[Senate Report 108-93]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 201
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-93

======================================================================



 
               PALEONTOLOGICAL RESOURCES PRESERVATION ACT

                                _______
                                

                 July 11, 2003.--Ordered to be printed

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 546]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 546) to provide for the protection of 
paleontological resources on Federal lands, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill, as amended, do 
pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

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 negiligle 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 resources.--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 
purpose 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 a 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 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 in such court 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 small 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 occured 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 will 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 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.

                         PURPOSE OF THE MEASURE

    The purpose of S. 546 is to establish a comprehensive 
national policy for preserving and managing paleontological 
resources on Federal lands administered by the Secretary of the 
Interior and the Secretary of Agriculture.

                          BACKGROUND AND NEED

    Over the past several years, there has been increasing 
discussion about the need to develop a coordinated policy for 
the disposition of fossils found on public lands. Federal 
agency officials, paleontologists and others have expressed 
concern that the lack of a clear policy for the treatment of 
fossil resources, and uncertainty in legislative authority, 
make it more difficult for Federal land managers to properly 
protect fossil resources.
    A 1988 Congressional Research Service report concluded that 
while specific statutes or executive actions may protect fossil 
resources in specific areas, and while generic land management 
laws permit Federal agencies to protect fossil resources, there 
are no laws that require the protection and regulation of these 
resources. The report also noted each agency has different land 
management laws, so there is often inconsistent administration 
of fossil resources among different agencies.
    The Senate Committee report accompanying the Department of 
the Interior and Related Agencies Appropriations Act, 1999 (S. 
Rept. 105-227) directed the Secretary of the Interior, in 
consultation with appropriate scientific, educational and 
commercial entities, to develop a report assessing the need for 
a unified Federal policy on the collection, storage, and 
preservation of fossils on public lands.
    In May 2000, the Secretary of the Interior issued a report 
to Congress (entitled Fossils on Federal & Indian Lands) 
setting forth several recommendations for the management of 
paleontological resources on Federal lands. Specifically, the 
report identified the need for agencies to conduct field 
inventories and monitoring of fossil resources, and to limit 
the collection of rare fossils to scientific and educational 
uses. The report also identified the need to strengthen civil 
and criminal penalties for the unauthorized removal of fossils 
from Federal lands.
    S. 546 incorporates many of the recommendations from this 
report and establishes a comprehensive policy for protecting 
fossil resources on Federal lands administered by the Secretary 
of the Interior and National Forest System lands administered 
by the Secretary of Agriculture.

