[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: 43CFR7.37]



[Page 216-217]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

PART 7_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents

 

      Subpart B_Department of the Interior Supplemental Regulations

 

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, 801 North Quincy Street, 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



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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 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, 801 North Quincy Street, 

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, 801 North Quincy Street, Arlington, Virginia 22203-1923. Fees 

for this service shall be as established by the Director of that Office.



[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]



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