[Federal Register Volume 80, Number 74 (Friday, April 17, 2015)]
[Rules and Regulations]
[Pages 21588-21638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08483]



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Vol. 80

Friday,

No. 74

April 17, 2015

Part IV





Department of Agriculture





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 Forest Service





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36 CFR Parts 214, 261, 291





 Paleontological Resources Preservation; Final Rule

  Federal Register / Vol. 80, No. 74 / Friday, April 17, 2015 / Rules 
and Regulations  

[[Page 21588]]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 214, 261, and 291

RIN 0596-AC95


Paleontological Resources Preservation

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (USDA or Department) is 
implementing regulations under the Omnibus Public Land Management Act 
of 2009 paleontological resources preservation subtitle (the Act). This 
rule provides for the preservation, management, and protection of 
paleontological resources on National Forest System lands (NFS), and 
insures that these resources are available for current and future 
generations to enjoy as part of America's national heritage. The rule 
addresses the management, collection, and curation of paleontological 
resources from NFS lands including management using scientific 
principles and expertise, collecting of resources with and without a 
permit, curation in an approved repository, maintaining confidentiality 
of specific locality data, and authorizing penalties for illegal 
collecting, sale, damaging, or otherwise altering or defacing 
paleontological resources.

DATES: This rule is effective May 18, 2015.

ADDRESSES: Information on this final rule may be obtained via written 
request addressed to USDA Forest Service, Michael Fracasso, M&GM, 740 
Simms Street, Golden, CO 80401. The Forest Service Paleontological 
Resources Preservation procedures are set out in Title 36, Code of 
Federal Regulations, Part 291, and are available electronically via the 
World Wide Web/Internet at http://www.gpoaccess.gov/cfr/index.html.

FOR FURTHER INFORMATION CONTACT: Michael Fracasso, Forest Service, at 
303-275-5130, or [email protected].
    Individuals who use telecommunications devices for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 
between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION:

Background

    The Paleontological Resources Preservation subtitle of the Omnibus 
Public Land Management Act, 16 U.S.C. 470aaa to aaa-11 (the Act), 
requires the USDA and the U.S. Department of the Interior (DOI) to 
issue implementation regulations. In accordance with 16 U.S.C. 470aaa-
1, these regulations would serve to manage and protect paleontological 
resources on National Forest System lands using scientific principles 
and expertise.
    In FY 1999, the Interior Appropriations Subcommittee requested that 
the DOI, the Forest Service, and the Smithsonian Institution prepare a 
report on fossil resource management on public lands (see S. Rep. 105-
227, at 60 (1998)). The request directed the agencies to analyze (1) 
the need for a unified Federal policy for the collection, storage, and 
preservation of fossils; (2) the need for standards that would maximize 
the availability of fossils for scientific study; and (3) the 
effectiveness of current methods for storing and preserving fossils 
collected from public lands. During the course of preparing the report, 
the agencies held a public meeting and gathered public input. The DOI 
report to Congress, ``Assessment of Fossil Management of Federal and 
Indian Lands,'' was published in May 2000. The Paleontological 
Resources Preservation Act (PRPA) was introduced in the 107th Congress 
after the report was released. The PRPA was modeled after the 
Archaeological Resources Protection Act (ARPA) and emphasized the 
recommendations and guiding principles in the May 2000 report. The 
legislation was re-introduced in subsequent Congresses through the 
111th Congress when it was combined with other natural resources 
legislation in an omnibus bill that became law on March 30, 2009 (the 
Act).
    The Act requires that implementation be coordinated between the 
Secretaries of Agriculture and Interior (Secretaries) (16 U.S.C. 
470aaa-1). Accordingly, the USDA and the DOI formed an interagency 
coordination team (ICT) in April 2009 to draft the proposed 
regulations. Members of the ICT included program leads for 
paleontology, archaeology, and regulatory specialists from the Forest 
Service, DOI Bureau of Land Management (BLM), National Park Service 
(NPS), Bureau of Reclamation (BOR), and Fish and Wildlife Service 
(FWS).

Response to Comments

    The Paleontological Resources Preservation proposed rule was 
published in the Federal Register on May 23, 2013 (78 FR 30810), for a 
60-day comment period, ending July 22, 2013. The Forest Service 
(Agency) received 177 responses, consisting of letters, emails, and 
Web-based submittals. Of those, 131 were original responses, and the 
remaining 46 responses were organized response campaign (form) letters. 
Comments were received from the public (almost equally distributed 
among professional academic paleontologists, consultants, and students 
in higher education, and amateur collectors and individuals that did 
not identify an affiliation), paleontological repository institutions, 
and government and/or quasi-government agencies.
    Public comment on the proposed rule addressed a range of topics, 
but focused on the following areas: Opposition to formal establishment 
of restrictions and/or operating conditions placed on casual collection 
of common invertebrate and plant paleontological resources, 
confidentiality of specific locations of paleontological resources, 
requirements associated with permits to collect paleontological 
resources, and operating standards for approved repository institutions 
housing paleontological resources from National Forest System lands. 
However, most provisions receiving critical comments are statutory 
requirements per the Act.
    The following is a description of specific comments received on the 
proposed rule, responses to comments, and changes made in response to 
comments. Each comment received consideration in the development of the 
final rule. In the responses to comments that follow, the term ``the 
Act'' refers to the provisions for Paleontological Resources 
Preservation as stated in the Omnibus Public Land Act of 2009 (Pub. L. 
111-011, Title VI, Subtitle D, Sec. 6310).

General Comments

    The Department received the following comments not specifically 
tied to a particular section of the 2013 proposed rule.
    Comment: Paleontological Resource Preservation regulations and the 
Act. Respondents expressed appreciation of the Forest Service's efforts 
in developing regulations to implement the Act. Respondents welcomed 
that the regulations provide clarification of stipulations in the Act, 
and expressed support for the intentions of the Act and their 
implementation in the regulations to provide for preservation, 
management, and protection of paleontological resources on National 
Forest System lands.
    Response: The Act stipulates that the Secretary of Agriculture 
shall issue such regulations as are appropriate to carry out the 
provisions of the Act, as soon as practical after the date of enactment 
of

[[Page 21589]]

the Act. The Department agrees with the respondents that these 
regulations appropriately implement the Act by providing clarification 
of stipulations in the Act that ensure the preservation, management, 
and protection of paleontological resources on National Forest System 
(NFS) lands using scientific principles and expertise.
    Comment: Regulations establish uniform and comprehensive rules for 
paleontological resource management. Respondents expressed the view 
that the regulations represent a needed advance in development of a 
comprehensive and uniform Agency-wide framework for the management and 
conservation of paleontological resources on National Forest System 
lands. One respondent expressed the view that the regulations lay the 
groundwork for greater roles in research and resource management by 
Agency paleontologists who are positioned to facilitate permitted 
research, with the goal of preservation and carefully managed use of 
paleontological resources. Such managed use would ensure that the 
public's property remains properly tracked, documented, overseen, and 
managed by professionals for the benefit of science. One respondent 
suggested that the regulations concerning permitting are a welcome 
improvement.
    Response: The Department acknowledges that the Act and the 
regulations establish uniform, Agency-wide requirements for casual 
collecting, permitted collecting, and management of collections of 
paleontological resources from NFS lands for the first time. The 
Department encourages appropriate uses of paleontological resources, 
and expects that users of paleontological resources would be encouraged 
by the knowledge that uniform standards now exist for casual 
collecting, permitted collection, and management of collections of 
paleontological resources that will be applied consistently across the 
Agency. Prior to these regulations, the use of paleontological 
resources was largely subject to local administrative unit policy, and 
variability in policy between administrative units was a source of 
confusion and discouragement to some users.
    Comment: Management of paleontological resources using scientific 
principles and expertise. Respondents expressed appreciation that the 
regulations recognize that paleontological resources are scientific 
resources, and that management decisions concerning such resources must 
be made using scientific principles and expertise.
    Response: The Department acknowledges the appreciation expressed by 
respondents for its role in development of these regulations that 
establish a solid foundation for the management of paleontological 
resources on NFS lands using scientific principles and expertise. Such 
informed management is fundamental to the preservation of 
paleontological resources that comprise a nonrenewable and 
irreplaceable part of America's natural heritage. Paleontological 
resources on NFS lands are part of the public trust. The Act and these 
regulations would ensure that scientifically important specimens remain 
Federal property in the public realm, and that ownership of such 
resources is not transferred to any single individual wherein access to 
the resource and associated information may become unavailable to the 
public.
    Comment: Regulations will deter loss of paleontological resources 
related to unrestricted collection. Respondents claim to have witnessed 
potential theft and/or vandalism of paleontological resources while in 
the field and significant damage to and destruction of paleontological 
resources caused by hand tools used during collection. Respondents 
expressed the view that they are appreciative of and support the 
Department's efforts in formulating these regulations to manage, 
preserve and safeguard the Nation's fossil resources and associated 
scientific information located on National Forest System lands.
    Response: The Department appreciates the concern expressed by the 
respondents regarding observed destruction of paleontological resources 
on NFS lands. The Department expects that provisions for casual 
collecting and permitted collection of paleontological resources as 
established in the regulations would promote the appropriate use of 
such resources. Conversely, provisions for enforcement and penalties as 
established in the regulations would be expected to deter resource loss 
attributed to inappropriate collection, vandalism, and/or theft, as 
described by the respondents.
    Comment: Additional Agency paleontologists are needed to administer 
regulations. One respondent expressed the view that additional Agency 
paleontologists are needed to administer the regulations, particularly 
with respect to paleontological resource permitting.
    Response: The Forest Service employs paleontology specialists who 
will be involved in administration of the regulations. The issue of 
paleontology specialist staffing levels within the Agency is beyond the 
scope of the regulations.
    Comment: Regulations should not place restrictions on access or use 
of public lands. One respondent expressed the view that regulations 
should not place any restrictions on access or use of public lands.
    Response: The Forest Service is accorded the authority to manage 
NFS lands against depredations and to make rules and regulations to 
regulate occupancy and use in accordance with the Organic Act of 1897. 
The Paleontological Resources Preservation Act of 2009 stipulates that 
the Secretary of Agriculture shall issue such regulations as are 
appropriate to carry out the provisions of the Act, as soon as 
practical after the date of enactment of the Act. Consequently, the 
development of these regulations is required by the Act. The Act and 
the regulations explicitly establish a legal basis for the activity of 
casual collecting of paleontological resources for the first time. The 
Act was enacted, and these regulations have been developed to preserve 
paleontological resources for current and future generations, because 
paleontological resources are nonrenewable and are an irreplaceable 
part of America's natural heritage. Paleontological resources on NFS 
lands are part of the public trust. The Act and these regulations would 
ensure, in part, that scientifically important specimens remain Federal 
property in the public realm, and that ownership of such resources is 
not transferred to any single individual wherein access to the resource 
and associated information may become unavailable to the public.
    Comment: Proposed regulations concerning collection by amateurs are 
detrimental to the advancement of paleontological science. Several 
respondents expressed the view that regulation of collection of 
paleontological resources by amateurs on National Forest System lands 
is counter-productive to the advancement of paleontological science, 
and that such regulation does not recognize the important role of 
citizen-scientists in the advancement of paleontological science. 
Respondents suggested that paleontological discoveries made by amateurs 
on public lands have contributed greatly to the science of 
paleontology, and that noteworthy amateur contributions to paleontology 
have been formally recognized by the paleontological profession through 
vehicles such as the Strimple Award offered by the Paleontological 
Society. Respondents expressed the view that there are many more 
amateur collectors than professional research collectors,

[[Page 21590]]

and that many amateur collectors act as proxy collectors for 
researchers. Respondents suggested that amateurs will stop or reduce 
collecting in response to restrictions, resulting in a reduced flow of 
collection-based knowledge from amateurs to the scientific community. 
One respondent suggested that amateurs would continue to collect, but 
would keep their collecting sites and collections secret. Respondents 
suggested that many private amateur paleontological collections are 
ultimately donated to researchers, public institutions such as museums 
and schools, and individuals such as children with an interest in 
paleontology.
    Response: The Department acknowledges the historical and continued 
roles that amateurs and/or citizen scientists have played in the 
advancement of paleontological science and the promotion of interest in 
paleontology in non-professional members of the public, including 
children and students in public education settings. The Department does 
not consider that these regulations would restrict collecting by 
amateurs, or such contributions as described above resulting from 
amateur collections. Rather, the Act and the regulations explicitly 
establish a legal basis for the activity of casual collecting of 
paleontological resources for the first time. Individuals who wish to 
collect paleontological resources in a manner beyond the scope of 
conditions established for casual collection are not precluded from 
doing so under the regulations; however, a permit would be required. 
Collection by amateurs acting as proxies for researchers would be 
considered research collection; such collection is not precluded under 
the regulations; however, a permit would be required. The Department 
expects that an informed and law-abiding collecting public would be 
aware of conditions for casual collecting as established in the 
regulation and would elect to legally collect by adhering to those 
conditions. Ethical amateur collectors practicing casual collection in 
accordance with established conditions, or permitted collection if such 
collection is beyond the scope of casual collection, would have no 
cause to keep collecting sites and collections secret from the Agency 
under the regulations.
    Comment: Restrictions on collection of paleontological resources by 
amateurs are not necessary. Respondents have expressed the view that 
the proposed regulations represent an infringement of the public's 
right to collect fossils. One respondent expressed the view that 
existing laws and regulations are sufficient to protect paleontological 
resources without the imposition of new regulations. One respondent 
questioned from what harm are paleontological resources being protected 
by the proposed restrictions on collection, and another respondent 
suggested that such restrictions are not in the best interests of 
society because collection does not detrimentally affect public lands. 
Respondents have also suggested that the proposed restrictions on 
collection will not protect paleontological resources, because fossils 
that are not collected are eventually destroyed by natural processes of 
weathering and erosion and are ultimately lost to the public and to 
science. Respondents expressed the view that resource impacts resulting 
from amateur collection are negligible with respect to permitted 
activities such as logging, mining, and grazing. Respondents expressed 
the view that the regulations would encourage enforcement resulting 
from collection of specimens that would otherwise be lost to erosion, 
and that the regulations would criminalize commonplace collecting 
activities of amateurs and well-intentioned scientists.
    Response: The Act stipulates that the Secretary of Agriculture 
shall issue such regulations as are appropriate to carry out the 
provisions of the Act, as soon as practical after the date of enactment 
of the Act. Consequently, the development of these regulations is 
required by the Act and must be consistent with the Act. The Act and 
the regulations explicitly establish a legal basis for the activity of 
casual collecting of paleontological resources for the first time. The 
Act was enacted and these regulations have been developed to preserve 
paleontological resources for current and future generations because 
paleontological resources are nonrenewable and are an irreplaceable 
part of America's natural heritage. Paleontological resources that are 
damaged or lost because of theft, vandalism, and/or inappropriate 
method of collection cannot be replaced or renewed and are lost 
forever. Paleontological resources on NFS lands are part of the public 
trust. The Act and these regulations would ensure that scientifically 
important specimens remain Federal property in the public realm, and 
that ownership of such resources is not transferred to any single 
individual wherein access to the resource and associated information 
may become unavailable to the public. The regulations do not prevent 
collection of paleontological resources that might otherwise be 
destroyed by weathering or erosion, but they do establish conditions 
for such collection. Other surface disturbing activities as specified 
by the respondents require authorization from the Forest Service; 
casual collecting of common invertebrate and plant paleontological 
resources does not. Such authorizations generally require a formal 
assessment under the National Environmental Policy Act (NEPA) in which 
potential impacts associated with the activity are disclosed and 
potential mitigation of such impacts may be proposed. Because casual 
collecting does not require an authorization or other Agency decision, 
conditions are established for casual collection to ensure that surface 
disturbance related to such collection is negligible and does not 
exceed any threshold that would otherwise trigger the need for a NEPA 
assessment of the activity. The Department does not expect that the 
regulations would criminalize commonplace collecting activities. 
Rather, the Department expects that an informed and law-abiding 
collecting public would be aware of conditions for casual collecting as 
established in regulation and would elect to legally collect by 
adhering to those conditions. The Department could consider the intent 
and degree of non-compliance regarding regulated collecting activities 
in decisions regarding potential enforcement.
    Comment: Restrictions on amateur collection are counter-productive 
to the goal of educating the public concerning paleontological 
resources. Respondents have expressed the view that amateur collection 
of fossils by children and students serves as a gateway to continued 
interest and education in paleontology and science in general, and that 
such interest results in the will to conserve such resources and to 
contribute private funds toward supporting paleontological research. 
Respondents have suggested that restrictions on amateur collection will 
serve as a disincentive for such collection and result in loss of 
interest and further pursuit of knowledge in paleontology and science. 
One respondent expressed the view that the scientific usefulness of 
common fossils is limited, but that their educational value for amateur 
collectors is high. Another respondent suggested that display of 
amateur collections in homes stimulates interest in paleontology among 
visitors. One respondent expressed the view that the development of 
paleontological expertise or education by nonprofessional, avocational 
advanced amateurs requires substantial collection

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experience which cannot be obtained if unnecessary restrictions are 
imposed on collection by amateur, avocational, and/or paraprofessional 
paleontologists.
    Response: The Department acknowledges the value of fossils in 
stimulating interest and continued education in science among children 
and students, and that paleontology is often viewed as a ``gateway'' to 
science education. The Act and the regulations explicitly establish a 
legal basis for the activity of casual collecting of paleontological 
resources for the first time. The Department expects that casual 
collectors, including children and students, would be encouraged by the 
knowledge that uniform standards now exist for casual collecting that 
will be applied consistently across the Agency. The respondents' 
suggestion that conditions established for casual collecting would 
serve as a disincentive for collection and result in loss of interest 
and further pursuit of knowledge in paleontology and science are 
conjectural and not substantiated. Individuals who wish to develop 
paleontological expertise or education by collecting paleontological 
resources in a manner beyond the scope of conditions established for 
casual collection are not precluded from doing so under the 
regulations; however, a permit would be required.
    Comment: Restrictions on amateur collection of paleontological 
resources will reduce their recreational value. Respondents expressed 
the view that amateur collection of fossils is an enjoyable family 
activity, and that restrictions on amateur collection will reduce the 
opportunity for the public to use and enjoy National Forest System 
lands with respect to fossil collecting. One respondent suggested that 
the scientific usefulness of common fossils is limited, but that their 
recreational value for amateur collectors is high.
    Response: The Department acknowledges the recreational value placed 
on fossils by casual and amateur collectors. The Act and the 
regulations explicitly establish a legal basis for the activity of 
casual collecting of paleontological resources for the first time. The 
Department encourages appropriate uses of paleontological resources, 
and expects that recreational users of paleontological resources would 
be encouraged by the knowledge that uniform standards now exist for 
casual collecting that will be applied consistently across the Agency. 
The Department does not consider that conditions associated with casual 
collecting would reduce their recreational value. Individuals who wish 
to collect paleontological resources for recreational purposes in a 
manner beyond the scope of conditions established for casual collection 
are not precluded from doing so under the regulations; however, a 
permit would be required.
    Comment: Regulations do not distinguish among diverse types of 
paleontological resources. Respondents expressed the view that the 
regulations treat all paleontological resources the same, whereas 
common invertebrate and plant fossils merit fewer restrictions on 
collection than do vertebrate fossils and uncommon invertebrate and 
plant fossils. Respondents suggested that common invertebrate and plant 
fossils may exist in numbers of tens of thousands to hundreds of 
thousands at any given location, and that most such specimens would be 
lost to erosion if not collected. One respondent expressed the view 
that the apparent rarity of certain fossils often reflects the 
availability of access to collecting areas, rather than actual rarity 
of specimens.
    Response: The Act and the regulations do distinguish among diverse 
types of paleontological resources, and such distinctions are reflected 
by establishing casual collecting as an activity that is limited to 
common invertebrate and plant paleontological resources. Collection of 
other paleontological resources, and collection of common invertebrate 
and plant fossils for research purposes, requires a permit which may be 
considered a higher level of restriction. Collection of common 
invertebrate and plant fossils outside the scope of conditions 
established for casual collecting is not precluded under the 
regulations; however, a permit would be required.
    Comment: Regulations should foster collection of paleontological 
resources. One respondent expressed the view that the regulations be 
written to foster the collection of paleontological resources by all 
members of the public and that paleontological resources be shared by 
placing them into public and private institutions for purposes of 
publication and preservation.
    Response: The Act and the regulations as written establish uniform, 
Agency-wide requirements for casual collecting and permitted collecting 
for the first time. The Department encourages appropriate uses of 
paleontological resources by all members of the public, and expects 
that users of paleontological resources would be encouraged by the 
knowledge that uniform standards to be applied consistently across the 
Agency now exist for casual collecting and permitted collection of 
paleontological resources. The regulations establish that 
paleontological resources collected under a permit must be deposited in 
an approved repository where they will be preserved for the public and 
made available for scientific research and public education.
    Comment: Roles of permittee and repository not differentiated. One 
respondent expressed the view that the regulations misunderstand the 
difference in roles of the permittee and repository.
    Response: The regulations do not misunderstand the difference in 
roles of a permit holder and a repository, although such distinction 
may not have been expressed clearly in certain areas of the proposed 
regulations. Respondents identified several specific areas in the 
proposed regulations where such differences were unclear, and the 
Department has modified the language in those areas, as appropriate, in 
these final regulations to provide clarity regarding the respective 
roles of a permit holder and a repository.
    Comment: New funding sources for paleontological resource studies. 
One respondent suggested that the effort expended in drafting these 
regulations be leveraged to develop new funding sources for the 
scientific study of paleontological resources on National Forest System 
lands.
    Response: The Department agrees that development of new funding 
sources for scientific study of paleontological resources on National 
Forest System lands would be beneficial. However, it is beyond the 
scope of these regulations to address funding of research on 
paleontological resources.
    Comment: Clarity of language and intent in regulations. One 
respondent expressed the view that it is imperative that clarity of 
regulatory language reflect clarity in intent of the regulations.
    Response: The Department agrees that clarity of regulatory language 
should reflect clarity of intent of the regulations. The Department has 
strived to provide such clarity in these final regulations, reflecting 
consideration of public comments on the proposed regulations that 
suggested areas that would benefit from additional discussion.
    Comment: Request for consultation with rule writers. Two 
respondents requested an opportunity to meet with rule writers to 
discuss their concerns prior to drafting of the final rule.
    Response: The procedure followed by the Department in soliciting 
public comment following Federal Register publication of the proposed 
regulations is in accordance with the requirements established in the 
Uniform Procedure Act. The comments received during the designated 60-
day public comment

[[Page 21592]]

period were appropriately considered by the Department during 
development of the final regulations. The Department elected not to 
consult with particular individuals and/or organizations outside of the 
formal public comment period in order to avoid the appearance of 
providing privileged access to and influence on the rule-making process 
by certain interested parties and not others.
    Comment: Availability of fossils for scientific study would 
diminish under regulations. One respondent expressed the view that the 
regulations do not provide standards to maximize the availability of 
fossils for scientific study, but rather the availability of fossils 
for scientific study would be diminished under the regulations.
    Response: Although a permit would now be uniformly required for 
collection of paleontological resources for scientific study (that is, 
research), the Department does not consider this requirement would 
diminish the availability of fossils for such scientific study. 
Individuals with eligibility and qualifications commensurate with the 
nature of the proposed research are encouraged to apply for permits to 
collect paleontological resources for scientific study. The Department 
expects that researchers would be encouraged by the knowledge that 
uniform standards to be applied consistently across the Agency now 
exist for permitted collection of paleontological resources.
    Comment: Natural Resources Conservation Service should be a 
cooperating agency. One respondent expressed the view that the Natural 
Resources Conservation Service (NRCS) should be designated a 
cooperating agency with respect to the regulations.
    Response: The designation of the NRCS as a cooperating agency with 
respect to administration of these regulations is beyond the scope of 
these regulations. The Act applies to Federal land, specifically land 
controlled or administered by the Secretary of the Interior, except 
Indian land; or NFS lands controlled or administered by the Secretary 
of Agriculture. NRCS does not manage Federal land, and consequently the 
Act and these regulations do not apply to NRCS.
    Comment: Public comment period should be extended. Respondents 
expressed the view that the public comment period for the draft 
regulations occurred during the summer field collection season, and 
that the public comment period should be extended by 90 days to ensure 
adequate feedback by interested parties.
    Response: Federal Register publication of the proposed regulations 
was outreached to a number of identified stakeholder organizations at 
the time of publication. Notice was provided of the publication date 
and the 60-day public comment period, which partially overlapped what 
respondents have referred to as the summer field collection season. 
However, the Department considers that few, if any, individuals spend 
60 consecutive days performing field work, and that the 60-day comment 
period afforded ample opportunity for interested parties to provide 
comment before or after engaging in field activities. One-hundred-
seventy-seven (177) respondents provided comments during the comment 
period, and the comments were nearly evenly distributed between 
academic paleontologists and casual or amateur collectors. The majority 
of comments were concentrated among several well-defined areas of the 
proposed regulations. Given the number of comments received from an 
affected community of relatively small overall size, the demographics 
of the respondents, and the focus of comments on certain areas, the 
Department considers that areas of public concern in the proposed 
regulations have been appropriately identified, and that interested 
parties had the opportunity to provide public comment and those that 
wished to provide comment did so. Moreover, those respondents who 
requested a comment period extension did also provide comment on the 
body of the proposed regulations during the designated comment period. 
Accordingly, the Department elected not to extend the public comment 
period.

Section by Section Explanation of the Final Rule

    The following section-by-section response to the comments on the 
proposed rule explains the approach taken in the development of the 
final rule to National Forest System paleontological resources 
preservation.

Part 291--Paleontological Resources Preservation

    This part contains regulations on the management, protection, and 
preservation of paleontological resources on National Forest System 
lands using scientific principles and expertise, including the 
collection of paleontological resources with and without a permit, 
curation of paleontological resources in approved repositories, 
confidentiality of paleontological locality information, and criminal 
and civil penalties.

Section 291.1 Purpose

    These final regulations provide for the preservation, management, 
and protection of paleontological resources on National Forest System 
(NFS) lands. Legislative history \1\ of the Act demonstrates that it 
was enacted to preserve these resources for current and future 
generations because paleontological resources are nonrenewable and are 
an irreplaceable part of America's natural heritage.
---------------------------------------------------------------------------

    \1\ S. 2727: 148 Cong. Rec. S. 6708-6709 (2002) (Statement of 
Sen. Akaka); S. 546: S. Rep. 108-93 (2003); S. 263: S. Rep. 109-36 
(2005); S. 320: 153 Cong. Rec. S. 691-693 (2007) (Statement of Sen. 
Akaka) and S. Rep. 110-18 (2007); H.R. 554: H. Rep. 110-670, Part 1; 
and S. 22: 155 Cong. Rec. S. 426 (2009) (Statement of Sen. Akaka).
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    This section clarifies that the Secretary of Agriculture 
(Secretary) will manage and protect paleontological resources on NFS 
lands using scientific principles and expertise. This section clarifies 
that science, rather than other values, will be the primary management 
tool for paleontological resources on NFS lands. These regulations 
provide for the coordinated management of paleontological resources and 
promote research, public education, and public awareness.

Section 291.1--Response to Comments

    Comment: Who are fossils being saved for? One respondent expressed 
the view that clarification should be provided regarding who the 
regulations are saving fossils for.
    Response: The Act was enacted and these regulations have been 
developed to preserve paleontological resources for current and future 
generations because paleontological resources are nonrenewable and are 
an irreplaceable part of America's natural heritage. Paleontological 
resources that are damaged or lost because of theft, vandalism, and/or 
inappropriate method of collection cannot be replaced or renewed and 
are lost forever. Paleontological resources on National Forest System 
lands are part of the public trust. The Act and these regulations would 
ensure that scientifically important specimens remain Federal property 
in the public realm, and that ownership of such resources is not 
transferred to any single individual wherein access to the resource and 
associated information may become unavailable to the public.
    Comment: Regulations replace management using scientific principles 
and expertise by bureaucracy. Two respondents suggested that the 
imposition of regulations concerning paleontological resources adds 
unnecessary policing and bureaucracy

[[Page 21593]]

administered by nonscientists, which is contrary to the management of 
such resources using scientific principles and expertise as stipulated 
in the Act.
    Response: The Act stipulates that the Secretary of Agriculture 
shall issue such regulations as are appropriate to carry out the 
provisions of the Act, as soon as practical after the date of enactment 
of the Act. Consequently, the development of these regulations is 
necessitated by the Act. Collection of paleontological resources under 
appropriate authorizations as established in the regulations will 
facilitate inventory and monitoring of such resources as called for in 
the Act, and such inventory and monitoring will provide the knowledge 
base that is necessary for the management of paleontological resources 
using scientific principles and expertise, as stipulated in the Act. 
The Forest Service employs paleontology specialists who will be 
involved in administration of the regulations.
    Comment: Restrictions on casual collection do not encourage uses as 
stated. Two respondents expressed the view that conditions established 
for casual collecting do not encourage the scientific, educational, and 
casual collection of paleontological resources as stated.
    Response: The Act stipulates that casual collecting of common 
invertebrate and plant paleontological resources is subject to 
conditions regarding personal use, reasonable amount, use of non-
powered hand tools, and negligible disturbance. These regulations 
define and clarify these conditions. Collection of paleontological 
resources for scientific and educational uses would generally require a 
permit. The Act and the regulations establish uniform, Agency-wide 
requirements for casual collecting and permitted collecting for the 
first time. The Department encourages appropriate uses of 
paleontological resources, and expects that users of paleontological 
resources would be encouraged by the knowledge that uniform standards 
to be applied consistently across the Agency now exist for casual 
collecting and permitted collection of paleontological resources. Prior 
to these regulations, use of paleontological resources was largely 
subject to local administrative unit policy, and variability in policy 
between administrative units was a source of confusion and 
discouragement to some users.

Section 291.2 Authorities

    Section 291.2 cites the Paleontological Resources Preservation 
subtitle of the Omnibus Public Land Management Act (the Act) under 
which the proposed regulations are promulgated.

Section 291.3 Exceptions

    Section 291.3 addresses the scope of these regulations, based on 16 
U.S.C. 470aaa-10.
    Section 291.3(a) and (b) states that these regulations would not 
invalidate, modify, or impose any additional restrictions or permitting 
requirements for activities permitted under the general mining laws, 
the mineral or geothermal leasing laws, laws providing for minerals 
materials disposal, or laws and authorities relating to reclamation and 
multiple uses of National Forest System lands. The USDA would continue 
to use other applicable laws and regulations as the authority for such 
restrictions or requirements. The USDA would be authorized to cite the 
Act or these final regulations as needed for the protection of 
paleontological resources when planning, managing, regulating, or 
permitting various activities on National Forest System land covered by 
the Act.
    Section 291.3(c) states that Indian lands, as defined in these 
regulations, are exempt from the scope of these regulations.
    Section 291.3(e) states that the final regulations would not apply 
to, or require a permit for, casual collecting of a rock, mineral, or 
fossil that is not protected under the Act and these final regulations. 
Such rocks, minerals, and fossils are covered by other laws, 
regulations, and policies.
    Section 291.3(f) states that these final regulations would not 
affect any land other than National Forest System lands or affect the 
lawful recovery, collection, or sale of paleontological resources from 
land other than National Forest System lands.
    Section 291.3(g) states that members of the general public do not 
obtain any rights or privileges from the Act or the final regulations 
and cannot sue the U.S. Government to enforce its provisions.

