Attachment_2-_CFR-2011-title22-vol2-part1104.pdf

International Boundary and Water Commission § 1104.2 of the request. If the head of the agen-cy determines that additional informa-tion is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional infor-mation to make his or her determina-tion on the appeal.

(k) The time limits cited in para-graphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.

(l) The agency may delegate its au-thority for conducting complaint in-vestigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.

[51 FR 4577, Feb. 5, 1986, as amended at 51 FR 4577, Feb. 5, 1986]

§§ 1103.171–1103.999 [Reserved]

PART 1104—PROTECTION OF

ARCHAEOLOGICAL RESOURCES

Sec.

1104.1 Purpose.

1104.2 Definitions.

1104.3 Prohibited acts.

1104.4 Permit requirements and exceptions.

1104.5 Application for permits and informa-

tion collection.

1104.6 Notification to Indian tribes of pos-

sible harm to, or destruction of, sites on public lands having religious or cultural importance.

1104.7 Issuance of permits.

1104.8 Terms and conditions of permits.

1104.9 Suspension and revocation of per-

mits.

1104.10 Appeals relating to permits.

1104.11 Relationship to section 106 of the

National Historic Preservation Act.

1104.12 Custody of archaeological resources.

1104.13 Determination of archaeological or

commercial value and cost of restoration and repair.

1104.14 Assessment of civil penalties.

1104.15 Civil penalty amounts.

1104.16 Other penalties and rewards.

1104.17 Confidentiality of archaeological re-

source information.

1104.18 Report to the Secretary of the Inte-

rior.

AUTHORITY: Pub. L. 96–95, 93 Stat. 721 (16 U.S.C. 470aa–11) (Sec. 10(a).) Related Author-ity: 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).

SOURCE: 56 FR 21590, May 10, 1991, unless othewise noted.

§ 1104.1 Purpose.

(a) The regulations in this part im-plement provisions of the Archae-ological Resources Protection Act of 1979 (16 U.S.C. 470aa–11) by establishing the definitions, standards, and proce-dures to be followed by the Commis-sioner in providing protection for ar-chaeological resources, located on pub-lic lands through permits authorizing excavation and/or removal of archae-ological resources, through civil pen-alties for unauthorized excavation and/ or removal, through provisions for the preservation of archaeological resource collections and data, and through pro-visions for ensuring confidentiality of information about archaeological re-sources when disclosure would threaten the archaeological resources.

(b) The regulations in this part do not impose any new restrictions on ac-tivities permitted under other laws, au-thorities, and regulations relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.

§ 1104.2 Definitions.

As used for purposes of this part:

(a) Archaeological resource means any material remains of human life or ac-tivities which are at least 100 years of age, and which are of archaeological interest.

(1) Of archaeological interest means ca-pable of providing scientific or human-istic understandings of past human be-havior, cultural adaptation, and re-lated topics through the application of scientific or scholarly techniques such as controlled observation, contextual measurement, controlled collection, analysis, interpretation and expla-nation.

(2) Material remains means physical evidence of human habitation, occupa-tion, use, or activity, including the site, location, or context in which such evidence is situated.

(3) The following classes of material remains (and illustrative examples), if they are at least 100 years of age, are of archaeological interest and shall be

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22 CFR Ch. XI (4–1–09 Edition) § 1104.2 considered archaeological resources unless determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this sec-tion:

(i) Surface or subsurface structures, shelters, facilities, or features (includ-ing, but not limited to, domestic struc-tures, storage structures, cooking structures, ceremonial structures, arti-ficial mounds, earthworks, fortifica-tions, 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, im-plements, containers, weapons and weapon projectiles, clothing, and orna-ments (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 mate-rials;

(v) Organic waste (including but not limited to, vegetable and animal re-mains, 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 por-tions thereof containing any of the above material remains;

(ix) All portions of shipwrecks (in-cluding 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 archae-ological interest, and shall not be con-sidered to be archaeological resources for purposes of the Act and this part, unless found in a direct physical rela-tionship with archaeological resources as defined in this section:

(i) Paleontological remains;

(ii) Coins, bullets, and unworked min-erals and rocks.

