[Congressional Record Volume 151, Number 9 (Wednesday, February 2, 2005)]
[Senate]
[Pages S891-S893]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself, Mr. Baucus, Mrs. Feinstein, Mr. 
        Durbin, Mr. Roberts, and Mr. Inouye):
  S. 263. A bill to provide for the protection of paleontological 
resources on Federal lands, and for other purposes; to the Committee on 
Energy and Natural Resources.
  Mr. AKAKA. Mr. President, I rise today to introduce the 
Paleontological Resources Preservation Act to protect and preserve the 
Nation's important fossil record for the benefit of our citizens. I am 
pleased to have Senators Baucus, Feinstein, Durbin, Roberts, and Inouye 
join me as original cosponsors on this significant legislation.
  This bill was reported favorably by the Senate Committee on Energy 
and Natural Resources, and approved by unanimous consent during the 
108th Congress. A similar bill was introduced in the other body by 
Representative James R. McGovern, with 15 cosponsors, but was not 
reported by the Resources Committee. I hope we can pass this again 
quickly in the Senate and move the bill in the House of 
Representatives.
  You may remember that in 1999, Congress requested that the Secretary 
of the Interior review and report on the Federal policy concerning 
paleontological resources on Federal lands. In its request, Congress 
noted that no unified Federal policy existed regarding the--treatment 
of fossils by Federal land management agencies, and emphasized 
Congress's concerns that a lack of appropriate standards would lead to 
the deterioration or loss of fossils, which are valuable scientific 
resources. Unfortunately, that situation remains the case today.
  In the past year alone, there have been compelling finds of fossils 
that are helping us unlock the mysteries of the past from the earth, 
whether violent tectonic cataclysms or depletion of oxygen in the 
oceans and consequent drastic changes in species. The National Parks 
Conservation Association NPCA, a bipartisan non-profit organization 
dedicated to protecting and enhancing National Parks, recently called 
for ``stronger laws, better enforcement, and better education programs 
. . . to more fully protect these valuable [fossil] relics.'' In its 
Fall 2004 issue of National Parks, the article described the discovery 
at Wind Cave National Park, South Dakota, in July 2003, of fossilized 
remains of a 5-foot tall hornless rhinoceros, a collie-sized horse, and 
a foot-tall, deer-like mammal.
  National Parks are the home of many extraordinary fossil discoveries 
already, such as the graveyards of 20-million-year old camels and 
rhinos at Agate Fossil Beds National Monument in Nebraska, the only 
pygmy island-dwelling mammoth at Channel Islands National Park in 
California; and tropical dinosaurs in what are now the arid lands of 
the Painted Desert of southern Arizona.
  Besides the National Park Service, other Federal land management 
agencies have a number of regulations and directives on paleontological 
resources, but they are not consistent and there is no clear statutory 
language providing direction in protecting and curating fossils. I 
would like to commend to my colleagues two reports recently published 
by the Congressional Research Service, CRS, which we know as an 
impartial, non-partisan legislative research service that provides 
analysis for Congress. The CRS American Law Division published two 
reports entitled ``Federal Management and Protection of Fossil 
Resources on Federal Lands'' and, ``Paleontological Resources 
Protection Act: Proposal for the Management and Protection of Fossil 
Resources Located on Federal Lands.''
  These two reports analyze the status and activities of Federal 
agencies with paleontological responsibilities, the statutory 
authorities for fossils, the case law supporting them, and the bills 
recently introduced on fossils such as S. 546 in the 108th Congress. 
The reports point out that several Federal agencies have management 
authority for the protection of fossil resources on the lands under 
their jurisdiction--the Department of the Interior's Bureau of Land 
Management, Bureau of Reclamation, Fish and Wildlife Service, and 
National Park Service, and the U.S. Department of Agriculture's U.S. 
Forest Service. The report also points out that the U.S. Geological 
Survey, Department of Defense, and Smithsonian Institution have some 
fossil responsibilities. The reports further find that agency 
enforcement and prosecution policies differ greatly and there is only 
limited and scattered authority for Federal management and protection 
of fossil resources on Federal lands.