                          LEGISLATIVE HISTORY

    S. 546 was introduced by Senator Akaka and others on March 
6, 2003. The Subcommittee on National Parks held a hearing on 
S. 546 on June 10, 2003. In the 107th Congress, Senator Akaka 
introduced S. 2727, a similar bill, that was reported favorably 
by the Committee with amendments on October 8, 2002. The text 
of S. 2727 was adopted as an amendment to H.R. 980, which 
passed the Senate by unanimous consent on November 20, 2002.
    At the business meeting on June 25, 2003, the Committee on 
Energy and Natural Resources ordered S. 546, as amended, 
favorably reported.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on June 25, 2003, by unanimous vote of a 
quorum present, recommended that the Senate pass S. 546, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 546, the Committee adopted 
an amendment in the nature of a substitute. The substitute 
removes the congressional findings and purpose, and includes 
several clarifying and technical corrections.
    The amendment is explained in detail in the section-by-
section analysis, below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 titles the bill as the ``Paleontological 
Resources Preservation Act.''
    Section 2 includes definitions as used in this Act.
    Section 3 directs the Secretary of the Interior and the 
Secretary of Agriculture (collectively referred to as the 
``Secretary'') to coordinate the management and protection of 
paleontological resources on Federal lands using scientific 
principles and expertise. The section also directs the 
Secretary to develop appropriate plans for paleontological 
resources addressing inventory, monitoring, and scientific and 
educational use.
    Section 4 directs the Secretary to establish a program to 
increase public awareness about the significance of 
paleontological resources.
    Section 5(a) states that paleontological resources may not 
be collected from Federal lands without a permit issued by the 
Secretary except that casual collection may be allowed a 
defined in section 2, and permits issued prior to this Act 
shall not be affected.
    Subsection (b) states the criteria by which a permit may be 
issued.
    Subsection (c) states the terms and conditions contained in 
a permit issued by the Secretary.
    Subsection (d) authorizes the Secretary to modify, suspend, 
or revoke a permit for certain considerations or violations.
    Subsection (e) authorizes the Secretary to restrict access 
to or close areas under the Secretary's jurisdiction to the 
collection of paleontological resources.
    Section 6 states that any paleontological resource, and 
associated data and records, collected under a permit, shall be 
deposited in an approved repository. In addition, the Secretary 
is authorized to enter into agreements with non-Federal 
repositories.
    Section 7 describes criminal penalties associated with 
prohibited acts.
    Section 8 describes civil penalties associated with 
prohibited acts.
    Section 9 authorizes the Secretary to pay from penalties 
collected under section 9 or 10 rewards to any person who 
furnishes information leading to the finding of a civil 
violation, or the conviction of a criminal violation and 
establishes forfeiture authority.
    Section 10 protects information concerning the nature and 
specific location of paleontological resources unless the 
Secretary determines that disclosure would further the purposes 
of this Act, not create a risk of harm to or theft or 
destruction of the resource, and be in accordance with other 
applicable laws.
    Section 11 directs the Secretary to issue regulations as 
appropriate to carry out this Act, providing opportunities for 
public notice and comment.
    Section 12 includes ``savings'' provisions, making clear 
that this act does not interfere with or restrict the listed 
laws and activities.
    Section 13 authorizes the appropriation of such sums as may 
be necessary to carry out this Act.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 30, 2003.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 546, the 
Paleontological Resources Preservation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Deborah 
Reis and Jenny Lin.
            Sincerely,
                                     Douglas Holtz-Eakin, Director.
    Enclosure.

S. 546--Paleontological Resources Preservation Act

    S. 546 would codify current administration policy regarding 
the preservation and use of paleontological resources on 
federal lands. (Paleontological resources include fossilized 
remains, traces, or imprints of organisms that are preserved in 
or on the Earth's crust.) The bill also would establish 
criminal and civil penalties for unlawful activities related to 
paleontological resources. CBO estimates that any budgetary 
impact of implementing the bill will be negligible.
    Specifically, the bill would prohibit taking or damaging 
paleontological resources located on federal lands without a 
permit or permission, selling or purchasing such resources 
received from federal lands, or submitting false records or 
identification for such resources removed from federal lands. 
As a result, the federal government would be able to pursue 
cases that it otherwise would not be able to prosecute. CBO 
expects that any increase in federal costs for law enforcement, 
court proceedings, or prison operations would not be 
significant, however, because of the small number of cases 
likely to be involved. Any such additional costs would be 
subject to the availability of appropriated funds.
    Because those prosecuted and convicted under S. 546 could 
be subject to criminal fines and civil penalties, the federal 
government might collect additional fines or penalties if the 
bill is enacted. Collections of such fines and penalties are 
recorded in the budget as revenues. Under existing law, 
criminal fines are deposited in the Crime Victims Fund and 
spent without further appropriations in subsequent years. Under 
the provisions of this bill, certain civil penalties also would 
be available to be spent without further appropriation. CBO 
expects that any additional revenue and direct spending as a 
result of enacting S. 546 would be less than $500,000 each year 
and would offset each other over time.
    Those found in violation of the act also could be subject 
to the seizure of vehicles and equipment used in connection 
with the violation. S. 546 would allow the Secretaries of 
Agriculture and the Interior to use the proceeds from the sale 
of such seized assets to pay up to $500 to any person who 
furnishes information which leads to a criminal conviction or a 
finding of civil violation. CBO estimates, however, that any 
increase in revenues or direct spending from the sale of 
forfeited assets would be negligible.
    S. 546 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would have no significant impact on the budgets of state, 
local, or tribal governments.
    The CBO staff contacts for this estimate are Deborah Reis 
and Jenny Lin. This estimate was approved by Paul R. Cullinan, 
Chief of Human Resources Estimates Unit of the Budget Analysis 
Division.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 546. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 546, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    On May 29, 2003, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth Executive agency recommendations on S. 546. These reports 
had not been received at the time the report on S. 546 was 
filed. When the reports become available, the Chairman will 
request that they be printed in the Congressional Record for 
the advice of the Senate. The testimony provided by the 
Department of the Interior and the Department of Agriculture at 
the Subcommittee hearing follows:

   Statement of Christopher Kearney, Deputy Assistant Secretary for 
       Policy, Management and Budget, Department of the Interior

    Mr. Chairman, thank you for the opportunity to present the 
Department of the Interior's views on S. 546, the 
Paleontological Resources Preservation Act. The Department 
supports the purpose of S. 546 to protect paleontological 
resources on federal lands but would like to work with the 
Committee on the amendments provided at the end of this 
testimony.
    S. 546 adopts the recommendation of a report submitted to 
Congress in May 2000, titled ``Fossils on Federal and Indian 
Lands'' (the Interagency Fossil Report). Concerned about the 
lack of unified policies and standards for the management of 
fossils on federal lands and the resulting deterioration and 
loss of fossils, Congress directed the Bureau of Indian 
Affairs, the Bureau of Land Management, the Bureau of 
Reclamation, the Fish and Wildlife Service, the Forest Service, 
the National Park Service, the Smithsonian Institution and the 
U.S. Geological Survey to develop a report assessing the need 
for a unified federal management policy. During development of 
the report, three major themes emerged from the public comments 
received. First, a majority of people who commented viewed 
fossils on federal lands as part of America's heritage. Second, 
they recommended that vertebrate fossils continue to be 
protected as rare and within the ownership of the federal 
government. Third, they supported the involvement of amateurs 
in the science and enjoyment of fossils, including the 
availability of most plant and invertebrate fossils for casual 
collection on lands managed by the Bureau of Land Management 
and the Forest Service. To meet these and other goals, the 
report recommended the establishment of a framework for fossil 
management, analogous to the Archaeological Resources 
Protection Act of 1979 (ARPA).
    Fossils are non-renewable resources which, with the 
exception of microfossils and those that make up commercially 
developed minerals, such as coal, are relatively rare and have 
significant scientific, educational and recreational values. 
Federal lands, the majority of which are in the western part of 
the United States, contain a rich array of plant, invertebrate 
and vertebrate fossils. For more than a century, land 
management agencies have managed fossils within their unique 
missions. These agencies have protected all vertebrate fossils, 
requiring permits for their excavation and removal, with the 
stipulation that the resources remain in federal ownership in 
perpetuity.
    In recent years, public interest in fossils has grown 
rapidly and with this interest, the commercial value of fossils 
also has increased. The unfortunate consequence has been a loss 
of fossils from federal lands, through theft and vandalism, and 
from the United States itself, through international 
trafficking. These crimes reduce scientific and public access 
to scientifically significant and instructive fossils and 
destroy the contextual information critical for interpreting 
the fossils.
    S. 546 would provide a unified federal policy to ensure 
that scientifically significant fossils on certain federal 
lands are inventoried, monitored, protected, and curated 
consistently, while accommodating the agencies' distinct 
missions. The provisions in this bill do not apply to Indian 
lands. As we understand it, the bill, in large measure, 
reflects the current practice of agencies in the management of 
fossils on federal land. Streamlining the practices of the 
various land management agencies into a unified approach will 
enhance overall management of fossils on federal lands by 
reducing public confusion and improving collaboration and 
cooperation among agencies, scientists, and the public.
    Under the agencies' existing regulations and policies, 
vertebrate fossils may only be collected with a permit for 
scientific and educational purposes. S. 546 would codify this 
collection policy and standardize the permitting requirements 
among the various agencies, as recommended in the Interagency 
Fossil Report. It would ensure that these fossils are retained 
