plans for surveying lands under their jurisdictions and prepare
schedules for surveying to improve protection and management of
archaeological resources.
(e) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Tennessee Valley Authority will develop a system for
documenting and reporting suspected violations of the various provisions
of the Act. This system will reference a set of procedures for use by
officers, employees, or agents of Federal agencies to assist them in
recognizing violations, documenting relevant evidence, and reporting
assembled information to the appropriate authorities. Methods employed
to document and report such violations should be compatible with
existing agency reporting systems for documenting violations of other
appropriate Federal statutes and regulations. Summary information to be
included in the Secretary's comprehensive report will be based upon the
system developed by each Federal land manager for documenting suspected
violations.
[60 FR 5260, 5261, Jan. 26, 1995]
Subpart B--Department of the Interior Supplemental Regulations
Source: 52 FR 9168, Mar. 23, 1987, unless otherwise noted.
Sec. 7.31 Scope and authority.
The regulations in this subpart are promulgated pursuant to section
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C.
470ii), which requires agencies to develop rules and regulations for
carrying out the purposes of the Act, consistent with the uniform
regulations issued pursuant to section 10(a) of the Act (subpart A of
this part).
Sec. 7.32 Supplemental definitions.
For purposes of this subpart, the following definitions will be
used:
(a) Site of religious or cultural importance means, for purposes of
Sec. 7.7 of this part, a location which has traditionally been
considered important by an Indian tribe because of a religious event
which happened there; because it contains specific natural products
which are of religious or cultural importance; because it is believed to
the be dwelling place of, the embodiment of, or a place conducive to
communication with spiritual beings; because it contains elements of
life-cycle rituals, such as burials and associated materials; or because
it has other specific and continuing significance in Indian religion or
culture.
(b) Allotted lands means lands granted to Indian individuals by the
United States and held in trust for those individuals by the United
States.
Sec. 7.33 Determination of loss or absence of archaeological interest.
(a) Under certain circumstances, a Federal land manager may
determine, pursuant to Sec. 7.3(a)(5) of this part, that certain
material remains are not or are no longer of archaeological interest,
and therefore are not to be considered archaeological resources under
this part.
(b) The Federal land manager may make such a determination if he/she
finds that the material remains are not capable of providing scientific
or humanistic understandings of past human behavior, cultural
adaptation, and related topics.
(c) Prior to making a determination that material remains are not or
are no longer archaeological resources, the Federal land manager shall
ensure that
[[Page 183]]
the following procedures are completed:
(1) A professional archaeological evaluation of material remains and
similar materials within the area under consideration shall be
completed, consistent with the Secretary of the Interior's Standards and
Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept.
29, 1983) and with 36 CFR parts 60, 63, and 65.
(2) The principal bureau archaeologist or, in the absence of a
principal bureau archaeologist, the Department Consulting Archeologist,
shall establish whether the material remains under consideration
contribute to scientific or humanistic understandings of past human
behavior, cultural adaptation and related topics. The principal bureau
archaeologist or the Department Consulting Archeologist, as appropriate,
shall make a recommendation to the Federal land manager concerning these
material remains.
(d) The Federal land manager shall make the determination based upon
the facts established by and the recommendation of the principal bureau
archaeologist or the Departmental Consulting Archeologist, as
appropriate, and shall fully document the basis therefor, including
consultation with Indian tribes for determinations regarding sites of
religious or cultural importance.
(e) The Federal land manager shall make public notice of the
determination and its limitations, including any permitting requirements
for activities associated with the materials determined not to be
archaeological resources for purposes of this part.
