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(2) The basis in § 296.16 for deter- therefrom shall constitute the final mining the penalty amount assessed administrative decision, and/or any offer to mitigate or remit (i) Payment of penalty. (1) The the penalty; and
person assessed a civil penalty shall (3) Notification of the right to re- have 45 calendar days from the date of quest a hearing, including the proce- issuance of the final administrative dedures to be followed, and to seek judi- cision in which to make full payment cial review of any final administrative of the penalty assessed, unless a decision assessing a civil penalty.
timely request for appeal has been (g) Hearings. (1) Except where the filed with a United States District right to request a hearing is deemed to Court as provided in section 7(b)(1) of have been waived as provided in para
the Act. graph (c)(4) of this section, the person (2) Upon failure to pay the penalty, served with a notice of assessment the Federal land manager may request may file a written request for a hear- the Attorney General to institute a ing with the adjudicatory body speci- civil action to collect the penalty in a fied in the notice. The person shall en- United States District Court for any close with the request for hearing a district in which the person assessed a copy of the notice of assessment, and civil penalty is found, resides, or transshall deliver the request as specified in acts business. Where the Federal land the notice of assessment, personally or manager is not represented by the Atby registered or certified mail (return torney General, a civil action may be receipt requested).
initiated directly by the Federal land (2) Failure to deliver a written re- manager. quest for a hearing within 45 days of (j) Other remedies not waived. Asthe date of service of the notice of as- sessment of a penalty under this secsessment shall be deemed a waiver of tion shall not be deemed a waiver of the right to a hearing.
the right to pursue other available (3) Any hearing conducted pursuant legal or administrative remedies. to this section shall be held in accordance with 5 U.S.C. section 554. In any
8 296.16 Civil penalty amounts. such hearing, the amount of civil pen- (a) Maximum amount of penalty. (1) alty assessed shall be determined in
Where the person being assessed a accordance with this part, and shall civil penalty has not committed any not be limited by the amount assessed previous violation of any prohibition by the Federal land manager under in § 296.4 or of any term or condition paragraph (f) of this section or any included in a permit issued pursuant offer of mitigation or remission made to this part, the maximum amount of by the Federal land manager.
the penalty shall be the full cost of (h) Final administrative decision. restoration and repair of archaeologi(1) Where the person served with a cal resources damaged plus the ar. notice of violation has accepted the chaeological or commercial value of penalty pursuant to paragraph (c)(4) archaeological resources destroyed or of this section, the notice of violation not recovered. shall constitute the final administra- (2) Where the person being assessed tive decision;
a civil penalty has committed any pre(2) Where the person served with a vious violation of any prohibition in notice of assessment has not filed a § 296.4 or of any term or condition intimely request for a hearing pursuant cluded in a permit issued pursuant to to paragraph (g)(1) of this section, the this part, the maximum amount of the notice of assessment shall constitute penalty shall be double the cost of resthe final administrative decision; toration and repair plus double the ar
(3) Where the person served with a chaeological or commercial value of notice of assessment has filed a timely archaeological resources destroyed or request for a hearing pursuant to not recovered. paragraph (g)(1) of this section, the (3) Violations limited to the removal decision resulting from the hearing or of arrowheads located on the surface any applicable administrative appeal of the ground shall not be subject to
the penalties prescribed in this sec- land manager should consult with and tion.
consider the interests of the affected (b) Determination of penalty tribe(s) prior to proposing to mitigate amount, mitigation, and remission. or remit the penalty. The Federal land manager may assess
(49 FR 1027, Jan. 6. 1984, as amended at 52 a penalty amount less than the maxi.
FR 47721, Dec. 16. 1987) mum amount of penalty and may offer to mitigate or remit the penalty.