(5) The Commissioner may determine that certain material remains, in spec-ified areas under the Commissioner’s jurisdiction, and under specified cir-cumstances, 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 Determina-tion shall in no way affect the Commis-sioner’s obligations under other appli-cable laws or regulations.

(b) Arrowhead means any projectile point which appears to have been de-signed for use with an arrow.

(c) Commissioner means the head of the United States Section, Inter-national Boundary and Water Commis-sion, United States and Mexico, and his delegate.

(d) Public lands means lands to which the United States of America holds fee title, and which are under the control of the U.S. Section, International Boundary and Water Commission, United States and Mexico.

(e) Indian tribe as defined in the Act means any Indian tribe, band, nation, or other organized group or commu-nity. In order to clarify this statutory definition for purposes of this part, In-dian tribe means:

(1) Any tribal entity which is in-cluded in the annual list of recognized tribes published in the FEDERAL REG- ISTER by the Secretary of the Interior pursuant to 25 CFR part 54;

(2) Any other tribal entity acknowl-edged by the Secretary of the Interior pursuant to 25 CFR part 54 since the most recent publication of the annual list;

(f) Person means an individual, cor-poration, partnership, trust, institu-tion, 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.

(g) State means any of the fifty states, the District of Columbia, Puer-to Rico, Guam, and the Virgin Islands.

(h) Act means the Archaeological Re-sources Protection Act of 1979 (16 U.S.C. 470aa–11.), as amended.

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International Boundary and Water Commission § 1104.4

§ 1104.3 Prohibited acts.

(a) No person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands unless such activity is pursuant to a permit issued under § 1104.7 or exempted by § 1104.4(b) of this part.

(b) No person may sell, purchase, ex-change, transport, or receive any ar-chaeological resource, if such resource was excavated or removed in violation of:

(1) The prohibitions contained in paragraph (a) of this section; or

(2) Any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.

§ 1104.4 Permit requirements and ex-ceptions.

(a) Any person proposing to excavate and/or remove archaeological resources from public lands, and to carry out ac-tivities associated with such exca-vation and/or removal, shall apply to the Commissioner for a permit for the proposed work, and shall not begin the proposed work until a permit has been issued. The Commissioner 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 § 1104.7(a) of this part.

(b) Exceptions:

(1) No permit shall be required under this part for any person conducting ac-tivities on the public lands under other permits, leases, licenses, or entitle-ments for use, when those activities are exclusively for purposes other than the excavation and/or removal of ar-chaeological resources, even though those activities might incidentally re-sult in the disturbance of archae-ological resources. General earth-mov-ing excavation conducted under a per-mit or other authorization shall not be construed to mean excavation and/or removal as used in this part. This ex-ception does not, however, affect the Commissioner’s responsibility to com-ply with other authorities which pro-tect archaeological resources prior to approving permits, leases, licenses, or entitlements for use; any excavation and/or removal of archaeological re-sources required for compliance with those authorities shall be conducted in accordance with the permit require-ments 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 archae-ological resource as defined in this part, provided that such collecting does not result in disturbance of any ar-chaeological resource.

(3) 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 Commis-sioner’s direction, associated with the management of archaeological re-sources, need not follow the permit ap-plication procedures of § 1104.5. How-ever, the Commissioner shall insure that provisions of §§ 1104.7 and 1104.8 have been met by other documented means, and that any official duties which might result in harm to or de-struction of any Indian tribal religious or cultural site, as determined by the Commissioner, have been the subject of consideration under § 1104.6.

(d) Upon the written request of the Governor of any State, on behalf of the State or its educational institutions, the Commissioner shall issue a permit, subject to the provisions of §§ 1104.4(b)(5), 1104.6, 1104.7(a) (3), (4), (5), (6), and (7), 1104.8, 1104.9, 1104.11, and 1104.12(a) to such Governor or to such designee as the Governor deems quali-fied to carry out the intent of the Act, for purposes of conducting archae-ological research, excavating and/or re-moving archaeological resources, and safeguarding and preserving any mate-rials and data collected in a university, museum, or other scientific or edu-cational institution approved by the Commissioner.

(e) Under other statutory, regu-latory, or administrative authorities governing the use of public lands, au-thorizations may be required for activi-ties which do not require a permit under this part. Any person wishing to conduct on public lands any activities related to but believed to fall outside the scope of this part should consult with the Commissioner, for the purpose

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22 CFR Ch. XI (4–1–09 Edition) § 1104.5 of determining whether any authoriza-tion is required, prior to beginning such activities.

