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Technical Brief 16 The Civil Prosecution Process of the Archaeological Resources Protection Act


APPENDIX A
Notice of Violation

Date:

Addressed to:

An investigation has revealed that you are responsible for damage to an archeological site on (location and popular name of site, if any). The damage occurred (between dates)(on or about) during an activity that was conducted outside of the permit or contract authority or without a permit or a contract, that is (describe). The specific location of the damaged site is (describe).

You have damaged an archeological resource located on (Federal or Indian) lands in violation of the Archaeological Resources Protection Act of 1979 (ARPA, 16 USC 470aa-mm) and (agency regs. that apply). The total damages have been ascertained pursuant to the law and are in the amount of ($). The proposed penalty amount is ($).

Archeological resources removed from the site are the property of the United States Government and are to be returned (or if seized, are to be maintained in government custody for appropriate disposition). Certain tools and vehicles were used in the commission of the violation of ARPA, and those are (fully describe). These tools and vehicles are subject to forfeiture, and, if seized, will remain in the custody of the (agency) until the final disposition of this matter.

You have 45 days from the service of this notice to take one of the following actions: seek informal discussions with the (identify the agency authority, address and telephone); file a petition for relief, stating the basis for your request, to be sent to (person and the address); pay the amount indicated above; or take no action and await the issuance of the Notice of Assessment. Any Petition for Relief must comply with the requirements of (agency regulations).

Upon completion of the review of any petition, at the conclusion of the informal discussions, or upon passage of 45 days if you take no action, I will, if appropriate, issue a Notice of Assessment. If one is issued, you will have the right to a hearing before an Administrative Law judge of the (hearing body), if you wish to appeal. I will advise you of the proper procedures for appealing the Notice of Assessment in any Notice of Assessment that I issue.

You have the right to seek judicial review of any final administrative decision assessing a civil penalty.

                              

Signature and Title

                              

Date

(address if not apparent and telephone)

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APPENDIX B
Petition for Relief

To: (person issuing notice of violation)

Date: (served within 45 days of notice)

(I)(we) (accept)(take issue with the Notice of Assessment dated         ) for the following reasons: (I am not the violator, explain)(I did not create the damage as indicated, explain) (I did not use the vehicle or tools now in your possession, explain) (the damage is overstated, explain). The factual and legal reasons that I feel that I should not be assessed a penalty are:

                              

Signed by the recipient of the notice or an officer of a corporate respondent

                              

Date

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APPENDIX C
Notice of Assessment

To: (respondent)(s)

Date:

After an investigation (and after considering the facts you brought forth in the informal hearing and/or the petition for relief) it has been determined that you are responsible for damage to an archeological site (describe) on the (site location). The damage occurred when you took action without a permit or contract, or in excess of your permit or contract authority, that is: (describe).

During the course of the investigation (brief statement of the facts that indicate there was a violation of ARPA, that the respondent was the violator, and that vehicles or tools were used in the commission of the offense).

During the meeting you requested on (date) you indicated (pertinent discussed facts and land manager's response thereto). Therefore you acted without authority and damaged the archeological site.

I have determined the amount of the penalty to be ($), which includes the (archeological value of the resource or the commercial value of the items, plus the cost of restoration and repair in either case). (In the case of a contractor with a receivable pending) if the awarded contract is more than the penalty amount, the remaining monies will be refunded. If the penalty amount exceeds the amount of the contract, the (agency) will (absorb the remainder and/or request collection of the balance). The administrative costs will be (billed or absorbed by the agency).

In accordance with a Memorandum of Agreement between the (petitioning agency) and the Department of the Interior for implementing administrative procedures under the Archaeological Resources Protection Act, you may file a written, dated request for a hearing with the Hearing Division, Office of Hearings and Appeals, Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1954, within 45 days of service of this Notice of Assessment. You should enclose a copy of the Notice of Violation previously sent to you and a copy of this Notice of Assessment. Your request will state the relief requested and your basis for challenging the facts alleged by (agency). You also should include your preferences as to the place and date for a hearing.

A copy of the request for a hearing should be served upon (agency counsel) personally or by registered or certified mail, return receipt requested, at (address of counsel).

You have a right to seek judicial review of any final administrative decision assessing a civil penalty.

                               

Signature and Title

(may attach a copy of the site damage assessment)

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