Section 291.3--Response to Comments

    Comment: Reconnaissance collection and exemption from regulation. 
One respondent expressed the view that reconnaissance collection, which 
was recommended by that respondent for definition elsewhere in the 
regulations, be listed as exempted from regulation.
    Response: Reconnaissance collection as proposed and defined 
elsewhere by the respondent is considered research collection. 
Collection of paleontological resources for research purposes requires 
a permit and is not exempt from these regulations.
    Comment: Reference to collecting a rock, mineral, or fossil should 
use the plural form. Two respondents expressed the view that the phrase 
``collecting of a rock, mineral, or invertebrate or plant fossil'' 
should be changed to ``collecting of rocks, minerals, or invertebrate 
or plant fossils''. One respondent suggested that the word 
``invertebrate'' in the cited passage should be changed to non-
vertebrate to clarify the range of fossils that the passage references.
    Response: The language in the Exceptions section of the regulations 
that references rock, mineral, or invertebrate or plant fossil restates 
the language of the Savings Provisions section of the Act, and would 
not be appropriate to modify. This applies to both comments by 
respondents.
    Comment: Reference rocks and minerals separate from invertebrate 
and plant fossils. Two respondents expressed the view that reference to 
rocks and minerals in the context of exceptions should be separate from 
invertebrate and plant fossils, in order to clarify that rocks and 
minerals are not included in the regulations, whereas casual collecting 
of invertebrate and plant fossils does not require a permit.
    Response: The language in the Exceptions section of the regulations 
that references rock, mineral, or invertebrate or plant fossil restates 
the language of the Savings Provisions section of the Act, and would 
not be appropriate to modify. The referenced passage collectively 
refers to rocks and minerals, which are not paleontological resources 
and, therefore, not subject to the Act or the regulations. The 
referenced passage also refers to those invertebrate and plant fossils 
that are not subject to the Act or these regulations because they are 
already regulated under another authority listed previously in the 
Savings Provisions and Exceptions sections. An example is petrified 
wood, which is regulated under the Mineral Materials Act even though it 
is a plant fossil.
    Comment: Exception for non-profit and educational organizations. 
One respondent suggested that non-profit organizations, informal 
research organizations, and educational organizations which have 
primary organizational goals of education and exploration of the 
natural world be exempted from the regulations.
    Response: The Act and the regulations do not provide for exclusion 
of selected groups or classes of individuals from compliance with the 
requirements as established in the Act and regulations.
    Comment: Federal protection for private paleontological resources 
in connected actions. One respondent expressed the view that protection 
of paleontological resources under the

[[Page 21594]]

regulations be expanded to include fossils on private lands in 
connected actions wherein projects encompassing the private lands 
receive Federal funding.
    Response: The issue of protections afforded to fossils on private 
lands in the context of federally funded connected actions is beyond 
the scope of these regulations. The requirements of the Act and these 
regulations pertain only to paleontological resources that are present 
on National Forest System lands controlled or administered by the 
Secretary of Agriculture.

Section 291.4 Preservation of Existing Authorities

    Section 291.4 is based on 16 U.S.C. 470aaa-10(5). This section 
preserves the Forest Service's existing legal and regulatory 
authorities for managing and protecting paleontological resources in 
addition to protecting such resources under the Act or these final 
regulations.

Section 291.5 Definitions

    Section 291.5 contains the definitions and terms as defined in the 
Act or used in these final regulations. This section includes six terms 
defined by 16 U.S.C. 470aaa: Casual collecting, Federal land, Indian 
land, paleontological resource, Secretary, and State. In addition, this 
section defines the terms common invertebrate and plant paleontological 
resources, reasonable amount, and negligible disturbance. 16 U.S.C. 
470aaa required the Secretary to define those terms in the implementing 
regulations. Lastly, this section defines terms used in the final 
regulations that may not be broadly understood or that may be defined 
differently elsewhere, in order to clarify their meaning for these 
final regulations.
    1. The term Act means Title VI, Subtitle D of the Omnibus Public 
Land Management Act on Paleontological Resources Preservation (16 
U.S.C. 470aaa through 470aaa-11).
    2. The term associated records delineates the types of information 
that are required by 16 U.S.C. 470aaa-4 to be deposited in an approved 
repository.
    3. The term Authorized Officer means the person or persons to whom 
authority has been delegated by the Secretary to take action under the 
Act.
    4. The term casual collecting restates the definition contained in 
16 U.S.C. 470aaa. To be considered casual collecting, the activity 
means all of the following: Collecting of a reasonable amount of common 
invertebrate or 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. The Department considers that in 
establishing the term ``casual collection'' rather than ``amateur 
collection'' or ``hobby collection'' or ``recreational collection'', 
the Act intended that casual collection reflect the commonplace meaning 
of ``casual''. The commonplace definition of casual includes the 
elements ``happening by chance; not planned or expected'', ``done 
without much thought, effort, or concern'', and ``occurring without 
regularity'' (``casual'' Merriam-Webster.com. 2014. http://www.merriam-webster.com/dictionary/casual (4 March 2014)). Consequently, the 
Department considers that casual collecting would generally be 
happenstance without intentional planning or preparation. Development 
of criteria for reasonable amount and negligible disturbance reflects, 
in part, the view of casual collecting as an activity that generally 
occurs by chance without planning or preparation. Further, the Act has 
established that an individual engaging in casual collecting activity 
in accordance with applicable conditions, in an area which has not been 
closed to casual collection, does not require a permit or other 
approval from the Department. Consequently, it is clear that the lack 
of Department decision space concerning such casual collection 
performed by an individual reflects that the Act intended that 
reasonable amount and negligible disturbance criteria established for 
casual collecting would be below levels that would otherwise require an 
evaluation under the National Environmental Policy Act (NEPA). 
Collection of amounts and/or land disturbance at levels that would 
require a NEPA evaluation would require a permit.
    5. The term collection, as used in Sec. Sec.  291.21 through 291.26 
of these final regulations, means paleontological resources and any 
associated records resulting from excavation or removal from National 
Forest System lands under a permit.
    6. The term common invertebrate and plant paleontological resources 
clarifies the types of paleontological resources that may be casually 
collected in accordance with the Act and these final regulations. This 
final definition incorporates the plain meaning of common, which means 
plentiful and not rare or unique. The final definition also 
incorporates a geographical factor of wide-spread distribution, which 
means that the resource is distributed over a relatively large 
geographical area. This final definition also clarifies that not all 
invertebrate and plant paleontological resources are common; some are 
not common because of their context or other characteristics and, 
therefore, are not eligible for casual collection. The determination of 
whether invertebrate and plant fossils are common or not common will be 
made by the Authorized Officer using scientific principles and methods 
in accordance with Sec.  291.9(c).
    7. The term consumptive analysis means the alteration, removal, or 
destruction of a paleontological specimen, or parts thereof, from a 
collection for scientific research.
    8. The terms curatorial services and curation specifies the minimal 
professional museum and archival standards employed in the long-term 
management and preservation of a collection.
    9. The term Federal land restates the definition contained in 16 
U.S.C. 470aaa, and means land controlled by the Secretary except for 
Indian land as defined in 16 U.S.C. 470aaa.
    10. The term fossil means any remains, traces, or imprints of 
organisms that have been fossilized or preserved in or on the Earth's 
crust. In informal usage, the term fossil tends to be used 
interchangeably with the term paleontological resource. However, under 
16 U.S.C. 470aaa and these final regulations, a fossil may not 
necessarily be a paleontological resource. Remains, traces, or imprints 
of organisms (that is, fossils) are only considered paleontological 
resources under the Act and these final regulations if they are: (1) 
Fossilized, (2) of paleontological interest, and (3) provide 
information about the history of life on earth. Therefore, 
paleontological resources are fossils that have paleontological 
interest and provide information about the history of life on earth. An 
example of a fossil that may not be a paleontological resource because 
it lacks paleontological interest and provides negligible information 
about the history of life on earth would be an isolated, unidentifiable 
fragment of an otherwise common invertebrate fossil that was eroded 
from its native geologic occurrence and subsequently found in a stream 
bed far from its point of origin.
    11. The term fossilized as used in the definition of 
paleontological resources means preserved by natural processes, such as 
burial in accumulated sediments, preservation in ice or amber, 
replacement by minerals, or alteration by chemical processes such as 
permineralization whereby minerals are deposited in the pore spaces of 
the hard parts of an organism's remains. This definition is adapted 
from the definition

[[Page 21595]]

of fossilization in the American Geological Institute's Glossary of 
Geology (Fifth Edition, 2005, ISBN 0-922152-76-4).
    12. The term Indian land restates the definition contained in 16 
U.S.C. 470aaa.
    13. The term negligible disturbance as used in the definition of 
casual collecting clarifies that casual collection of common 
invertebrate and plant fossils may only result in little or no change 
to the land surface and have minimal or no effect on other resources 
such as cultural resources and protected or endangered species. 
Disturbance caused by powered and/or large non-powered hand tools would 
exceed the ``negligible'' threshold and would no longer be casual 
collection.
    14. The term non-commercial personal use as used in the definition 
of casual collecting clarifies the types of use allowed under casual 
collection, and means uses other than for purchase, sale, financial 
gain, or research. Research, in the context of these regulations, is 
considered to be a structured activity undertaken by qualified 
individuals with the intent to obtain and disseminate information via 
publication in a peer-reviewed professional scientific journal or 
equivalent venue, which increases the body of knowledge available to a 
scientific community. Common invertebrate and plant paleontological 
resources collected for research purposes is not personal use and would 
need to be authorized under a permit in accordance with Sec. Sec.  
291.13 through 291.20. Exchange of common invertebrate and plant 
paleontological resources among casual collectors would be permissible 
as long as such resources were collected in accordance with the Act and 
the final regulations.
    15. The term non-powered hand tools as used in the definition of 
casual collecting clarifies the types of tools that can be used for the 
casual collecting of common invertebrate and plant paleontological 
resources, and means small tools that can be readily carried by hand, 
such as geologic hammers, trowels, or sieves, but not large tools such 
as full sized-shovels or pick axes. Larger tools are more likely to 
create disturbance that is greater than ``negligible.'' The tools must 
not be powered by a motor, engine, or other power source.
    16. The final definition of the terms paleontological locality, 
location, and site means a geographic area where a paleontological 
resource is found. Localities, locations, and sites may be as small as 
a single point on the ground or as large as the area of an outcrop of a 
formation in which paleontological resources are found. The term 
paleontological site is used interchangeably with paleontological 
locality or location. Site as used in the Act and these regulations 
does not mean an ``archaeological site'' as used in the Archaeological 
Resources Protection Act and its regulations.
    17. The term paleontological resource restates the definition 
contained in 16 U.S.C. 470aaa. All remains, traces, or imprints of 
organisms are paleontological resources when they are (1) fossilized, 
(2) of paleontological interest, and (3) provide information about the 
history of life on earth. The term paleontological resources as used in 
the Act and these final regulations would not include any materials 
associated with an archaeological resource as defined in the 
Archaeological Resources Protection Act or any cultural items as 
defined in the Native American Graves Protection and Repatriation Act.
    18. The term reasonable amount as used in the definition of casual 
collecting quantifies the maximum amount of common invertebrate and 
plant paleontological resources that could be removed from National 
Forest System lands. A person may remove up to 100 pounds in weight per 
calendar year, not to exceed 25 pounds per day. Development of this 
reasonable amount criterion reflects, in part, the view of casual 
collecting as an activity that generally occurs by chance without 
planning or preparation.
    19. The term repository identifies the types of facilities into 
which collected paleontological resources would be deposited as 
required by 16 U.S.C. 470aaa-4.
    20. The term repository agreement means a formal written agreement 
between the Authorized Officer and an approved repository official 
containing the terms, conditions, and standards by which the repository 
would agree to provide curatorial services for collections.
    21. The term repository official identifies any officer, employee, 
or agent who is authorized by the repository to take certain actions on 
behalf of the repository, including the acceptance of collections and 
providing long-term curatorial services for collections.
    22. The term Secretary as used in these final regulations and 
defined in 16 U.S.C. 470aaa means the Secretary of Agriculture.
    23. The term State restates the definition contained in 16 U.S.C. 
470aaa.

Section 291.5--Response to Comments

    Comment: Include reference to mitigation actions in certain 
definitions. One respondent expressed the view that some definitions 
could benefit from including some aspect of paleontological resource 
mitigation actions.
    Response: The respondent does not specify which definitions could 
benefit from including discussion of mitigation actions pertaining to 
paleontological resources. Mitigation is not considered a personal use, 
and collection of paleontological resources related to mitigation would 
require a permit. The activity of paleontological resource mitigation 
would commonly, but not always, occur in the context of permitted 
surface disturbing activities and appropriately considered during the 
NEPA impact assessment process. Accordingly, reference to mitigation is 
largely beyond the scope of these regulations.
    Comment: Associated records. One respondent suggested that 
associated records be defined only as permits and repository 
agreements, and that documents pertaining to locations, collecting 
events, collectors, and so forth should not be considered associated 
records.
    Response: The Department considers that documents pertaining to 
locations, collecting events, collectors, and so forth, as listed in 
the regulations comprise associated records and would be regarded as 
such by any professionally managed repository institution.
    Comment: Authorized Officer. Respondents expressed the view that, 
in order to make informed decisions as referenced elsewhere in the 
regulations, the definition of Authorized Officer should reference 
qualifications and/or expertise in paleontology, including specific 
training and knowledge of scientific procedures and standards for 
collecting fossil resources, research design and scientific research, 
proper curation and storage methods and museum standards, and 
experience in properly disseminating scientific and educational 
information for the public benefit. One respondent suggested that 
requiring an Authorized Officer to consult with an Agency 
paleontologist would be cumbersome, resource intensive, and difficult 
to sustain. One respondent questioned whether or not a permit holder or 
permit issuer could be considered an Authorized Officer.
    Response: An Authorized Officer in the Forest Service is delegated 
the authority to make certain decisions regarding land use in many 
subject areas

[[Page 21596]]

in which a single individual would not be expected to have professional 
expertise. An Authorized Officer frequently consults with subject 
matter experts prior to exercising such decision-making authority. In 
this respect, decisions by an Authorized Officer relating to 
paleontological issues are no different from such decisions made 
regarding other specialized disciplines in the Agency. The process of 
an Authorized Officer consulting with subject matter experts is not 
cumbersome, but rather is standard procedure in the decision-making 
process. A permit authorizes a permit holder to perform certain 
activities as specified in the permit. However, a permit holder would 
not be considered an Authorized Officer, and such designation is 
restricted to Forest Service employees.
    Comment: Definition of casual collection is too restrictive. 
Respondents expressed the view that limitations on amounts collected 
and the use of non-powered hand tools for casual collection are too 
restrictive and go beyond the intent of the Act, which is to protect 
paleontological resources from exploitation for commercial gain.
    Response: The Act stipulates that casual collecting is subject to 
conditions including collection of reasonable amounts, collection from 
the land surface or by using non-powered hand tools, and collection 
resulting in negligible surface disturbance. The regulations are 
consistent with these stipulations of the Act. Protection of 
paleontological resources from commercial exploitation is only one of 
many purposes of the Act, which also stipulates that the Secretary of 
Agriculture manage and protect such resources using scientific 
principles and expertise, and to develop plans for the inventory, 
monitoring, and scientific and educational use of such resources.
    Comment: Casual collection should include reconnaissance 
collection. Respondents suggested that reconnaissance collection for 
research be included in the definition of casual collection.
    Response: Reconnaissance collection is considered research, does 
not constitute personal use, and requires a permit.
    Comment: Collection of common plant fossils with non-powered hand 
tools should not require a permit. One respondent expressed the view 
that the collection of any common plant fossils with non-powered hand 
tools should not require a permit.
    Response: Collection of common plant fossils using non-powered hand 
tools could be considered casual collecting and not require a permit, 
providing that all other conditions pertaining to reasonable amount and 
negligible disturbance as established for casual collecting are met. A 
permit would be required if such collection is outside the scope of 
conditions established for casual collecting.
    Comment: Shark and fish teeth should be included in the definition 
of casual collection. One respondent suggested that the collection of 
shark and/or fish teeth from the surface of natural erosional exposures 
should be considered casual collection, unless the subject specimens 
are rare.
    Response: The Act and the regulations stipulate that casual 
collecting is restricted to common invertebrate and plant fossils. 
Shark and fish teeth are vertebrate fossils, and are thereby excluded 
from casual collection.
    Comment: Collection during educational field trip. One respondent 
suggested that clarification should be provided concerning whether 
collection during an educational field trip led by a school, 
university, or museum would be considered casual collection or would 
require a permit.
    Response: A permit under these regulations would not be required 
for casual collecting by individual participants in an educational 
field trip, provided that collections by individuals are for personal 
use, do not exceed individual reasonable amount limits and the 
collateral impacts to associated resources that may be caused by the 
group do not exceed negligible disturbance criteria established for 
casual collection. However, the nature of the trip, including number of 
participants and potential collateral impacts to associated resources, 
could trigger the need for a special use permit pertaining to group 
uses that is unrelated to paleontological collection. Questions 
pertaining to group uses unrelated to paleontological collection should 
be directed to special uses staff at the local Forest Service Field 
Office in which a field trip is planned.
    Comment: Casual collection may promote illegal collection. One 
respondent suggested that allowing casual collection would facilitate 
illegal collection for resale under the pretext of casual collection, 
resulting in the loss of collection locations.
    Response: The Act establishes that casual collecting is an activity 
that may be performed on National Forest System lands, providing that 
established conditions are met. The Department would rely largely on 
the ethics of an informed and law-abiding collecting public, who are 
aware of conditions for casual collecting as established in regulation, 
and elect to legally collect by adhering to those conditions. 
Documented intentional noncompliance with the conditions established 
for casual collection would subject the collector to enforcement 
action.
    Comment: Regulation of casual collection is impossible. One 
respondent expressed the view that monitoring and regulation of casual 
collection by Department personnel in the field would be impossible.
    Response: The Act does not require the direct monitoring or 
regulation of casual collecting. Because the Act and the regulations 
establish that casual collecting does not require a permit or other 
advance approval, the Department agrees that it would be nearly 
impossible to monitor or track every individual occurrence of casual 
collecting. In this respect, casual collecting is no different from 
other activities that occur on National Forest System lands that do not 
require a permit. The Department would rely largely on the ethics of an 
informed and law-abiding collecting public, who are aware of conditions 
for casual collecting as established in regulation, and elect to 
legally collect by adhering to those conditions. Moreover, the effects 
of casual collecting may be indirectly monitored or tracked by 
assessing cumulative impacts in known areas commonly used for casual 
collection.
    Comment: Common fossils of limited interest to amateur collectors. 
One respondent suggested that amateur fossil collectors, like many 
amateur mineral collectors, would not be interested in casual 
collection limited to common and abundant invertebrate and plant 
fossils because such specimens are too commonplace. Interest would 
reside largely in rare or uncommon varieties, which are excluded from 
casual collection under these regulations.
    Response: The Act and the regulations establish that casual 
collecting only pertains to common invertebrate and plant 
paleontological resources. Intentional collection of rare or uncommon 
specimens would require a permit.
    Comment: Definition of common invertebrate and plant 
paleontological resources should be clarified. Respondents suggested 
that the definition of common invertebrate and plant paleontological 
resources requires more detail and clarification in order to avoid 
confusing collectors. Respondents also expressed the view that common 
invertebrate and plant fossils be explicitly excluded from the 
definition of paleontological resources and thereby excluded from 
regulation.

[[Page 21597]]

    Response: The definition of paleontological resources in the Act 
and the regulations includes common invertebrate and plant fossils, and 
the Act explicitly references common invertebrate and plant 
paleontological resources in the context of casual collecting. Criteria 
for whether a paleontological resource would be considered common could 
reflect a variety of factors including, but not limited to, context of 
occurrence in a particular location, relative abundance, and extent of 
distribution. It is not practical to address in regulations each factor 
that could be pertinent to determination of what constitutes common 
with respect to common invertebrate and plant paleontological 
resources.
    Comment: Include criterion of formal description in definition of 
common invertebrate and plant paleontological resources. Two 
respondents suggested that a fossil species be considered common if it 
has been formally described in a scientific publication and type 
specimens have been deposited in an appropriate repository; conversely, 
a fossil species would only be considered rare if it has not been 
described or is awaiting description in scientific publication. One 
respondent suggested that if ten or more specimens of a species 
awaiting formal description have been deposited in a repository, that 
species may be considered common.
    Response: Criteria for whether or not a paleontological resource 
would be considered common or rare could reflect a variety of factors 
including, but not limited to, context of occurrence in a particular 
location, relative abundance, and extent of distribution. The proposed 
criterion of formal taxonomic description has no bearing on whether a 
particular occurrence of a specimen might be considered common. Many 
formally described species may be considered rare, and conversely, many 
undescribed species could be considered common. Moreover, the process 
as described by the respondents is cumbersome and would be nearly 
impossible to implement, particularly with regard to tracking number of 
specimens referred to a type. This would be especially true for any 
described species whose types did not originate from National Forest 
System lands. The Department will not incorporate a criterion of formal 
species description in the definition of common.
    Comment: Clarification regarding paleontological resources that are 
considered to be rare. Respondents suggested that additional 
information should be provided concerning which paleontological 
resources are considered to be rare, and expressed the view that a list 
be provided concerning which paleontological resources are considered 
rare and which are considered common. One respondent expressed the view 
that the apparent rarity of certain fossils often reflects the 
availability of access to collecting areas, rather than actual rarity 
of specimens. Respondents suggested that without expert knowledge, it 
would be difficult for amateur collectors to determine if a specimen is 
rare or common. One respondent expressed the view that clarification 
should be provided regarding whether or not a collector would be 
considered in jeopardy under the law if a rare specimen was collected 
inadvertently. Respondents also expressed the view that an Authorized 
Officer should not determine whether or not a paleontological resource 
is rare.
    Response: Criteria for whether or not a paleontological resource 
would be considered common or rare could reflect a variety of factors 
including, but not limited to, context of occurrence in a particular 
location, relative abundance, and extent of distribution. Consequently, 
an assessment of commonness or rarity would not necessarily apply 
universally to a particular taxon, and is therefore not appropriate for 
determination in the form of a taxonomic list. It is not practical to 
address in regulations each factor that could be pertinent to 
determination of what constitutes common or rare with respect to common 
invertebrate and plant paleontological resources. A collector would not 
necessarily be placed in jeopardy under the law for inadvertent 
collection of a rare specimen during casual collection. The Department 
could consider the intent and degree of non-compliance regarding 
inadvertent collection of rare specimens regarding potential 
enforcement. The regulations establish a procedure wherein an 
Authorized Officer would consider a recommendation by a subject matter 
expert in making a determination of whether an invertebrate or plant 
paleontological resource is common or rare.
    Comment: Associations of partial specimens should be addressed in 
definition of common invertebrate and plant paleontological resources. 
One respondent suggested that some isolated parts and/or incomplete 
specimens of certain organisms may be common, but associated parts and/
or complete specimens of the same organism may be rare. The respondent 
questioned whether such species would be considered common or rare 
under the regulations.
    Response: Criteria for whether or not a paleontological resource 
would be considered common would include context of occurrence in a 
particular location and could include the nature of preservation, such 
as completeness and/or associations of elements of a specimen. 
Consequently, an assessment of common could largely reflect the context 
of a specimen, and not necessarily apply universally to a particular 
taxon. For example, concentrations of disarticulated columnals of a 
particular crinoid species might be considered common, whereas a 
complete and fully articulated specimen of the same species would 
generally be considered rare. Consequently, it is not practical to 
address in regulations each factor that could be pertinent to 
determination of what constitutes common with respect to common 
invertebrate and plant paleontological resources.
    Comment: Criterion of widespread distribution should be clarified. 
Respondents suggested that clarification should be provided concerning 
what constitutes widespread distribution. One respondent suggested that 
most species are defined on the basis of geologic horizons and 
localities, and therefore can only be considered abundant in local 
areas, rather than widespread areas.
    Response: The characteristic of widespread distribution is 
considered dependent on factors including, but not limited to, the 
paleoecology of the organisms in question and the distribution of rock 
outcrops in which they may occur. It is not practical to address in 
regulations each factor that could be pertinent to determination of 
what constitutes widespread distribution with respect to common 
invertebrate and plant paleontological resources. In general, a species 
that is present in rocks distributed through the greater extent of a 
given Forest Service administrative Region could be considered to have 
widespread distribution in that Region. The respondent's suggestion 
that most species can only be considered abundant in local areas and 
not of widespread distribution is conjectural and not substantiated. 
That assertion is contrary to the longstanding paleontological and 
stratigraphic concept of index fossils, whose geologic utility is 
predicated on their having the key attributes of easy identification, 
abundance, narrow temporal range, and widespread geographic 
distribution.
    Comment: Intermingling of common and rare species. Respondents 
suggested

[[Page 21598]]

that in many cases common and rare species are intermingled, and 
questioned whether locations in which such intermingling occur would be 
closed to casual collection. One respondent suggested that amateur 
collectors often donate rare specimens found in such circumstances to 
museums, and that closure of such locations to casual collection would 
result in fewer rare species being collected and described. One 
respondent suggested that if locations containing intermingled common 
and rare species are closed to collection, amateur collectors would not 
disclose finding of rare species in order to avoid closure of such 
areas. One respondent suggested that if such areas were closed, 
opportunities for children to casually collect would be lost.
    Response: The respondents' suggestion that common and rare species 
are intermingled in many cases is conjectural and not substantiated. In 
cases where intermingling is demonstrated, the Authorized Officer has 
the ability to close an area to casual collection if it is considered 
that rare paleontological resources may be placed at risk by 
inadvertent casual collection. The potential for casual collectors to 
inadvertently collect rare specimens and later donate them to 
repositories could be considered in area closure decisions. The 
existence of alternative opportunities for children to casually collect 
could also be considered in area closure decisions. The Department 
expects that ethical casual collectors would not withhold information 
concerning the occurrence of rare specimens for the purpose of avoiding 
potential area closures.
    Comment: Discovery of a new species. Two respondents expressed the 
view that the regulations should include procedures for amateur 
collectors to follow if they collect specimens that may be considered 
to represent new species. The respondents suggested specific procedures 
including collection and packaging protocols, location documentation, 
contacting professional paleontologists, and other related actions.
    Response: The Department does not consider that discovery of new 
species would be a commonplace occurrence in the context of casual 
collection. Protocols related to the documentation and description of 
new species are the subjects of an extensive body of scientific 
taxonomic literature, and the formal establishment of such protocols in 
the context of casual collecting is beyond the scope of the 
regulations. Specimens that could represent new species that were 
inadvertently collected during casual collection should be returned to 
the Forest Service for appropriate disposition.
    Comment: Credit to amateur collectors of new species. Two 
respondents suggested that the regulations require that amateur 
collectors who find new species be explicitly acknowledged in 
professional publications in which such species are formally described. 
One respondent suggested that a $500.00 penalty be assessed to authors 
of such papers who fail to acknowledge a casual collector who provided 
the specimens upon which a new species is described.
    Response: The Department does not consider that discovery of new 
species would be a commonplace occurrence in the context of casual 
collection. The issue of providing credit or acknowledgment of a 
collector's contribution to published research is an ethical matter 
beyond the scope of the regulations.
    Comment: Consumptive analysis. One respondent suggested that the 
definition of consumptive analysis is too broad, and should be limited 
to procedures that would destroy an entire specimen or a majority of a 
specimen.
    Response: Consumptive analysis is commonly understood to mean any 
procedure that would entail irrevocable alteration (that is, 
consumption) of a part of a specimen for the purpose of acquiring 
information that cannot be obtained any other way; for example, 
removing and destroying a plug of bone to determine chemical 
composition or microscopic structure. Important and/or unique 
scientific information may be represented in a small portion of a 
specimen, independent of the entire specimen or majority of a specimen. 
Consequently, it would not be appropriate to define consumptive 
analysis only in the context of destruction of a complete specimen, or 
the majority of a specimen.
    Comment: Curatorial services and curation. One respondent suggested 
that reference to purposes for lending a collection be clarified by 
listing exhibition as an educational purpose. One respondent suggested 
that the definition of curatorial service and curation reference the 
intellectual services that trained scientists provide to collections, 
including management decisions that maximize scientific and educational 
value of the collections.
    Response: The Department considers that exhibition of specimens is 
an educational purpose, and does not require separate listing. The 
Department considers that ``intellectual services'' provided by trained 
repository staff scientists would be the basis for professional 
collections management practices and decisions employed by such staff, 
and does not require separate listing.
    Comment: Federal land. One respondent expressed the view that the 
definition of Federal land as discussed in the Preamble reads awkwardly 
and should be rephrased.
    Response: The Department agrees with the respondent's view and has 
added the word ``and'' to read: ``9. The term Federal land restates the 
definition contained in 16 U.S.C. 470aaa of the Act, and means land 
controlled by the Secretary except for Indian land as defined in 16 
U.S.C. 470aaa.''
    Comment: Definition of fossil should include temporal component. 
Respondents expressed the view that the definition of fossil should 
include a component of geologic time; specifically that organic remains 
and/or traces that post-date the Pleistocene epoch (post-glacial time) 
not be considered as fossils. One respondent suggested that organic 
remains and/or traces that occur in archeological time frames and/or 
modern sediment deposits originating from catastrophic events such as 
floods or mud entrapment not be considered as fossils.
    Response: The existing definition of fossil is one that is commonly 
used in the scientific community and largely conforms to the definition 
of fossil as employed by the American Geological Institute (AGI). In 
addition, the existing definition of fossil is consistent with the 
definition of paleontological resource as established by the Act and 
the regulations, which does not include a temporal criterion. 
Incorporation of an end-Pleistocene limit to determine whether or not a 
particular specimen is a fossil would be arbitrary and not based in 
science. Similarly, reference to occurrence in an archeological time 
frame to determine whether or not a specimen is a fossil would also be 
arbitrary and not based in science. Organic remains and traces in 
modern sediments, originating from catastrophic events that occurred 
not more than several decades before the present, would generally not 
be considered fossils.
    Comment: Definition of fossil should be clarified regarding organic 
traces. One respondent suggested that the definition of fossil be 
clarified regarding whether organic traces (trace fossils) are 
considered to be fossils or sedimentary structures.
    Response: The definition of fossil clearly states that ``fossil 
means any fossilized remains, traces, or imprints of organisms . . .'' 
Consequently, trace