§ 1104.5 Application for permits and information collection.

(a) Any person may apply to the Commissioner for a permit to excavate and/or remove archaeological resources from public lands and to carry out ac-tivities associated with such exca-vation 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 indi-vidual(s) proposed to be responsible for conducting the work, institutional af-filiation, if any, and evidence of edu-cation, training, and experience in ac-cord with the minimal qualifications listed in § 1104.7(a).

(3) The name and address of the indi-vidual(s), if different from the indi-vidual(s) named in paragraph (b)(2) of this section, proposed to be responsible for carrying out the terms and condi-tions 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 fa-cilities.

(5) Where the application is for the excavation and/or removal of archae-ological resources on public lands, the names of the university, museum, or other scientific or educational institu-tion 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 willing-ness to assume curatorial responsi-bility for the collections, records, data, photographs and other documents and to safeguard and preserve these mate-rials as property of the United States.

(c) The Commissioner may require additional information, pertinent to land management responsibilities, to be included in the application for per-mit and shall so inform the applicant.

(d) Paperwork Reduction Act. The in-formation collection requirement con-tained in § 1104.5 of these regulations has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clear-ance number 1024–0037. The purpose of the information collection is to meet statutory and administrative require-ments in the public interest. The infor-mation will be used to assist the Com-missioner in determining that appli-cants for permits are qualified, that the work proposed would further ar-chaeological knowledge, that archae-ological resources and associated records and data will be properly pre-served, and that the permitted activity would not conflict with the manage-ment of the public lands involved. Re-sponse to the information requirement is necessary in order for an applicant to obtain a benefit.

§ 1104.6 Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having reli-gious or cultural importance.

(a) If the issuance of a permit under this part may result in harm to, or de-struction of, any Indian tribal religious or cultural site on public lands, as de-termined by the Commissioner, at least 30 days before issuing such a permit the Commissioner shall notify any In-dian tribe which may consider the site as having religious or cultural impor-tance. Such notice shall not be deemed a disclosure to the public for purposes of section 9 of the Act.

(1) Notice by the Commissioner to any Indian tribe shall be sent to the chief executive officer or other des-ignated official of the tribe. Indian tribes are encouraged to designate a tribal official to be the focal point for any notification and discussion be-tween the tribe and the Commissioner.

(2) The Commissioner may provide notice to any other Native American group that is known by the Commis-sioner to consider sites potentially af-fected as being of religious or cultural importance.

(3) Upon request during the 30-day pe-riod, the Commissioner may meet with official representatives of any Indian

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International Boundary and Water Commission § 1104.7 tribe or group to discuss their inter-ests, including ways to avoid or miti-gate 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 § 1104.8.

(4) When the Commissioner deter-mines that a permit applied for under this part must be issued immediately because of an imminent threat of loss or destruction of an archaeological re-source, the Commissioner shall so no-tify the appropriate tribe.

(b)(1) In order to identify sites of reli-gious or cultural importance, the Com-missioner shall seek to identify all In-dian tribes having aboriginal or his-toric ties to the lands under the Com-missioner’s jurisdiction and seek to de-termine, from the chief executive offi-cer 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 site eligible for or included in the National Register of Historic Places may be withheld from public disclosure pursuant to sec-tion 304 of the Act of October 15, 1966, as amended (16 U.S.C. 470w–3).

(2) If the Commissioner 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 Commis-sioner’s jurisdiction, the Commissioner may seek to communicate with official representatives of that group to obtain information on sites they may consider to be of religious or cultural impor-tance.

(3) The Commissioner may enter into agreement with any Indian tribe or other Native American group for deter-mining locations for which such tribe or group wishes to receive notice under this section.

§ 1104.7 Issuance of permits.