  The report concludes that the scattered authorities result in case 
law on fossil protection that is not well developed and not necessarily 
consistent. The cases do not provide clear case precedent and are not 
necessarily applicable to broader protection, regulation, management, 
and marketing issues.
  Both reports conclude that there is an absence of uniform regulations 
for paleontological resources on Federal lands--as shown by an absence 
of precise uniform definitions of key terms--and that there is no 
comprehensive statute or management policy for the protection and 
management of fossils on Federal lands.
  The Paleontological Resources Preservation Act embodies the 
principles recommended by an interagency group in a 2000 report to 
Congress entitled ``Assessment of Fossil Management on Federal and 
Indian Lands.'' The bill provides the paleontological equivalent of 
protections found in the Archaeological Resources Preservation Act. The 
bill finds that fossil resources on Federal lands are an irreplaceable 
part of the heritage of the United States and affirms that reasonable 
access to fossil resources should be provided for scientific, 
educational, and recreational purposes. The bill acknowledges the value 
of amateur collecting and provides an exception for casual collecting 
of invertebrate fossils, but protects vertebrate fossils found on 
Federal lands under a system of permits. The fossil bill does not 
restrict access of the interested public to fossils on public lands but 
rather will help create opportunities for involvement. For example, 
there are many amateur paleontologists volunteering to assist in the 
excavation and curation of fossils on national park lands already.
  Finally, I would like to emphasize that this bill in no way affects 
archaeological or cultural resources under the Archaeological Resources 
Protection Act of 1979 or the Native American Graves Protection and 
Rehabilitation Act. They are exempted because they are very different 
types of resources This bill covers only paleontological remains--
fossils on Federal lands.
  As we look toward the future, public access to fossil resources will 
take on a new meaning, as digital images of fossils become available 
worldwide. Discoveries in paleontology are made

[[Page S892]]

more frequently than we realize. They shape how we learn about the 
world around us. In January of this year, Science Express, the on-line 
version of the journal Science, reported two studies using 
paleontological data to understand the causes of the ``Great Dying,'' 
or mass extinctions that occurred about 250 million years ago in the 
Permian-Triassic period. The Paleontological Resources Preservation Act 
would create a legacy for the production of scientific knowledge for 
future generations.
  The protections offered in this act are not new. Federal land 
management agencies already have individual regulations prohibiting 
theft of government property. However, the reality is that U.S. 
attorneys are reluctant to prosecute cases involving fossil theft 
because they are difficult. The National Park Service reported 721 
incidents of vandalism; and visitors annually take up to 12 tons of 
petrified wood from Petrified Forest National Park, a fact that has 
lead the NPCA to place the Petrified National Forest on its ``Ten Most 
Endangered National Parks'' lists in 2000 and 2001.
  Congress has not provided a clear statute stating the value of 
paleontological resources to our Nation, as has been provided for 
archaeological resources. Fossils are too valuable to be left within 
the general theft provisions that are difficult to prosecute, and they 
are too valuable to the education of our children not to ensure public 
access. We need to work together to make sure that we fulfill our 
responsibility as stewards of public lands, and as protectors of our 
Nation's natural resources.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 263

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Paleontological Resources 
     Preservation Act''.

     SEC. 2. DEFINITIONS.

       As used in this Act:
       (1) Casual collecting.--The term ``casual collecting'' 
     means the collecting of a reasonable amount of common 
     invertebrate and plant paleontological resources for non-
     commercial personal use, either by surface collection or the 
     use of non-powered hand tools resulting in only negligible 
     disturbance to the Earth's surface and other resources. As 
     used in this paragraph, the terms ``reasonable amount'', 
     ``common invertebrate and plant paleontological resources'' 
     and ``negligible disturbance'' shall be determined by the 
     Secretary.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior with respect to lands controlled or 
     administered by the Secretary of the Interior or the 
     Secretary of Agriculture with respect to National Forest 
     System Lands controlled or administered by the Secretary of 
     Agriculture.
       (3) Federal lands.--The term ``Federal lands'' means--
       (A) lands controlled or administered by the Secretary of 
     the Interior, except Indian lands; or
       (B) National Forest System lands controlled or administered 
     by the Secretary of Agriculture.
       (4) Indian lands.--The term ``Indian Land'' means lands of 
     Indian tribes, or Indian individuals, which are either held 
     in trust by the United States or subject to a restriction 
     against alienation imposed by the United States.
       (5) State.--The term ``State'' means the fifty States, the 
     District of Columbia, the Commonwealth of Puerto Rico, and 
     any other territory or possession of the United States.
       (6) Paleontological resource.--The term ``paleontological 
     resource'' means any fossilized remains, traces, or imprints 
     of organisms, preserved in or on the earth's crust, that are 
     of paleontological interest and that provide information 
     about the history of life on earth, except that the term does 
     not include--
       (A) any materials associated with an archaeological 
     resource (as defined in section 3(1) of the Archaeological 
     Resources Protection Act of 1979 (16 U.S.C. 470bb(1)); or
       (B) any cultural item (as defined in section 2 of the 
     Native American Graves Protection and Repatriation Act (25 
     U.S.C. 3001)).