[[Page 21599]]

fossils are considered fossils as per the definition.
    Comment: Definition of ``fossil'' as discussed in preamble overuses 
the word ``paleontological''. One respondent expressed the view that 
the word ``paleontological'' is overused in the discussion of the 
definition of ``fossil'' in the preamble. The respondent suggested that 
the discussion would be improved by substituting the word 
``scientific'' for ``paleontological'' with reference to the term 
``paleontological interest''.
    Response: The discussion of ``fossil'' in the preamble clarifies 
the distinction between a fossil and a paleontological resource, and in 
so doing restates the definition of paleontological resource as 
established in the Act and the regulations. That definition uses the 
term paleontological interest, rather than scientific interest. Because 
the referenced passage restates an established definition, it will not 
be changed.
    Comment: Definition of fossilized is too broad. One respondent 
suggested that the definition of fossilized is too broad, and that the 
definition should include a component of geologic age or other time 
constraint, or be deleted entirely.
    Response: The existing definition of fossilized refers to natural 
processes that would operate to transform organic remains, traces, or 
imprints into fossils. The definition is focused on processes rather 
than time, and processes of fossilization operate over a wide range of 
time scales, often of unknown extent, that reflect the complex 
interactions of diverse physical and chemical environmental variables. 
The existing definition of fossilized is consistent with definition of 
the related term fossilization as employed by the American Geological 
Institute (AGI), which likewise does not include a time constraint.
    Comment: Indian land. One respondent expressed the view that the 
regulations criminalize activities of young Native Americans by not 
allowing them to collect fossils for resale on their own lands.
    Response: The Act and the regulations explicitly state that Indian 
lands are not subject to the Act or the regulations. Fossil collecting 
activities by Native Americans on Indian lands would be under the 
jurisdiction of Tribal authorities.
    Comment: The definition of negligible disturbance is ambiguous. 
Respondents expressed the view that the definition of negligible 
disturbance is vague, arbitrary, subject to individual interpretation, 
and should be clarified. Respondents suggested that the definition of 
negligible disturbance include measurable limits expressed in volumes, 
amounts, and/or areas such as square meters, square yards, and/or 
acres. One respondent suggested a maximum disturbance limit of one 
square meter. One respondent suggested that criteria for excessive 
disturbance be defined and used in place of the negligible disturbance 
criterion.
    Response: The amount of physical disturbance created during casual 
collection is not the only criterion that would determine whether 
overall disturbance is negligible or not. Other factors that would 
relate to overall disturbance could include, but would not be limited 
to, location specific factors such as proximity to threatened or 
endangered species and/or other sensitive resources and visual/
aesthetic considerations. It is not practical to address in regulations 
the entire spectrum of factors that could be pertinent to determination 
of what constitutes negligible disturbance related to casual collection 
at any particular location. In general, surface collection by hand 
would be inherently less likely to exceed negligible disturbance than 
would be collection involving removal of materials using hand tools. 
The Act requires that negligible disturbance be determined by the 
Secretary, rather than excessive disturbance. Moreover, for the same 
reasons as presented above, it would be no more practical to establish 
specific criteria for excessive disturbance in the regulations than it 
would be to establish such criteria for negligible disturbance.
    Comment: Negligible disturbance and non-powered hand tools. Two 
respondents suggested that negligible disturbance be defined as any 
disturbance resulting from the use of non-powered hand tools in casual 
collection. One respondent suggested that allowing only non-powered 
hand tools would place practical limits on amounts of material that 
could be removed without difficulty and would thus be self-regulating. 
One respondent suggested that employing the criterion of non-powered 
hand tools would be easily identifiable in the field and would thereby 
facilitate enforcement of the negligible disturbance criterion.
    Response: In separately specifying conditions of negligible 
disturbance and use of non-powered hand tools in the context of casual 
collecting, the Act recognizes that these criteria are distinct. The 
use of non-powered hand tools can result in disturbance of large 
surface areas to an extent that would be considered greater than 
negligible by any other objective criterion. Consequently, it would not 
be appropriate to define negligible disturbance as any disturbance that 
was created using non-powered hand tools. Moreover, the amount of 
physical disturbance created during casual collection is not the only 
criterion that would determine whether overall disturbance is 
negligible or not. Other factors that would relate to overall 
disturbance could include, but would not be limited to, location 
specific factors such as proximity to threatened or endangered species 
and/or other sensitive resources and visual/aesthetic considerations.
    Comment: Authorized Officer should not determine negligible 
disturbance. One respondent suggested that an Authorized Officer should 
not have the authority to determine whether disturbance is negligible 
or not, because such decisions may be subjective and/or biased.
    Response: The Department considers that in many circumstances, what 
constitutes negligible disturbance would depend on the location of the 
activity and could reflect a number of specific factors that are 
unrelated to paleontological resources. Authorized Officers in the 
Forest Service have been delegated the authority to make certain land 
use decisions in the administrative units under their jurisdiction. For 
any given location, the Authorized Officer is appropriately positioned 
to decide, based on recommendations of local staff specialists, whether 
or not a particular level of surface disturbance would be considered 
negligible or not.
    Comment: Disturbance related to fossil collection is negligible 
compared to other uses. Respondents expressed the view that casual 
collection using only non-powered hand tools should not be subject to a 
negligible disturbance criterion, since surface disturbance as a 
consequence of such collection is negligible compared to surface 
disturbance resulting from other activities allowed on National Forest 
System lands such as minerals extraction, logging, and grazing.
    Response: The Act requires that the regulations define the term 
``negligible disturbance'' in the context of casual collection. 
Contrary to casual collecting, other surface disturbing activities as 
specified by the respondents require authorization from the Forest 
Service. Such authorizations generally require a formal NEPA assessment 
in which potential impacts associated with the activity are disclosed 
and potential mitigation of such impacts may be proposed. Because 
casual collecting does not require an authorization or other Agency 
decision, conditions

[[Page 21600]]

established for casual collection must ensure that surface disturbance 
related to such collection is negligible and does not exceed any 
threshold that would otherwise trigger the need for a NEPA assessment 
of the activity.
    Comment: Negligible disturbance criterion impractical for serious 
amateur collectors. One respondent expressed the view that collection 
of good fossil specimens by serious amateur collectors often requires 
freshly exposing large areas of bedrock, which would not be consistent 
with a requirement for little or no change to the land surface. The 
respondent also suggested that the exclusion of large hand tools and/or 
powered tools would not allow exposure of fresh bedrock which is 
necessary for such collection.
    Response: Land disturbance to the extent described by the 
respondent would generally be considered greater than negligible, and 
would require a permit. Collection resulting in disturbance greater 
than negligible and/or by using hand tools larger than allowed for 
casual collection would require a permit.
    Comment: Cumulative surface disturbance in large common collecting 
areas should be addressed. Respondents expressed the view that 
clarification should be provided concerning how criteria for negligible 
disturbance would be applied in common collection locations subject to 
casual collection by large numbers of collectors. Respondents suggested 
that in such common collecting locations, areas disturbed by individual 
collectors may coalesce, and areas disturbed by individual collectors 
may not be able to be differentiated from preexisting disturbed areas.
    Response: Each individual engaging in casual collecting in a common 
collection area would be expected to adhere to the negligible 
disturbance criterion. Common collecting areas in which cumulative 
surface disturbance levels exceed negligible could be subject to NEPA 
assessment of surface impacts. Such areas could be subject to closure 
to casual collecting and/or restricted to collecting under permit.
    Comment: Reclamation of disturbed areas. One respondent expressed 
the view that a collector should be allowed to exceed the negligible 
disturbance criterion provided that the disturbed area is reclaimed by 
the collector before leaving. Two respondents suggested adding a 
requirement that all areas disturbed by collection should be filled-in 
and graded. One respondent suggested that small areas of disturbance 
should not require reclamation because they will be restored by natural 
processes over time.
    Response: Collection resulting in disturbance that exceeds a 
negligible level would require a permit. The need for reclamation of 
areas in which disturbance exceeds negligible levels would be addressed 
in a permit. The criterion of negligible disturbance in casual 
collection implies that disturbance would be of such limited extent 
that reclamation would not be necessary.
    Comment: Negligible disturbance and consecutive collecting trips. 
One respondent suggested that that clarification should be provided 
concerning how negligible disturbance criteria would be applied in the 
event of consecutive collecting trips made to the same area by an 
individual collector.
    Response: The criterion of negligible disturbance would not be 
assessed cumulatively, but rather would be applied to disturbance 
resulting from each collecting event performed by an individual.
    Comment: Definition of non-commercial personal use is overly 
restrictive. Respondents expressed the view that the definition of non-
commercial personal use is too restrictive, particularly with reference 
to exclusion of use for research. Respondents suggested that excluding 
research would prevent casual collectors from developing personal 
expertise by researching their finds, and that research, publication, 
and donation to museums of specimens that were collected by 
knowledgeable amateur collectors would be made illegal. One respondent 
suggested that clarification should be provided regarding whether or 
not it would be a violation if casually collected specimens were later 
donated to an academic institution for research. Respondents suggested 
that the term research be removed from the definition, and one 
respondent expressed the view that it is ironic for research to be 
considered a commercial use.
    Response: The definition of non-commercial personal use has been 
modified to further characterize research, which is not considered to 
be a personal use. Research, in the context of these regulations, is 
considered to be a structured activity undertaken by qualified 
individuals with the intent to obtain and disseminate information via 
publication in a peer-reviewed professional scientific journal or 
equivalent venue, which increases the body of knowledge available to a 
scientific community. In accordance with this characterization of 
research, casual collectors seeking to develop personal expertise 
through study of collected specimens would not be considered to be 
engaging in research. Specimens that were casually collected with the 
intent of personal use may be donated to a repository at a later time; 
however, collection with the intent to donate to a repository would not 
constitute casual collection and would require a permit. The Department 
does not expect this to be a commonplace scenario. The Department does 
not consider research to be a commercial use; however, research is 
likewise not considered to be a personal use and, therefore, requires a 
permit.
    Comment: Include mitigation in definition of non-commercial 
personal use. One respondent suggested that the definition of non-
commercial personal use should specify that mitigation of damage or 
potential damage to paleontological resources be excluded from 
consideration as non-commercial personal uses.
    Response: Mitigation of damage or potential damage to 
paleontological resources generally occurs in the context of permitted 
projects on National Forest System lands. Permitted projects are 
frequently commercial in nature and associated paleontological resource 
mitigations are always managed as professional, rather than personal 
activities. Consequently, mitigation activities could not reasonably be 
construed as non-commercial personal use, and there is no need to 
specifically include discussion of mitigation in the definition of non-
commercial personal use.
    Comment: Definition of non-commercial personal use should not 
reference financial gain or research. One respondent suggested that 
reference to financial gain and research should be removed from the 
definition of non-commercial personal use in order to be consistent 
with the discussion of casual collection in the context of outfitters 
and guides in the section ``Proper Consideration of Small Entities''.
    Response: Reference by the respondent to the discussion of casual 
collection associated with outfitters and guides in the section 
``Proper Consideration of Small Entities'' is presented out of context, 
and the definition of non-commercial personal use as proposed is 
consistent with the referenced discussion. The referenced discussion 
establishes that participants in an outfitter/guide operation that is 
not paleontological in nature may individually engage in casual 
collection as an incidental activity which is not related to the 
commercial purpose of the permitted outfitter/guide operation, and

[[Page 21601]]

that the regulations would not be expected to negatively impact a 
permitted small entity operation that is not paleontological in nature. 
Commercial use and/or financial gain from paleontological resources are 
not allowed in accordance with the Act and these regulations. Research, 
while not considered commercial, is also not considered a personal use.
    Comment: The definition of non-powered hand tools is too 
restrictive. Respondents expressed the view that the definition of non-
powered hand tools is more restrictive than stipulated by the Act, 
which does not establish a limit on the size of non-powered hand tools. 
Respondents suggested that large non-powered hand tools, including but 
not limited to full-sized pick axes, sledge hammers, crow bars, pry 
bars, and shovels are necessary to remove unconsolidated overburden and 
expose fresh bedrock containing paleontological resources and to 
extract paleontological resources from hard sedimentary rocks. 
Respondents suggested that the definition should not focus on tool 
size, but rather should specify that tools be used that are appropriate 
to the circumstances of the collecting in order to minimize damage to 
specimens. Respondents expressed the view that use of hand tools that 
are too small and inappropriate for collecting conditions will result 
in loss or damage of paleontological specimens. One respondent 
expressed the view that hand tools should be defined as any tools that 
are not powered by a motor, engine, or other mechanical power source, 
and that tool size should not be included in the definition.
    Response: The Department considers that casual collecting would 
generally be happenstance without intentional planning or preparation, 
and that use of large hand tools requiring two-handed operation would 
be inconsistent with such activity and would entail a higher potential 
for greater than negligible land surface disturbance. Land disturbance 
to the extent described by respondents would generally be considered 
greater than negligible, and would require a permit. Collection 
resulting in disturbance greater than negligible and/or by using hand 
tools larger than allowed for casual collection would require a permit.
    Comment: The definition of non-powered hand tools is arbitrary and 
vague. Respondents have expressed the view that the definition of non-
powered hand tools is arbitrary, vague, and will create confusion. 
Respondents suggest that non-powered hand tool of any particular type 
exist in a nearly continuous range of sizes, and suggested that 
clarification should be provided concerning where the upper size limit 
would be placed in such continuous series, or how it would be 
determined if a tool is too large.
    Response: Generally, a non-powered hand tool that requires use of 
both hands to wield effectively would be considered too large for use 
in casual collection. The Department considers that casual collecting 
would generally be happenstance without intentional planning or 
preparation, and that use of large hand tools requiring two-handed 
operation would be inconsistent with such activity and would entail a 
higher potential for land surface disturbance greater than negligible. 
Use of hand tools larger than allowed for casual collection could be 
authorized for collection under a permit.
    Comment: Specification of certain tools. Respondents expressed the 
view that clarification should be provided regarding whether or not use 
of chisels, pry bars, crow bars, Marsh picks, geo-picks, hoe-picks, 
and/or pick-axes would be allowed in casual collection.
    Response: The level of specificity requested by the respondents is 
not appropriate for regulation. Generally, a non-powered hand tool that 
requires use of both hands to wield effectively would be considered too 
large for use in casual collection.
    Comment: Permit and use of large hand tools. Respondents suggested 
the clarification should be provided regarding whether or not use of 
non-powered hand tools larger than allowed for casual collection would 
be authorized under a permit.
    Response: Use of hand tools larger than allowed for casual 
collection could be authorized for collection under a permit.
    Comment: Restriction on use of large hand tools will stop casual 
collection. One respondent expressed the view that limiting hand tool 
sizes will stop casual collecting activities. Another respondent 
suggested that limiting use of large shovels and pick-axes will 
criminalize collection by children and volunteer collectors.
    Response: The respondents' suggestions that restricting use of 
large tools in casual collecting would stop such activities and would 
criminalize collection by children and volunteers are speculative and 
not substantiated. Use of hand tools larger than allowed for casual 
collection could be authorized for collection under a permit.
    Comment: Definition of non-powered hand tools should not reference 
negligible disturbance. One respondent expressed the view that 
discussion of the definition of non-powered hand tools in the preamble 
should not reference negligible disturbance, because negligible 
disturbance should be based on the amount and nature of disturbance 
rather than the type of tool being used.
    Response: The actual definition of non-powered hand tools does not 
reference the negligible disturbance criterion. The preamble discussion 
of the definition of non-powered hand tools provides clarification that 
in developing the definition, the Department recognizes that larger 
tools have an inherent capacity to disturb larger areas to an extent 
greater than would be considered negligible.
    Comment: Paleontological localities that contain more than one 
fossil assemblage. One respondent suggested that clarification should 
be provided concerning the potential existence of successive geologic 
beds at any given locality, each of which may contain distinctly 
different fossil assemblages. The respondent questioned whether or not 
each distinct fossil assemblage would be considered separately in 
determining collection limits.
    Response: The reasonable amount limit established for casual 
collection is an absolute specified amount, and is not a ``per 
locality'' or ``per bed'' or ``per fauna'' limit. Amounts collected at 
different locations, from different beds, and/or representing distinct 
faunas would all contribute cumulatively to the established total 
reasonable amount annual limit.
    Comment: Definition of paleontological resources does not recognize 
diversity of types of fossils. Respondents expressed the view that 
there exist a wide variety of fossils and that the regulations 
unnecessarily consider all of them to be paleontological resources and 
subject to regulation. Respondents suggested that common invertebrate 
and plant fossils should be excluded from the definition of 
paleontological resources because they do not require the same level of 
protection as vertebrate fossils and cultural resources.
    Response: Paleontological resources are defined in the Act, and the 
regulations restate the definition established in the Act. The 
Department considers that the definition of paleontological resources 
in the Act and the regulations appropriately includes the diversity of 
fossil organisms and their remains, traces, and imprints. Common 
invertebrate and plant fossils are included in the definition of 
paleontological resources.
    Comment: Paleontological resources do not need to be defined or 
regulated.

[[Page 21602]]

One respondent expressed the view that there is no need to define or 
regulate paleontological resources because there are other mechanisms 
in place to protect the few fossil sites that merit protection, such as 
designating them National Parks or Monuments.
    Response: Paleontological resources are defined in the Act, and the 
regulations restate the definition established in the Act. The Act 
stipulates that the Secretary of Agriculture shall manage and protect 
paleontological resources on National Forest System Lands using 
scientific principles and expertise, and these regulations establish 
procedures for such management. The Act and these regulations apply to 
all National Forest System lands.
    Comment: Definition of paleontological resources does not address 
reproductions. One respondent suggested that the definition of 
paleontological resources should explicitly exclude reproductions, such 
as casts made from actual specimens.
    Response: The definition of paleontological resources refers to 
fossilized remains, traces, or imprints of organisms. Casts and other 
reproductions are clearly not fossilized remains, traces, or imprints 
of organisms, and would not be considered paleontological resources 
under the existing definition, and do not require explicit exclusion by 
listing them.
    Comment: Definition of paleontological resources is too broad and 
ambiguous. One respondent expressed the view that the definition of 
paleontological resources is overly broad and ambiguous. The respondent 
suggested that the definition appears to have been modeled after the 
Archaeological Resources Protection Act (ARPA) which covers very 
different resources, and that the definition of paleontological 
resources and the regulations should better reflect those resource 
differences.
    Response: The definition of paleontological resources in the 
regulations restates the definition in the Act. The Department 
considers that the definition of paleontological resources in the Act 
and the regulations appropriately includes the diversity of fossil 
organisms and their remains, traces, and imprints, and is, therefore, 
neither overly broad nor ambiguous. The definition is consistent with 
common use of the terms ``paleontological resources'' and ``fossil'' 
within the scientific community. The respondent's reference to that 
definition being modeled after ARPA bears no relevance to the adequacy 
and/or appropriateness of the definition.
    Comment: Reference to archeological resources should be clarified. 
One respondent expressed the opinion that clarification should be 
provided to indicate that fossils found in association with 
archeological resources would otherwise be considered paleontological 
resources when found in a non-archeological context.
    Response: The definition of paleontological resources in the Act 
and in these regulations excludes fossils associated with 
archaeological resources. The Department does not consider it necessary 
to additionally state in the definition the converse case, that fossils 
not associated with archaeological resources would be considered 
paleontological resources.
    Comment: Definition requested for ``qualified paleontologist''. One 
respondent suggested that a definition be provided for the term 
``qualified paleontologist''.
    Response: Qualifications are evaluated in the context of being 
commensurate with a particular task or project, and do not comprise a 
defined set of universally applicable criteria. The term ``qualified 
paleontologist'' has been removed from these regulations and, 
therefore, does not require definition in this final rule.
    Comment: The definition of reasonable amount is overly restrictive. 
Respondents expressed the view that the definition of reasonable amount 
is overly restrictive, arbitrary, and ambiguous. Respondents suggested 
that the definition does not recognize the variety of fossil types and 
their occurrences, and that many invertebrate fossils occur in 
countless numbers and would be lost by erosion if not collected. One 
respondent expressed the view that amount limits for the collection of 
common and abundant invertebrate and plant fossils are unnecessary, 
because most sites bearing such fossils are continually replenished by 
natural processes of erosion. One respondent suggested that reasonable 
amounts be eliminated because there are too many field variables to 
consider in establishing collection limits.
    Response: The Act requires that the regulations define the term 
reasonable amount in the context of casual collecting. In establishing 
a reasonable amount, the Department considered the adjective ``casual'' 
as used in the term ``casual collecting''. The commonplace definition 
of casual includes the elements ``happening by chance; not planned or 
expected'', ``done without much thought, effort, or concern'', and 
``occurring without regularity'' (``casual'' Merriam-Webster.com. 2014. 
http://www.merriam-webster.com/dictionary/casual (4 March 2014)). The 
Department considers that in establishing the term ``casual 
collection'' rather than ``amateur collection'' or ``hobby collection'' 
or ``recreational collection'', the Act intended that casual collection 
reflect the commonplace meaning of ``casual'', and that such casual 
collecting would generally be happenstance without intentional planning 
or preparation. The preamble discussion of the definition of casual 
collection has been modified to include this clarification. Consistent 
with such unplanned collection, a reasonable amount would generally be 
smaller rather than larger, and would not reflect site-specific and 
complex factors such as rock types and other field variables. The 
Department has considered public comments on the proposed rule and has 
modified the reasonable amount definition to comprise a criterion of 
100 pounds per person per calendar year, not to exceed 25 pounds per 
person per day. Collection of amounts greater than the reasonable 
amount established for casual collection would require a permit.
    Comment: Reasonable amount limits will discourage recreational 
fossil collection. One respondent expressed the view that the specified 
reasonable amounts could be exceeded in minutes, and would consequently 
discourage recreational and amateur collectors from making long 
distance trips to collect. One respondent suggested that limits on 
reasonable amounts would reduce the opportunity to use casually 
collected fossils in public education to stimulate interest in science 
among children. Respondents expressed the view that the specified 
limits on reasonable amount would be easy to violate unintentionally, 
and would criminalize casual collecting.
    Response: Collection for recreational and/or educational purposes 
of amounts greater than the reasonable amount established for casual 
collection is not precluded by the regulations, but would require a 
permit. The Department could consider the intent and degree of non-
compliance regarding collection greater than the established reasonable 
amount in decisions regarding potential enforcement.
    Comment: Specified reasonable amounts will result in specimen loss 
by culling. Respondents expressed the view that imposing limits on 
reasonable amounts would lead to loss and/or destruction of specimens 
because collectors would high-grade, field-trim, and/or otherwise cull 
collected specimens in the field in order to meet specified collection 
limits.

[[Page 21603]]

    Response: Collection of amounts greater than the reasonable amount 
established for casual collection would require a permit. The 
Department expects that responsible collectors would strive to minimize 
collateral damage to specimens resulting from culling and/or field-
trimming. Discarded material would be considered as disturbed surface 
material in context of the negligible disturbance criterion.
    Comment: Reasonable amount limits will not permit adequate 
scientific sampling. One respondent expressed the view that specified 
limits on reasonable amounts would result in inadequate sampling of 
fossil populations and tainted scientific hypotheses resulting from 
such samples. One respondent suggested that the reasonable amount 
limits are too low to be able assess fossil population variation and to 
document changes of such variation across gradients in space and time.
    Response: Collection as described by the respondents for the 
purpose of obtaining sample sizes representative of the variation in a 
natural population would be considered research, not casual collection, 
and would require a permit.
    Comment: Reasonable amount should be what can be safely stored in a 
personal residence. Two respondents suggested that reasonable amount be 
defined as the volume of material that can be safely stored in an 
individual's personal residence. One respondent suggested that 
reasonable amount should be defined as an amount of collected material 
that is capable of being properly transported and stored for future 
use.
    Response: The Department has considered public comments on the 
proposed rule and has modified the reasonable amount definition to 
comprise a criterion of 100 pounds per person per calendar year, not to 
exceed 25 pounds per person per day. The amounts suggested by the 
respondents greatly exceed a reasonable amount considered in the 
context of casual collection. Collection of amounts greater than the 
reasonable amount established for casual collection would require a 
permit.
    Comment: Limits on reasonable amounts will reduce collaboration 
between amateurs and professionals. One respondent expressed the view 
that the specified reasonable amounts will have a chilling effect on 
long term collaboration between amateur collectors, professional 
paleontologists, and repository institutions.
    Response: The respondent's suggestion that reasonable amount limits 
would reduce collaboration between amateur collectors, professional 
paleontologists, and repository institutions is conjectural and not 
substantiated. Amateur collectors may apply for a permit to collect 
amounts greater than the reasonable amount established for casual 
collection. In addition, the definition of reasonable amounts should 
not affect working relationships among parties interested in 
paleontological resources on National Forest System lands.
    Comment: Collection of larger quantities for donation and/or 
education. One respondent suggested that clarification should be 
provided concerning whether or not quantities of abundant resources 
that exceed the specified reasonable amount could be collected for 
donation for educational purposes.
    Response: Amounts greater than the reasonable amount limit 
established for casual collection would require a permit for 
collection.
    Comment: Development of online certification instructional program. 
One respondent expressed the view that it would be beneficial for the 
Department to develop an online instructional and/or certification 
program providing guidance on collection of paleontological resources 
and responsible uses of the land and its resources.
    Response: The establishment of an online instructional/
certification program as described by the respondent has merit as a 
concept, but is beyond the scope of these regulations.
    Comment: Reasonable amount criterion of not more than five 
specimens of any one kind is ambiguous and too restrictive. Respondents 
expressed the view that the reasonable amount criterion of not more 
than five specimens of any one kind is ambiguous and too restrictive. 
Respondents suggested that clarification should be provided concerning 
the meaning of ``kind,'' which could be interpreted to correspond to 
taxonomic ranks ranging from class to species. One respondent expressed 
the view that for small specimens, the limit of five could be exceeded 
in a single hand sample. Respondents suggested that the numeric limit 
be raised to ten specimens of any one kind, and one respondent 
suggested that the term ``kind'' be replaced by ``morphotype''. One 
respondent suggested that the criterion of not more than five specimens 
of any one kind be eliminated.
    Response: The Department has considered public comments on the 
proposed rule and has modified the reasonable amount definition to 
comprise a criterion of 100 pounds per person per calendar year, not to 
exceed 25 pounds per person per day. The criterion of five specimens of 
any one kind has been eliminated.
    Comment: Reasonable amount limits based on volume and/or size are 
too restrictive. Respondents expressed the view that reasonable amount 
limits per calendar year of 25 pounds, 1-gallon container or less, and/
or one hand-carried slab are overly restrictive. Respondents suggested 
that fossils at many collection sites are so abundant that collection 
would have little impact, and those fossils that are not collected are 
destroyed by weathering. One respondent expressed the view that many 
well-known collecting areas look untouched. One respondent suggested 
that higher collection limits are necessary for amateurs to perform 
paleontological reconnaissance collecting for academic paleontologists.
    Response: The Act stipulates that the regulations must define 
reasonable amount with respect to casual collection. Although fossils 
may be very abundant at some collection sites, they may not be 
universally abundant at all collection locations. The Department has 
considered public comments on the proposed regulations and modified the 
reasonable amount definition to comprise a single criterion of 100 
pounds per person per calendar year. Paleontological reconnaissance 
collecting as described constitutes research, is not considered casual 
collection, and requires a permit.
    Comment: Reasonable amount limits should be raised. Respondents 
expressed the view that the weight limit of 25 pounds per calendar year 
be raised to 25 pounds per day or 100 pounds per day. Respondents 
suggested that annual weight limit be raised to 50 pounds or 100 pounds 
or 200 pounds per year. One respondent suggested that the 1 gallon by 
volume yearly limit be raised to 4 cubic feet. One respondent expressed 
the view that the hand-carried slab criterion be changed to a 100 pound 
weight limit per slab. One respondent expressed the view that 
clarification should be provided concerning whether the stated 
reasonable amount limits apply to individuals or families.
    Response: The Department has considered public comments on the 
proposed rule and has modified the reasonable amount definition to 
comprise a criterion of 100 pounds per person per calendar year, not to 
exceed 25 pounds per person per day.
    Comment: Reasonable amount that can be hand carried. Two 
respondents expressed the view that the criterion that a slab can be no 
larger than what

[[Page 21604]]

can be hand-carried by a single person is unfair because the allowed 
amount would depend on the size and/or strength of an individual, 
rather than a uniform limit applied to all individuals.
    Response: The Department has considered public comments on the 
proposed rule and has modified the reasonable amount definition to 
comprise a criterion of 100 pounds per person per calendar year, not to 
exceed 25 pounds per day.
    Comment: Reasonable amount limits and fossils enclosed in rock 
matrix. Respondents suggested that clarification should be provided 
regarding whether or not rock matrix surrounding fossils is included in 
the limits, and suggested that destruction of fossils would result from 
collectors attempting to field-trim matrix from fossils to remain under 
limits.
    Response: The reasonable amount limit would apply to the entire 
amount of material removed in a year, including fossils and any 
enclosing matrix. The Department expects that responsible collectors 
would strive to minimize collateral damage to specimens resulting from 
field-trimming. Discarded material would be considered as disturbed 
material in context of the negligible disturbance criterion.
    Comment: Application of criteria for reasonable amount limits. 
Respondents expressed the view that reasonable amount limits reflecting 
volume and/or weight and/or numbers of specimens would be inconsistent 
and difficult to apply. Respondents expressed the view that 
clarification should be provided regarding which criterion would apply 
in cases where a collection could be characterized by more than one 
criterion. One respondent suggested that the limit of five specimens of 
any one kind would in many cases be very easy to exceed in a collection 
that might fit in a 1-gallon container and/or in a slab weighing 25 
pounds.
    Response: The Department agrees that multiple criteria for 
reasonable amount may be inconsistent and difficult to apply. 
Consequently the regulations have been modified to specify a single 
reasonable amount of 100 pounds by weight per person per calendar year, 
not to exceed 25 pounds per person per day.
    Comment: Tracking annual reasonable amount collection limits. Two 
respondents suggested that clarification should be provided concerning 
how annual reasonable amount collection limits would be tracked.
    Response: The Act does not require casual collecting to be tracked. 
However, in establishing a reasonable amount criterion for casual 
collection as stipulated by the Act, the Department expects that such 
reasonable amounts would not be exceeded by responsible members of the 
casual collecting public. The Department would rely largely on the 
ethics of an informed and law-abiding collecting public, who are aware 
of limits on casual collecting established in regulation and elect to 
legally collect within such limits. Documented collection of materials 
exceeding the reasonable amount without a permit could result in 
enforcement and penalty.
    Comment: Reasonable amount limits applied to individual localities. 
One respondent expressed the view that reasonable amount limits by 
weight, volume, and/or number of specimens be applied to individual 
collecting localities, in order to facilitate collection at more than 
one locality. The respondent also suggested that distance and/or 
separation criteria could be applied to further define distinct 
collecting localities.
    Response: Reasonable amount limits refer to absolute amounts, and 
are independent of number of collecting localities. Because number of 
collecting localities is not part of the definition of reasonable 
amount, there is no need to establish criteria to distinguish 
collection localities.
    Comment: Authorized Officer modification of reasonable amount 
limits or collection times. Respondents expressed the view that an 
Authorized Officer should not be able to modify reasonable amounts or 
establish time periods for collection, because such decisions may be 
arbitrary and create precedents that are difficult to change. One 
respondent suggested that clarification should be provided concerning 
whether or not an Authorized Officer could increase limits above those 
specified for reasonable amounts if conditions allowed such collection.
    Response: The Department agrees that reasonable amounts established 
in regulation should not be modified on a case-by-case basis, and has 
removed reference to the Authorized Officer in the definition of 
reasonable amount.
    Comment: Proposed new term and definition--reconnaissance 
collecting. One respondent expressed the view that the term 
``reconnaissance collecting'' be introduced and defined as exploratory 
collecting by amateurs, casual collectors, and/or academic researchers 
without a permit for the purpose of determining whether or not an area 
merits future more comprehensive collection under permit. The 
respondent suggested that such reconnaissance collection be limited to 
hand tools, that disturbed surface areas not exceed 2 square meters, 
that excavations deeper than \1/2\ meter on slopes less than 45 degrees 
must be back-filled, and that such collection would be performed by 
three or fewer individuals working at a location for 2 or fewer 
consecutive days.
    Response: The activity that the respondent has described as 
reconnaissance collecting is considered collection for the purpose of 
research and not for personal use, and consequently requires a permit. 
The described activity constitutes research and does not merit creation 
or definition of a new term.

Section 291.6 Confidentiality of Information--General

    Paragraph 291.6(a) implements the confidentiality provision 
contained at 16 U.S.C. 470aaa-8. This provision constitutes a statutory 
exemption from the disclosure requirements of 5 U.S.C. 552 (Freedom of 
Information Act) and other laws. For example, information about the 
nature and specific location of paleontological resources on National 
Forest System lands in an inventory document, scientific report, 
repository records, National Environmental Policy Act documents, or 
interpretive information, or information contained in existing Agency 
documents and records such as prior permits, may be withheld from 
disclosure or release to non-Agency personnel, unless the Authorized 
Officer determines in writing that disclosure would (1) further the 
purposes of the Act and these final regulations, (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. This 
section would not limit the Forest Service's authority to release 
information concerning the general location of paleontological 
resources.
    Paragraph 291.6(b) clarifies that certain sharing of information 
concerning the nature and specific location of a paleontological 
resource does not constitute a disclosure or a release of that 
information. The Forest Service may wish to share information with 
certain non-Agency personnel for scientific, educational, or resource 
management purposes, without waiving the statutory exemption from 
disclosure provided by the Act. In certain situations, the Authorized 
Officer may share this information only with recipients who sign a 
confidentiality agreement in which the recipient agrees not to share 
the information with anyone else.