(a) The Commissioner may issue a permit, for a specified period of time appropriate to the work to be con-ducted, upon determining that:

(1) The applicant is appropriately qualified, as evidenced by training, education, and/or experience, and pos-sesses demonstrable competence in ar-chaeological theory and methods, and in collecting, handling, analyzing, evaluating, and reporting archae-ological data, relative to the type and scope of the work proposed, and also meets the following minimum quali-fications:

(i) A graduate degree in anthropology or archaeology, or equivalent training and experience;

(ii) The demonstrated ability to plan, equip, staff, organize, and supervise ac-tivity of the type and scope proposed;

(iii) The demonstrated ability to carry research to completion, as evi-denced by timely completion of theses, research reports, or similar documents;

(iv) Completion of at least 16 months of professional experience and/or spe-cialized training in archaeological field, laboratory, or library research, administration, or management, in-cluding 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 re-search concerning archaeological re-sources of the prehistoric period.

(2) The proposed work is to be under-taken for the purpose of furthering ar-chaeological knowledge in the public interest, which may include but need not be limited to, scientific or schol-arly research, and preservation of ar-chaeological 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 man-agement of the public lands concerned;

(4) Where the proposed work consists of archaeological survey and/or data re-covery undertaken in accordance with other approved uses of the public lands, and the proposed work has been agreed to in writing by the Commissioner pur-suant to section 106 of the National Historic Preservation Act (16 U.S.C.

470f), paragraphs (a)(2) and (a)(3) of this section shall be deemed satisfied by the prior approval;

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22 CFR Ch. XI (4–1–09 Edition) § 1104.8

(5) Evidence is submitted to the Com-missioner that any university, mu-seum, or other scientific or educational institution proposed in the application as the repository possesses adequate curatorial capability for safeguarding and preserving the archaeological re-sources and all associated records; and

(6) The applicant has certified that, not later than 90 days after the date the final report is submitted to the Commissioner, the following will be de-livered to the appropriate official of the approved university, museum, or other scientific or educational institu-tion, which shall be named in the per-mit:

(i) All artifacts, samples, collections, and copies of records, data, photo-graphs, and other documents resulting from work conducted under the re-quested permit where the permit is for the excavation and/or removal of ar-chaeological resources from public lands.

(b) When the area of the proposed work would cross jurisdictional bound-aries, so that permit applications must be submitted to more than one Federal agency, the Commissioner shall coordi-nate the review and evaluation of ap-plications and the issuance of permits.

§ 1104.8 Terms and conditions of per-mits.

(a) In all permits issued, the Commis-sioner shall specify:

(1) The nature and extent of work al-lowed and required under the permit, including the time, duration, scope, lo-cation, and purpose of the work;

(2) The name of the individual(s) re-sponsible for conducting the work and, if different, the name of the indi-vidual(s) responsible for carrying out the terms and conditions of the permit;

(3) The name of any university, mu-seum, or other scientific or educational institutions in which any collected ma-terials and data shall be deposited; and

(4) Reporting requirements.

(b) The Commissioner 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) Initiation of work or other activi-ties under the authority of a permit signifies the permittee’s acceptance of the terms and conditions of the permit.

(d) The permittee shall not be re-leased from requirements of a permit until all outstanding obligations have been satisifed, whether or not the term of the permit has expired.

(e) The permittee may request that the Commissioner extend or modify a permit.

(f) The permittee’s performance under any permit issued for a period greater than 1 year shall be subject to review by the Commissioner, at least annually.

§ 1104.9 Suspension and revocation of permits.

(a) Suspension or revocation for cause.

(1) The Commissioner 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 vio-lated any prohibition of the Act or § 1104.3. The Commissioner shall pro-vide 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 Commissioner may revoke a permit upon assessment of a civil pen-alty under § 1104.14 upon the permit-tee’s conviction under section 6 of the Act, or upon determining that the per-mittee has failed after notice under this section to correct the situation which led to suspension of the permit.

(b) Suspension or revocation for man-agement purposes. The Commissioner may suspend or revoke a permit, with-out liability to the United States, its agents, or employees, when continu-ation of work under the permit would be in conflict with management re-quirements not in effect when the per-mit was issued. The Commissioner shall provide written notice to the per-mittee stating the nature of and basis for the suspension or revocation.

§ 1104.10 Appeals relating to permits.

Any affected person may appeal per-mit issuance, denial of permit issuance, suspension, revocation, and terms and conditions of a permit.

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International Boundary and Water Commission § 1104.14

§ 1104.11 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). How-ever, the mere issuance of such a per-mit does not excuse the Commissioner from compliance with section 106 where otherwise required.