$ 296.17 Other penalties and rewards. (1) Determination of the penalty amount and/or a proposal to mitigate
(a) Section 6 of the Act contains or remit the penalty may be based
criminal prohibitions and provisions upon any of the following factors:
for criminal penalties. Section 8(b) of (i) Agreement by the person being the Act provides that archaeological assessed a civil penalty to return to
resources, vehicles, or equipment inthe Federal land manager archaeologi.
volved in a violation may be subject to cal resources removed from public
forfeiture. lands or Indian lands;
(b) Section 8(a) of the Act provides (ii) Agreement by the person being for rewards to be made to persons who assessed a civil penalty to assist the
furnish information which leads to Federal land manager in activity to
conviction for a criminal violation or preserve, restore, or otherwise contrib
to assessment of a civil penalty. The ute to the protection and study of ar
Federal land manager may certify to chaeological resources on public lands
the Secretary of the Treasury that a or Indian lands;
person is eligible to receive payment. (iii) Agreement by the person being
Officers and employees of Federal, assessed a civil penalty to provide in
State, or local government who furformation which will assist in the de
nish information or render service in tection, prevention, or prosecution of
the performance of their official violations of the Act or this part;
duties, and persons who have provided (iv) Demonstration of hardship or
information under $ 296.16(b)(1)(iii) inability to pay, provided that this
shall not be certified eligible to receive factor shall only be considered when
payment of rewards. the person being assessed a civil penal- (c) In cases involving Indian lands, ty has not been found to have previ.
all civil penalty monies and any item ously violated the regulations in this
forfeited under the provisions of this part;
section shall be transferred to the ap(v) Determination that the person
propriate Indian or Indian tribe. being assessed a civil penalty did not
8 296.18 Confidentiality of archaeological willfully commit the violation;
resource information. (vi) Determination that the proposed penalty would constitute exces- (a) The Federal land manager shall sive punishment under the circum- not make available to the public, stances;
under subchapter II of chapter 5 of (vii) Determination of other mitigat- title 5 of the United States Code or ing circumstances appropriate to con- any other provision of law, informasideration in reaching a fair and expe- tion concerning the nature and locaditious assessment.
tion of any archaeological resource, (2) When the penalty is for a viola- with the following exceptions: tion on Indian lands, the Federal land (1) The Federal land manager may manager shall consult with and con- make information available, provided sider the interests of the Indian land- that the disclosure will further the owner and the Indian tribe having ju- purposes of the Act and this part, or risdiction over the Indian lands prior the Act of June 27, 1960, as amended to proposing to mitigate or remit the (16 U.S.C. 469-469c), without risking penalty.
harm to the archaeological resource or (3) When the penalty is for a viola- to the site in which it is located. tion which may have had an effect on (2) The Federal land manager shall a known Indian tribal religious or cul- make information available, when the tural site on public lands, the Federal Governor of any State has submitted to the Federal land manager a written sources projects affecting Wild and request for information, concerning Scenic Rivers or Study Rivers administhe archaeological resources within tered in whole or part by the Secrethe requesting Governor's State, pro- tary of Agriculture. vided that the request includes:
(i) The specific archaeological re- 8 297.3 Definitions. source or area about which informa
Act means the Wild and Scenic tion is sought;
Rivers Act (82 Stat. 906, as amended; (ii) The purpose for which the infor
16 U.S.C. 1271-1288). mation is sought; and (iii) The Governor's written commit
Construction means any action car. ment to adequately protect the confi
ried on with Federal assistance affectdentiality of the information.
ing the free-flowing characteristics or
the scenic or natural values of a Wild (49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb.
and Scenic River or Study River. 16, 1984)
Federal assistance means any assist& 296.19 Report.
ance by an authorizing agency includ. Each Federal land manager, when
ing, but not limited to, the following: requested by the Secretary of the In
(a) A license, permit, preliminary terior, shall submit such information
permit, or other authorization granted as is necessary to enable the Secretary
by the Federal Energy Regulatory to comply with section 13 of the Act.
Commission pursuant to sections 4(e)
and 4(f) of the Federal Power Act, 16 PART 297–WILD AND SCENIC
(b) A license, permit, or other au
thorization granted by the Corps of Subpart A-Water Resources Projects
Engineers, Department of the Army,
pursuant to the Rivers and Harbors Sec.
Act of 1899 (33 U.S.C. 401 et seq.), and 297.1 General.
section 404 of the Clean Water Act (33 297.2 Scope and application.
U.S.C. 1344); and, 297.3 Definitions. 297.4 Requirements for Federal agencies.
(c) Any other license, permit, or au297.5 Determination.
thorization which may be required by 297.6 Environmental analysis require. an agency or Department of the Fedments.
eral Government before, during, or
after construction of a water resources Subpart B-[Reserved)
project. AUTHORITY: 16 U.S.C. 551, 1278(c), 1281(d).