     SEC. 3. MANAGEMENT.

       (a) In General.--The Secretary shall manage and protect 
     paleontological resources on Federal lands using scientific 
     principles and expertise. The Secretary shall develop 
     appropriate plans for inventory, monitoring, and the 
     scientific and educational use of paleontological resources, 
     in accordance with applicable agency laws, regulations, and 
     policies. These plans shall emphasize interagency 
     coordination and collaborative efforts where possible with 
     non-Federal partners, the scientific community, and the 
     general public.
       (b) Coordination.--To the extent possible, the Secretary of 
     the Interior and the Secretary of Agriculture shall 
     coordinate in the implementation of this Act.

     SEC. 4. PUBLIC AWARENESS AND EDUCATION PROGRAM.

       The Secretary shall establish a program to increase public 
     awareness about the significance of paleontological 
     resources.

     SEC. 5. COLLECTION OF PALEONTOLOGICAL RESOURCES.

       (a) Permit Requirement.--
       (1) In general.--Except as provided in this Act, a 
     paleontological resource may not be collected from Federal 
     lands without a permit issued under this Act by the 
     Secretary.
       (2) Casual collecting exception.--The Secretary may allow 
     casual collecting without a permit on Federal lands 
     controlled or administered by the Bureau of Land Management, 
     the Bureau of Reclamation, and the Forest Service, where such 
     collection is consistent with the laws governing the 
     management of those Federal lands and this Act.
       (3) Previous permit exception.--Nothing in this section 
     shall affect a valid permit issued prior to the date of 
     enactment of this Act.
       (b) Criteria for Issuance of a Permit.--The Secretary may 
     issue a permit for the collection of a paleontological 
     resource pursuant to an application if the Secretary 
     determines that--
       (1) the applicant is qualified to carry out the permitted 
     activity;
       (2) the permitted activity is undertaken for the purpose of 
     furthering paleontological knowledge or for public education;
       (3) the permitted activity is consistent with any 
     management plan applicable to the Federal lands concerned; 
     and
       (4) the proposed methods of collecting will not threaten 
     significant natural or cultural resources.
       (c) Permit Specifications.--A permit for the collection of 
     a paleontological resource issued under this section shall 
     contain such terms and conditions as the Secretary deems 
     necessary to carry out the purposes of this Act. Every permit 
     shall include requirements that--
       (1) the paleontological resource that is collected from 
     Federal lands under the permit will remain the property of 
     the United States;
       (2) the paleontological resource and copies of associated 
     records will be preserved for the public in an approved 
     repository, to be made available for scientific research and 
     public education; and
       (3) specific locality data will not be released by the 
     permittee or repository without the written permission of the 
     Secretary.
       (d) Modification, Suspension, and Revocation of Permits.--
       (1) The Secretary may modify, suspend, or revoke a permit 
     issued under this section--
       (A) for resource, safety, or other management 
     considerations; or
       (B) when there is a violation of term or condition of a 
     permit issued pursuant to this section.
       (2) The permit shall be revoked if any person working under 
     the authority of the permit is convicted under section 9 or 
     is assessed a civil penalty under section 10.
       (e) Area Closures.--In order to protect paleontological or 
     other resources and to provide for public safety, the 
     Secretary may restrict access to or close areas under the 
     Secretary's jurisdiction to the collection of paleontological 
     resources.

     SEC. 6. CURATION OF RESOURCES.

       Any paleontological resource, and any data and records 
     associated with the resource, collected under a permit, shall 
     be deposited in an approved repository. The Secretary may 
     enter into agreements with non-Federal repositories regarding 
     the curation of these resources, data, and records.

     SEC. 7. PROHIBITED ACTS; CRIMINAL PENALTIES.