(f) Any interested individual may request in writing that the
Departmental Consulting Archeologist review any final determination by
the Federal land manager that certain remains, are not, or are no
longer, archaeological resources. Two (2) copies of the request should
be sent to the Departmental Consulting Archeologist, National Park
Service, P.O. Box 37127, Washington, DC 20013-7127, and should document
why the requestor disagrees with the determination of the Federal land
manager. The Departmental Consulting Archeologist shall review the
request, and, if appropriate, shall review the Federal land manager's
determination and its supporting documentation. Based on this review,
the Departmental Consulting Archeologist shall prepare a final
professional recommendation, and shall transmit the recommendation and
the basis therefor to the head of the bureau for further consideration
within 60 days of the receipt of the request.
(g) Any determination made pursuant to this section shall in no way
affect the Federal land manager's obligations under other applicable
laws or regulations.
Sec. 7.34 Procedural information for securing permits.
Information about procedures to secure a permit to excavate or
remove archaeological resources from public lands or Indian lands can be
obtained from the appropriate Indian tribal authorities, the Federal
land manager of the bureau that administers the specific area of the
public lands or Indian lands for which a permit is desired, or from the
state, regional, or national office of that bureau.
Sec. 7.35 Permitting procedures for Indian lands.
(a) If the lands involved in a permit application are Indian lands,
the consent of the appropriate Indian tribal authority or individual
Indian landowner is required by the Act and these regulations.
(b) When Indian tribal lands are involved in an application for a
permit or a request for extension or modification of a permit, the
consent of the Indian tribal government must be obtained. For Indian
allotted lands outside reservation boundaries, consent from only the
individual landowner is needed. When multiple-owner allotted lands are
involved, consent by more than 50 percent of the ownership interest is
sufficient. For Indian allotted lands within reservation boundaries,
consent must be obtained from the Indian tribal government and the
individual landowner(s).
(c) The applicant should consult with the Bureau of Indian Affairs
concerning procedures for obtaining consent
[[Page 184]]
from the appropriate Indian tribal authorities and submit the permit
application to the area office of the Bureau of Indian Affairs that is
responsible for the administration of the lands in question. The Bureau
of Indian Affairs shall insure that consultation with the appropriate
Indian tribal authority or individual Indian landowner regarding terms
and conditions of the permit occurs prior to detailed evaluation of the
application. Permits shall include terms and conditions requested by the
Indian tribe or Indian landowner pursuant to Sec. 7.9 of this part.
(d) The issuance of a permit under this part does not remove the
requirement for any other permit required by Indian tribal law.
Sec. 7.36 Permit reviews and disputes.
(a) Any affected person disputing the decision of a Federal land
manager with respect to the issuance or denial of a permit, the
inclusion of specific terms and conditions in a permit, or the
modification, suspension, or revocation of a permit may request the
Federal land manager to review the disputed decision and may request a
conference to discuss the decision and its basis.
(b) The disputant, if unsatisfied with the outcome of the review or
conference, may request that the decision be reviewed by the head of the
bureau involved.
(c) Any disputant unsatisified with the higher level review, and
desiring to appeal the decision, pursuant to Sec. 7.11 of this part,
should consult with the appropriate Federal land manager regarding the
existence of published bureau appeal procedures. In the absence of
published bureau appeal procedures, the review by the head of the bureau
involved will constitute the final decision.
(d) Any affected person may request a review by the Departmental
Consulting Archeologist of any professional issues involved in a bureau
permitting decision, such as professional qualifications, research
design, or other professional archaeological matters. The Departmental
Consulting Archeologist shall make a final professional recommendation
to the head of the bureau involved. The head of the bureau involved will
consider the recommendation, but may reject it, in whole or in part, for
good cause. This request should be in writing, and should state the
reasons for the request. See Sec. 7.33(f) for the address of the
Departmental Consulting Archeologist.
Sec. 7.37 Civil penalty hearings procedures.