as public property and curated in suitable repositories for 
current and future generations of scientists and the public to 
study and enjoy. Scientists use the information from specimens 
in repository collections to build on our understanding of the 
history of life and physical environment on Earth. Millions of 
visitors enjoy the displays offered by public repositories of 
their most spectacular and educational fossils, many 
originating from federal lands.
    One exception to the permitting requirements under S. 546 
is for casual collection of certain paleontological resources 
for personal, scientific, educational and recreational uses. 
This important provision would authorize the Secretary to allow 
the public to casually collect common invertebrate and plant 
fossils without a permit on certain federal lands. In other 
words, under this bill, visitors to BLM lands who enjoy 
paleontology as a hobby could continue to collect and keep for 
their personal use a wide variety of plant and common 
invertebrate fossils. The casual collection of such fossils can 
be an important component of the public's enjoyment of some 
federal lands and is generally consistent with scientific and 
educational goals.
    S. 546 would codify the land managing agencies' existing 
prohibition on commercial fossil collecting from federal lands. 
By prohibiting such collecting, this legislation ensures that 
vertebrate fossils on federal lands, a rich part of America's 
heritage, remain in public hands, that they are not bought or 
sold, and that the federal government does not have to use 
taxpayer funds to purchase fossils found on lands that it owns.
    S. 546 would provide additional protection by prohibiting 
the excavation, damage, transport or sale of paleontological 
resources located on federal lands. Criminal penalties for 
these acts would be set by classification, following find and 
imprisonment penalties imposed under federal law.
    Keeping an appropriate inventory and monitoring are crucial 
components of fossil management. S. 546 would provide the 
Secretary with the flexibility to keep an inventory and monitor 
exposed fossils based on the site-specific geology and 
paleontology of their management units. The exposure of fossils 
by erosion varies, based on the type of rock in which they are 
found and local climate. Some fossils remain exposed at the 
surface for decades or centuries, while others weather away 
soon after exposure depending on the nature of their 
preservation.
    S. 546 would balance the need for public access to fossils 
with the recognition that the unlimited disclosure of certain 
information about particularly significant fossils can lead to 
the theft or vandalism of those fossils. In the National Parks 
Omnibus Management Act of 1998, Congress authorized the 
National Park Service to withhold information about the nature 
and specific location paleontological resources in park units 
unless certain criteria were met. S. 546 would extend this same 
authority to the other federal land managing agencies.
    Last Congress, the Department testified before this 
Committee in support of the purpose of S. 2727, a similar bill, 
while also citing a number of concerns. After the hearing, the 
Department provided the Committee with general comments and 
suggested amendments to address our concerns with the bill. We 
appreciate that S. 546, as introduced, includes the vast 
majority of our proposed amendments. At the end of this 
testimony, we offer additional amendments for the Committee's 
further consideration. We look forward to working with the 
Committee on these remaining issues.
    As the prices of fossils rise, the federal land managing 
agencies will be under increasing pressure to both protect 
scientifically significant fossil resources and to ensure their 
appropriate availability to the general public. S. 546 would 
create a single legislative framework for paleontological 
resource management that will facilitate sharing of resources, 
personnel and partnership opportunities across agency lines.
    Mr. Chairman, this concludes my statement. I would be 
pleased to answer any questions you or other members of the 
Committee may have.