       (a) In General.--A person may not--
       (1) excavate, remove, damage, or otherwise alter or deface 
     or attempt to excavate, remove, damage, or otherwise alter or 
     deface any paleontological resources located on Federal lands 
     unless such activity is conducted in accordance with this 
     Act;
       (2) exchange, transport, export, receive, or offer to 
     exchange, transport, export, or receive any paleontological 
     resource if, in the exercise of due care, the person knew or 
     should have known such resource to have been excavated or 
     removed from Federal lands in violation of any provisions, 
     rule, regulation, law, ordinance, or permit in effect under 
     Federal law, including this Act; or
       (3) sell or purchase or offer to sell or purchase any 
     paleontological resource if, in the exercise of due care, the 
     person knew or should have known such resource to have been 
     excavated, removed, sold, purchased, exchanged, transported, 
     or received from Federal lands.
       (b) False Labeling Offenses.--A person may not make or 
     submit any false record, account, or label for, or any false 
     identification of, any paleontological resource excavated or 
     removed from Federal lands.
       (c) Penalties.--A person who knowingly violates or 
     counsels, procures, solicits, or employs another person to 
     violate subsection (a) or (b) shall, upon conviction, be 
     fined in accordance with title 18, United States Code, or 
     imprisoned not more than 10 years, or both; but if the sum of 
     the commercial and paleontological value of the 
     paleontological

[[Page S893]]

     resources involved and the cost of restoration and repair of 
     such resources does not exceed $500, such person shall be 
     fined in accordance with title 18, United States Code, or 
     imprisoned not more than one year, or both.
       (d) General Exception.--Nothing in subsection (a) shall 
     apply to any person with respect to any paleontological 
     resource which was in the lawful possession of such person 
     prior to the date of the enactment of this Act.

     SEC. 8. CIVIL PENALTIES.

       (a) In General.--
       (1) Hearing.--A person who violates any prohibition 
     contained in an applicable regulation or permit issued under 
     this Act may be assessed a penalty by the Secretary after the 
     person is given notice and opportunity for a hearing with 
     respect to the violation. Each violation shall be considered 
     a separate offense for purposes of this section.
       (2) Amount of penalty.--The amount of such penalty assessed 
     under paragraph (1) shall be determined under regulations 
     promulgated pursuant to this Act, taking into account the 
     following factors:
       (A) The scientific or fair market value, whichever is 
     greater, of the paleontological resource involved, as 
     determined by the Secretary.
       (B) The cost of response, restoration, and repair of the 
     resource and the paleontological site involved.
       (C) Any other factors considered relevant by the Secretary 
     assessing the penalty.
       (3) Multiple offenses.--In the case of a second or 
     subsequent violation by the same person, the amount of a 
     penalty assessed under paragraph (2) may be doubled.
       (4) Limitation.--The amount of any penalty assessed under 
     this subsection for any one violation shall not exceed an 
     amount equal to double the cost of response, restoration, and 
     repair of resources and paleontological site damage plus 
     double the scientific or fair market value of resources 
     destroyed or not recovered.
       (b) Petition for Judicial Review; Collection of Unpaid 
     Assessments.--
       (1) Judicial review.--Any person against whom an order is 
     issued assessing a penalty under subsection (a) may file a 
     petition for judicial review of the order in the United 
     States District Court for the District of Columbia or in the 
     district in which the violation is alleged to have occurred 
     within the 30-day period beginning on the date the order 
     making the assessment was issued. Upon notice of such filing, 
     the Secretary shall promptly file such a certified copy of 
     the record on which the order was issued. The court shall 
     hear the action on the record made before the Secretary and 
     shall sustain the action if it is supported by substantial 
     evidence on the record considered as a whole.
       (2) Failure to pay.--If any person fails to pay a penalty 
     under this section within 30 days--
       (A) after the order making assessment has become final and 
     the person has not filed a petition for judicial review of 
     the order in accordance with paragraph (1); or
       (B) after a court in an action brought in paragraph (1) has 
     entered a final judgment upholding the assessment of the 
     penalty, the Secretary may request the Attorney General to 
     institute a civil action in a district court of the United 
     States for any district in which the person if found, 
     resides, or transacts business, to collect the penalty (plus 
     interest at currently prevailing rates from the date of the 
     final order or the date of the final judgment, as the case 
     may be). The district court shall have jurisdiction to hear 
     and decide any such action. In such action, the validity, 
     amount, and appropriateness of such penalty shall not be 
     subject to review. Any person who fails to pay on a timely 
     basis the amount of an assessment of a civil penalty as 
     described in the first sentence of this paragraph shall be 
     required to pay, in addition to such amount and interest, 
     attorneys fees and costs for collection proceedings.
       (c) Hearings.--Hearings held during proceedings instituted 
     under subsection (a) shall be conducted in accordance with 
     section 554 of title 5, United States Code.
       (d) Use of Recovered Amounts.--Penalties collected under 
     this section shall be available to the Secretary and without 
     further appropriation may be used only as follows:
       (1) To protect, restore, or repair the paleontological 
     resources and sites which were the subject of the action, or 
     to acquire sites with equivalent resources, and to protect, 
     monitor, and study the resources and sites. Any acquisition 
     shall be subject to any limitations contained in the organic 
     legislation for such Federal lands.
       (2) To provide educational materials to the public about 
     paleontological resources and sites.
       (3) To provide for the payment of rewards as provided in 
     section 11.