[[Page 21605]]

Section 291.6--Response to Comments
    Comment: Conflict of confidentiality of information with freedom of 
speech. Respondents expressed the view that confidentiality provisions 
regarding the nature and specific location of a paleontological 
resource conflict with the constitutional right to freedom of speech 
and are contrary to Congressional goals and Presidential mandates 
concerning open availability of data obtained during federally funded 
research.
    Response: The requirement in both the Act and these regulations for 
confidentiality of specific locations balances open communication about 
paleontological resources on National Forest System lands, and 
potential risks to such resources if specific locations are publicly 
disclosed. Provisions of the Act and these regulations regarding 
confidentiality of specific location information do not infringe on 
constitutional rights to freedom of speech. Rather, the Act and 
regulations require that confidentiality with regard to specific 
location information be maintained by individuals who choose to solicit 
and receive a permit from the Department to collect paleontological 
resources. Constitutional rights are subject to reasonable time, place, 
and manner restrictions; moreover, individuals are free to enter into 
agreements that constrain such rights if they choose to do so. Similar 
to constitutional rights, Congressional and Presidential policies 
concerning open availability of data obtained during federally funded 
research are also subject to reasonable time, place, and manner 
restrictions. For example, personally identifiable information obtained 
during the course of research is generally considered confidential and 
not subject to open disclosure. The appropriate level of specificity of 
location information that would be considered confidential would depend 
on the context of the occurrence, and the Department does not expect 
such restrictions to adversely impact communication of significant 
paleontological research information.
    Comment: Appropriateness of confidentiality of specific location 
for certain paleontological resources. Respondents suggested that 
confidentiality provisions regarding the nature and specific location 
of a paleontological resource are too restrictive and not warranted by 
the nature of certain paleontological resources. Respondents suggested 
that requiring confidentiality of specific locations of rare 
paleontological resources, such as most vertebrate fossils, may be 
merited. In contrast, most plant and invertebrate paleontological 
resources are common, abundant, and their locations are seldom 
threatened by over collection. Consequently, respondents suggested that 
the requirement for confidentiality of specific location should not be 
the default condition, but rather should be discretionary based on the 
sensitivity of the paleontological resource in question.
    Response: The regulations are consistent with the Act which 
specifies confidentiality of specific location information for 
paleontological resources, and does not distinguish among vertebrate, 
invertebrate, plant, common, abundant, uncommon, and/or rare 
paleontological resources. In addition, the regulations and the Act 
specify certain conditions under which specific location information 
may be disclosed. The appropriate level of specificity of location 
information that could be disclosed would depend on the context of the 
occurrence.
    Comment: Impedance of scientific research by confidentiality of 
information. Respondents expressed the view that confidentiality 
provisions regarding the nature and specific location of a 
paleontological resource will impede unrestricted communication of 
critical scientific data which is necessary to the practices of 
scientific verification and reproducibility. Respondents suggested that 
confidentiality of specific location data would prevent publication of 
scientific research in professional journals that require publication 
of locality information, would limit the utility of online 
paleontological research databases such as the Paleobiology Database, 
NEOTOMA, and EarthCube programs, and would prevent researchers from 
freely discussing research results with their colleagues. One 
respondent suggested that scientific publication of specific location 
information be exempt from the requirement for confidentiality.
    Response: The regulations make allowance for the release of 
location information to qualified researchers with legitimate research 
needs. The appropriate level of specificity of location information 
that would be considered confidential and not subject to release for 
publication in professional journals and/or online paleontological 
research databases would depend on the context of the occurrence. The 
Department does not expect such restrictions to adversely impact 
communication of significant paleontological research information. 
Rather, the Department considers that the demonstration of legitimate 
research needs for such information may foster increased communication 
among researchers and between researchers and the Department. A survey 
of the publication guidelines of professional research journals that 
are dedicated to, and/or regularly contain paleontological research 
content indicates that most journals do not require publication of 
specific location information Those journals with stated requirements 
for publication of location information allow exemptions for protection 
of locations which may be placed at risk from such publication. Online 
paleontological databases exhibit a wide range in the specificity of 
location information that is recorded. The open and unrestricted 
availability of such specific location information published online 
highlights the need for the Department to control access to such 
information concerning sensitive locations on National Forest System 
lands. The Act does not provide allowance for a blanket exemption from 
the confidentiality requirement in the case of scientific publication 
of specific location information. On a case-by-case basis, the need for 
such publication may be considered in any decision by the Department 
whether or not to release such information, and/or the appropriate 
level of specificity of such location information that may be released.
    Comment: Impracticality of written confidentiality agreements which 
can delay research publication. Respondents expressed the view that 
requiring written agreements from recipients of confidential 
information to maintain confidentiality of that information is 
burdensome, impractical, will impede informal and spontaneous verbal 
discussion and communication of scientific information between peer 
researchers, and may have a chilling effect on routine research based 
on collections containing specimens obtained from NFS lands. 
Respondents suggest that such restriction of open scientific 
communication may delay publication of research results. One respondent 
suggested that the requirement of written confidentiality agreement 
from recipients of confidential information conflicts with requirements 
of the Paperwork Reduction Act.
    Response: The Department agrees that a decision to release specific 
location information, in accordance with provisions of the Act and the 
regulations that would allow such disclosure, should not universally 
require the recipient of such information to sign a written 
confidentiality agreement. However,

[[Page 21606]]

certain circumstances may merit such written agreement prior to release 
of confidential specific location information. The final regulatory 
language has been modified to indicate that a written confidentiality 
agreement may be required by the Authorized Officer.
    Comment: Confidentiality and data management. One respondent 
expressed the view that specific location data must remain 
confidential, and that researchers, repository institutions, and their 
curatorial staff must demonstrate professional expertise in the 
management of confidential data in order to be party to a 
confidentiality agreement and/or be considered an approved repository.
    Response: The Department agrees that parties in possession of 
collections for which specific location information is considered 
confidential should demonstrate professional expertise in the 
management of confidential data. Demonstration of professional 
expertise in this area would be addressed in a repository agreement 
and/or permit.
    Comment: Repository professional staff and confidentiality 
agreements. One respondent expressed the view that professional staff 
members of a repository institution should not be individually required 
to sign confidentiality agreements.
    Response: The regulations do not require that staff members of 
repository institutions must individually sign a confidentiality 
agreement. Rather, it is the responsibility of a repository to 
implement appropriate policies and procedures to ensure that 
confidentiality of specific location information is maintained as 
appropriate.
    Comment: Confidentiality agreement process. Respondents expressed 
the view that clarification should be provided concerning who in the 
Department would authorize sharing of information in a confidentiality 
agreement, and whether the agreement process would be lengthy and 
impede scientific research.
    Response: Particulars concerning the release of confidential 
specific location information would be addressed in a permit and/or 
repository agreement signed by the Authorized Officer. The Department 
considers that a party requesting the release of confidential specific 
location information would be expected to provide documentation of need 
sufficient to justify release of such information. The Department 
expects that the Authorized Officer will respond to requests for 
release of confidential specific location information in a timely 
manner.
    Comment: Administration of confidentiality agreement. One 
respondent suggested that clarification should be provided regarding 
whether Agency personnel or repository personnel would administer a 
confidentiality agreement, and whether each request to a repository for 
confidential information must be referred to the Agency. The respondent 
also suggested that a sample confidentiality agreement be provided for 
review.
    Response: The Department considers that the administration of a 
confidentiality requirement would be a shared responsibility of the 
parties in a repository agreement, since such parties would each have 
access to the subject information. A confidentiality and/or repository 
agreement would specify whether requests for confidential information 
would be referred to the Agency or repository staff. It is not 
appropriate to provide a sample confidentiality agreement in the body 
of the regulations. However, a generic agreement concerning 
nondisclosure of sensitive but unclassified information that may be 
referenced exists as Forest Service form FS-6600-5 (Rev. 12/2006).
    Comment: Unintended consequence of not releasing specific location 
information. One respondent expressed the view that confidentiality 
requirements may result in repository institutions being reluctant to 
release specific locality information to professionals performing 
background searches related to site assessment for proposed ground 
disturbing projects. Such withholding of specific location information 
might result in unintended adverse impacts to paleontological locations 
during subsequent permitted site disturbance activity, because their 
locations were unable to be documented.
    Response: Circumstances under which a repository might release 
confidential specific location information would be addressed in a 
repository agreement. Such information would be expected to be released 
to qualified professionals with a demonstrated need for such 
information.
    Comment: Loss of location information. Respondents suggest that 
unrestricted publication of location information would ensure that 
locations of paleontological sites will not be lost. Respondents 
expressed the view that confidential location data which is maintained 
only in Department records may become inaccessible or lost and 
unavailable to future researchers.
    Response: Unrestricted publication of specific location information 
would not protect sensitive locations, which could be placed at risk by 
such publication. The Department considers that specific location 
information on file is secure, protected by such mechanisms as Agency 
records retention policies, and not subject to loss. Such information 
would generally be accessible to qualified professionals who 
demonstrate need for the information.
    Comment: Specific location data. One respondent suggested that 
clarification should be provided regarding the level of specificity of 
location data that is considered confidential.
    Response: The level of specificity of location information that 
would be considered confidential would in most circumstances reflect 
the context of the occurrence, and would be decided on a case by case 
basis. Coordinates obtained from Global Positioning System (GPS) 
devices, or from other sources with a comparable level of accuracy 
would generally be considered too specific for general release and 
would remain confidential.
    Comment: Archaeological Resources Preservation Act (ARPA) and 
confidentiality. One respondent suggested that the confidentiality 
requirements in the proposed rule appeared to be based on the 
confidentiality provisions in ARPA, and that the ARPA template was 
designed for cultural resources and is not appropriate for 
paleontological resources.
    Response: Confidentiality of specific location information protects 
resources at specific locations, whether such resources are 
paleontological, archeological, or other resources. A requirement for 
confidentiality of specific location information reflects a common goal 
of resource protection. Consequently, observed parallels in regulatory 
requirements providing for such confidentiality in these regulations 
and ARPA would be expected and are appropriate.
    Comment: Exemptions from confidentiality. One respondent expressed 
the view that case-by-case determinations for exemptions of the 
confidentiality requirement are not specified in the Act.
    Response: The Act at 16 U.S.C. 470aaa-8 and these regulations at 
section 291.6(a) specify criteria representing case-by-case 
circumstances that an Authorized Officer may consider prior to making a 
decision concerning release of protected information.
    Comment: Confidentiality requires closure of Federal monuments and 
parks. One respondent questioned whether the requirement for 
confidentiality of specific location

[[Page 21607]]

information would require closure of Federal monuments and parks that 
have a paleontological focus.
    Response: Confidentiality provisions would not be considered to 
apply to sites and areas whose locations are a matter of common public 
knowledge. Moreover, monuments and parks that have been established in 
specific recognition of their paleontological resources generally have 
staff resources and protective policies in place to ensure that such 
resources are not at risk related to their high public profile.

Section 291.7 Public Awareness and Education

    Section 291.7 restates the provision in 16 U.S.C. 470aaa-2 for 
establishing a public awareness and education program about the 
significance of paleontological resources on National Forest System 
lands.

Section 291.8 Area Closures

    Section 291.8 implements 16 U.S.C. 470aaa-3(e) providing for 
restricting access to or closing areas to the collection of 
paleontological resources in order to protect paleontological or other 
resources or to provide for public safety. Closure of an area to non-
collecting activities would continue to be authorized under separate 
authorities where appropriate.
Section 291.8--Response to Comments
    Comment: Criteria for area closure. Respondents suggested that 
criteria for area closures be listed, and expressed the view that 
without specific criteria, decisions to close areas may be arbitrary. 
One respondent expressed the view that reference to reasons for area 
closure that are unrelated to paleontological resources could lead to 
arbitrary closure decisions.
    Response: Area closures would reflect considerations related to 
paleontological resources and/or factors unrelated to paleontological 
resources that would in most cases be context-specific. Because such 
factors would likely be unique for any given instance of area closure, 
it is not practical to provide a comprehensive list of criteria in 
these regulations. The Department considers that area closure decisions 
would not be arbitrary and would be justified on a case by case basis.
    Comment: Closure of area to all or some activities. One respondent 
expressed the view that clarification should be provided concerning 
whether area closures would pertain to all activities, or whether 
permitted collection may be allowed in closed areas.
    Response: Activities that may be allowed in closed areas would 
depend on the reason for the closure, which may be unrelated to 
paleontological resources. Consequently, permitted collection may or 
may not be allowed in an area closed to casual collection.
    Comment: Public involvement in closure decisions. Respondents 
expressed the view that the Act stipulates that plans for 
paleontological resource management emphasize, where possible, 
collaborative efforts with non-Federal partners, the scientific 
community, and the general public. Respondents suggest that in 
accordance with this part of the Act, the Authorized Officer should 
consult with professional paleontologists and casual collectors who are 
familiar with the area in question, and provide public notice of intent 
to close, before closing an area for the purpose of protecting 
paleontological resources.
    Response: Area closures are generally subject to National 
Environmental Policy Act (NEPA) procedures, including public notice of 
the proposed action, during which members of the public would be 
notified and public comments on the proposed action would be solicited.
    Comment: Paleontological resource protection through National Park 
or Landmark designation. One respondent suggested that area closures 
should not be used to protect areas where casual collecting poses a 
risk to important paleontological resources. Rather, such areas should 
be protected as National Parks or Landmarks.
    Response: The Department considers an area closure appropriate to 
protect resources to which the closure applies. National Park and/or 
Landmark designation is a lengthy process, during which resources at 
risk might be lost. Area closure is a more timely and focused response 
to protect resources at risk.

Section 291.9 Determination of Paleontological Resources

    Section 291.9 only applies to National Forest System lands. Because 
of the Forest Service's multiple use mandates, there may be situations 
where a determination of what is or is not a paleontological resource 
would be necessary to avoid resource or land-use conflicts such as 
under the 1897 Organic Act or the Multiple Use Sustained Yield Act.
    Section 291.9(a) states that all paleontological resources from 
National Forest System lands are to be managed, protected, and 
preserved under these final regulations, unless a determination is made 
that they are not paleontological resources in accordance with Sec.  
291.9(b).
    Sections 291.9(b) and 291.9(c) provides the Authorized Officer with 
a process to determine whether certain fossils should or should not be 
managed as paleontological resources as defined under the Act or these 
final regulations. Not all fossils are paleontological resources, as 
explained earlier in this preamble discussion of the term ``fossil'' as 
defined in Sec.  291.5 of these final regulations. This determination 
would be based on scientific principles and methods, would be 
documented in writing, be prepared by a paleontologist with appropriate 
qualifications, and would provide the necessary framework to adhere to 
the savings provisions at 16 U.S.C. 470aaa-10 while satisfying the 
mandate at 16 U.S.C. 470aaa-1 that requires management using scientific 
principles and expertise. Such determinations may change over time as 
new information comes to light about the fossil. Fossils associated 
with an archaeological resource as defined in the Archaeological 
Resources Protection Act or any cultural items as defined in the Native 
American Graves Protection and Repatriation Act are considered to be 
heritage resources and are not paleontological resources.
    Section 291.9(d) affirms that mineral resources on National Forest 
System lands, such as coal, oil, natural gas, and other economic 
minerals which are subject to the existing mining and mineral laws, are 
not paleontological resources. Petrified wood as defined at 30 U.S.C. 
611 means ``agatized, opalized, petrified, or silicified wood or any 
material formed by the replacement of wood by silica or other matter,'' 
and is a mineral material. However, in accordance with Sec.  291.9(a), 
the Authorized Officer may determine that an occurrence of petrified 
wood is a paleontological resource and should be protected and 
preserved accordingly. Vertebrate fossils, including microvertebrate 
fossils, are always considered paleontological resources. Geological 
units, including, but not limited to, limestones, diatomite, and chalk 
beds that are intrinsically composed of fossil remains, but may be 
considered to be mineral materials or fossil soils, are not 
paleontological resources under the Act or these final regulations.
Section 291.9--Response to Comments
    Comment: Purpose and context of determinations. One respondent 
suggested that clarification should be provided regarding the purpose 
of making paleontological resource determinations, and questioned 
whether

[[Page 21608]]

such determinations would be made in only specific circumstances, or 
whether making such determinations would be a default procedure in 
paleontological resource management.
    Response: Fossils on National Forest System lands are considered to 
be paleontological resources unless they are excluded in accordance 
with the Savings Provisions of the Act, excluded by listing in 
paragraph (d) of the section, or determined not to be paleontological 
resources in accordance with the procedures set forth in this section. 
Determinations generally would be performed only in context-specific 
circumstances where it may be necessary to clarify whether certain 
fossils are paleontological resources.
    Comment: Paleontological resource exclusions. One respondent 
suggested that items listed in paragraph (d) of the section that are 
not considered paleontological resources are inconsistent with the 
definition of paleontological resources in Sec.  291.5 and a definition 
in Sec.  291.11(c).
    Response: Paleontological resources are defined in the Act, and the 
definition of paleontological resources in Sec.  291.5 of these 
regulations restates the definition of the Act. Section 291.11(c) of 
these regulations does not contain a definition of paleontological 
resources. Former item 3 of the referenced paragraph (d) of the section 
which referred to microfossils has been removed as it may have been 
considered inconsistent with the definition of paleontological 
resources. The remaining items in paragraph (d) have been renumbered to 
reflect the removal. Reference to paleosols in paragraph (d) has also 
been removed to provide additional clarification.
    Comment: Paleontological resource exclusions. One respondent 
suggested that microbialites, including stromatolites, and non-
vertebrate trace fossils should not be considered paleontological 
resources and should, therefore, be included with the list of items 
presented in paragraph (d) of the section.
    Response: The definition of paleontological resources in the Act 
includes fossilized traces and imprints of organisms and does not 
differentiate between vertebrate and non-vertebrate traces and 
imprints. Consequently, invertebrate traces, stromatolites, and 
microbialites are paleontological resources.
    Comment: Procedure and timeline for determinations. Respondents 
suggested that clarification should be provided regarding the 
procedures to be used and the time frame for making paleontological 
resource determinations.
    Response: The Department considers that the procedures for making 
determinations as set forth in this section are sufficiently detailed 
and clear, and respondents did not specify particular aspects of the 
stated procedures that might be considered unclear. Requests for 
determinations would be processed in a timely manner. The need for 
determinations would reflect case-specific considerations, and time 
frames for making determinations may reflect the complexity of such 
considerations.
    Comment: Authorized Officer qualifications. Two respondents 
expressed the view that the Authorized Officer may not have sufficient 
paleontology qualifications to make paleontological resource 
determinations using scientific principles and expertise.
    Response: From an administrative and organizational perspective, an 
Authorized Officer cannot be expected to have specialized expertise in 
every subject matter area in which they may be required to exercise 
decision-making authority. These regulations address this issue by 
specifying that a written recommendation for determination would be 
prepared by a paleontologist with expertise in the group of fossils in 
question, that such written recommendation would be reviewed by an 
Agency paleontologist, and that the Authorized Officer would consider 
the resulting recommendation of the Agency paleontologist in making a 
determination.
    Comment: Paleontological subject matter experts: One respondent 
suggested that clarification should be provided regarding where the 
Authorized Officer would obtain paleontology subject matter experts to 
provide recommendations for paleontological resource determinations. 
Respondents expressed the view that the Department lacks an adequate 
number of paleontology specialists, possessing sufficient breadth of 
subject matter expertise, to effectively review proposed determinations 
and develop written recommendations for determination of 
paleontological resources as may be required.
    Response: Paleontological subject matter experts are affiliated 
with a number of repository institutions with which the Forest Service 
maintains partnership agreements. Additional subject matter experts may 
be identified by searching recent paleontological publications in 
professional journals. Agency paleontologists advising the Authorized 
Officer making paleontological resource determinations are expected to 
have sufficient academic credentials to perform technical review of 
recommendations by subject matter experts and to present informed 
professional evaluations of such recommendations.
    Comment: Disposition of fossils pending and after determination. In 
the case of casually collected fossils which may be subject to 
paleontological resource determination, one respondent suggested that 
clarification should be provided regarding the disposition of the 
fossils pending the determination, and specifically questioned whether 
the collector could keep the fossil until the determination was made. 
Another respondent expressed the view that clarification should be 
provided concerning how a fossil would be returned to a collector after 
a determination, and if a collector could request return of an 
``uncommon'' fossil if it were not actively being used in research.
    Response: The disposition of casually collected paleontological 
resources pending a determination would be a matter of discussion 
between the collector and the Authorized Officer. If specimens are held 
by the Agency pending a determination, written acknowledgment of the 
Agency's possession of the specimens would be provided to the 
collector. Specimens determined to be common invertebrate and plant 
paleontological resources that were collected in accordance with 
conditions established for casual collection would generally be 
returned to a collector in the same manner as they were received by the 
Agency. Specimens that have been determined not to be common 
invertebrate and plant paleontological resources and/or that are found 
not to have been collected in accordance with conditions established 
for casual collection would not be returned to the collector.
    Comment: Microfossils and vertebrate fossils: One respondent 
suggested that clarification be provided regarding the term 
``microfossils'' as used with reference to vertebrate fossils, and 
suggested that using the term ``microscopic vertebrate fossils'' would 
provide such clarification.
    Response: The reference to microfossils has been eliminated, so 
further clarification is unnecessary.

Section 291.10 Collecting

    Section 291.10 restates 16 U.S.C. 470aaa-3(a)(1) and (2), which 
directs that a paleontological resource may only be collected from 
National Forest System lands in accordance with a permit issued by the 
Authorized Officer

[[Page 21609]]

under these final regulations, except for casual collecting.
Section 291.10--Response to Comments
    Comment: Restrictions on collection and exclusive use. One 
respondent expressed the view that neither amateur nor scientific 
collection of paleontological resources conflict with the Forest 
Service mission, but these final regulations governing collection will 
result in collection and use of paleontological resources being limited 
to individuals with influence.
    Response: The Department agrees that amateur and scientific 
paleontological resource collection do not conflict with the Forest 
Service mission. The provisions for casual collection in the Act and 
these regulations codify, for the first time, the ability of the public 
to collect common invertebrate and plant paleontological resources from 
National Forest System lands without a permit, providing certain 
conditions are met. The requirement for a permit for collection that is 
not considered casual does not promote exclusivity. Anyone can apply 
for a permit to collect paleontological resources if they meet the 
relevant requirements of the Act and this regulation,
    Comment: Reference to ``paleontological resource'' should be 
plural. One respondent suggested that the phrase ``a paleontological 
resource'' should be in plural here to read: ``Section 291.10 would 
restate Section 16 U.S.C. 470aaa-3(a)(1) and (2), which directs that 
paleontological resources may only be collected in accordance with a 
permit issued by the Authorized Officer under these proposed 
regulations, except for casual collecting.''
    Response: The Department retains the existing singular form of the 
term ``paleontological resource'' because the purpose of the cited 
passage is to restate the Act, which employs the term in singular form. 
The Department also considers that in this case, there is no 
significant change in meaning related to use of the term in singular or 
plural form.

Section 291.11 Casual Collecting on National Forest System Lands

    Section 291.11 restates 16 U.S.C. 470aaa-3(a)(2) that allows for 
casual collecting without a permit on certain National Forest System 
lands. Casual collecting, as defined in Section 291.5, is allowed on 
National Forest System lands where such collection is consistent with 
the laws governing the management of those lands and these final 
regulations. National Forest System lands would generally be considered 
open to casual collection unless otherwise closed to such casual 
collection as described in Sec.  291.12. Section 291.11(d) and (e) 
states that the Authorized Officer can use the process in Sec.  
291.9(c) to make a determination that certain invertebrate or plant 
fossils are not common, and therefore, cannot be casually collected and 
must be collected under a permit. Section 291.11(d) provides the 
Authorized Officer with the ability to protect invertebrate and plant 
fossils when they are not common.
    Section 291.11(f) clarifies that it is the responsibility of the 
collecting public to ensure that areas in which they are proposing to 
casually collect common invertebrate or plant fossils have not been 
closed to casual collection for reasons as described in Sec.  291.12. 
Information regarding area closures would generally be available from 
the local District Office. Section 291.11(g) clarifies that 
paleontological resources collected from National Forest System lands 
in accordance with the casual collection provisions of Sec.  291.11 
cannot be sold.
Section 291.11--Response to Comments
    Comment: Research does not constitute casual collection. 
Respondents expressed the view that researchers often work using 
personal or public funds and they should not be subject to the time-
consuming and unnecessary bureaucracy of having to obtain permits for 
collection of paleontological resources.
    Response: Activities that do not meet the criteria applied to 
casual collection require a permit. Specimens obtained by casual 
collection must be for non-commercial, personal use. Research is not 
considered a personal use. Rather, research, based on the common 
definition of the term in the context of these regulations, is 
considered to be a structured activity undertaken by qualified 
individuals with the intent to obtain and disseminate information via 
publication in a peer-reviewed professional scientific journal or 
equivalent venue, which increases the body of knowledge available to a 
scientific community. Moreover, requirement of an authorization to 
perform research is consistent with existing Special Uses authorities, 
in which research and survey projects are generically considered to be 
activities that require a permit.
    Comment: Research reconnaissance collection: Respondents expressed 
the view that collection of small quantities of common and abundant 
invertebrate and plant fossils for research, in accordance with 
conditions and limits applied to casual collection, should not require 
a permit for collection. Respondents suggested that the term 
``reconnaissance collection'' be applied to such limited research 
collection. Respondents further expressed the view that such 
reconnaissance collection would normally occur in context of 
exploratory field surveys for the purpose of determining areas 
appropriate for subsequent comprehensive collection, which would then 
be subject to the requirement of a permit for research collection. One 
respondent suggested that a streamlined permit be developed for 
reconnaissance collection of limited quantities of specimens entailing 
only minor surface disturbance.
    Response: Reconnaissance collection as described by respondents is 
a professional scientific research activity, and professional 
scientific research requires authorization. Permit application 
requirements including description of the scope of the proposed 
activity and subsequent permit stipulations reflect the nature and 
scale of the proposed activity. Consequently, because project proposals 
reflect a wide range of complexity, and reconnaissance collection 
itself may vary in scope, there is no practical benefit to creating a 
separate permit for reconnaissance collection.
    Comment: Research collection subject to more regulation than casual 
collection. Respondents expressed the view that research collection is 
adversely singled out for permitting and associated higher extent of 
regulation than casual collection, thereby subjecting researchers to a 
greater regulatory burden than the general public. Respondents 
expressed the view that the increased regulation imposed on 
professional paleontologists reflects lack of trust and respect for 
researchers relative to amateurs.
    Response: The Act stipulates that casual collection without a 
permit is limited to non-commercial personal use, and that a permit is 
required for the collection of paleontological resources that is not in 
accordance with casual collection provisions. Research is not 
considered a personal use. Rather, research is considered to be a 
structured activity undertaken by qualified individuals with the intent 
to obtain and disseminate information, via publication in a peer-
reviewed professional scientific journal or equivalent venue, which 
increases the body of knowledge available to a scientific community. 
Moreover, requirement of an authorization to perform research is 
consistent with existing Special Uses authorities, in

[[Page 21610]]

which research and survey projects are generically considered to be 
activities which require a permit. The requirement for a permit to 
collect paleontological resources for research purposes does not 
reflect lack of trust or respect for researchers, but rather is in 
accordance with provisions of the Act.
    Comment: Elimination of permit requirement for collection of common 
invertebrate and plant fossils. One respondent suggested that the 
requirement for a permit to collect paleontological resources be 
restricted to vertebrate fossils and uncommon invertebrate and plant 
fossils.
    Response: Casual collection of common invertebrate and plant 
paleontological resources without a permit is allowed, providing such 
collection conforms with all requirements applicable to casual 
collection.
    Comment: Casual collection for educational purposes. Respondents 
expressed the view that clarification should be provided regarding 
whether casual collection without a permit would be allowed for 
educational purposes, such as developing teaching collections and 
collecting by participants on educational class field trips. One 
respondent suggested that clarification should be provided regarding 
whether the presence of a professional paleontologist leading an 
academic class field trip would trigger the requirement to obtain a 
permit to collect.
    Response: Educational purposes may be considered related to 
personal education and public education. Collection for personal 
educational use would be allowed under casual collection, provided all 
requirements for casual collection are met. Collection for public 
educational use, such as use in dedicated earth sciences and/or 
paleontology teaching collections formally maintained by an academic 
institution, would not be considered a personal use and would require a 
permit. The qualifications of a field trip leader would not by 
themselves trigger the requirement for a permit to collect during an 
academic class field trip, provided collections by individuals are for 
personal use, do not exceed individual reasonable amount limits and the 
collateral impacts to associated resources that may be caused by the 
group do not exceed negligible disturbance criteria established for 
casual collection. However, the nature of the trip, including number of 
participants and potential collateral impacts to associated resources, 
could trigger the need for a special use permit pertaining to group 
uses unrelated to paleontological collection. Questions pertaining to 
group uses unrelated to paleontological collection should be directed 
to special uses staff at the local Forest Service Field Office in which 
a field trip is planned.
    Comment: Research on casually collected fossils. One respondent 
suggested that clarification be provided concerning whether research 
could be performed by amateurs on casually collected specimens, and 
whether research could be performed by researchers on specimens 
collected during preliminary field surveys in advance of obtaining a 
permit.
    Response: Research, in the context of these regulations, is 
considered to be a structured activity undertaken by qualified 
individuals with the intent to obtain and disseminate information, via 
scientific publication, which increases the body of knowledge available 
to a scientific community. If, at the time of collection, an amateur 
intended to perform research as described above on collected specimens, 
such collection must be made under permit. Specimens collected during 
preliminary field surveys, as described by the respondent, are 
collected in the context of intent to perform research and would 
require a permit for collection.
    Comment: Casual collection in significant locations: One respondent 
suggested that the significant scientific or historic context of 
certain paleontological resources and/or locations may warrant 
collection by permit only, even if the paleontological resources may 
otherwise be considered common and abundant.
    Response: The Authorized Officer has the ability to consider such 
location-specific factors in formulating decisions pertaining to 
closing an area to casual collection and requiring a permit for 
collection of scientifically or historically significant 
paleontological resources that might otherwise be considered common and 
abundant.
    Comment: Disposition of casually collected paleontological 
resources. Respondents suggested that clarification should be provided 
regarding when paleontological resources are considered Federal 
property, particularly in the context of casual collection. Respondents 
also suggested that clarification be provided regarding whether 
casually collected paleontological resources may be donated to a 
repository. Respondents also expressed the view that clarification 
should be provided concerning whether the ownership title to collected 
specimens is transferred if specimens are donated to a repository, and 
how should title to specimens be documented. One respondent suggested 
that owners of casually collected fossils be allowed to return unwanted 
specimens to the Forest Service so that a suitable repository may be 
identified.
    Response: The Department considers that Federal ownership of 
paleontological resources is effectively severed if those resources 
were legally collected in accordance with provisions for casual 
collection. Specimens that were casually collected with the intent of 
personal use may be donated to a repository at a later time; however, 
collection with the intent to donate to a repository would not 
constitute casual collection and would require a permit. The Department 
does not expect this to be a commonplace scenario. The title of 
specimens that are legally collected in accordance with casual 
collection requirements is a matter to be decided by the parties to a 
transfer of ownership. It is the responsibility of the donating party 
to demonstrate to the receiving party that specimens were collected 
legally. Owners of casually collected specimens may attempt to return 
such specimens to the Forest Service, but the Forest Service is under 
no obligation to accept them.
    Comment: Monitoring of casual collection. One respondent suggested 
that clarification should be provided regarding how the Department can 
effectively monitor casual collection, relative to more stringent 
regulatory requirements placed on professional permit holders.
    Response: The Act does not stipulate a requirement for formal 
monitoring of casual collecting that is legally performed in accordance 
with the stipulated requirements. Monitoring of casual collection areas 
may be specified in a National Forest and/or National Grassland 
management plan or other management direction. The level of such 
monitoring would reflect management direction in that regard.
    Comment: Common invertebrate and plant paleontological resources. 
Respondents expressed the view that more detailed information and 
publicly available guidance are needed concerning the criteria for 
recognition, and procedures for collection of common invertebrate and 
plant fossils.
    Response: The Department considers that the Act and these 
regulations provide sufficient procedural direction regarding 
circumstances under which common invertebrate and plant paleontological 
resources may be collected in accordance with casual collection, or 
would require a permit for collection. Criteria for the recognition of 
invertebrate and plant paleontological resources that may be considered

[[Page 21611]]

common would reflect factors including taxonomic identification and 
variables specific to local occurrences. The diversity of taxa and 
attributes related to their local occurrence that would be considered 
are not practical to list in regulation.
    Comment: Determination of common invertebrate and plant 
paleontological resources. Respondents expressed the view that the 
Authorized Officer should be required to have input from qualified 
paleontologists prior to making determinations of whether certain 
fossils do or do not meet the definition of common invertebrate and 
plant paleontological resources. One respondent further suggested that 
prior to making a determination, the Authorized Officer be required to 
consult with at least two academic paleontologists and local amateur 
paleontologists as may be available and having experience with the 
fossils in question. One respondent also suggested that reference to 
``Using scientific principles and expertise . . .'' be changed to 
``Using sound scientific evaluation and expertise. . .''
    Response: The regulations specify that the Authorized Officer, 
prior to making a determination, would receive a recommendation 
prepared by a paleontologist with appropriate subject matter expertise 
and that such recommendation would be reviewed by an Agency 
paleontologist. An Agency paleontologist could recommend further 
consultation with additional subject matter experts as may be 
considered appropriate. The language cited by one respondent referring 
to ``scientific principles and expertise'' restates the language of the 
Act and, therefore, will be retained without change.
    Comment: Disposition of significant fossils after collection. One 
respondent expressed the view that clarification should be provided 
regarding how fossils that might be casually collected and subsequently 
determined not to be common invertebrate or plant paleontological 
resources would be returned to the public domain.
    Response: If an uncommon invertebrate or plant paleontological 
resource was inadvertently collected during casual collection, the 
location from which the resource was collected should be identified and 
the specimen(s) should be returned to a Forest Service office for 
proper disposition.
    Comment: Casual collection of common vertebrate fossils. One 
respondent suggested that an Authorized Officer be able to determine 
that certain vertebrate fossils from particular locations are common, 
unnecessary for research, and may be subject to casual collection.
    Response: The Act specifies that casual collection applies to 
common invertebrate and plant paleontological resources, and does not 
provide that an Authorized Officer may determine that certain 
vertebrate paleontological resources may be subject to casual 
collection.
    Comment: Unintentional collection of vertebrate fossils during 
casual collection. One respondent suggested the addition of language to 
specify that unintentional collection of vertebrate fossils which may 
be intermingled with casually collected common invertebrate and plant 
fossils is not considered a violation that such collected vertebrate 
fossils cannot be sold, and if determined to be rare, they must be 
deposited in a designated repository.
    Response: Department law enforcement specialists may employ 
discretion in enforcement sufficient to address circumstances of 
inadvertent casual collection of specimens which may be uncommon, not 
invertebrate, and/or not plant paleontological resources. Other 
language changes suggested by the respondent are already addressed in 
the regulations.
    Comment: Responsibility of collecting public. Respondents expressed 
the view that it is not fair for the Department to place the burden of 
responsibility on the public to have knowledge of whether areas may be 
open or closed to casual collection. Respondents suggested that it is 
the Department's responsibility to provide notice to the collecting 
public of areas that are closed to casual collection.
    Response: The public is responsible for knowledge of regulations 
and local orders governing the use of National Forest Systems lands. It 
is responsibility of the Department to provide notice to the public of 
closed areas. Parties interested in casual collection of common 
invertebrate and plant paleontological resources from National Forest 
System lands are encouraged to contact the local administrative office 
for current information concerning potential access restrictions.