Free-flowing is defined by section
16(b) of the Act as "existing or flowing SOURCE: 49 FR 1902, Jan. 16, 1984. Correct
in natural condition without impoundly designated at 49 FR 6896, Feb. 24, 1984, unless otherwise noted.
ment, diversion, straightening, riprap
ping, or other modification of the waSubpart A-Water Resources Projects
terway" (16 U.S.C. 1287(b)).
Study period means the time during 8 297.1 General.
which a river is being studied as a poSection 7 of the Wild and Scenic tential component of the Wild and Rivers Act (16 U.S.C. 1278), as amend
Scenic Rivers System and such addied, provides for the protection of the tional time as provided in section free-flowing, scenic, and natural values 7(b)(ii) of the Act not to exceed 3 addiof rivers designated as components or tional years during which a report recpotential components of the National ommending designation is before the Wild and Scenic Rivers System from Congress, or such additional time as the effects of construction of any may be provided by statute. water resources project.
Study river means a river and the
adjacent area within one quarter mile 8 297.2 Scope and application.
of the banks of the river which is desThese rules apply to Federal assist- ignated for study as a potential addiance in the construction of water re- tion to the National Wild and Scenic
Rivers System pursuant to section 5(a) license, permit, or other authorization of the Act.
if, as a finding of fact, it is determined Water resources project means any that: dam, water conduit, reservoir, power- (1) The water resources project will house, transmission line, or other not have a direct and adverse effect on project works under the Federal the values for which a Wild and Scenic Power Act (41 Stat. 1063) as amended, River or Study River was designated, or other construction of developments when any portion of the project is which would affect the free-flowing
within the boundaries of said river, or; characteristics of a Wild and Scenic
(2) The effects of the water reRiver or Study River. Wild and scenic river means a river
sources project will neither invade nor and the adjacent area within the unreasonably diminish the scenic, recboundaries of a component of the Na
reational, and fish wildlife values of a tional Wild and Scenic Rivers System
Wild and Scenic River, when any porpursuant to section 3(a) or 2(a)(ii) of tion of the project is located above, the Act.
below, or outside the Wild and Scenic
River, or; 8 297.4 Requirements for Federal agen- (3) The effects of the water recies.
sources project will neither invade nor (a) No license, permit, or other au- diminish the scenic, recreational, and thorization can be issued for a Feder. fish and wildlife values of a Study ally assisted water resources project River when the project is located on any portion of a Wild and Scenic above, below, or outside the Study River or Study River nor can appro- River during the study period. priations be requested to begin con- (b) If consent is denied, the Secrestruction of such projects, without tary may recommend measures to prior notice to the Secretary of Agri- eliminate adverse effects, and the auculture, and a determination in ac- thorizing agencies may submit revised cordance with section 7 of the Act. plans for consideration.
(b) As soon as practicable, but no less than 60 days prior to the date of 8 297.6 Environmental analysis requireproposed action, the Federal agency ments. shall provide a notice of intent to issue
(a) The determination of the effects such license, permit, or other authori
of a proposed water resources project zation to the Chief, Forest Service, U.S. Department of Agriculture, P.O.
shall be made in compliance with the
National Environmental Policy Act Box 2417, Washington, DC 20013. The
(NEPA). To the extent possible, auSecretary will, to the extent possible, give expedited consideration to a
thorizing agencies should ensure that
any notice of intent for a project needed to
environmental studies, address an emergency situation.
ments, or environmental impact state(c) The notice shall include the fol
ments prepared for a water resources lowing information:
project adequately address the envi(1) Name and location of affected
ronmental effects on resources proriver;
tected by the Wild and Scenic Rivers (2) Location of the project;
Act, and that the Department of Agri(3) Nature of the permit or other au- culture is apprised of ongoing analyses thorization proposed for issuance; so as to facilitate coordination and (4) A description of the proposed ac
identification of Wild and Scenic River tivity, and
related issues. (5) Any relevant information, such (b) To the extent practicable, imas plans, maps, and environmental pacts on Wild and Scenic River values studies, assessments, or environmental will be considered in the context of impact statements.
other review procedures provided by
law. Authorizing agencies are encour8 297.5 Determination.
aged to consult with the Forest Serv(a) The Secretary of Agriculture will ice in order to identify measures consent to the issuance of any Federal which could eliminate any direct and