[Code of Federal Regulations]

[Title 43, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR7.15]



[Page 210-212]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

PART 7_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents

 

                      Subpart A_Uniform Regulations

 

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



[[Page 211]]



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 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



[[Page 212]]



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.