Section 291.12 National Forest System Lands Closed to Casual Collection

    Section 291.12(a) and (b) clarifies that casual collecting is 
prohibited on National Forest System lands that are closed to casual 
collecting under these regulations, other statutes, Executive Orders, 
regulations, and land use plans. In addition, Sec.  291.12(b) clarifies 
that NFS lands that were closed to casual collecting prior to the Act 
remain closed to casual collecting.
Section 291.12--Response to Comments
    Comment: Closure of areas to casual collection. Respondents 
expressed the view that closure of areas to casual collection assumes 
that subject lands belong to the Forest Service and not to U.S. 
citizens, and that such closures would be in conflict with the right of 
the public to casually collect, as established in the Act.
    Response: The Act stipulates that access to areas may be restricted 
or closed to the collection of paleontological resources for cause, in 
addition to establishing the ability to casually collect providing 
certain conditions are met.
    Comment: Area closure decisions and public consultation. One 
respondent expressed the view that a decision by an Authorized Officer 
to close an area to casual collection should require input from 
qualified paleontologists and the local collecting community.
    Response: Area closure decisions are generally subject to National 
Environmental Policy Act public notice requirements, during which 
scoping of the proposed decision is performed, and public input is 
solicited as appropriate.
    Comment: Posting of areas closed to casual collection. One 
respondent expressed the view that area closures should be posted to 
formally give notice to public that they are not allowed to casually 
collect in the posted area.
    Response: Areas closed to collection of paleontological resources 
may or may not be posted, depending on the sensitivity of resources 
whose specific locations may be considered confidential and which may 
be placed at risk by posting areas in which they occur.
    Comment: Typographical error--statues/statutes. One respondent 
noted that the word ``statues'' as used in item (2) of this section 
should be corrected to ``statutes''.
    Response: The Department agrees that this is a typographical error 
and it has been corrected.

Section 291.13 Permits

    Section 291.13(a) restates 16 U.S.C. 470aaa-3(b)(1) through (4) 
which are the criteria for issuing permits for the collection of 
paleontological resources from National Forest System lands.
    Section 291.13(b) clarifies that issuance of a permit is within the 
discretion of the Authorized Officer.
    At present, Forest Service permits for paleontological resource 
activities such as scientific and/or educational collecting and 
resource inventory surveys are issued as special use authorizations. 
Current paleontological

[[Page 21612]]

resource permitting practices do not preclude development of 
paleontology-specific use permits as authorized under the Act which 
would be issued and administered by the Forest Service Minerals and 
Geology Management program apart from the special uses program. 
Development of such a paleontology-specific permit to authorize 
collection of paleontological resources is associated with the proposed 
information collection which is described in this preamble in the 
section titled Controlling Paperwork Burdens on the Public.
Section 291.13--Response to Comments
    Comment: Burdensome and overly restrictive requirements for permits 
to collect paleontological resources. Respondents expressed the view 
that permitting requirements and permitting are time-consuming, too 
restrictive, and comprise an unnecessary and unfunded bureaucracy. 
Respondents suggested that information required to obtain a permit is 
excessive, and that required information is irrelevant and often 
impossible to provide, particularly for locations of potential 
excavation areas which often cannot be specified in advance of actually 
performing permitted field work. Respondents expressed the view that 
the permitting process, including management and reporting 
requirements, is costly, cannot be administered in a timely manner, and 
provides no concomitant benefit to science. One respondent suggested 
that the permitting process limits the free and open exchange of 
scientific information. Another respondent expressed the view that the 
permit process be streamlined and simplified.
    Response: The Act stipulates that a permit is required to collect 
paleontological resources when such collection does not conform to the 
conditions established for casual collection. Permits, by their nature, 
are restrictive instruments and establish operating standards to ensure 
that proposed collection of paleontological resources will not result 
in damage or loss of such resources both during and after the process 
of collection. Information requested from an applicant as part of a 
permit application conforms to Department standards and procedures 
concerning information collection, and is used to evaluate a proposal 
to collect and to evaluate the qualifications of the applicant relative 
to their ability to perform the proposed collection without damage or 
loss of specimens. The Department has historically administered permits 
in a timely manner, and considers the permit process to be as 
streamlined and simplified as practicable commensurate with the intent 
to ensure paleontological resource preservation, thereby providing 
direct benefit to science. Assertions by respondents concerning the 
costliness of permitting and limits on the free and open exchange of 
scientific information are conjectural and not substantiated.
    Comment: Permits for collection of common invertebrate and plant 
paleontological resources. Respondents expressed the view that permits 
for the collection of common invertebrate, plant, and trace fossils 
should not be required. One respondent suggested that permits for the 
collection of common invertebrate and plant fossils would be too costly 
and would hinder research on such paleontological resources.
    Response: A permit would be required for collection of common 
invertebrate and plant paleontological resources if such collection 
does not conform to conditions established for casual collection. The 
assertion by a respondent concerning the costliness of permitting and 
hindrance on research concerning common invertebrate and plant fossils 
is conjectural and not substantiated.
    Comment: Requirements for a permit for amateur collectors 
collaborating with researchers to collect paleontological resources. 
One respondent suggested that serious amateur collectors who 
collaborate with researchers should not be required to obtain permits 
to collect paleontological resources.
    Response: Any collection of paleontological resources that does not 
conform to the conditions established for casual collection requires a 
permit. If a collector is named as a field participant on a permit held 
by another party, a separate permit would not be required to collect in 
relation to the permitted project.
    Comment: Timely permit decisions. One respondent suggested that the 
regulations should include language specifying that the Agency will 
implement decisions regarding permitting in a timely manner.
    Response: The Forest Service intends to process permits in a timely 
manner.
    Comment: Cost estimates should be provided by the applicant as part 
of a permit application. One respondent expressed the view that non-
binding estimates of the permit applicant's costs related to a proposed 
action should be required as part of a permit application. The 
respondent suggested that many permit applicants do not fully 
appreciate the scope of real costs associated with collecting and 
subsequent curation of collections by repositories.
    Response: The Department agrees that many permit applicants and 
permit holders do not fully appreciate the implications of their costs 
related to proposed projects involving collection of paleontological 
resources. However, it is beyond the scope of these regulations for the 
Forest Service to require the applicant to submit project cost 
estimates.
    Comment: Specification of permitting for mitigation. One respondent 
suggested that the regulations should explicitly specify that permits 
are required for paleontological resource mitigation, in addition to 
research collection.
    Response: Collection for mitigation purposes is clearly not a 
personal use, and so would not be considered casual collection and 
would require a permit in accordance with the regulations. 
Consequently, the addition of language to the regulations that would 
explicitly specify a permit requirement for mitigation collection is 
not necessary.
    Comment: Mandatory permit issuance. One respondent expressed the 
view that the regulations state that permits must be issued to all 
applicants unless past actions preclude an applicant being qualified to 
hold a permit.
    Response: The Department considers that permits are discretionary 
instruments, and that there is no requirement to issue a permit that 
has been applied for. However, it is expected that denial of a permit 
would be for cause.
    Comment: Guidance regarding collection of common invertebrate and 
plant paleontological resources. One respondent expressed the view that 
more detailed information and guidance should be provided regarding the 
criteria and procedures for the collection of common invertebrate and 
plant paleontological resources.
    Response: Common invertebrate and plant fossils may be casually 
collected or collected under permit, depending on the circumstances of 
collection. Information and guidance regarding whether casual 
collection is appropriate or whether a permit would be required are 
provided in the regulations. Procedures and requirements for obtaining 
a permit are discussed in the regulations, and additional information 
regarding permit forms and how to submit an application can be obtained 
from Forest Service paleontology program staff or from the local 
administrative unit office that would administer the permit. There are 
no formal procedural requirements for casual collection, apart from 
adherence to the stated conditions.

[[Page 21613]]

    Comment: Permitted activities. One respondent suggested that the 
first sentence in the third paragraph of Section 291.13 as discussed in 
the Preamble, the phrase ``. . . permits for paleontological resource 
activities such as collection and resource inventory surveys . . .'' be 
amended to read `` . . . permits for paleontological resource 
activities such as scientific and/or educational collecting and 
resource inventory surveys . . .''
    Response: The Department agrees that the suggested language change 
provides clarification and has incorporated the change.
    Comment: Permits should be administered by professionally trained 
paleontologists. One respondent expressed the view that paleontology 
permits should be administered by professionally trained 
paleontologists employed by the Department. Respondent further 
suggested that if permits are administered by the Minerals and Geology 
program area, that they be afforded the same consideration as permits 
issued for extractive uses.
    Response: Authorizations and permits for paleontological resource 
use activities would generally be issued by local administrative units, 
under policy direction provided by Agency paleontologists. The 
Department considers that permits for paleontological resource use 
activities would be afforded similar consideration as authorizations 
for extractive uses.
    Comment: Typographical error. One respondent suggested that the 
citation to the Act in section 291.13(a)(4) is incorrect. The 
respondent stated that the existing citation which refers to ``16 
U.S.C. 470aaa Sec. 6304(b)(4)'' should be corrected to read ``16 U.S.C. 
470aaa-3(b)(4)''.
    Response: The Department agrees that the citation is not accurate 
and has corrected the typographical error.
    Comment: Prohibition on use of collected materials for commercial 
purposes. Respondents expressed the view that some repository 
institutions create traveling exhibits and/or other promotional media 
such as tour guides, calendars, and brochures to generate revenue, 
which could be considered a commercial purpose. Respondents questioned 
whether Federal specimens would be precluded from use in such exhibits 
and media. Respondents also questioned whether or not a repository 
institution housing Federal specimens would be precluded from employing 
such activities, and whether or not staff of institutions that employed 
such activities would be excluded from consideration for 
paleontological permits. One respondent suggested deletion of the 
clause ``. . . otherwise used for commercial purposes'' from Sec.  
291.13(a)(5) in order to allow the revenue-generating activities 
described above.
    Response: The Department considers that prohibitions on commercial 
uses would generally apply to sale of paleontological resources. The 
issue of not-for-profit institutions using revenues generated from 
traveling exhibits and/or other promotional media that utilize Federal 
specimens for purposes of supporting collections management would be 
addressed in a repository agreement. Staff of institutions that 
employed such activities would not be excluded from consideration for 
paleontological permits.

Section 291.14 Application Process

    Section 291.14 sets forth the information that must be submitted by 
permit applicants to the Authorized Officer for the proposed collection 
of paleontological resources. The Forest Service may require additional 
information in order to support an application for a permit.
Section 291.14--Response to Comments
    Comment: Information required in permit application should be 
optional. One respondent suggested that information required to be 
provided in a permit application be made optional, and expressed the 
view that determination of the need for a permit and required 
information to collect common invertebrate and plant paleontological 
resources for research purposes should be left to the discretion of the 
Authorized Officer.
    Response: The Department considers that the information requested 
in a permit application is the minimum information necessary for staff 
specialists to evaluate a project proposal and provide a recommendation 
regarding permit issuance. Collection of paleontological resources for 
research purposes would require a permit, even if such resources could 
be considered common.
    Comment: Each party listed on a permit application should include a 
resume. One respondent suggested that all parties listed on a permit 
application be required to submit a current resume as part of the 
permit application.
    Response: The permit applicant is required to submit a current 
resume; the permit applicant is responsible for ensuring that all other 
parties listed on the permit are qualified as appropriate for 
participation in permitted activities.
    Comment: Regional or State-wide paleontology permits. One 
respondent suggested that consideration be given to issuance of Region- 
and/or State-wide paleontology permits to allow unanticipated 
collection of paleontological resources on an as-needed basis.
    Response: The regulations do not preclude issuance of Region- and/
or State-wide paleontology permits.
    Comment: Responsibilities of permit applicant and repository 
institution are not distinguished. Respondents suggested that the 
requirements for a permit applicant to provide verification of a 
repository institution's agreement to receive a paleontological 
collection, and an acknowledgment that costs of curation will be borne 
by the applicant and/or repository institution confuses the respective 
responsibilities of the permit applicant and the repository institution 
during the permit application process. One respondent expressed the 
view that only collected paleontological resources that result in 
scientific publication be required to be housed in an approved 
repository.
    Response: The Department considers that it is the responsibility of 
a permit applicant to demonstrate that arrangements have been made with 
a repository which has agreed to accept materials collected under 
permit, and to demonstrate that arrangements have been made for 
financing associated costs of curation that do not obligate the Forest 
Service. These demonstrations by the permit applicant are necessary in 
advance of issuance of a permit in order to ensure that collected 
materials are appropriately reposited and not ``orphaned'' after 
collection. The Act stipulates that paleontological resources collected 
under a permit be deposited in a repository institution, and does not 
distinguish between such resources that result in scientific 
publication and those that do not.

Section 291.15 Application Qualifications and Eligibility

    Section 291.15(a) clarifies what information is needed from an 
applicant to demonstrate, to the satisfaction of the Authorized 
Officer, that the applicant is qualified to carry out the proposed 
permitted activity. These qualifications are important to ensure that 
the collection would be carried out in a professional and responsible 
manner.
    Section 291.15(b) clarifies that the information submitted by an 
applicant must demonstrate that the proposed activity is eligible for a 
permit, in accordance with 16 U.S.C. 470aaa-3(b)(2)-(4).

[[Page 21614]]

Section 291.15--Response to Comments
    Comment: Permit requirements should refer to permit application 
rather than applicant. One respondent expressed the view that 
qualifications and eligibility requirements to obtain a paleontology 
permit should refer to the permit application rather than the permit 
applicant, in order to facilitate proposals by teams rather than 
individuals.
    Response: A permit application would contain a project proposal and 
supporting materials provided by each permit applicant that demonstrate 
that the applicant(s) is/are qualified and eligible to obtain a permit. 
The Department considers that the suggestion to refer to the 
application rather than the applicant(s) is semantic rather than 
substantive, and that the existing statement of qualifications and 
eligibility requirements with respect to applicants does not 
discriminate against team proposals.
    Comment: Requirement of a graduate degree in paleontology is too 
stringent. Respondents expressed the view that the requirement for a 
permit applicant to hold a graduate degree in paleontology or a related 
field is too stringent and discourages research and science. 
Respondents suggested that students in pursuit of a graduate degree in 
paleontology or related field be considered qualified to hold a permit. 
Respondents expressed the view that it would be impractical for 
graduate students to be listed on their academic advisors' permits 
because such advisors may have several students working in different 
field areas at the same time and could not provide direct field 
supervision to each student in each area. Respondents suggested that 
the requirement for a graduate degree in paleontology will prevent 
self-educated nonprofessional, avocational, and/or amateur 
paleontologists from furthering their knowledge in paleontology, and 
expressed the view that permits should be made accessible to non-
professionals without graduate degrees.
    Response: The specification of a graduate degree in paleontology or 
a related field is not the sole criterion that may be considered 
regarding an applicant's qualifications. The regulations explicitly 
specify an alternative criterion of training and/or experience 
commensurate to the nature and scope of the proposed activities. The 
rule language has been slightly modified to clarify that training and/
or experience need only be commensurate to the nature and scope of the 
proposed project. The regulations do not specify that a graduate 
student must be listed on an advisor's permit. Non-professional 
paleontologists without graduate degrees may be qualified to obtain a 
permit providing that they can demonstrate training and/or experience 
commensurate with the proposed activity.
    Comment: Permit application by casual collectors. One respondent 
questioned whether or not casual (non-academic) collectors would be 
eligible apply for a permit to collect paleontological resources.
    Response: Casual (non-academic) collectors may apply for a permit 
provided they meet eligibility requirements and can demonstrate 
training and/or experience commensurate with the proposed activity.
    Comment: Requirement of paleontological expertise is too 
restrictive. Respondents expressed the view that requiring a permit 
applicant to demonstrate paleontological expertise, or requiring 
permitted paleontologists to be present during collection of 
paleontological resources, is too restrictive. Such requirements would 
make it difficult for geologists without paleontological expertise to 
perform field research that might require collection of paleontological 
specimens for the detailed characterization of geological strata.
    Response: A permit applicant may possess paleontological expertise 
or be able to demonstrate training and/or experience commensurate with 
the nature of the proposed activity. Depending on the nature of the 
proposed activity, such training and/or experience may not require 
specialized paleontological expertise. The regulations do not require 
that a permitted paleontologist with specialized paleontological 
expertise be present during permitted activities.
    Comment: Requirement for experience pertaining to field work 
logistics is not necessary. One respondent expressed the view that 
requiring an applicant to demonstrate experience in logistical aspects 
of performing paleontological field work is unnecessary. The respondent 
suggested that ensuring proper logistical preparation for field work 
should be the responsibility of the applicant, not the Forest Service, 
and that the applicant should only be required to demonstrate 
qualifications, and be held responsible for, actual field collection of 
specimens and associated information.
    Response: An applicant is required to demonstrate experience in 
logistical aspects of field work commensurate with the nature of the 
project proposal. The rule language has been slightly modified to 
clarify that experience need only be commensurate to the nature and 
scope of the proposed project. This requirement ensures that specimens 
will not be lost or damaged resulting from a permit holder's failure to 
successfully complete work in the field.
    Comment: Transferability of qualifications. Respondents suggested 
that permit applicants who have successfully demonstrated the 
qualifications to be issued a permit in one administrative unit should 
also be considered to be qualified to perform similar activities in 
other administrative units.
    Response: Projects may differ enough in nature and scope that 
qualifications demonstrated by an applicant for one project may not 
pertain to other projects proposed by the same applicant. Permits are 
generally administered by the local Forest Service office which manages 
the lands on which a proposed project is located. It is at the 
discretion of the permit-issuing office whether or not to accept an 
applicant's qualifications which have been demonstrated elsewhere for 
other projects.
    Comment: Requirement of additional qualifications by the Authorized 
Officer may be arbitrary. Respondents expressed the view that the 
ability of an Authorized Officer to require that a permit applicant 
hold qualifications that are not listed in the regulations may result 
in arbitrary requirements being imposed and lead to non-uniform, 
inconsistent permitting criteria employed by the Forest Service. One 
respondent suggested that the ability of an Authorized Officer to 
require additional applicant qualifications be eliminated.
    Response: The Department recognizes that decisions to issue a 
permit may reflect location- and/or context-specific circumstances that 
are unrelated to the paleontological resource in question or the 
paleontological qualifications of an applicant. A decision whether or 
not to issue a permit may reflect an applicant's qualifications in 
areas unrelated to paleontology that are pertinent to such case-
specific circumstances as may apply. The language of the regulations 
has been slightly modified to indicate that additional qualifications 
as may be required would relate to context-specific factors associated 
with the proposed project.

Section 291.16 Terms and Conditions

    Section 291.16(a), (b) and (c) restates 16 U.S.C. 470aaa-3 (c)(1) 
through (3) in specifying requirements for the issuance of a permit for 
the collection of paleontological resources. The permittee would 
acknowledge that paleontological

[[Page 21615]]

resources collected from National Forest System lands under a permit 
remain property of the United States; that the paleontological 
resources collected, along with associated records, would be preserved 
for the public in an approved repository to be made available for 
scientific research and public education; and that specific locality 
data would be kept confidential.
    Section 291.16(d) through (r) establishes requirements to ensure 
that all permitted activities would comply with and further the 
purposes of the Act, these final regulations, any additional 
stipulations, and other Forest Service contract authorities and 
requirements.
    Section 291.16(r) provides for the incorporation of additional 
permit stipulations, as may be appropriate, that were not otherwise 
listed in Sec.  291.16(a) through (q). Examples of such additional 
stipulations would include, but not be limited to, reclamation plans 
and posting of reclamation bonds. The addition of permit terms, 
conditions, or stipulations requiring a reclamation plan or bond, or 
both, to ensure reclamation of surface disturbance associated with 
paleontological resource collections would be at the discretion of the 
Authorized Officer under these regulations, and such requirements would 
be based on conditions specific to the authorized activity.
Section 291.16--Response to Comments
    Comment: A valid repository agreement should be part of the 
permitting process. Respondents expressed the view that an agreement by 
a repository to house collected specimens should be a requirement in 
decisions to issue a permit to collect paleontological resources.
    Response: The Department agrees that a valid repository agreement 
should exist prior to issuing a permit to collect, and such requirement 
is stated in Sec.  291.14(e) regarding the permit application and is 
re-stated in Sec.  291.16(b) regarding permit terms and conditions.
    Comment: Permit terms and conditions should apply to the permit 
holder, not to the repository institution. Respondents expressed the 
view that permit terms and conditions should apply only to the permit 
holder and not to the repository institution which has agreed to accept 
collected materials. Respondents suggested that because the repository 
is not a signatory to a permit, it should not be held responsible for 
compliance with terms and conditions as set forth in a permit.
    Response: The Department agrees that permit terms and conditions 
apply only to the permit holder and not the repository. The language 
referring to the repository with regard to collections maintenance 
costs has been slightly modified to clarify that the issue of curation-
related funding is a matter that may be addressed by the permit holder 
and the repository in an agreement separate from the permit. However, 
it is ultimately the responsibility of the permit holder, at the time 
of permit issuance, to demonstrate that funding is available to support 
curation of the specimens that would be collected under permit.
    Comment: Permit terms and conditions are too restrictive and limit 
the free exchange of scientific information. One respondent suggested 
that the terms and conditions of a permit are overly restrictive, and 
limit the free and open exchange of scientific information.
    Response: The Department considers that the respondent's suggestion 
that the terms and conditions of a permit are overly restrictive and 
limit the free and open exchange of scientific information is 
conjectural and not substantiated. Permit terms and requirements are 
considered to be the minimum necessary to ensure that collected 
specimens are appropriately protected and preserved.
    Comment: Limits on tool size and amounts of materials collected 
under a permit. Respondents questioned whether or not collections of 
paleontological resources made under permit would be subject to the 
same criteria as established for casual collection, particularly with 
respect to limits on size of collecting tools and limits on weight and/
or volume of collected materials. One respondent expressed the view 
that the regulations place undue limits on the volume of materials 
collected under permit.
    Response: Conditions established for casual collection would not 
apply to collection under permit. The nature of collection tools and 
amounts of collected materials would be context-specific and 
established in the permit.
    Comment: Undue limits on exploration for new fossil-bearing 
localities under a permit. One respondent expressed the view that the 
regulations place undue limits on the ability to explore for new 
fossil-bearing localities under a permit.
    Response: The regulations do not address or otherwise place limits 
on exploration for new fossil-bearing locations while working under a 
permit.
    Comment: Specimens collected under permit should not have to be 
immediately deposited in a repository. Several respondents expressed 
the view that serious amateur collectors and researchers who are not 
affiliated with a repository be allowed to retain possession of 
collected specimens while they are studying or performing research on 
them.
    Response: The regulations do not specify a deadline for depositing 
specimens in a repository after collection. A time frame for timely 
transfer of collected materials by a permit holder to a repository 
would be specified in the permit.
    Comment: Paleontological resources should be preserved in 
perpetuity. One respondent suggested that reference to preserving 
paleontological resources that are collected under permit in an 
approved repository be amended to indicate that such resources will be 
preserved for perpetuity for the public in an approved repository.
    Response: The Department agrees that there is an expectation that 
specimens deposited in a repository will be preserved in perpetuity. 
However, a repository may not be able to provide written assurance that 
such preservation would be in perpetuity. Rather, the term of 
preservation would be addressed in a repository agreement.
    Comment: Paleontological resources should be made available to 
qualified individuals. One respondent expressed the view that reference 
to making paleontological resources deposited in a repository available 
for scientific research and public education should be amended to 
indicate that such resources be made available to qualified individuals 
for scientific research and public education.
    Response: The Department considers that paleontological resources 
which have been deposited in a repository are held in trust for the 
benefit of the public, and that formal restriction of access to such 
resources to qualified individuals is beyond the scope of the 
regulations.
    Comment: Requirement for deposit in a repository does not 
distinguish between fossils collected for research or educational 
purposes. Respondents expressed the view that fossils collected for 
educational purposes and/or teaching collections in academic 
departments should not be subject to same requirement to be deposited 
in a repository as are research collections. Respondents also suggested 
that common invertebrate and plant fossils should not be required to be 
deposited in a repository.
    Response: The definition of repository in the regulations allows 
for deposition of specimens collected under permit into teaching 
collections maintained by educational institutions. Common

[[Page 21616]]

invertebrate and plant paleontological resources subject to casual 
collection do not need to be deposited in a repository; however, common 
invertebrate and plant paleontological resources that are collected 
under a permit must be deposited in a repository.
    Comment: Release of specific locality data should not be 
restricted. Respondents expressed the view that terms and conditions of 
permits should not include restriction on release of specific locality 
data. Respondents suggested that permits require full and open 
disclosure of specific location information, with exception to full 
disclosure only in cases where collected specimens have a high market 
value and/or locations would be placed at risk by such disclosure. 
Respondents suggested that full disclosure of location data is 
necessary to provide full scientific value of collected specimens, and 
that separation of location information from specimens is irresponsible 
and may result in permanent loss of specific location information. 
Respondents expressed the view that rigid enforcement of 
confidentiality provisions would be onerous and jeopardize routine use 
of collections.
    Response: Confidentiality of specific location information is 
required by the Act, and the regulations require that confidentiality 
with regard to specific location information be maintained by 
individuals who choose to solicit and receive a permit from the Forest 
Service to collect paleontological resources. The Forest Service may 
consider the context of the permitted project and collection locations 
in determining the appropriate level of specificity of location 
information that would be considered confidential. The Department does 
not consider that maintaining confidentiality of specific locations 
requires separation of specific locality information from specimens. 
Respondents' suggestion that enforcement of confidentiality provisions 
would be onerous and jeopardize routine use of collections is 
conjectural and not substantiated by data. Many repositories already 
house specimens, such as cultural archeological materials and 
endangered species, which are used in research and whose collection 
locations are considered confidential.
    Comment: Specific location information that can or cannot be 
released. One respondent suggested that general location information be 
allowed to be released, and expressed the view that clarification 
should be provided regarding the level of specificity of location 
information (that is, identification of State, and/or county and/or 
specific geologic unit in which location occurs) that could be allowed 
to be released.
    Response: The level of specificity of location information that 
would be considered confidential would in most circumstances reflect 
the context of the occurrence, and would be decided on a case by case 
basis. Coordinates obtained from Global Positioning System (GPS) 
devices, or from other sources with a comparable level of accuracy 
would generally be considered too specific for general release and 
would remain confidential. Criteria for determining the appropriate 
level of specificity of location information would relate to case-
specific circumstances and would not be appropriate to list in 
regulations.
    Comment: Permit holder should be accorded responsibility to 
determine the appropriate level of specific location information for 
release. One respondent expressed the view that in being awarded a 
permit, a permit holder should be recognized by the Forest Service as 
being capable of making certain types of decisions without prior 
authorization, including being responsible for determining an 
appropriate level of specific location information that can be 
released.
    Response: The appropriate level of specific location information 
that would be considered for release would be specified in permit terms 
and conditions. A permit applicant may provide suggestion, with 
justification, for the appropriate level of specific location allowed 
for release in the permit application.
    Comment: Acknowledgment of the Forest Service in public 
communications resulting from collections. One respondent expressed the 
view that it would be difficult for a permit holder to comply with the 
requirement to acknowledge the Forest Service in public communications 
concerning collected materials after the collection has left the permit 
holder's possession and has been transferred to a repository where 
other users may access the collection. The respondent also suggested 
that a permit holder may acknowledge the Forest Service in good faith, 
but that a communications medium may remove the citation prior to 
distribution.
    Response: The language of the regulations has been modified to 
clarify that a permit holder would only be responsible for 
acknowledging the Forest Service in public communications resulting 
from the permit holder's use of collected materials. The Forest Service 
would consider good faith efforts by a permit holder to provide such 
acknowledgment, in circumstances as described by the respondent where 
lack of acknowledgment relates to factors beyond the control of the 
permit holder.
    Comment: Timely issuance of repository catalog numbers may be 
beyond control of permit holder. One respondent expressed the view that 
a permit holder should not be required to adhere to a 1-year deadline 
for submittal to the Forest Service of a list of catalog numbers 
assigned by a repository to collected specimens. The respondent 
suggested that repositories may not assign catalog numbers to specimens 
in a timely manner, and that a permit holder may have no direct 
influence over when catalog numbers are assigned. The respondent 
suggested that the requirement be changed to accession numbers rather 
than catalog numbers, and/or that the time frame for submittal of 
catalog numbers be flexible.
    Response: The regulations do not specify a 1-year deadline for 
submittal of repository-issued catalog numbers for specimens collected 
under permit. Rather, the regulations refer to a timeline, to be 
established in the permit, for submittal of a complete list of 
collected specimens and their current locations. Reference in the 
regulations to submittal of repository accession and catalog numbers in 
permit reports has been modified to clarify that submittal of accession 
and/or catalog numbers would be allowed, to account for circumstance 
wherein a repository may have assigned accession numbers to specimens 
but has not yet issued catalog numbers for those specimens.
    Comment: Permit application requirements and terms and conditions 
do not distinguish between responsibilities of permit holder and 
repository. One respondent expressed the view that requiring a permit 
holder to identify a repository institution, provide documentation that 
the identified repository has agreed to accept collected materials, and 
that a permit holder be responsible for cost of curatorial activities 
associated with collected specimens does not distinguish between the 
roles and responsibilities of the permit holder and the repository 
institution with respect to the permitting process, and that such roles 
and responsibilities should be clarified.
    Response: The Department recognizes that the roles and 
responsibilities of a permit holder and repository concerning proposed 
collections and subsequent collections management activity are often 
interrelated and difficult to disentangle. With regard to permitting 
and permit terms and conditions, the

[[Page 21617]]

Department considers that it is necessary for a permit applicant to 
establish in the application and for the Department to recognize at the 
time a permit is issued, that an appropriate repository has been 
identified, that the repository has agreed to accept the collections, 
and that financial mechanisms are in place to ensure continued 
professional management of the collected specimens. Because the permit 
applicant is proposing the collection activity, it is the applicant's 
responsibility to provide documentation that identifies an appropriate 
repository, to document that the repository has agreed to accept the 
collection, and to document that necessary funding has been secured to 
ensure collection maintenance. These issues must be addressed in the 
application and/or at the time a permit is issued, in order to minimize 
the possibility of issuing a permit that results in an orphaned 
collection.
    Comment: Requirement to comply with tasks specified by Authorized 
Officer is too broad. One respondent suggested that the requirement for 
a permit holder to comply with all tasks required by the Authorized 
Officer, even in the event of permit expiration, suspension, or 
revocation is too broad. The respondent suggested that the word'' 
tasks'' be replaced by ``terms and conditions'' or ``permit 
requirements.''
    Response: The Department agrees that reference to ``tasks'' is 
overly broad, and has replaced ``tasks'' by ``permit requirements'' to 
clarify the permit holder's continued obligations in the event of 
permit expiration, suspension, or revocation.
    Comment: Additional permit conditions should not be allowed. 
Respondents expressed the view that the provision allowing for 
additional permit stipulations, terms, and conditions that are not 
already listed is too broad. Respondents suggested that the ability to 
add permit requirements could result in requirements that are arbitrary 
and that are not based in science and/or regulatory standards, and also 
suggested that reclamation of collection sites should not be a 
universal permit requirement.
    Response: The Department requires the ability to establish permit 
terms and conditions that may be unrelated to paleontological 
resources, but are necessary to address location-specific conditions. 
The regulations do not specify site reclamation as a universal permit 
requirement.