                     proposed amendments for s. 546


    On p. 3, line 1, after ``personal'' strike ``('' insert 
``,''.
    On p. 3, line 2, after ``recreational'' strike ``)''.
    On p. 3, line 13, after ``means lands'' insert ``owned, 
controlled, or''.
          --clarifies the bill's inclusion of all lands (except 
        Indian lands) managed by the Departments
    On p. 4, line 14, strike ``Rehabilitation'' insert 
``Repatriation''
    On p. 5, line 17, after ``Federal lands'' insert ``owned, 
controlled, or''.
          --clarifies generally where casual collecting may be 
        allowed
    On p. 8, line 4, after ``permit'' insert ``issued under 
this Act''.
          --ensures that the permit referenced is the permit 
        established under this Act.
    On p. 8, line 8, after ``Acts;'' insert ``Criminal''
          --clarifies that Section 9 addresses criminal 
        penalties, in contrast with Section 10 which addresses 
        civil penalties
    On p. 9, line 8, strike ``Penalties'' insert ``Penalties''
    On p. 10, line 19, after ``involved.'', insert ``, as 
determined by the Secretary.''.
    On p. 11, line 12, strike entire subsection (b), insert:
    ``(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. The Secretary shall promptly 
        file in such court 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 thirty (30) days--
                  (A) after the order making the 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 to the 
        United States for any district in which the person is 
        found, resides, or transactions business, to collect 
        the penalty (plus interest at currently 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 and interest, attorneys fees and costs 
        bugs collection processing.
          --Is the standard enforcement provision found in 
        other laws including the Clean Water Act
    On p. 13, line 8 strike ``may be subject to forfeiture * * 
* involved in the violation.'' Insert ``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 to Title 18, 
United States Code, shall apply to the seizure and forfeitures 
incurred or alleged to have been incurred under the provisions 
of this Act.''
          --makes a distinction between civil forfeiture and 
        ensures that criminal forfeiture only could occur upon 
        conviction
          --makes clear that the protections of the Civil Asset 
        Forfeiture Reform Act (CXAFRA), an act a more just and 
        uniform procedure for Federal civil forfeitures, would 
        apply.
    On p.13, after line 17, insert new (c):
    ``(c) Transfer of Seized Resources.--The Secretary is 
authorized to transfer ownership or administration of seized 
paleontological resources to Federal or non-Federal educational 
institutions to be used for scientific or educational 
purposes.''
          --allows the establishment of partnerships with 
        schools and other entities to transfer seized resources 
        (for example, some resources that are recovered with no 
        record of their context may have lost value to a museum 
        but may still have educational value)
    On p. 13, after line 18, strike entire section and insert:
    ``(a) Information concerning the nature or 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 withheld from the public--
          (1) in response to a request under subchapter II of 
        chapter 5 of title 5, United States Code; or
          (2) notwithstanding any other provision of law that 
        would authorize release.
    (b) The information described in subsection (a) shall be 
released if the responsible Secretary determines that 
disclosure would--
          (1) further the purposes of the Act;
          (2) not create a 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.''.
    On p. 15, line 3, after ``time'' insert ``under''.
                                ------                                


Statement of Elizabeth Estill, Deputy Chief, Programs, Legislation and 
       Communications, Forest Service, Department of Agriculture