(a) Requests for hearings. Any person wishing to request a hearing
on a notice of assessment of civil penalty, pursuant to Sec. 7.15(g) of
this part, may file a written, dated request for a hearing with the
Hearing Division, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1923. The
respondent shall enclose a copy of the notice of violation and the
notice of assessment. The request shall state the relief sought, the
basis for challenging the facts used as the basis for charging the
violation and fixing the assessment, and respondent's preference as to
the place and date for a hearing. A copy of the request shall be served
upon the Solicitor of the Department of the Interior personally or by
registered or certified mail (return receipt requested), at the address
specified in the notice of assessment. Hearings shall be conducted in
accordance with 43 CFR part 4, subparts A and B.
(b) Waiver of right to a hearing. Failure to file a written request
for a hearing within 45 days of the date of service of a notice of
assessment shall be deemed a waiver of the right to a hearing.
(c) Commencement of hearing procedures. Upon receipt of a request
for a hearing, the Hearing Division shall assign an administrative law
judge to the case. Notice of assignment shall be given promptly to the
parties, and thereafter, all pleadings, papers, and other documents in
the proceeding shall be filed directly with the administrative law
judge, with copies served on the opposing party.
(d) Appearance and practice. (1) Subject to the provisions of 43 CFR
1.3, the respondent may appear in person, by representative, or by
counsel, and may participate fully in those proceedings. If respondent
fails to appear and the administrative law judge determines
[[Page 185]]
such failure is without good cause, the administrative law judge may, in
his/her discretion, determine that such failure shall constitute a
waiver of the right to a hearing and consent to the making of a decision
on the record made at the hearing.
(2) Departmental counsel, designated by the Solicitor of the
Department, shall represent the Federal land manager in the proceedings.
Upon notice to the Federal land manager of the assignment of an
administrative law judge to the case, said counsel shall enter his/her
appearance on behalf of the Federal land manager and shall file all
petitions and correspondence exchanges by the Federal land manager and
the respondent pursuant to Sec. 7.15 of this part which shall become
part of the hearing record. Thereafter, service upon the Federal land
manager shall be made to his/her counsel.
(e) Hearing administration. (1) The administrative law judge shall
have all powers accorded by law and necessary to preside over the
parties and the proceedings and to make decisions in accordance with 5
U.S.C. 554-557.
(2) The transcript of testimony, the exhibits, and all papers,
documents and requests filed in the proceedings, shall constitute the
record for decision. The administrative law judge shall render a written
decision upon the record, which shall set forth his/her findings of fact
and conclusions of law, and the reasons and basis therefor, and an
assessment of a penalty, if any.
(3) Unless a notice of appeal is filed in accordance with paragraph
(f) of this section, the administrative law judge's decision shall
constitute the final administrative determination of the Secretary in
the matter and shall become effective 30 calendar days from the date of
this decision.
(4) In any such hearing, the amount of civil penalty assessed shall
be determined in accordance with this part, and shall not be limited by
the amount assessed by the Federal land manager under Sec. 7.15 of this
part or any offer of mitigation or remission made by the Federal land
manager.
(f) Appeal. (1) Either the respondent or the Federal land manager
may appeal the decision of an administrative law judge by the filing of
a ``Notice of Appeal'' with the Director, Office of Hearings and
Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, Virginia 22203-1923, within 30 calendar days of the date of
the administrative law judge's decision. Such notice shall be
accompanied by proof of service on the administrative law judge and the
opposing party.
(2) Upon receipt of such a notice, the Director, Office of Hearings
and Appeals, shall appoint an ad hoc appeals board to hear and decide an
appeal. To the extent they are not inconsistent herewith, the provision
of the Department of Hearings and Appeals Procedures in 43 CFR part 4,
subparts A, B, and G shall apply to appeal proceedings under this
subpart. The decision of the board on the appeal shall be in writing and
shall become effective as the final administrative determination of the
Secretary in the proceeding on the date it is rendered, unless otherwise
specified therein.
(g) Report service. Copies of decisions in civil penalty proceedings
instituted under the Act may be obtained by letter of request addressed
to the Director, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1923. Fees
for this service shall be as established by the Director of that Office.
[Code of Federal Regulations]
[Title 43, Volume 1, Parts 1 to 999]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
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