     SEC. 9. REWARDS AND FORFEITURE.

       (a) Rewards.--The Secretary may pay from penalties 
     collected under section 9 or 10--
       (1) consistent with amounts established in regulations by 
     the Secretary; or
       (2) if no such regulation exists, an amount equal to the 
     lesser of one-half of the penalty or $500, to any person who 
     furnishes information which leads to the finding of a civil 
     violation, or the conviction of criminal violation, with 
     respect to which the penalty was paid. If several persons 
     provided the information, the amount shall be divided among 
     the persons. No officer or employee of the United States or 
     of any State or local government who furnishes information or 
     renders service in the performance of his official duties 
     shall be eligible for payment under this subsection.
       (b) Forfeiture.--All paleontological resources with respect 
     to which a violation under section 9 or 10 occurred and which 
     are in the possession of any person, and all vehicles and 
     equipment of any person that were used in connection with the 
     violation, shall be subject to civil forfeiture, or upon 
     conviction, to criminal forfeiture. All provisions of law 
     relating to the seizure, forfeiture, and condemnation of 
     property for a violation of this Act, the disposition of such 
     property or the proceeds from the sale thereof, and remission 
     or mitigation of such forfeiture, as well as the procedural 
     provisions of chapter 46 of title 18, United States Code, 
     shall apply to the seizures and forfeitures incurred or 
     alleged to have incurred under the provisions of this Act.
       (c) Transfer of Seized Resources.--The Secretary may 
     transfer administration of seized paleontological resources 
     to Federal or non-Federal educational institutions to be used 
     for scientific or educational purposes.

     SEC. 10. CONFIDENTIALITY.

       Information concerning the nature and specific location of 
     a paleontological resource the collection of which requires a 
     permit under this Act or under any other provision of Federal 
     law shall be exempt from disclosure under section 552 of 
     title 5, United States Code, and any other law unless the 
     Secretary determines that disclosure would--
       (1) further the purposes of this Act;
       (2) not create risk of harm to or theft or destruction of 
     the resource or the site containing the resource; and
       (3) be in accordance with other applicable laws.

     SEC. 11. REGULATIONS.

       As soon as practical after the date of the enactment of 
     this Act, the Secretary shall issue such regulations as are 
     appropriate to carry out this Act, providing opportunities 
     for public notice and comment.

     SEC. 12. SAVINGS PROVISIONS.

       Nothing in this Act shall be construed to--
       (1) invalidate, modify, or impose any additional 
     restrictions or permitting requirements on any activities 
     permitted at any time under the general mining laws, the 
     mineral or geothermal leasing laws, laws providing for 
     minerals materials disposal, or laws providing for the 
     management or regulation of the activities authorized by the 
     aforementioned laws including but not limited to the Federal 
     Land Policy Management Act (43 U.S.C. 1701-1784), the Mining 
     in the Parks Act, the Surface Mining Control and Reclamation 
     Act of 1977 (30 U.S.C. 1201-1358), and the Organic 
     Administration Act (16 U.S.C. 478, 482, 551);
       (2) invalidate, modify, or impose any additional 
     restrictions or permitting requirements on any activities 
     permitted at any time under existing laws and authorities 
     relating to reclamation and multiple uses of Federal lands;
       (3) apply to, or require a permit for, casual collecting of 
     a rock, mineral, or invertebrate or plant fossil that is not 
     protected under this Act;
       (4) affect any lands other than Federal lands or affect the 
     lawful recovery, collection, or sale of paleontological 
     resources from lands other than Federal lands;
       (5) alter or diminish the authority of a Federal agency 
     under any other law to provide protection for paleontological 
     resources on Federal lands in addition to the protection 
     provided under this Act; or
       (6) create any right, privilege, benefit, or entitlement 
     for any person who is not an officer or employee of the 
     United States acting in that capacity. No person who is not 
     an officer or employee of the United States acting in that 
     capacity shall have standing to file any civil action in a 
     court of the United States to enforce any provision or 
     amendment made by this Act.

     SEC. 13. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as may be 
     necessary to carry out this Act.
                                 ______