    Mr. Chairman and members of the subcommittee, thank you for 
the opportunity to be here today. I am Elizabeth Estill, Deputy 
Chief for Programs, Legislation and Communications, USDA Forest 
Service. I will provide the Department's comments on S. 546, 
the Paleontological Resources Preservation Act.
    During the 107th Congress, the Department supported the 
purpose of S. 2727; a similar bill also entitled the 
Paleontological Resources Preservation Act, and provided some 
recommended changes to the committee staff. I am pleased to see 
some of the Department's concerns addressed in S. 546. The 
Department supports the purpose of the bill, but we would like 
to work with the Committee to address some of our other 
recommendations.
    Unified guidelines for paleontological resources management 
and special protection for vertebrate paleontological resources 
are greatly needed on National Forest System lands. Forest 
users, amateurs and scientists alike, are demanding 
opportunities for recreation, education, interpretation, and 
the scientific study of fossils. As these legitimate demands 
increase so does the amount of illegal activity such as theft 
and vandalism. Therefore, clearly defined, consistent laws and 
penalties to deter theft and vandalism of fossils from federal 
lands are also needed.
    The Forest Service currently manages paleontological 
resources under a patchwork of laws that do not specifically 
address their unique characteristics nor provide adequate 
management and protection of the resource. These laws include 
the Organic Administration Act of 1897, the Archaeological 
Resources Protection Act of 1979, and the Federal Cave 
Resources Protection Act of 1988. The later statutes only 
protect paleontological resources when they are associated with 
archeological resources, or when they occur in caves, 
respectively.
    A consistent statutory framework will enhance overall 
management of paleontological resources on National Forest 
System lands. Between 1991 and 1996, one-third of all fossil 
sites inventoried in the Oglala National Grassland in Nebraska 
were found to have been vandalized, and as a result, valuable 
data was lost to science and to the public. In 1996, a case 
involving fossil theft on National Forest System lands in 
California, which was prosecuted under civil laws by the 
Department of Justice and ultimately settled out of court, 
pointed out the need for more specific statutes and regulations 
related to the theft of federal fossils.
    S. 546 directs the Secretary of the Interior and the 
Secretary of Agriculture to manage and protect 
paleotontological resources using scientific principles. The 
bill recognizes the non-renewable nature of fossils and defines 
paleontological resources as fossilized remains preserved in or 
on the Earth's crust. This distinguishes these resources from 
archaeological resources, covered under the Archaeological 
Resources Protection Act (ARPA); cultural items, covered under 
the National Historic Preservation Act and the Native American 
Graves Protection and Repatriation Act (NAGPRA); and mineral 
resources.
    If enacted, the bill would establish casual collection 
provisions including permitting requirements for scientific and 
educational purposes using uniform and consistent criteria. S 
546 recognizes that paleontological resources are federal 
property, and that the fossil as well as the associated field 
data and other records will be preserved and made available to 
the public. An important aspect of this bill to the Forest 
Service is its formal recognition of casual collecting of 
invertebrate and plant fossils for recreational, non-commercial 
use as a valid public activity on National Forests System lands 
for which a permit may not be required where the collecting is 
not inconsistent with the laws governing the management of 
National Forest System lands and S. 546.
    S. 546 provides important uniform criminal and civil 
penalties for all the federal managing agencies for theft and 
damage of paleontological resources. Currently, there is a 
complex mix of laws, regulations and guidelines that have 
created significant jurisprudential challenges. For example, 
for the Forest Service, violations of regulations protecting 
paleontological resources are Class B Misdemeanors, punishable 
by up to six months imprisonment, or $5,000 fine, or both. For 
the Bureau of Land Management, violations are Class A 
Misdemeanors, punishable by up to one year imprisonment, or 
$100,000 fine, or both. The penalties defined in S. 546 are 
also consistent with recent amendments to the federal 
sentencing guidelines of the U.S. Sentencing Commission for 
increased penalties for cultural heritage resources.
    S. 546 also provides that the proceeds arising from civil 
and criminal penalties established under the bill may be 
available for payment to those who provided information in 
investigations that lead to the civil violations or criminal 
convictions for which the penalties were assessed. However, the 
current reward language in Section 11 provides a maximum reward 
amount that we believe will be ineffective in most cases. We 
believe that the appropriate reward amount to be offered or 
paid for assistance in investigations is best determined by the 
agency and prosecutor based on the significance of the case and 
assistance provided or needed. We recommend that references to 
any dollar amount be removed. Further, the Forest Service 
currently has differing regulations at 36 CFR 262.1 which 
regulate the payment of rewards along with other Department of 
Justice protocols.
    Mr. Chairman, paleontological resources, especially 
vertebrate fossils, are heritage resources. They are evidence 
of the past history of life on Earth. They provide 
opportunities for the public to learn more about ancient Earth 
ecosystems and the development of life from research and study 
of these resources. The Forest Service is a steward of these 
heritage resources and is committed to their protection while 
providing opportunities for research, education, and 
recreation. The Paleontological Resources Preservation Act 
would help secure the authority of the Forest Service to manage 
and protect all paleontological resources on National Forest 
System lands.
    This concludes my statement. I would be happy to answer 
questions.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 546, as ordered 
reported.

                                
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