Section 291.17 Permit Reports

    Section 291.17 lists the information that is necessary for 
permittees to include in the reports required under a permit to conduct 
paleontological activities. This information is required in order to 
address 16 U.S.C. 470aaa-1 which states that the Secretary shall manage 
paleontological resources using scientific principles and expertise.
Section 291.17--Response to Comments
    Comment: Required content of reports should apply only to permit 
reports. Respondents noted that the permit report requirements as 
listed in Sec.  291.17 should apply only to permit holders and not to 
repository institutions, because a repository institution is not a 
signatory to a permit and should not be held responsible for addressing 
permit requirements. One respondent suggested that the term ``museum 
agreements'' be removed from the title of Sec.  291.17 to clarify that 
the report content requirements listed therein pertain only to permit 
reports.
    Response: The Department agrees with respondents' comments and the 
heading of Sec.  291.17 has been changed to clarify that the section 
applies to permit reports and not to repositories.
    Comment: Required content of reports is burdensome. Respondents 
expressed the view that the required content of permit reports is 
overly comprehensive, burdensome, and limits the free and open exchange 
of scientific information. Respondents suggested that required items be 
considered optional, and that the phrase ``as appropriate'' be added to 
requirements concerning identification of potential impacts to 
paleontological resources and mitigation recommendations to address 
identified potential impacts. Respondents suggested that requirements 
to supply repository-issued accession numbers and catalog numbers 
reflect repository processing time and are beyond the control of permit 
holders. One respondent suggested that up to 2 years following the end 
of field work be allowed for a permit holder to supply required 
information concerning inventories of collected specimens and 
collection locations.
    Response: The Department considers that the specified report 
content is the minimum information necessary for the Forest Service to 
be able to evaluate work performed under permit and use such 
evaluations as the basis for managing its paleontological resources 
using scientific principles and expertise. Respondents' suggestions 
that report content is burdensome and limits the open exchange of 
scientific information are conjectural and not substantiated. The 
regulations already state that all items listed as report content are 
to be included ``as appropriate''. The regulations do not specify a 1 
year deadline for submittal of a permit report, including content 
related to repository-issued accession and catalog numbers for 
specimens collected under permit. Rather, the regulations refer to a 
timeline, to be established in the permit, for submittal of the permit 
report. Reference in the regulations to submittal of repository 
accession and catalog numbers in permit reports has been modified to 
clarify that submittal of accession and/or catalog numbers would be 
allowed, to account for circumstance wherein a repository may have 
assigned accession numbers to specimens but has not yet issued catalog 
numbers for those specimens.

Section 291.18 Modification of Permits

    Section 291.18 provides the framework for the modification of 
permits, in accordance with 16 U.S.C. 470aaa-3(d). Examples of a 
permittee' s request for permit modification would include, but would 
not be limited to: Changes to the persons listed on the permit, changes 
to the scope of work (including, but not limited to, geographic area, 
analysis or collecting techniques, or geologic strata), change of the 
designated approved repository, or changes to the permit timelines. 
Modification of a permit would be discretionary on the part of the 
Authorized Officer (see Sec.  291.13(b)). Notifications regarding 
modifications would be in writing.

Section 291.19 Suspension and Revocation of Permits

    Section 291.19(a) and (b) provides for the suspension or revocation 
of permits in accordance with 16 U.S.C. 470aaa-3 (d)(1) and (2). 
Suspensions would address a variety of management issues that may or 
may not be due to any fault of the permittee. For example, the 
Authorized Officer would be able to suspend a permit if conditions 
relating to other resources have changed. The Authorized Officer would 
also be able to suspend a permit for any violation of a term or 
condition of the permit, such as exceeding the approved scope of work.
    A permit may also be suspended if permittee becomes ineligible to 
hold a permit. Examples of ineligibility include, but are not limited 
to, situations where the permittee is responsible for resource damage, 
if the approved repository is no longer available, or if the permittee 
provided false information to the Authorized Officer as part of the 
application for the permit.
    A suspended permit may be revoked if the permittee fails to correct 
the reason(s) for the suspension in

[[Page 21618]]

accordance with the notification by the Authorized Officer. Permits 
that are suspended for reasons other than the permittee's conduct (for 
example, resource management closures, wildfires, and so forth) will 
not be revoked. Such circumstances will result in continued permit 
suspension until the situation is corrected, or in some cases, the 
permit may be modified.

Section 291.20 Appeals

    Section 291.20 clarifies that a permittee may appeal the denial or 
revocation of a permit in accordance with 36 CFR part 214. Procedures 
for appealing a permit revocation or denial are set forth in 36 CFR 
part 214.

Section 291.21 Curation of Paleontological Resources

    Section 291.21 clarifies that paleontological resources from 
National Forest System lands collected under a permit issued under 
these regulations must be deposited in an approved repository. 
Collections made from National Forest System lands before the effective 
date of these regulations would be covered under the terms of the 
original collection permit or agreement. Such instruments remain in 
effect and the collections remain Federal property. Repositories are 
encouraged to work with the Forest Service to ensure that the care of 
pre-existing collections meet the minimum requirements of these 
regulations.
Section 291.21--Response to Comments
    Comment: Uniformity of repository requirements between the 
Departments of Agriculture and Interior. One respondent expressed the 
view that regulations concerning repositories be consistent between the 
Departments of Agriculture and Interior, so that repositories who 
maintain collections from both Departments would not have to implement 
separate standards of curation that would be costly and unnecessarily 
burdensome. The respondent suggested that the development of these 
regulations be suspended until versions from both the Departments of 
Agriculture and Interior are available for simultaneous review so that 
uniform standards may be established.
    Response: The Departments of Agriculture and Interior closely 
coordinated the drafting of requirements related to repositories in 
their respective regulations, and the applicable repository standards 
are in substantive agreement. The Department does not consider that a 
requirement for separate standards of curation would be imposed on 
repositories, and the regulations explicitly state that a repository 
approved by a Federal agency or bureau may be considered an approved 
repository by the Forest Service. Consequently, there is no need for 
simultaneous review of the respective regulation of the Departments of 
Agriculture and Interior regarding the establishment of uniform 
repository standards.
    Comment: Non-research collections. Respondents suggested that the 
requirement for all collections of paleontological resources made under 
permit to be deposited in an approved repository is unreasonable. 
Respondents noted that this requirement may preclude collections for 
teaching purposes, many of which are housed in academic institutions 
rather than research-oriented repository institutions. Respondents also 
suggested that research collections of common invertebrate and plant 
paleontological resources be exempted from the requirement to be 
deposited in an approved repository. Respondents suggested that 
curation of common invertebrate and plant paleontological resources is 
costly and will hinder research, and that many repositories will not 
accept collections of common specimens owing to curation resource 
limitations.
    Response: The definition of repository in the regulations allows 
for deposition of specimens collected under permit into teaching 
collections maintained by educational institutions. The suggestion that 
repositories may reject collections of common invertebrate and plant 
paleontological resources owing to resource limitations is conjectural, 
and no examples of such practice were offered. The regulations conform 
to the Act, which states that permitted collections of paleontological 
resources must be deposited in an approved repository, and which does 
not provide an exception for common invertebrate and plant 
paleontological resources. Use of specimens in research that are not 
properly curated would increase the risk of their loss, damage and/or 
misappropriation, all of which pose greater risk of hindering research 
than costs associated with appropriate curation of such specimens, 
which would ensure their availability to future researchers.
    Comment: Additional information should be provided for common 
paleontological resources. One respondent expressed the view that more 
detailed information and guidance should be provided concerning 
criteria and procedures for storing, preparing, and documenting common 
paleontological resources.
    Response: Common invertebrate and plant paleontological resources 
collected under permit would be subject to the same repository 
requirements as other paleontological resources collected under permit. 
Collection management functions such as storage, preparation, and 
documentation are the responsibilities of a repository, and are beyond 
the scope of the regulations to address.

Section 291.22 Becoming an Approved Repository

    Section 291.22 states the requirements for becoming an approved 
repository. Section 291.22(a) states that the repository must meet the 
minimum standards in Sec.  291.23 and agree to certain terms and 
conditions. Section 291.22(b) states that the Authorized Officer and 
the repository official may enter into a formal curation agreement in 
accordance with Sec.  291.26. Section 291.22(c) explains that the 
repository must agree to periodic inventories and inspections as 
described in Sec.  291.25. Section 291.22(d) clarifies that an Agency 
paleontologist in consultation with the repository official will make a 
determination of the content of the collection to be curated based on 
scientific principles and expertise. Section 291.22(e) explains that a 
repository that has been approved by one Federal agency may be 
considered approved by other Federal agencies. For example, a 
repository approved by the Forest Service may be considered approved by 
the Bureau of Land Management and vice versa.
Section 291.22--Response to Comments
    Comment: Content of Collections. Respondents suggested that 
clarification should be provided concerning how the Authorized Officer 
will consult with a repository to determine the content of collections 
prior to their being deposited, and expressed the view that undue 
interference by the Authorized Officer may result in a repository 
declining to accept a collection. Respondents suggested that 
repositories generally maintain a defined scope of collections and that 
repository staff expertise is most appropriate to determine repository 
collection content. Respondents suggested that repository staff 
expertise should be relied on to make collection content decisions, 
that consultation with the Authorized Officer each time specimens are 
deposited would be burdensome, and that consultation with the 
Authorized Officer should be limited to circumstance where questions 
arise. Respondents also expressed the view that clarification should be 
provided

[[Page 21619]]

regarding the disposition of specimens that are not appropriate for 
repository collections.
    Response: The process for determining the content of collections to 
be deposited in a repository institution will be established in a 
repository agreement. The terms of the repository agreement will 
determine the degree of latitude offered to the repository institution 
in determining the content of deposited collections, and circumstances 
that may require consultation with an Agency paleontologist regarding 
the content of permitted collections to be deposited will be described 
in the repository agreement. The roles of the Authorized Officer and 
agency paleontologist in determining the content of deposited 
collections are clarified by replacing the phrase ``the Authorized 
Officer'' with ``an Agency paleontologist'' in Sec.  291.22(d) of the 
regulations. The manner of disposition of collected specimens that are 
not appropriate for a repository's collections will be established in a 
repository agreement and/or through discussion with an Agency 
paleontologist.
    Comment: Release of specific locality data. Respondents suggested 
that clarification should be provided regarding the level of 
specificity of locality data to be considered confidential, and 
suggested that the requirement of signed confidentiality agreements for 
recipients of specific locality information could delay or impede 
publication of research results in scientific journals that require 
publication of locality information.
    Response: The level of specificity of location data to be 
considered confidential cannot be addressed appropriately in 
regulation, as such level will commonly reflect local considerations 
that are specific to the paleontological resource in question. 
Coordinates obtained using Global Positioning System (GPS) devices or 
geographic coordinates that reflect a comparable level of accuracy 
would generally be considered too specific. The suggestion that 
research publication could be delayed or impeded by the requirement for 
written confidentiality agreements from recipients of protected 
information is conjectural. A survey of publication requirements for a 
number of scientific journals that exclusively or commonly contain 
paleontology articles has demonstrated that most journals either do not 
require publication of specific location information, or make provision 
for not publishing such information for sensitive locations where 
public knowledge of specific locations presents risk to the resource.

Section 291.23 Minimum Requirements of Approval of a Repository

    Section 291.23 states the minimum requirements that a repository 
must meet in order to be approved to provide long-term curatorial 
services for Federal paleontological collections. It is important to 
establish such requirements in these final regulations, rather than 
rely on standards contained in internal agency policy and guidance 
documents such as Department of the Interior Departmental Manual Part 
411, in order to (1) promote consistency between the Departments, (2) 
eliminate subjectivity in approving repositories, and (3) provide 
sufficient information to repositories seeking to become approved under 
the Act and the final regulations.
Section 291.23--Response to Comments
    Comment: Requirements of approval of a repository. One respondent 
stated that the definition of a ``good repository'' was not clearly 
stated, and another respondent suggested that the focus of this section 
should be on fossil collections and that requirements should include a 
guarantee that the fossil collection be treated by the repository as a 
permanently accessible source of scientific data.
    Response: The Department considers that the conditions as set forth 
in Sec.  291.23 of the regulations offer clear and sufficient detail 
for characterization of a repository that may be approved to house 
paleontological collections from National Forest System lands. The 
repository requirements set forth in these regulations reflect a focus 
on the paleontological collections and have been developed to ensure 
the long-term integrity of collections maintained in repositories. A 
focus on collections as permanently accessible sources of scientific 
data is reflected in the provisions of Sec. Sec.  291.22(a)(iii) and 
291.24(a) of these regulations.
    Comment: Requirement for repository staff expertise in paleontology 
is burdensome. A respondent suggested a requirement for staff expertise 
in paleontology may be burdensome for small repository institutions
    Response: The language in Sec.  291.23(d) of the regulations has 
been modified to reflect that the level of repository staff expertise 
in paleontology be appropriate to the nature and use of the 
paleontological collections maintained by that repository.
    Comment: Approval of a repository. Respondents expressed the view 
that clarification should be provided concerning whether or not 
approval of a repository is a one-time process, or if an approval is 
required for every permit or collection considered for deposit. 
Respondents also expressed the view that decisions by the Forest 
Service regarding repository approval be timely.
    Response: Following approval of a repository, the repository is 
considered to remain approved unless a change in the conditions related 
to approval warrant reevaluation. A repository approval and related 
repository agreement will generally require exchanges of information 
between the Forest Service and the repository institution; the Forest 
Service is committed to making repository approvals as timely as 
practicable.

Section 291.24 Standards for Access and Use of Collections

    Section 291.24 of these final regulations provides repositories 
with consistent standards for access to and use of Federal collections 
in accordance with 16 U.S.C. 470aaa-3(c)(2), which states that 
paleontological resources will be preserved for the public in approved 
repositories and be made available for scientific research and public 
education. This section also addresses loans and reproductions, which 
increase the use and accessibility of paleontological resources 
consistent with professional and educational practices.
    Section 291.24(f) clarifies when repositories must obtain approval 
from the Authorized Officer before allowing certain uses that may 
subject the specimens to damage. These uses include certain types of 
reproductions and consumptive analysis of specimens. Reproductions 
include molding and casting, and computerized axial tomography (CAT) 
scans. Routine photographic and/or digital reproductions would 
generally not require individual approvals, providing the reproductions 
are not made for commercial purposes, and that the reproductions do not 
require transfer of the specimen(s) to a different facility. 
Reproductions help expand use and accessibility of collections for 
exhibition, research, education, and interpretation. Producing a mold 
and then a cast of a specimen will allow an exact duplicate upon which 
research and exhibition can take place without further damaging the 
original specimen. Section 291.24(f)(2) clarifies that the approved 
repository may only allow consumptive analysis of specimens if the 
Authorized Officer, in consultation with an Agency paleontologist, has 
determined that the potential gain in scientific or interpretive 
information outweighs the potential loss of the paleontological 
resource. Consumptive analysis would generally be limited to

[[Page 21620]]

specimens that are not unique or fragile, or to a sample of specimens 
drawn from a larger collection of similar specimens.
Section 291.24--Response to Comments
    Comment: Repository standards add unnecessary bureaucracy and are 
inconsistent with standard museum collection management practices. 
Respondents expressed the view that requirements related to 
repositories add unnecessarily to bureaucracy, are time-consuming to 
address, and are inconsistent with standard museum collection 
management practices. Respondents suggested that the Forest Service 
should collaborate with repositories and/or other professional 
organizations with a focus on museum collections management issues in 
drafting regulatory requirements pertinent to collections management. 
Respondents expressed the view that umbrella repository agreements be 
developed that clearly state the respective roles and responsibilities 
of the Forest Service and the repository, and that state how the costs 
associated with collections management are calculated and allocated.
    Response: The Department considers that collections management 
requirements set forth in the regulations largely reflect collections 
management policies and procedures that are routinely employed by 
professionally managed repository institutions. Repository requirements 
were developed by a team of interagency specialists including those 
familiar with repository operations. In accordance with the 
Administrative Procedure Act, the solicitation of public comments on 
these final regulations is the established procedure for members of the 
public to provide comments concerning collections management for 
Department and Agency specialists to further consider prior to 
promulgation of the final regulations. The Department agrees that 
repository agreements could address costs associated with collections 
management, and nothing in these regulations would prevent repository 
agreements from addressing such costs.
    Comment: Distinguishing responsibilities of repository and permit 
holder. Two respondents expressed the view that Sec.  291.24 does not 
effectively distinguish between the respective responsibilities of the 
repository and the permit holder, who may not be affiliated with the 
repository. Respondents specifically note that repositories cannot be 
held responsible for collections which have not yet been deposited by 
permit holders.
    Response: Section 291.16(f) of the regulations states that the 
permit holder is responsible for all work conducted under the permit; 
this should be understood to mean permitted work prior to depositing 
collected specimens in a repository institution. The regulations do not 
state that a repository is responsible for collected specimens prior to 
transfer of those specimens by the permit holder to the repository. A 
repository would not be considered responsible for collected specimens 
until after such specimens have been accessioned into the repository's 
collections.
    Comment: Decision-making by approved repository. Respondents 
expressed the view that Sec.  291.24 of these final regulations 
contains provisions that are not addressed in the Act and which place 
undue administrative burdens on repository institutions. Respondents 
also suggest that approval of a repository institution in accordance 
with Sec. Sec.  291.22 and 291.23 demonstrates the responsible 
stewardship of that institution. Consequently, the qualified repository 
professional staff should have the authority to make decisions 
concerning reproductions and consumptive analyses based on 
institutional policies and professional standards, without requiring 
written approval from the Authorized Officer.
    Response: Regulations may impose conditions that are considered 
necessary to implement provisions of the Act, even if such provisions 
were not explicitly specified in the Act. The Department considers that 
the repository conditions set forth in Sec.  291.24 of the regulations 
are industry-standard best management practices already employed by 
most professionally-managed repository institutions. Forest Service 
specimens in repository collections remain Federal property, for which 
the Forest Service Authorized Officer is held ultimately accountable. 
The level of decision-making authority deferred to the repository in 
administering Forest Service paleontological specimens will be 
established in a repository agreement, and will reflect the degree of 
responsible stewardship demonstrated by the repository institution.
    Comment: Role of private institutions. One respondent suggested 
that clarification should be provided regarding the role of private 
institutions or companies with respect to standards for access and use 
of collections.
    Response: These regulations do not distinguish between roles that 
may be played by public or private institutions with respect to 
standards for access and use of collections. Standards in the 
regulations apply equally to all institutions.
    Comment: Providing access to specific locality data. Respondents 
expressed the view that clarification should be provided concerning how 
to administer requests by users for specific locality information, and 
expressed concern that separating locality data from specimens to 
ensure confidentiality is bad practice and reduces scientific 
usefulness of specimens.
    Response: The Department does not consider that maintaining 
confidentiality of specific locations requires separation of specific 
locality information from specimens in repository collections. The 
repository institution is responsible for maintaining an appropriate 
level of confidentiality of specific locations of specimens. These 
regulations do not stipulate specific collections-based practices or 
procedures to ensure confidentiality; rather, the employment of 
specific practices or procedures as appropriate to maintain 
confidentiality is at the discretion of the repository institution.
    Comment: Administration of confidentiality agreement. Respondents 
suggested that clarification should be provided regarding whether the 
Forest Service or the repository would administer confidentiality 
agreements, and suggested that repositories be explicitly allowed to 
share locality information with holders of Forest Service permits for 
mitigation projects.
    Response: The Department considers that administration of 
confidentiality provisions is a shared responsibility of the Forest 
Service and the repository, and that administrative details would be 
addressed in a repository agreement. Institutional responsibilities in 
communicating confidential location information would be addressed in 
the repository agreement. The Department considers that entities with a 
demonstrated legitimate need to obtain confidential location 
information would generally be granted access to such information, and 
that consultation between the Forest Service and the repository should 
resolve any issues that may arise.
    Comment: Responsibility for loaned specimens. Respondents expressed 
the view that clarification should be provided regarding whether a 
repository may require a borrowing institution to provide insurance for 
loaned specimens. Respondents expressed the view that the repository of 
origin cannot be held responsible for loaned specimens, and that the 
borrowing institution must be

[[Page 21621]]

responsible for loaned specimens during the loan period.
    Response: A requirement to insure loaned specimens is a matter to 
be decided between the institutions that are parties to a loan, in 
accordance with the loan policies of the institutions. The Department 
considers that the parent repository for Federal paleontological 
specimens bears responsibility for the stewardship of those specimens, 
even if they have been loaned to another institution.
    Comment: Records of collections use. Respondents suggest that 
tracking the use of Department collections separately from other 
collections will be burdensome, and that repositories should not be 
required to track collections uses apart from common practices in 
documenting loans, exhibition usage, and requiring citation in 
scientific research publications.
    Response: The regulations do require tracking the scientific and 
educational uses of collections from National Forest System lands, but 
they do not require them to be tracked separately from other repository 
collections. The Department considers that tracking of collections use 
is an industry standard procedure for professionally-managed repository 
institutions, and that the ability to document such uses of Department 
specimens and/or collections would be a subset of more comprehensive 
collections management practices already employed by repositories.
    Comment: Repository fees. Respondents suggested that clarification 
should be provided regarding whether repositories may charge fees to 
permit holders for the curation of deposited collections, and whether 
the Forest Service would provide financial support for curation of 
collections obtained under permit.
    Response: The issue of charging fees to permit holders for the 
curation of collections from National Forest System lands is a matter 
to be decided between the permit holder and the repository institution. 
The issue of Forest Service assistance provided for curation of 
collections would be addressed in a repository agreement; generally, 
the Department can not commit to or guarantee financial support for 
collections.
    Comment: Written approval for reproduction. Respondents expressed 
the view that the requirement for written approval from the Authorized 
Officer for reproductions is burdensome, because the listed types of 
reproductions are routine practices, are non-destructive, and pose 
little physical risk to specimens. Respondents further suggested that 
decisions regarding making reproductions are more appropriately made by 
qualified repository professional staff with first-hand knowledge of 
specimen condition, rather than by the Authorized Officer who may not 
possess the expertise required to evaluate requests for reproductions 
based on their scientific merit. One respondent suggested that the 
Authorized Officer be required to consult a professional paleontologist 
regarding approvals for reproductions, and another respondent suggested 
that approvals should not be withheld by the Authorized Officer for 
non-scientific reasons.
    Response: Particulars concerning the need for written approvals 
from the Authorized Officer for a repository to make reproductions 
would be addressed in a repository agreement. Routine photographic and/
or digital reproductions would generally not require individual 
approvals, providing the reproductions are not performed for commercial 
purposes and do not require transfer of the specimen(s) to a different 
facility The rule language has been clarified to reflect this. 
Generally, methods of reproduction that would require extensive 
physical manipulation of a specimen, transfer of a specimen to a 
different facility and/or that could reasonably be considered to pose 
risk of damage to a specimen would require approval. The rule language 
has been clarified to reflect that required approvals from the 
Authorized Officer would be issued in consultation with an Agency 
paleontologist. The Department does not expect that approvals for 
reproductions would be withheld for reasons unrelated to risk of 
potential specimen damage.
    Comment: Reproductions governed by established practices and 
procedures. Respondents expressed the view that repository institutions 
generally have established practices and procedures governing 
reproductions, that requiring written approval from the Authorized 
Officer for reproductions results only in increased procedural burden, 
and that the requirement for written approval should be waived for 
institutions that have established practices and procedures governing 
reproductions. Another respondent suggested that requests for 
reproductions are often made by visiting researchers, and that it would 
be impractical to respond to such requests during the time of the 
visit. Respondents expressed the view that specimen reproductions are 
valuable in research, education, and exhibition, and that the burden of 
requesting written approval for reproductions would impede making 
reproductions and would consequently hinder their use in research, 
education, and exhibition.
    Response: Particulars concerning the need for written approvals 
from the Authorized Officer for a repository to make reproductions 
would be addressed in a repository agreement. A repository agreement 
may or may not recognize that established repository practices and 
procedures are sufficient to guide decisions concerning reproductions. 
Researchers should be aware of the potential need for written approval 
for non-routine reproductions, and requests for such approvals should 
be made in advance of research visits in order to ensure sufficient 
time to evaluate the request prior to visits. Written approval 
protocols prior to performing procedures that pose risk of damage to a 
specimen from National Forest System lands would not generally differ 
from such protocols that would be employed if the specimen were 
privately owned and on loan to a repository. The Department agrees that 
reproductions are valuable in research, education, and exhibition, and 
does not consider that requiring approvals in certain cases prior to 
making reproductions would substantially hinder the making, or use of 
reproductions.
    Comment: Presumptive approval of reproduction in repository 
agreement. One respondent suggested that reproduction of specimens 
should be presumptively approved in repository agreements, or 
alternatively, that repository agreements should set forth those 
conditions under which written approval for reproduction would be 
required. This would reduce the burden of requiring written approval 
for each instance of proposed specimen reproduction.
    Response: Particulars concerning the need for written approvals 
from the Authorized Officer for a repository to make reproductions 
would be addressed in a repository agreement. A repository agreement 
may or may not recognize that established repository practices and 
procedures are sufficient to guide decisions concerning reproductions. 
In some cases, a separate written approval for each instance of 
proposed specimen reproduction might be necessary.
    Comment: Appeal for denial of reproduction. One respondent 
questioned whether there is a process to appeal a denial by the 
Authorized Officer of approval for reproduction.
    Response: The regulations do not establish a process for the appeal 
of a decision by the Authorized Officer to deny approval for 
reproduction.
    Comment: 3-D rendering. One respondent expressed the view that 
clarification should be provided

[[Page 21622]]

concerning the meaning of the phrase ``three-dimensional [3-D] 
rendering.''
    Response: The phrase ``three-dimensional [3-D] rendering'' has been 
removed to add clarity to the requirement for approval of 
reproductions.
    Comment: Revenue from reproductions. One respondent suggested that 
specimen reproductions may be sold, and that funds obtained from such 
sales be used to defray the costs related to curation of collections. 
Another respondent suggested that proceeds from sales of reproductions 
be restricted to specified uses including emergency field collection of 
threatened paleontological collections on Federal lands, laboratory 
preparation of Federal collections, curation of Federal paleontological 
collections, care and storage of Federal paleontological collections, 
and any other purposes that are mutually agreed to by the parties in 
writing.
    Response: The issue of using revenues generated from sales of 
reproductions to support curation of collections and other specified 
uses would be addressed in a repository agreement.
    Comment: Consumptive analysis governed by established practices and 
procedures. Respondents expressed the view that repository institutions 
generally have established practices and procedures governing 
consumptive analysis, and that the requirement for written approval 
should be waived for institutions that have established practices and 
procedures governing consumptive analysis. Respondents further 
suggested that decisions regarding consumptive analyses are more 
appropriately made by qualified repository professional staff with 
first-hand knowledge of specimen significance, rather than by the 
Authorized Officer who may not possess the expertise required to 
evaluate requests for consumptive analyses based on their scientific 
merit. Respondents expressed the view that consumptive analyses provide 
scientific data regarding geochemistry and microscopic structure of 
specimens that would be otherwise unavailable, and that such data are 
necessary for isotope analyses and studies of growth and development, 
ancient biomolecule recovery, and paleobiomechanics. Respondents 
expressed the view that denial of approval by the Authorized Officer 
for consumptive analysis would have a chilling effect on such research.
    Response: Particulars concerning the need for written approvals 
from the Authorized Officer for a repository to perform consumptive 
analyses would be addressed in a repository agreement. A repository 
agreement may or may not recognize that established repository 
practices and procedures are sufficient to guide decisions concerning 
consumptive analyses. The Department agrees that consumptive analyses 
provide scientific data that are difficult to obtain by other means. 
The Department considers that most well-justified requests for approval 
to perform consumptive analyses would be supported, and that denial of 
approval for cause would generally be infrequent and not have an 
overall chilling effect on research.
    Comment: Presumptive approval of consumptive analysis in repository 
agreement. One respondent suggested that consumptive analysis of 
specimens should be presumptively approved in repository agreements, or 
alternatively, that repository agreements should set forth those 
conditions under which written approval for consumptive analysis would 
be required. This would reduce the burden of requiring written approval 
for each instance of proposed consumptive analysis.
    Response: Particulars concerning the need for written approvals 
from the Authorized Officer for a repository to perform consumptive 
analyses would be addressed in a repository agreement. A repository 
agreement may or may not recognize that established repository 
practices and procedures are sufficient to guide decisions concerning 
consumptive analyses.
    Comment: Restrictions only apply to existing technologies. One 
respondent suggested that the proposed restrictions on consumptive 
analysis are overly detailed and only reflect existing technologies
    Response: The regulations do not specify technologies, existing or 
otherwise, with respect to consumptive analyses.
    Comment: Consumptive analysis of common invertebrate and plant 
fossils. One respondent suggested that written approval should not be 
required for consumptive analysis of common invertebrate and plant 
fossils.
    Response: Common invertebrate and plant paleontological resources 
that are collected under a permit are subject to the same requirements 
pertaining to consumptive analyses as are any other paleontological 
specimens collected under permit. Particulars concerning the need for 
written approvals from the Authorized Officer for a repository to 
perform consumptive analyses on common invertebrate and plant 
paleontological resources would be addressed in a repository agreement.
    Comment: Consumptive analysis of unique specimens. One respondent 
suggested that reference to specimens as unique should be clarified 
because every specimen can be considered unique.
    Response: The term ``unique specimen'' as used herein refers to any 
specimen that possesses one or more attributes that offer singular 
scientific information that is not present in other known and otherwise 
similar specimens.
    Comment: General limitation of consumptive analysis. One respondent 
suggested that, as employed in the Preamble discussion, the phrase `` . 
. . consumptive analysis would generally be limited. . .'' should be 
modified by replacing ``generally'' by ``may'' to help reduce instances 
of apparent arbitrary denials.
    Response: The Department considers that the suggested change in 
wording results in a meaning that is largely equivalent to the original 
passage, so the original wording is retained. The Department considers 
that denials of approval for consumptive analyses would not be 
arbitrary, but rather would be for cause related to irreversible 
adverse effects of such analyses on specimens that are not commensurate 
with gain in scientific knowledge provided by such analyses.