§ 1104.12 Custody of archaeological re-sources.

(a) Archaeological resources exca-vated or removed from the public lands remain the property of the United States.

(b) The Commissioner may provide for the exchange of archaeological re-sources among suitable universities, museums, or other scientific or edu-cational institutions, when such re-sources have been excavated or re-moved from public lands under the au-thority of a permit issued by the Com-missioner.

§ 1104.13 Determination of archae-ological 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 § 1104.3 of this part or conditions of a permit issued pursuant to this part shall be the value of the information associated with the archaeological re-source. 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 viola-tion. 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 nec-essary to realize the information po-tential.

(b) Commercial value. For purposes of this part, the commercial value of any archaeological resource involved in a violation of the prohibitions in § 1104.3 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 archae-ological resource, the fair market value should be determined using the condition of the archaeological re-source prior to the violation, to the ex-tent that its prior condition can be ascertained.

(c) Cost of restoration and repair. For purposes of this part, the cost of res-toration and repair of archaeological resources damaged as a result of a vio-lation of prohibitions or conditions pursuant to this part, shall be the sum of the costs already incurred for emer-gency restoration or repair work, plus those costs projected to be necessary to complete restoration and repair, which may include, but need not be limited to, the costs of the following:

(1) Reconstruction of the archae-ological resource;

(2) Stabilization of the archae-ological resource;

(3) Ground contour reconstruction and surface stabilization;

(4) Research necessary to carry out reconstruction or stabilization;

(5) Physical barriers or other protec-tive devices, necessitated by the dis-turbance of the archaeological re-source, to protect it from further dis-turbance;

(6) Examination and analysis of the archaeological resource including re-cording remaining archaeological in-formation, where necessitated by dis-turbance, in order to salvage remaining values which cannot be otherwise con-served;

(7) Reinterment of human remains in accordance with religious custom and State, local, or tribal law, where appro-priate, as determined by the Commis-sioner;

(8) Preparation of reports relating to any of the above activities.

§ 1104.14 Assessment of civil penalties.

(a) The Commissioner may assess a civil penalty against any person who has violated any prohibition contained in § 1104.3 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 Commis-sioner 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

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22 CFR Ch. XI (4–1–09 Edition) § 1104.14 receipt requested). The Commissioner shall include in the notice:

(1) A concise statement of the facts believed to show a violation;

(2) A specific reference to the provi-sion(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 ap-propriate, 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 para-graph (d) of this section, or to await the Commissioner’s notice of assess-ment, and to request a hearing in ac-cordance with paragraph (g) of this sec-tion. The notice shall also inform the person of the right to seek judicial re-view of any final administrative deci-sion 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 Commissioner;

(2) File a petition for relief in accord-ance with paragraph (d) of this section;

(3) Take no action and await the Commissioner’s notice of assessment;

(4) Accept in writing or by payment the proposed penalty, or any mitiga-tion or remission offered in the notice.

Acceptance of the proposed penalty or mitigation or remission shall be deemed a waiver of the notice of assess-ment and of the right to request a hearing under paragraph (g) of this sec-tion.

(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 Commis-sioner within 45 calendar days of the date of service of the notice of viola-tion (or of a proposed penalty amount, if later). The petition shall be in writ-ing and signed by the person served with the notice of violation. If the per-son 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 fac-tual basis for the requested relief.

(e) Assessment of penalty. (1) The Com-missioner 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 informa-tion, 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 per-son served with a notice of violation, and no penalty shall be assessed.

(4) Where the facts warrant a conclu-sion that a violation has occurred, the Commissioner shall determine a pen-alty amount in accordance with § 1104.15.

(f) Notice of assessment. The Commis-sioner shall notify the person served with a notice of violation of the pen-alty amount assessed by serving a writ-ten notice of assessment, either in per-son or by registered or certified mail (return receipt requested). The Com-missioner shall include in the notice of assessment:

(1) The facts and conclusions from which it was determined that a viola-tion did occur;

(2) The basis in § 1104.15 for deter-mining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and

(3) Notification of the right to re-quest a hearing, including the proce-dures to be followed, and to seek judi-cial 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 para-graph (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

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International Boundary and Water Commission § 1104.15 the notice of assessment, and shall de-liver the request as specified in the no-tice of assessment, personally or by registered or certified mail (return re-ceipt requested).