Section 291.25 Conducting Inspections and Inventories of Collections

    Section 291.25 clarifies the responsibilities of the Authorized 
Officer and the repository for inspections and inventories of Federal 
paleontological collections as required by the Federal Property and 
Administrative Services Act (40 U.S.C. 541 et seq.) and its 
implementing regulations (41 CFR parts 101 and 102) and guidance which 
require periodic inspections. The responsibilities of the repositories 
for the stewardship of Federal paleontological collections is clarified 
by citing these authorities in these final regulations. It is important 
for repositories to know that after a Federal paleontological 
collection is placed in an approved repository, the Authorized Officer 
still retains the ultimate responsibility to ensure that the collection 
is adequately accounted for and maintained on behalf of the Federal 
government.
Section 291.25--Response to Comments
    Comment: Reference to Federal Property and Administrative Services 
Act. Respondents suggest that reference to the Federal Property and 
Administrative Services Act and its implementing regulations is not 
appropriate, because that act and implementing regulations concern

[[Page 21623]]

Federal property, and are not specific to natural history collections 
in recognized repositories.
    Response: Paleontological resources collected under permit from 
National Forest System lands remain Federal property as stated in the 
Act, and statutory and regulatory authorities pertaining to Federal 
property apply to such paleontological resources.
    Comment: Inventories and inspections distinct from routine 
collections management and inventory processes. Respondents suggested 
that clarification should be provided regarding whether the required 
inventories and inspections would be separate from routine collections 
management and inventory processes carried out by repository 
institutions. Respondents also expressed the view that clarification 
should be provided regarding whether it is the responsibility of the 
institution or the Authorized Officer to perform the inventories and 
inspections, if they are required to be separate from such operations 
routinely performed by the institution.
    Response: Inventories and inspections as specified in the 
regulations would not be required to be separate or distinct from 
routine collections management and inventory processes, providing that 
the requested information can be produced for collections from National 
Forest System lands. The party, or parties, responsible for conducting 
such inventories and/or inspections would be specified in a repository 
agreement.
    Comment: Notification of request for inventory or inspection. Two 
respondents suggested that clarification should be provided concerning 
the process by which a repository would be notified of a request to 
perform an inspection or inventory.
    Response: The method of notification of a request to perform an 
inspection and/or inventory would be specified in a repository 
agreement.
    Comment: Cost of inventories and inspections. Respondents suggested 
that the cost associated with inventories and inspections is an 
unfunded mandate and does not benefit the repository institution. 
Respondents suggest that there is no clear distinction between whether 
the repository or the permit holder, who may not be affiliated with the 
repository, is responsible for costs associated with such inventories 
and inspections, and suggest that Sec. Sec.  291.14(e) and 291.16(p) 
are inconsistent regarding whether the repository or the permit holder 
are responsible for bearing such costs.
    Response: Inventories and/or inspections of collections from 
National Forest System lands would not necessarily differ from routine 
collections management processes that are already employed by 
professionally managed repository institutions. Consequently, such 
inventories and/or inspections would not necessarily result in expenses 
in excess of those already accrued by a repository that routinely 
employs such management processes. The Department does not distinguish 
between whether a permit holder or a repository, or both, are 
responsible for costs associated with collections management processes, 
and either or both parties may assume funding responsibilities. The 
allocation of funding for collections management activities is a matter 
to be decided between the repository and permit holder, and should be 
determined prior to a repository agreeing to accept a collection. 
Language in Sec.  291.16(p) has been modified to clarify that a permit 
holder, repository, or both may share responsibility for expenses 
related to collections management.

Section 291.26 Repository Agreements

    Section 291.26(a) clarifies that the Authorized Officer may, on 
behalf of the Agency, enter into agreements with approved repositories. 
Such agreements would define curation responsibilities of the approved 
repositories and promote consistency in collections management.
    Section 291.26(b) specifies the terms and conditions that would be 
included in a repository agreement, as appropriate. These terms and 
conditions are consistent with those that are required for repository 
agreements for Federal archeological resource collections at 36 CFR 
part 79, but have been modified to be relevant for paleontological 
collections. It is important to include these terms and conditions in 
these final regulations to ensure consistency between the Departments, 
to provide adequate notice to current and potential repositories, and 
to provide standard treatment of paleontological resources originating 
from lands controlled or administered by the Agency.
    Section 291.26(b)(8) protects the confidentiality of specific 
paleontological locality data in collections.
Section 291.26--Response to Comments
    Comment: Distinguishing responsibilities of repository and permit 
holder. Two respondents expressed the view that Sec.  291.26 does not 
effectively distinguish between the respective responsibilities of the 
repository and the permit holder, who may not be affiliated with the 
repository. Respondents specifically note that repositories cannot be 
held responsible for collections which have not yet been deposited by 
permit holders.
    Response: Section 291.26 refers to repository agreements and does 
not reference permit holders. The regulations do not state that a 
repository is responsible for collected specimens prior to transfer of 
those specimens by the permit holder to the repository. A repository 
would not be considered responsible for collected specimens until after 
such specimens have been accessioned into the repository's collections.
    Comment: Shared responsibility and funding. Respondents suggest 
that a repository agreement should reflect a partnership between the 
Forest Service and the repository regarding preservation and care for 
collections, and that the agreement should contain provision for Forest 
Service funding to support the expense associated with managing and 
maintaining Federal collections. Respondents suggest that as currently 
written, the collections management provisions of the regulations 
require additional repository staff and resources and consequently 
place additional financial burdens on repositories that are not 
concomitant with benefit to science and would impede research on 
National Forest System lands. One respondent suggested that many 
repositories have traditionally provided such collections management 
services on a pro bono basis to the mutual benefit of the Forest 
Service and repository, and that the final regulation of such services 
is not necessary.
    Response: The Department agrees that a repository agreement 
reflects a partnership between the Forest Service and a repository 
institution that ensures appropriate management of collections from 
National Forest System lands. However, the Forest Service can not 
commit to or guarantee financial support for collections management. 
The Department considers that collections management requirements set 
forth in the regulations largely reflect collections management 
policies and procedures that are routinely employed by professionally 
managed repository institutions. Consequently, such stipulations would 
not require additional repository staffing and/or resources and 
associated financial burden. The Department considers that collections 
management provisions that ensure appropriate management of collections 
from National Forest System lands will ensure future availability of 
those collection for research and

[[Page 21624]]

educational uses that benefit science. Such collections management 
provisions would not necessarily result in expenses in excess of those 
already accrued by a repository that routinely employs such management 
practices. The Department recognizes that many repositories have 
traditionally provided curatorial services at no cost in the prior 
absence of regulations. The establishment of regulations reflecting 
collections management policies and procedures that are routinely 
employed by professionally managed repository institutions for the 
purpose of ensuring the longevity of collections from National Forest 
System lands should not jeopardize existing relationships between the 
Forest Service and repository institutions.
    Comment: Repository agreement optional. One respondent suggested 
that repository agreements should be optional rather than required, and 
that such agreements should not result in unfair administrative burdens 
placed on the repository.
    Response: The Authorized Officer is not required by these 
regulations or the Act to enter into an agreement with a repository. A 
repository agreement would formalize that a repository is considered 
approved by the Forest Service, and would establish standards of 
collections management that would ensure appropriate care and resulting 
longevity of collections from National Forest System lands. Such 
collections management standards would be largely consistent with such 
policies and procedures as are routinely employed by professionally 
managed repository institutions, and would not be expected to increase 
or place unfair administrative burdens on repositories.
    Comment: Provision of publications burdensome. One respondent 
suggested that requirements for repositories to track publications 
resulting from collections use and to provide copies of such 
publications to the Forest Service are burdensome, and also questioned 
the source of funds required to perform these functions.
    Response: The Department agrees that the proposed requirements for 
a repository to track and provide copies of publications by researchers 
that are not affiliated with the repository is burdensome. Such 
requirements have been removed from the regulations.

Section 291.27 Prohibited Acts

    Section 291.27(a) restates the prohibited acts contained in 16 
U.S.C. 470aaa-5(a).
    Section 291.27(b) implements the false labeling prohibition 
contained in 16 U.S.C. 470aaa-5 (b). The Authorized Officer would have 
discretion to consider whether false labeling was inadvertent in 
evaluating whether to seek penalties for instances of false labeling.
Section 291.27--Response to Comments
    Comment: Prohibited Acts. A respondent suggested that enforcement 
of the regulations would cost millions of dollars not currently 
available, and another respondent expressed the view that the Agency 
should communicate the regulations widely to the collecting public, 
since the burden should not be on the public to be aware of the 
regulations or what constitutes civil and criminal violations.
    Response: The suggestion that enforcement of the regulations will 
cost millions of dollars is conjectural. Given resource limitations, 
enforcement of any regulations is often prioritized and the Department 
anticipates that enforcement of these regulations will be encompassed 
within its existing enforcement program without expenditure of 
additional monetary resources. The Department agrees that communication 
of the regulations to the public is an important outreach effort. 
Publication in the Federal Register is one part of this outreach. 
However, ultimately it is the responsibility of the public to be aware 
of the rules and regulations pertaining to use of public lands.

Section 291.28 Civil Penalty

    Section 291.28 provides that a person who violates any prohibition 
contained in these final regulations or in a permit issued under these 
final regulations may be assessed a penalty by the Authorized Officer, 
after the person is given notice and opportunity for a hearing with 
respect to the violation. For purposes of these final regulations, each 
violation is considered a separate offense.
    The civil penalty provisions in the final regulations were modeled 
after the civil penalty regulations promulgated pursuant to the 
Archaeological Resources Protection Act, 16 U.S.C. 470aa-mm.

Section 291.29 Amount of Civil Penalty

    Section 291.29(a) sets forth the factors to be used by the 
Authorized Officer in determining the amount of the penalty, including 
the scientific or fair market value, whichever is greater, of the 
paleontological resource involved; the cost of response to and 
restoration and repair of the resource and the paleontological site 
involved; and other factors considered relevant by the Authorized 
Officer in the written response submitted under Sec.  291.30. Section 
291.29(b) also clarifies that repeated violations could result in the 
doubling of the penalties. Such doubling may occur only after a 
conviction or an otherwise proven violation. Section 291.29(c) provides 
that the amount of any penalty assessed under this Section for any one 
violation would not exceed an amount equal to double the cost of 
response to and restoration and repair of resources and paleontological 
site damage plus double the scientific or fair market value of 
resources destroyed or not recovered, in accordance with 16 U.S.C. 
470aaa-6(a)(3) and (4). This paragraph is intended to ensure that 
response costs may be included in the determination of penalty amounts. 
Section 291.29(d) provides that scientific and fair market values and 
the cost of response to and restoration and repair of the resource and 
the paleontological site involved are to be determined as described 
under Sec. Sec.  291.37, 291.38, and 291.39.
Section 291.29--Response to Comments
    Comment: Maximum amount of civil penalty. One respondent suggested 
that since most violations would be expected to result in only minor 
disruptions to topsoil, the maximum amount of civil penalty be capped 
at $50 or an amount equal to the cost of response to and restoration 
and repair of resources and paleontological site damage plus the 
scientific or fair market value of resources destroyed or not 
recovered.
    Response: The suggestion that that most violations would result in 
only minor disruptions to topsoil is conjectural. The Act has 
established limitations to civil penalty amounts and factors to be 
considered in the determination of civil penalty amounts, and the final 
regulations conform to the provisions of the Act. A $50 cap is not 
consistent with provisions of the Act, and the Department reserves the 
right to impose non-trivial penalty amounts in order to recover costs 
associated with an enforcement action, including land surface and 
resource restoration, and also to deter future violations.
    Comment: Fair market or commercial value. Two respondents raised 
potential concerns regarding the determination of fair market or 
commercial value of paleontological resources. One concern is that many 
paleontological resources may not have fair market or commercial value, 
and the other concern is that using fair market or commercial values in 
penalty assessment may convey the misleading perception that the Agency 
views paleontological resources as marketable commodities.

[[Page 21625]]

    Response: The Department agrees that many paleontological resources 
may not have established fair market or commercial value. However, fair 
market or commercial value is only one tool in assessment of penalties 
associated with violations, and it should be considered where such 
values can be determined. The Department agrees that from the 
regulatory perspective, paleontological resources that originate from 
National Forest System lands are not marketable commodities, and should 
not be viewed as such. However, the Department has no jurisdiction over 
fossils that are collected from private lands which have been variously 
considered as marketable commodities, among other perspectives. In such 
cases where a fair market or commercial value is associated with 
particular fossils, the Department believes that it is appropriate to 
consider such values in assessing penalties for violations which occur 
on National Forest System lands.

Section 291.30 Civil Penalty Process

    Section 470aaa-6(a) of the Act requires that any person assessed a 
penalty under the Act be given notice and opportunity for a hearing 
with respect to the violation. Section 291.30 would describe the 
process by which a civil penalty notice of violation is served on the 
person or party believed to be subject to a civil penalty, and the 
deadline and options for the person or party served with the notice to 
respond. Section 291.30(a) describes the contents of the civil penalty 
notice of violation that would be served on the person believed to be 
subject to a civil penalty, including a statement of facts in regard to 
the violation, the legal citation of that part of the Act or 
regulations that was violated, the amount of the proposed penalty, and 
the notice of the right to a hearing or judicial relief of the final 
administrative decision. This paragraph requires delivery by certified 
mail (return receipt requested) of these documents, rather than 
personal delivery as allowed by other regulations, in order to simplify 
compliance with the timeline required by this section. Section 
291.30(b) explains that the recipient of the notice of violation has 45 
calendar days to respond in accordance with this section. Section 
291.30(c) describes the procedures which the Authorized Officer would 
use to assess the final amount of the penalty. Section 291.30(d) 
describes the factors that the Authorized Officer may consider in 
offering to modify or remit a penalty. Section 291.30(e) explains that 
after the Authorized Officer has determined the final amount of the 
civil penalty, a written notice of the assessed amount would be served 
to the recipient of the notice of violation. The notice of assessment 
would be served by some type of verifiable delivery, such as by 
certified mail, return receipt requested. Section 291.30(f) explains 
the procedures of how the recipient of a notice of violation or a 
notice of assessment would file for a hearing. A request for a hearing 
must be in writing, must include a copy of the notice, and must be sent 
by certified mail, return receipt requested. The request for a hearing 
must be filed within 45 calendar days of the mailing of the notice and 
failure to file a request within the timeframe would be considered a 
waiver of the right to a hearing. Section 291.30(g) explains what 
constitutes the final administrative decision of the civil penalty 
amount. Under a notice of violation, the final administrative decision 
is when the recipient agrees to the amount of the proposed civil 
penalty. Under a notice of assessment, when a recipient has not 
requested a hearing within the 45 calendar day timeframe, the amount of 
the civil penalty in the notice of assessment is the final 
administrative decision. Under a notice of assessment, when a recipient 
has filed a timely request for a hearing, the decision resulting from 
the hearing is the final administrative decision. Section 291.30(h) 
explains that the person who has been assessed a civil penalty has 45 
calendar days after the final administrative decision is issued to make 
the payment unless a timely request was filed with the U.S. District 
Court as provided in Sec.  291.32. Section 291.30(i) explains that 
assessment of a civil penalty under this section is not deemed a waiver 
of the right for the Federal government to pursue other available legal 
or administrative remedies.
Section 291.30--Response to Comments
    Comment: Civil penalty process and penalty relief. One respondent 
felt that individuals being assessed civil penalties should not be 
afforded penalty relief by providing information that would assist in 
the detection, prevention, or prosecution of violations.
    Response: Paleontological resource theft or destruction, or both, 
has been documented to occur on National Forest System lands. However, 
due to the often vast and isolated nature of National Forest System 
lands and limited Forest Service staff field presence, it is difficult 
for Forest Service staff to detect and respond to such illegal 
activities at the time that they occur. Consequently, standard law 
enforcement tools such as penalty relief serve as important and 
necessary incentives for the public to report knowledge of such illegal 
activities that may otherwise be undetected by Forest Service staff.

Section 291.31 Civil Penalties Hearing Procedures

    Title 16 U.S.C. 470aaa-6(c) requires that hearings for civil 
penalty proceedings be conducted in accordance with 5 U.S.C. 554 of the 
Administrative Procedures Act (APA). Section 291.31 describes the 
procedures by which civil penalty hearings shall be conducted.
    Section 291.31(a) explains that the recipient of a notice of 
violation or assessment may file a written request for a hearing in the 
office specified in the notice. The recipient would need to enclose a 
copy of the notice with the request. The person requesting a hearing 
would be able to state their preference as to the place and date for a 
hearing, but any such requested locations must be situated within the 
United States and be reasonable to be considered. In all cases, the 
Agency will retain discretion to decide the location of the hearing. 
Section 291.31(b) explains that upon receipt of the request for a 
hearing, the hearing office would assign an administrative law judge. 
Notification of the assignment of the judge would be given to all the 
parties involved, and from then on, all documentation for the 
proceedings must be filed with the administrative law judge and copies 
sent to the other party. Section 291.31(c) contains the procedures for 
appearances and practice before the administrative law judge. This 
paragraph addresses the appearance by the respondent, that is, the 
recipient of the notice who has filed for a hearing, either in person, 
by representative, or by legal counsel. If the respondent or their 
representative fails to appear, the administrative law judge would 
determine if the failure to appear is without good cause. A failure to 
appear without good cause would be considered a waiver of the 
respondent's right to a hearing and the respondent's consent to the 
decision made at the hearing by the administrative law judge. Section 
291.31(d) provides the details of the administration and the outcome of 
the hearing. This paragraph declares that the administrative law judge 
has the authority of law to preside over the parties and the proceeding 
and to make decisions in accordance with the APA. This paragraph 
explains what constitutes the final record for the proceedings and for 
the decision made by the administrative law judge for the final 
assessment of the civil penalty, declares that the administrative law 
judge's decision is the final administrative decision of the Agency,

[[Page 21626]]

and is effective 30 calendar days after the date of the decision.

Section 291.32 Petition for Judicial Review; Collection of Unpaid 
Assessments

    Title 16 U.S.C. 470aaa-6(b)(1) provides for petitions to the U.S. 
District Court for judicial review of decisions of a final assessment 
of civil penalties. Section 291.32(a) provides notice to the public 
about this right by restating the Act's provisions regarding judicial 
review of the final Agency decision assessing a penalty under 
Sec. Sec.  291.28 through 291.31, and describe the court's standard of 
review of the final Agency decision. The respondent would have 30 
calendar days from the date the Agency decision was issued to file the 
petition. Section 291.32(b) clarifies the provisions in 16 U.S.C. 
470aaa-6(b)(2) that address the failure to pay a penalty assessed under 
Sec. Sec.  291.28 through 291.31. Failure to pay an assessed penalty 
within 30 calendar days of the issuance of the final Agency decision 
would be considered a debt to the U.S. Government; the Secretary would 
be authorized to request the Attorney General to institute a civil 
action to collect the penalty, and the court would prohibit review of 
the validity, amount, and appropriateness of such penalty. If the 
Secretary does not institute a civil action, the Agency would be able 
to recover the assessed penalties by using other available collection 
methods such as Treasury offset.

Section 291.33 Use of Recovered Amounts

    Section 291.33 implements the authority conveyed in 16 U.S.C. 
470aaa-6(d) for the Agency to use collected penalties or restitution 
for certain purposes without further authorization or appropriations. 
This final regulation allows the Authorized Officer to use collected 
penalties or restitution without further appropriation to protect, 
restore, or repair the paleontological resources and sites that were 
the subject of the action, and to protect, monitor, and study the 
resources and sites, and/or provide educational materials to the public 
about paleontological resources and sites, and/or provide for the 
payment of rewards. These categories are not listed in priority order.
Section 291.33--Response to Comments
    Comment: Use of penalty fees for research. One respondent suggested 
that collected penalties be used to support paleontological research.
    Response: The Act states that collected civil penalties may only be 
used to protect, restore, or repair, or to protect, monitor, and study 
sites which were the subject of the action; or to provide educational 
materials to the public about paleontological resources and sites; or 
to provide payment of rewards. These final regulations conform to the 
Act regarding use of recovered amounts, and so the use of collected 
penalties to support paleontological research is already allowed, 
subject to the limitation that such research be performed on sites that 
are the focus of enforcement action.

Section 291.34 Criminal Penalties

    Paragraph 291.34(a) restates the penalties provided for by 16 
U.S.C. 470aaa-5(c). This section does not preclude the Forest Service 
from using other laws or regulations in addition to or in lieu of the 
Act as the basis for charging violators. Violations of the prohibitions 
in the Act and in the regulations would be subject to criminal as well 
as civil penalties.
    Section 291.34(b) clarifies that the determination of the values 
and the cost of response, restoration, and repair would be determined 
in accordance with Sec. Sec.  291.37, 291.38, and 291.39.

Section 291.35 Multiple Offenses

    Section 291.35 restates the penalties for multiple offenses 
provided for by 16 U.S.C. 470aaa-5(d). This section clarifies that in 
the case of a second or subsequent violation by the same person, the 
amount of the penalty assessed may be doubled. Such doubling may occur 
only after a conviction or an otherwise proven violation.
Section 291.35--Response to Comments
    Comment: Multiple offenses. One respondent suggested that assessed 
penalty amounts increase proportionately with number of violations by 
the same person.
    Response: The Act states that in the case of second or subsequent 
violations by the same person, the amount of the penalty assessed may 
be doubled. The Act does not make provision for proportionate penalties 
in cases of multiple offenses by the same person, and the final 
regulations are consistent with the Act.

Section 291.36 General Exception

    Section 291.36 restates the exemption of 16 U.S.C. 470aaa-5(e) for 
any person with respect to any paleontological resource which was in 
the lawful possession of such person prior to the date of enactment of 
the Act.

Section 291.37 Scientific or Paleontological Value

    Section 291.37 specifies the factors and costs that may be 
considered in determining the scientific value of a paleontological 
resource, and clarifies that the terms scientific value as used in 16 
U.S.C. 470aaa-6(a)(2) and paleontological value as used in 16 U.S.C. 
470aaa-5(c) are the same value and are interchangeable for the purposes 
of these final regulations. Costs such as the preparation of a research 
design would be based on what it would have cost, prior to the 
violation, to conduct this research appropriately and in a way that 
would preserve the scientific and educational value of the 
paleontological resource. The calculation of this value using these 
types of costs would be the best method to reflect the loss of 
contextual information related to the locality, stratigraphy and 
geology of the paleontological resource while it was still in-situ.
Section 291.37--Response to Comments
    Comment: Include ``locality'' in preamble discussion of scientific 
or paleontological value. One respondent expressed the view that the 
word locality should be inserted in the preamble discussion of 
scientific or paleontological value, as follows: ``The calculation of 
this value using these types of costs would be the best method to 
reflect the loss of contextual information related to the locality, 
stratigraphy, and geology of the paleontological resource while it was 
still in-situ.''
    Response: The Department agrees that the suggested addition 
provides clarification regarding the nature of lost contextual 
information, and has added the word ``locality'' as proposed to the 
preamble discussion.

Section 291.38 Fair Market or Commercial Value

    Section 291.38 specifies the factors and costs to be included in 
determining the fair market value of a paleontological resource, and 
would clarify that the terms fair market value as used in 16 U.S.C. 
470aaa-6(a)(2) and commercial value as used in 16 U.S.C. 470aaa-5(c) 
are the same value and are interchangeable for the purposes of these 
final regulations. Fair market value of paleontological resources would 
be established through the standard professional methods of using 
comparable sales information, advertisements for comparable resources, 
appraisals, pricing of comparable resources, and/or other information, 
regardless of whether or

[[Page 21627]]

not such information, advertisements, appraisals, or pricing would be 
from legal or illegal markets. For example, the information, 
advertisements, appraisals or pricing that would be used to establish 
fair market value could come from paleontological resources excavated 
legally or illegally from State, private, non-Federal lands, or from 
paleontological resources excavated illegally from Federal lands. In 
cases where there would be no comparable fair market value, the value 
of the paleontological resources would be determined by scientific 
value or the cost of response, restoration, and repair.
Section 291.38--Response to Comments
    Comment: Fair market or commercial value. One respondent suggested 
that in the second sentence of Sec.  291.38 as discussed in the 
Preamble, the first ``or'' should be replaced with ``and/or'' to read: 
``. . . pricing of comparable resources, and/or other information, . . 
. ''
    Response: The Department agrees that the proposed change adds 
clarification and has incorporated that change in the Preamble and the 
Final Rule.

Section 291.39 Cost of Response, Restoration and Repair

    Section 291.39 clarifies that, for purposes of these regulations, 
the cost of response, restoration, and repair of paleontological 
resources involved in a violation would be the sum of the costs 
incurred for response, investigation, assessment, emergency restoration 
or repair work, plus those costs projected to be necessary to complete 
restoration and repair.
Section 291.39--Response to Comments
    Comment: Cost of Response, Restoration, and Repair. One respondent 
suggested that in the first sentence of Sec.  291.39, The word ``plus'' 
should be replaced with ``and'' to read: ``. . . be the sum of the 
costs incurred for response, investigation, assessment, emergency 
restoration or repair work, and those costs projected to be necessary 
to complete restoration . . .''.
    Response: The Department considers that the proposed change is 
equivalent in meaning to the original language, and has elected to 
retain the original language.

Section 291.40 Rewards

    Section 291.40 provides that rewards would be determined and paid 
at the discretion of the Authorized Officer (see 16 U.S.C. 470aaa-
7(a)). This section does not preclude agencies using other authorities 
and fund sources such as State funds to offer rewards for information 
that may lead to a conviction or finding.
Section 291.40--Response to Comments
    Comment: Rewards. One respondent felt that rewards from penalties 
collected should not be offered to individuals furnishing information 
leading to finding of civil violation or criminal conviction.
    Response: Paleontological resource theft or destruction, or both, 
has been documented to occur on National Forest System lands. However, 
due to the often vast and isolated nature of National Forest System 
lands and limited Forest Service staff field presence, it is difficult 
for Forest Service staff to detect and respond to such illegal 
activities at the time that they occur. Consequently, standard law 
enforcement tools such as rewards serve as important and necessary 
incentives for the public to report knowledge of such illegal 
activities. Moreover, the Act stipulates that rewards as described in 
these regulations be made available.

Section 291.41 Forfeiture

    Section 470aaa-7(b) of the Act provides for the forfeiture of 
paleontological resources for violations under 16 U.S.C. 470aaa-5 or 
aaa-6. However, the Act did not provide the procedures for conducting 
either the criminal or the civil forfeiture of these resources. 
Forfeiture regulations and proceedings are very complex; therefore, 
rather than developing new forfeiture regulations that are only 
applicable to paleontological resources, this section proposes to use 
agreements with other agencies to conduct forfeiture proceedings as 
required by Civil Asset Forfeiture Reform Act (18 U.S.C. 983) or other 
applicable forfeiture statutes.
    Section 291.41(a) explains that all paleontological resources found 
in possession of a person with respect to a violation of Sec. Sec.  
291.28 through 291.36 of these final regulations are subject to 
forfeiture proceedings in accordance with the Civil Asset Forfeiture 
Reform Act or other applicable forfeiture regulations. The Department 
is authorized to enter into cooperative agreements with other agencies 
that have forfeiture regulations in place for the initiation of 
forfeiture actions.
    Section 291.41(b) explains that the Federal government holds seized 
resources until the case is adjudicated, and would provide for the 
transfer of administration of seized paleontological resources. 
However, before paleontological resources seized in a criminal or civil 
case can be transferred administratively, the proceedings under Sec.  
291.41(a) must be followed. Once the resources are deemed to be 
forfeited, their administration may be transferred to an institution in 
accordance with 16 U.S.C. 470aaa-7(c). Such transfer would not mean 
that the Federal government is transferring ownership; it would only be 
transferring administration of the resources.

Amendments to Title 36 Code of Federal Regulation Part 261--
Prohibitions, Sections 261.2 (Definitions) and 261.9 (Property)

    The definition of paleontological resource contained in Sec.  261.2 
would be removed because it is inconsistent with the term 
paleontological resource as defined in 16 U.S.C. 470aaa and in Sec.  
291.5 of these final regulations.
    Section 261.9(i) would be removed because it is inconsistent with 
16 U.S.C. 470aaa-5 and Sec.  291.27(a)(3) of these final regulations, 
which prohibit the sale or purchase of paleontological resources from 
National Forest System lands.

Regulatory Certifications

Regulatory Planning and Review

    This final rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on regulatory planning and review. The 
Office of Management and Budget (OMB) has determined that this final 
rule is not significant for purposes of E.O. 12866. This final rule 
would not have an annual effect of $100 million or more on the economy, 
nor would it adversely affect productivity, competition, jobs, the 
environment, public health and safety, or State and local governments. 
This final rule would not interfere with any action taken or planned by 
another agency, nor would it raise new legal or policy issues. Finally, 
this final rule would not alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
beneficiaries of such programs. Accordingly, this final rule is not 
subject to OMB review under E.O. 12866.

Proper Consideration of Small Entities

    The final rule has also been considered in light of Executive Order 
13272 regarding proper consideration of small entities and the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which 
amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The 
final rule for Paleontological Resources Preservation will not have a 
significant economic impact on a substantial number of small entities 
as defined by E.O. 13272 and

[[Page 21628]]

the SBREFA, based on the following considerations:
    The final rule would not impose additional restrictions or 
permitting requirements, beyond what is already practiced or required 
under existing regulations, that would invalidate, modify, or adversely 
affect the ability to conduct current or future activities (for 
example, mining, timber harvesting, grazing, recreation) on National 
Forest System lands as permitted under applicable laws other than the 
Act. The final rule would prohibit collection of paleontological 
resources for commercial purposes; however, this prohibition is 
consistent with past and current Agency practices (as guided by broad 
provisions in the Organic Administration Act of 1897 and the American 
Antiquities Act of 1906) on National Forest System lands and is, 
therefore, not a new restriction. Special use authorization for 
commercial collection of paleontological resources is permitted under 
36 CFR 261.9(i); however, the Agency is aware of only one special use 
permit in the past that involved sale of paleontological resources, and 
that permit was not renewed. The final rule includes removal of 36 CFR 
261.9(i) as a conforming change necessitated by the Act, which does not 
allow the collection of paleontological resources for commercial 
purposes. Casual collection of paleontological resources, as defined in 
the Act, by customers of some special use permit holders (for example, 
outfitters and guides) is currently allowed under specific conditions, 
and the final rule would continue to allow this activity as long as the 
activity is consistent with the conditions for casual collection as set 
forth in the final rule. The final rule would encourage scientific and 
educational use of paleontological resources by preserving the 
resources, promoting public awareness, and allowing for casual 
collection, thereby helping to maintain opportunities for small non-
profit organizations to benefit from continued access to these 
resources on National Forest System lands. These final regulations 
provide for permitted collection of vertebrate and other 
paleontological resources not subject to the casual collection 
exemption, consistent with past Forest Service practices, thereby 
maintaining opportunities for organizations (for example, academic, 
paleontological resource assessment contractors) to collect 
paleontological resources for non-commercial research and 
paleontological resource assessment purposes.
    It is not possible to specifically identify the population of small 
entities that may be involved with activities that may include casual 
collection of paleontological resources on NFS lands because there is 
no Forest Service special use code to track this activity.
    The minimum requirements on small entities imposed by this final 
rule associated with authorization by permit to collect paleontological 
resources are necessary to protect the public interest and federal 
property, not administratively burdensome or costly to meet, and are 
within the capabilities of small entities to perform. The final rule 
would not materially alter the budgetary impact of entitlements, user 
fees, loan programs, or the rights and obligations of program 
participants. It does not compel the expenditure of $100 million or 
more by any State, local, or Tribal government, or anyone in the 
private sector. Under these circumstances, the Forest Service has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities. Based on the evidence 
presented above, a regulatory flexibility analysis is not required for 
this rule.

Environmental Impact

    The Forest Service has determined that this final rule falls under 
the categorical exclusion provided in Forest Service regulations on 
National Environmental Policy Act procedures. Such procedures exclude 
from documentation in an environmental assessment or impact statement 
``rules, regulations, or policies to establish service wide 
administrative procedures, program processes, or instructions'' 36 CFR 
220.6(d)(2); 73 FR 43084 (July 24, 2008). This final rule outlines the 
programmatic implementation of the Act, and as such, has no direct 
effect on Forest Service decisions for land management activities.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Forest Service has assessed the effects of this final rule on 
State, local, and Tribal governments and the private sector. This final 
rule would not compel the expenditure of $100 million or more by any 
State, local, or Tribal governments, or anyone in the private sector. 
Therefore, a statement under section 202 of that act is not required.

No Takings Implementations

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12630. It has been determined 
that this rule would not pose the risk of a taking of constitutionally 
protected private property. It implements new regulations that would 
reflect the new statutory authority for managing, preserving, and 
protecting paleontological resources on National Forest System lands 
and that reflect prior policies, procedures, and practices for the 
collection and curation of paleontological resources on National Forest 
System lands.