(2) Failure to deliver a written re-quest for a hearing within 45 days of the date of service of the notice of as-sessment shall be deemed a waiver of the right to a hearing.

(3) Any hearing conducted pursuant to this section shall be held in accord-ance with 5 U.S.C. 554. In any such hearing, the amount of civil penalty assessed shall be determined in accord-ance 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 Commis-sioner.

(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 sec-tion, the notice of violation shall con-stitute the final administrative deci-sion;

(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 para-graph (g)(1) of this section, the decision resulting from the hearing or any ap-plicable administrative appeal there-from shall constitute the final admin-istrative 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 pen-alty assessed, unless a timely request for appeal has been filed with a United States District Court as provided in section 7(b)(1) of the Act.

(2) Upon failure to pay the penalty, the Commissioner may request the At-torney General to institute a civil ac-tion to collect the penalty in a United States District Court for any district in which the person assessed a civil penalty is found, resides, or transacts business. Where the Commissioner is not represented by the Attorney Gen-eral, a civil action may be initiated di-rectly by the Commissioner.

(j) Other remedies not waived. Assess-ment of a penalty under this section shall not be deemed a waiver of the right to pursue other available legal or administrative remedies.

§ 1104.15 Civil penalty amounts.

(a) Maximum amount of penalty. (1) Where the person being assessed a civil penalty has not committed any pre-vious violation of any prohibition in § 1104.3 or of any term or condition in-cluded in a permit issued pursuant to this part, the maximum amount of the penalty shall be the full cost of res-toration and repair of archaeological resources damaged plus the archae-ological or commercial value of archae-ological resources destroyed or not re-covered.

(2) Where the person being assessed a civil penalty has committed any pre-vious violation of any prohibition in § 1104.3 or of any term or condition in-cluded in a permit issued pursuant to this part, the maximum amount of the penalty shall be double the cost of res-toration and repair plus double the ar-chaeological or commercial value of ar-chaeological 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 Commis-sioner may assess a penalty amount less than the maximum amount of pen-alty 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 as-sessed a civil penalty to return to the Commissioner archaeological resources removed from public lands;

(ii) Agreement by the person being assessed a civil penalty to assist the Commissioner in activity to preserve, restore, or otherwise contribute to the protection and study of archaeological resources on public lands;

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22 CFR Ch. XI (4–1–09 Edition) § 1104.16

(iii) Agreement by the person being assessed a civil penalty to provide in-formation which will assist in the de-tection, prevention, or prosecution of violations of the Act or this part;

(iv) Demonstration of hardship or in-ability to pay, provided that this factor shall only be considered when the per-son being assessed a civil penalty has not been found to have previously vio-lated 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 miti-gating circumstances appropriate to consideration in reaching a fair and ex-peditious assessment.

(2) When the penalty is for a viola-tion which may have had an effect on a known Indian tribal religious or cul-tural site on public lands, the Commis-sioner should consult with and consider the interests of the affected tribe(s) prior to proposing to mitigate or remit the penalty.

§ 1104.16 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 in-volved 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 con-viction for a criminal violation or to assessment of a civil penalty. The 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 informa-tion or render service in the perform-ance of their official duties, and per-sons who have provided information under § 1104.15(b)(1)(iii) shall not be cer-tified eligible to receive payment of re-wards.

§ 1104.17 Confidentiality of archae-ological resource information.

(a) The Commissioner shall not make available to the public, under sub-chapter II of chapter 5 of title 5 of the United States Code or any other provi-sion of law, information concerning the nature and location of any archae-ological resource, with the following exceptions:

(1) The Commissioner may make in-formation 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-chaeological resource or to the site in which it is located.

(2) The Commissioner shall make in-formation available, when the Gov-ernor of any State has submitted to the Commissioner a written request for information, concerning the archae-ological resources within the request-ing Governor’s State, provided that the request includes:

(i) The specific archaeological re-source or area about which information is sought;

(ii) The purpose for which the infor-mation is sought; and

(iii) The Governor’s written commit-ment to adequately protect the con-fidentiality of the information.

§ 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 nec-essary to enable the Secretary to com-ply with section 13 of the Act.

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