Federalism

    The Forest Service has considered this final rule under the 
requirements of Executive Order 13132, Federalism, and has determined 
that the final rule conforms with the federalism principles set out in 
this E.O. The final rule would not impose any compliance costs on the 
States other than those imposed by statute, and would not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. The final 
rule would not apply to paleontological resources managed by States or 
local governments or State or local governmental entities. Therefore, 
the Forest Service has determined that no further assessment of 
federalism implications is necessary.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The Forest Service has not identified any State 
or local laws or regulations that are in conflict with this final rule 
or that would impede full implementation of this final rule. 
Nevertheless, in the event that such a conflict was to be identified, 
the proposed rule would preempt the State or local laws or regulations 
found to be in conflict. However, in that case, no retroactive effect 
would be given to this rule, and the Forest Service would not require 
the use of administrative proceedings before parties could file suit in 
court challenging its provisions.

Consultation and Coordination With Indian Tribal Governments

    This final rule has been reviewed under Executive Order 13175 of 
November 6, 2000, Consultation and Coordination With Indian Tribal 
Governments. It has been determined that this final rule would not have 
Tribal implications as defined by E.O. 13175, and therefore, advance 
consultation with Tribes is not required. Nonetheless, Tribal 
consultation was

[[Page 21629]]

initiated on March 7, 2011. Tribal consultation was accomplished 
through local and regional consultation processes in coordination with 
the Washington Office of the Forest Service. Input from three Tribes 
was received during the initial 120-day period, and Tribal comments 
were considered in preparing the proposed rule prior to Federal 
Register Notice on May 23, 2013 and formal solicitation of public 
comment. Consultation continued during the 60-day public comment period 
for the proposed rule. No additional comments from Tribes were 
received.

Energy Effects

    This final rule has been reviewed under Executive Order 13211 of 
May 18, 2001, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. It has been determined that this 
final rule does not constitute a significant energy action as defined 
in the Executive Order.

Controlling Paperwork Burdens on the Public

    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], the Forest Service requested approval of a new information 
collection. The proposed information collection was published at 77 FR 
31298, May 25, 2012. The information collection was approved in January 
2014, and has been incorporated into 0596-0082, Special Uses 
Administration.
    Title: Paleontological Resources Preservation.
    OMB Number: 0596-0082.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection.
    Abstract: The purpose of the Paleontological Resources Preservation 
final rule is to establish regulations to implement a paleontological 
resources preservation program on National Forest System lands in which 
paleontological resources are managed and protected using scientific 
principles and expertise, in accordance with the Act. The Act at 16 
U.S.C. 470aaa-3 and 4 authorizes the Secretary to issue permits for the 
collection of paleontological resources from public lands and enter 
into agreements with approved repositories. The information required by 
this final rule is necessary to issue permits, enter into agreements, 
and identify the repository institutions which house and curate 
paleontological resources that are collected under permit and which 
remain Federal property. The information requirements will be used to 
help the Forest Service in the following areas:
    (1) To determine that the applicant is qualified and eligible to 
receive a permit under the final rule,
    (2) To determine if a proposal to collect paleontological resources 
meets the qualifications established in the law and regulations,
    (3) To evaluate the impacts of a proposal in order to comply with 
environmental laws,
    (4) To describe and document the scientific and geological context 
from which paleontological resources were collected,
    (5) To identify and inventory paleontological resources that have 
been collected, and
    (6) To ensure that paleontological resources that have been 
collected, which remain Federal property, are properly curated in an 
approved repository.
    Qualified applicants are the only entities eligible to be issued 
paleontological resource collection permits, and are, therefore, the 
only entities from which information will be collected.
    The information would be collected from respondents in the form of 
a permit application, and a report on authorized activities following 
completion of the permitted project. Permit applications are 
anticipated to require an average of 5.5 hours to complete, and permit 
reports are anticipated to require an average of 13 hours to complete, 
based on a limited survey of current permit holders. The information 
collection required for a paleontological resource collection permit 
application and report of permitted activity under this final rule was 
submitted to OMB as a new collection.
    Estimated Number of Respondents: 50.
    Estimated Number of Responses per Respondent: 2.
    Estimated Number of Total Annual Responses: 100.
    Estimated Total Annual Burden on Respondents: 925 hours.
    Comments: Comments were invited on:
    (1) Whether the final collection of information is necessary for 
the proper performance of the functions of the Agency, including 
whether the information will have practical utility;
    (2) The accuracy of the Agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.

List of Subjects

36 CFR Part 214

    Appeals.

36 CFR Part 261

    Law enforcement, National forests.

36 CFR Part 291

    Casual collecting, Collection, Confidentiality, Curation, 
Education, Fair market value, Fossil, Geology, Museums, National 
forests, Natural resources, Paleontological resources, Paleontology, 
Penalties, Permits, Prohibited acts, Prohibitions, Public awareness, 
Public education, Public lands, Recreation, Recreation areas, Reporting 
and recordkeeping requirements, Repository, Research, Scientific value.
    Therefore, for the reasons set forth in the preamble, the Forest 
Service amends chapter II of title 36 of the Code of Federal 
Regulations as follows:

PART 214--POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR 
OCCUPANCY OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  7 U.S.C. 1011(f); 16 U.S.C. 472, 551.

0
2. In Sec.  214.4, add paragraph (e) to read as follows:

Sec.  214.4  Decisions that are appealable.

* * * * *
    (e) Paleontological resources. An authorization or permit issued 
under the Paleontological Resources Preservation Act of 2009 and 36 CFR 
part 291 for collection of paleontological resources.

PART 261--PROHIBITIONS

0
3. The authority citation for part 261 is revised to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6d, 472, 551, 
620(f), 1133(c)-(d)(1), 1246(i).


Sec.  261.2  [Amended]

0
4. In Sec.  261.2, remove the definition for Paleontological resource.


Sec.  261.9  [Amended]

0
5. In Sec.  261.9, remove paragraph (i) and redesignate paragraph (j) 
as paragraph (i).

[[Page 21630]]


0
6. Add part 291 to read as follows:

PART 291--PALEONTOLOGICAL RESOURCES PRESERVATION

Sec.
291.1 Purpose.
291.2 Authorities.
291.3 Exceptions.
291.4 Preservation of existing authorities.
291.5 Definitions.
291.6 Confidentiality of information--general.
291.7 Public awareness and education.
291.8 Area closures.
291.9 Determination of paleontological resources.
291.10 Collecting.
291.11 Casual collecting on National Forest System lands.
291.12 National Forest System lands closed to casual collection.
291.13 Permits.
291.14 Application process.
291.15 Application qualifications and eligibility.
291.16 Terms and conditions.
291.17 Permit reports.
291.18 Modification or cancellation of permits.
291.19 Suspension and revocation of permits.
291.20 Appeals.
291.21 Curation of paleontological resources.
291.22 Becoming an approved repository.
291.23 Minimum requirements of approval of a repository.
291.24 Standards for access and use of collections.
291.25 Conducting inspections and inventories of collections.
291.26 Repository agreements.
291.27 Prohibited acts.
291.28 Civil penalty.
291.29 Amount of civil penalty.
291.30 Civil penalty process.
291.31 Civil penalties hearing procedures.
291.32 Petition for judicial review; collection of unpaid 
assessments.
291.33 Use of recovered amounts.
291.34 Criminal penalties.
291.35 Multiple offenses.
291.36 General exception.
291.37 Scientific or paleontological value.
291.38 Fair market or commercial value.
291.39 Cost of response, restoration, and repair.
291.40 Rewards.
291.41 Forfeiture.

    Authority: 16 U.S.C. 470aaa through 470aaa-11.


Sec.  291.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Paleontological Resources Preservation Act, 16 U.S.C. 470aaa through 16 
U.S.C. 470aaa-11 (hereinafter referred to as the Act), which provides 
for the preservation, management, and protection of paleontological 
resources on National Forest System lands and encourages the 
scientific, educational and where appropriate, the casual collection of 
these resources. Paleontological resources are nonrenewable, and are an 
accessible and irreplaceable part of America's natural heritage.
    (b) The Secretary shall manage, protect, and preserve 
paleontological resources on National Forest System lands using 
scientific principles and expertise. These regulations provide for 
coordinated management of paleontological resources and encourage 
scientific and educational use by promoting public awareness, providing 
for collection under permit, setting curation standards, establishing 
civil and criminal penalties, clarifying that paleontological resources 
cannot be collected from National Forest System lands for commercial 
purposes, and by allowing the casual collection of some of these 
resources on certain lands and under specific conditions.
    (c) To the extent possible, the Secretary of Agriculture and the 
Secretary of the Interior will coordinate in the implementation of the 
Act.


Sec.  291.2  Authorities.

    The regulations in this part are promulgated pursuant to the 
Omnibus Public Lands Act, Title VI, subtitle D on Paleontological 
Resources Preservation, 16 U.S.C. 470aaa through 16 U.S.C. 470aaa-11, 
which requires the Secretary to issue such regulations as are 
appropriate to carry out the Act.


Sec.  291.3  Exceptions.

    The regulations in this part do not:
    (a) 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 mineral 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 and Management Act (43 U.S.C. 1701-1784), 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);
    (b) 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 National Forest System lands;
    (c) Apply to Indian lands;
    (d) Apply to any materials associated with an archaeological 
resource (site), as defined in 16 U.S.C. 470, or any cultural items 
defined in 16 U.S.C. 30001;
    (e) Apply to, or require a permit for, casual collecting of a rock, 
mineral, or invertebrate or plant fossil that is not protected under 
the Act;
    (f) Affect any land other than National Forest System lands, or 
affect the lawful recovery, collection, or sale of paleontological 
resources from land other than National Forest System lands; or
    (g) 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 part.


Sec.  291.4  Preservation of existing authorities.

    The regulations in this part do not alter or diminish the authority 
of the Forest Service under any other law to manage, preserve, and 
protect paleontological resources on National Forest System lands in 
addition to the protection provided under the Act or this part.


Sec.  291.5  Definitions.

    Act means Title VI, Subtitle D of the Omnibus Public Land 
Management Act on Paleontological Resources Preservation (16 U.S.C. 
470aaa through 470aaa-11).
    Associated records means original records (or copies thereof) that 
document the efforts to locate, evaluate, record, study, preserve, or 
recover paleontological resources, including but not limited to paper 
and electronic documents such as:
    (1) Primary records relating to the identification, evaluation, 
documentation, study, preservation, context, or recovery of a 
paleontological resource, regardless of format;
    (2) Public records including, but not limited to, land status 
records, agency reports, publications, court documents, agreements; and
    (3) Administrative records and reports generated by the permitting 
process and pertaining to the survey, excavation, or other study of the 
resource.
    Authorized Officer means the person or persons to whom authority 
has been delegated by the Secretary to take action under the Act.
    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

[[Page 21631]]

to the Earth's surface and other resources.
    Collection means all paleontological resources resulting from 
excavation or removal from National Forest System lands as well as any 
associated records resulting from excavation or removal from National 
Forest System lands under a permit.
    Common invertebrate and plant paleontological resources are 
invertebrate or plant fossils that are of ordinary occurrence and wide-
spread distribution. Not all invertebrate and plant paleontological 
resources are common.
    Consumptive analysis means the alteration, removal, or destruction 
of a paleontological specimen, or parts thereof, from a collection for 
scientific research.
    Curatorial services and curation mean those activities pertinent to 
management and preservation of a collection over the long term 
according to professional museum and archival practices, including at a 
minimum:
    (1) Accessioning, cataloging, labeling, and inventorying a 
collection;
    (2) Identifying, evaluating, and documenting a collection;
    (3) Storing and maintaining a collection using appropriate methods 
and containers, and under appropriate environmental conditions and 
physical security controls;
    (4) Periodically inspecting a collection and taking such actions as 
may be necessary to preserve it;
    (5) Providing access and facilities to study a collection;
    (6) Handling, cleaning, sorting, and stabilizing a collection in 
such a manner as to preserve it; and
    (7) Lending a collection, or parts thereof, for scientific, 
educational or preservation purposes.
    Federal land means land controlled or administered by the Secretary 
except for Indian land as defined in 16 U.S.C. 470aaa.
    Fossil means any fossilized remains, traces, or imprints of 
organisms, preserved in or on the Earth's crust.
    Fossilized means preserved by natural processes, including, but not 
limited to burial in accumulated sediments, preservation in ice or 
amber, or replacement by minerals, or alteration by chemical processes 
such as permineralization whereby minerals are deposited in the pore 
spaces of the hard parts of an organism's remains, which may or may not 
alter the original organic content.
    Indian land means land 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.
    National Forest System lands means those lands in a nationally 
significant system of federally owned units of forest, range, and 
related lands consisting of national forests, purchase units, national 
grasslands, land utilization project areas, experimental forest areas, 
experimental range areas, designated experimental areas, other land 
areas, water areas, and interests in lands that are administered by the 
Forest Service, U.S. Department of Agriculture, or designated for 
administration through the Forest Service. As used herein, the term 
``National Forest System lands'' refers to Federal land controlled or 
administered by the Secretary of Agriculture.
    Negligible disturbance means little or no change to the surface of 
the land and causing minimal or no effect on other resources. The 
Authorized Officer has discretion to determine what constitutes 
negligible disturbance.
    Non-commercial personal use means uses other than for purchase, 
sale, financial gain, or research. Research, in the context of these 
regulations, is considered to be a structured activity undertaken by 
qualified individuals with the intent to obtain and disseminate 
information via publication in a peer-reviewed professional scientific 
journal or equivalent venue, which increases the body of knowledge 
available to a scientific community.
    Non-powered hand tools mean small tools that do not use or are not 
operated by a motor, engine, or other power source. These tools are 
limited to small tools that can be easily carried by hand such as 
geologic hammers, trowels, or sieves, but not large tools such as full-
sized shovels or pick axes.
    Paleontological locality, location, and site mean a geographic area 
where a paleontological resource is found. Localities, locations, and 
sites may be relatively large or small.
    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. The term does not include:
    (1) 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
    (2) Any cultural item (as defined in section 2 of the Native 
American Graves Protection and Repatriation Act (25 U.S.C. 3001)).
    Paleontological site is used interchangeably with paleontological 
locality or location, but is never intended to be synonymous with 
``archaeological site.''
    Reasonable amount means a maximum per calendar year of one-hundred 
pounds by weight, not to exceed twenty-five pounds per day.
    Repository means a facility, such as a museum, paleontological 
research center, laboratory, or an educational or storage facility 
managed by a university, college, museum, other educational or 
scientific institution, or a Federal, State or local government agency 
that is capable of providing professional curatorial services on a 
long-term basis.
    Repository agreement means a formal written agreement between the 
Authorized Officer and the repository official in which the parties 
agree on how the repository will provide curatorial services for 
collections.
    Repository official means any officer, employee, or agent 
officially representing the repository that is providing curatorial 
services for a collection that is subject to this part.
    Secretary means the Secretary of Agriculture with respect to 
National Forest System lands controlled or administered by the 
Secretary of Agriculture.
    State means the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, and any other territory or possession of 
the United States.


Sec.  291.6  Confidentiality of information--general.

    (a) Information concerning the nature and specific location of a 
paleontological resource is exempt from disclosure under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552), unless the Authorized Officer 
has made a written determination that disclosure would:
    (1) Further the purposes of the Act and this part;
    (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.
    (b) Sharing protected information does not constitute a disclosure. 
The Authorized Officer may share information concerning the nature and 
specific location of a paleontological resource with non-Agency 
personnel for scientific, educational, or resource management purposes. 
A recipient of such information may be required to sign a 
confidentiality agreement in which the recipient agrees not to share 
the information with anyone not authorized to receive the information.

[[Page 21632]]

Sec.  291.7  Public awareness and education.

    The Chief of the Forest Service will establish a program to 
increase public awareness about the significance of paleontological 
resources on National Forest System lands.


Sec.  291.8  Area closures.

    (a) In order to protect paleontological or other resources or to 
provide for public safety, the Authorized Officer may restrict access 
to or close areas to the collection of paleontological resources.
    (b) The regulations in this part do not preclude the use of other 
authorities that provide for area closures.


Sec.  291.9  Determination of paleontological resources.

    (a) All paleontological resources on National Forest System lands 
will be managed, protected, and preserved in accordance with the 
regulations in this part unless the Authorized Officer determines that 
such resources are not paleontological resources in accordance with 
paragraph (b) of this section.
    (b) Using scientific principles and expertise, the Authorized 
Officer may determine that certain paleontological resources do or do 
not meet the definition of ``paleontological resource'' as set forth in 
these regulations, and therefore, whether or not such resources are 
covered by the Act or this Part.
    (c) Determinations as described in paragraph (b) of this section 
are subject to the following conditions:
    (1) A recommendation for determination must be in writing and be 
prepared by a paleontologist with demonstrated subject matter expertise 
in the specific group of paleontological resources under consideration.
    (2) An Agency paleontologist will review the basis for the 
determination and make a recommendation to the Authorized Officer 
concerning the determination.
    (3) The Authorized Officer will make the final determination based 
upon the recommendation of an Agency paleontologist and will ensure 
that the basis for the determination is documented, and that the 
determination is made available to the public.
    (4) Any determination made pursuant to this section will in no way 
affect the Authorized Officer's obligations under the Act or other 
applicable laws or regulations to manage, protect, or preserve all 
paleontological resources.
    (d) On National Forest System lands, the following are not 
paleontological resources for purposes of the Act or this part:
    (1) Mineral resources, including coal, oil, natural gas, and other 
economic minerals that are subject to the existing mining and mineral 
laws;
    (2) Petrified wood as defined at 30 U.S.C. 611 and managed under 36 
CFR 228.62 unless determined under paragraph (b) of this section to be 
a paleontological resource;
    (3) Geological units, including, but not limited to, limestones, 
diatomites, and chalk beds).


Sec.  291.10  Collecting.

    A paleontological resource may only be collected from National 
Forest System lands in accordance with the casual collecting provisions 
in Sec. Sec.  291.11 and 291.12, or in accordance with a permit issued 
by the Authorized Officer as identified in Sec.  291.13.


Sec.  291.11  Casual collecting on National Forest System lands.

    (a) Casual collecting is allowed without a permit on National 
Forest System lands where such collection is consistent with the laws 
governing the management of those lands, the land management plans, and 
where the lands in question are not closed to casual collection.
    (b) National Forest System lands are open to casual collection 
unless otherwise closed, as described in Sec.  291.12.
    (c) Research activities do not constitute casual collection, and 
therefore, research involving the collecting of common invertebrate and 
plant paleontological resources requires a permit.
    (d) Using scientific principles and expertise, the Authorized 
Officer may determine that certain invertebrate and plant 
paleontological resources do or do not meet the definition of ``common 
invertebrate and plant paleontological resources'' as set forth in 
these regulations, and thus, whether such resources can be casually 
collected or must be collected under permit.
    (e) Determinations as described above in paragraph (d) of this 
section are subject to the conditions as stated in Sec.  291.9(c)(1) 
through (4).
    (f) It is the responsibility of the collecting public to ensure 
that they are casually collecting in an area that is open to casual 
collection, and that the materials they collect are subject to casual 
collection.
    (g) Paleontological resources collected on National Forest System 
lands, including common invertebrate and plant paleontological 
resources subject to casual collecting, cannot be sold. Sale of these 
paleontological resources is a violation of 16 U.S.C. 470aaa-5(a)(3) 
and Sec.  291.27(a)(3) and may subject the violator to civil and 
criminal penalties.


Sec.  291.12  National Forest System lands closed to casual collection.

    (a) Casual collecting is not allowed in:
    (1) National Monuments within the National Forest System; and
    (2) Other National Forest System lands closed to casual collecting 
in accordance with this Part, other statutes, executive orders, 
regulations, or land use plans.
    (b) Existing closures of certain areas to casual collecting, 
authorized under separate authority, remain closed under these 
regulations.


Sec.  291.13  Permits.

    (a) The Authorized Officer may issue a permit for the collection of 
a paleontological resource pursuant to an application if the Authorized 
Officer 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;
    (3) The permitted activity is consistent with any management plan 
applicable to the National Forest System lands concerned; and
    (4) The proposed methods of collection will not threaten 
significant natural or cultural resources pursuant to 16 U.S.C. 470aaa-
3(b)(4).
    (5) Collected materials will not be sold or otherwise used for 
commercial purposes.
    (b) Permits may be issued at the Authorized Officer's discretion to 
applicants that provide a complete application, as provided in Sec.  
291.14, and meet qualification and eligibility requirements in Sec.  
291.15.


Sec.  291.14  Application process.

    Applicants for permits must provide the following records and 
information to the Authorized Officer in support of an application.
    (a) The name, titles, academic or professional affiliations, and 
business contact information of the applicant and all persons who would 
be named on the permit;
    (b) The applicant's current resume, curriculum vita, or other 
documents that support an applicant's qualifications;
    (c) A detailed scope of work or research plan for the proposed 
activity. This must include maps, field methods, associated records, 
estimated time and duration of field season, proposed field party size, 
and specific information regarding storage, stabilization, and 
curatorial arrangements for collected specimens and data;
    (d) Information regarding previous or currently held Federal 
paleontological

[[Page 21633]]

permits including the issuing agency, permit number, and name of the 
Authorized Officer;
    (e) Identification of a proposed repository for collected 
specimens, including written verification that the proposed repository 
agrees to receive the collection of paleontological resources and 
associated records and acknowledges that all costs will be borne by the 
applicant and/or approved repository, unless otherwise addressed in a 
separate written document; and
    (f) Other records or information identified by the Authorized 
Officer as necessary to support an application for a permit.


Sec.  291.15  Application qualifications and eligibility.

    (a) Qualified applicant. The information submitted by applicants 
under Sec.  291.14 must demonstrate qualifications for carrying out the 
proposed activities, as follows:
    (1) The applicant has a graduate degree in paleontology or a 
related field of study with a major emphasis in paleontology from an 
accredited institution, or can demonstrate training and/or experience 
commensurate to the nature and scope of the proposed activities; and
    (2) The applicant has experience in collecting, analyzing, 
summarizing, and reporting paleontological data and experience in 
planning, equipping, staffing, organizing, and supervising field crews 
on projects commensurate to the type, nature and scope of work proposed 
in the application; and
    (3) The applicant meets any additional qualifications as may be 
required by the Authorized Officer that are considered necessary to 
undertake the proposed project in the context of the project location.
    (b) Eligibility. The information submitted by applicants under 
Sec.  291.14 must demonstrate that the proposed work is eligible for a 
permit in accordance with Sec.  291.13(a)(2) through (4).


Sec.  291.16  Terms and conditions.

    The collection of paleontological resources pursuant to a permit 
must be conducted in accordance with the following terms and 
conditions:
    (a) All paleontological resources that are collected from National 
Forest System lands under permit will remain the property of the United 
States.
    (b) The collection will be preserved in an approved repository to 
be made available for scientific research and public education.
    (c) Specific locality data will not be released by the permittee or 
repository unless authorized in accordance with Sec.  291.6.
    (d) The permittee recognizes that the area within the scope of the 
permit may be subject to other authorized uses.
    (e) The permittee must conform to all applicable Federal, State, 
and local laws.
    (f) The permittee must assume responsibility for all work conducted 
under the permit and the actions of all persons conducting this work.
    (g) The permit cannot be transferred.
    (h) The permittee cannot modify the permit without the approval of 
the Authorized Officer.
    (i) The permittee must comply with all timelines established in the 
permit, and must request modification of the permit if those timelines 
cannot be met.
    (j) The permittee or other persons named on the permit must be on 
site at all times when field work is in progress and will have a copy 
of the signed permit on hand.
    (k) The permittee will comply with any vehicle or access 
restrictions, safety or environmental restrictions, or local safety 
conditions or restrictions.
    (l) The permittee will report suspected resource damage or theft of 
paleontological or other resources to the Authorized Officer in a 
timely manner after learning of such damage or theft.
    (m) The permittee will acknowledge the Forest Service in any 
report, publication, paper, news article, film, television program, or 
other media resulting from the permittee's work performed under the 
permit.
    (n) The permittee will comply with the timeline established in the 
permit for providing a complete list to the Authorized Officer of 
specimens collected and the current location of the specimens.
    (o) The permittee will provide scheduled reports to the Authorized 
Officer within the timeline established in the permit
    (p) The permittee and/or approved repository will be responsible 
for all costs for the proposed activity, including fieldwork and 
collections maintenance, unless otherwise addressed in a separate 
written document
    (q) The permittee will comply with the permit terms and conditions 
established by the Authorized Officer, even in the event of permit 
expiration, suspension, or revocation.
    (r) Additional stipulations, terms, and conditions as required by 
the Authorized Officer and/or the Agency may be appended.


Sec.  291.17  Permit reports.

    Permit reports must contain the following information as 
appropriate:
    (a) Permittee(s)' name, title, affiliation, and professional 
contact information;
    (b) Permit number;
    (c) Date of report;
    (d) Project name, number, or reference;
    (e) Description of project, methodology, or summary of research 
scope of work;
    (f) Dates of field work;
    (g) Name(s) of people who performed field work;
    (h) Description of work performed or accomplished and a summary of 
results and discoveries;
    (i) Summary of regional or local geology and/or paleontology 
including context, geography, stratigraphy, and geological unit;
    (j) Identification of potential impacts to paleontological 
resources by proposed land use action;
    (k) Mitigation recommendations to address potential paleontological 
resource impacts;
    (l) Relevant literature citations;
    (m) Relevant associated records, including anything that aids in 
explaining, clarifying, or understanding the findings;
    (n) Listing of collected paleontological resources, including field 
numbers and field identifications that are referenced to specific 
localities;
    (o) Repository name, identifying acronym, and address;
    (p) Repository official name, title, and contact information;
    (q) Approved repository accession and/or catalog number(s);
    (r) Assigned locality numbers;
    (s) Administrative area (State, county, ranger district, forest, 
and so forth);
    (t) Map name, source, size, edition, projection, datum, and/or 
other mapping information;
    (u) Geographic location, survey data, and/or related metadata;
    (v) Paleontological taxa collected, observed, or in a repository;
    (w) Resource identifications, condition, location, and quantity; 
and
    (x) Recommendations or information for the approved repository 
regarding the condition or care of collected resources or associated 
records.


Sec.  291.18  Modification or cancellation of permits.

    The Authorized Officer may modify a permit, consistent with 
applicable laws and policies, when:
    (a) The Authorized Officer determines that there are management, 
administrative, or safety reasons to modify a permit; or
    (b) A permittee requests a modification in writing.

[[Page 21634]]

Sec.  291.19  Suspension and revocation of permits.

    (a) The Authorized Officer may suspend or revoke a permit issued 
under this section;
    (1) For resource, safety or other management considerations; or
    (2) When there is a violation of term or condition of a permit 
issued under this section.
    (b) The permit shall be revoked if any person working under the 
authority of the permit is convicted of a violation under section 16 
U.S.C. 470aaa 6306 or is assessed a civil penalty under 16 U.S.C. 
470aaa 6307.
    (c) Suspensions, modifications, and revocations shall be 
administered in accordance with the procedures set forth in 36 CFR part 
214.


Sec.  291.20  Appeals.

    A permittee may appeal the denial or revocation of a permit in 
accordance with 36 CFR part 214. Pending the appeal, the decision of 
the Authorized Officer remains in effect unless determined otherwise in 
accordance with 36 CFR part 214, subpart C.


Sec.  291.21  Curation of paleontological resources.

    Collections from National Forest System lands made under a permit 
issued according to this Part will be deposited in an approved 
repository. The curation of paleontological resources collected from 
National Forest System lands before the effective date of these 
regulations is covered under the terms of the original collection 
permit and/or agreement. Such collections remain Federal property 
unless otherwise transferred or disposed of in a Forest Service 
agreement.


Sec.  291.22  Becoming an approved repository.

    (a) A repository identified during the permit application process 
in Sec.  291.14 must be approved to receive collections by the 
Authorized Officer as follows:
    (1) A repository must meet the minimum requirements in Sec.  291.23 
in order to be approved.
    (2) A repository must agree in writing that collections:
    (i) Remain the property of the Federal government;
    (ii) Will be preserved for the public in accordance with Sec.  
291.24;
    (iii) Will be made available for scientific research and public 
education; and
    (iv) That specific locality data will not be released except in 
accordance with Sec.  291.6.
    (b) The Authorized Officer and the repository official may enter 
into a formal agreement that explains the responsibilities of the 
parties for the curation of the collection in accordance with Sec.  
291.26.
    (c) The repository must agree in writing to periodic inventory and 
inspection of the collections as described in Sec.  291.25.
    (d) Prior to depositing the collection, an Agency paleontologist in 
consultation with the repository official will determine the content of 
the collection to be curated based on scientific principles and 
expertise. A copy of the final catalog will be provided by the 
repository to the Authorized Officer.
    (e) A repository approved by a Federal agency or bureau may be 
considered an approved repository by the Forest Service.


Sec.  291.23  Minimum requirements of approval of a repository.

    The Authorized Officer will determine whether a facility should be 
an approved repository based on whether the repository has:
    (a) The capability to provide adequate curatorial services as 
defined in Sec.  291.5;
    (b) A scope of collections statement or similar policy that 
identifies paleontological resources as part of its scope of 
collections;
    (c) A current collections management plan, including but not 
limited to policies for documentation, loans, and access; and
    (d) Staff with primary responsibility for managing and preserving 
the collections that have training or experience in the curation of 
paleontological resources at levels appropriate to the nature and use 
of the paleontological collections maintained by that repository.


Sec.  291.24  Standards for access and use of collections.

    (a) The repository will make collections available for scientific 
research and public education or as otherwise provided in a repository 
agreement.
    (b) The repository may provide access to specific locality data and 
associated records when consistent with an approval under Sec.  291.22 
or an agreement under Sec.  291.26.
    (c) The repository may loan specimens after entering into a signed 
loan agreement with the borrowing institution. The loan agreement must 
specify the terms and conditions of the loan and that the repository is 
responsible for care and maintenance of the loaned specimens.
    (d) The repository must maintain administrative records of all 
scientific and educational uses of the collection.
    (e) The repository may charge reasonable fees to cover costs for 
access to and use of collections, including handling, packing, 
shipping, and insuring paleontological resources, photocopying 
associated records and other occasional costs not associated with 
ongoing curatorial services.
    (f) The following uses of the collection will require written 
approval from the Authorized Officer, in consultation with an Agency 
paleontologist, unless specified in the approval in Sec.  291.22 or an 
agreement under Sec.  291.26:
    (1) Prior to reproducing a paleontological resource, the repository 
will notify and obtain approval from the Authorized Officer. 
Reproductions include, but are not limited to, molding and casting, and 
computerized axial tomography (CAT) scans. Routine photographic and/or 
digital reproductions would not require individual approvals, providing 
the reproductions are not made for commercial purposes, and that the 
reproductions do not require transfer of the specimen(s) to a different 
facility.
    (2) The repository may only allow consumptive analysis of specimens 
if the Authorized Officer has determined, in consultation with an 
Agency paleontologist, that the potential gain in scientific or 
interpretive information outweighs the potential loss of the 
paleontological resource and provides the repository with written 
authorization for such use.


Sec.  291.25  Conducting inspections and inventories of collections.

    (a) The repository and the Authorized Officer must ensure that 
inspections and inventories of collections are in accordance with the 
Federal Property and Administrative Services Act (40 U.S.C. 541 et 
seq.), its implementing regulations (41 CFR parts 101 and 102), any 
Agency-specific regulations on the management of Federal property, and 
any Agency-specific statutes and regulations on the management of 
museum collections.
    (b) The frequency and methods for conducting and documenting 
inspections and inventories will be appropriate to the nature and 
content of the collection.
    (c) When two or more Federal agencies deposit collections in the 
same repository, they may enter into an interagency agreement 
consistent with the Single Audit Act (31 U.S.C. 75) for inspections and 
inventories.


Sec.  291.26  Repository agreements.

    (a) The Authorized Officer may enter into an agreement with Federal 
and

[[Page 21635]]

non-Federal repositories regarding the curation of paleontological 
resources and their associated records.
    (b) An agreement will contain the following, as appropriate, 
including but not limited to:
    (1) A statement (updated as necessary) that identifies the 
collection or group of collections provided to the repository;
    (2) A statement that identifies the Federal ownership and the 
Agency that administers the collection;
    (3) A statement of work to be performed by the repository;
    (4) A statement of the responsibilities of the Authorized Officer 
and the repository official for the long-term care of the collection;
    (5) A statement that collections are available for scientific and 
educational uses consistent with Sec.  291.22;
    (6) Any special procedures and restrictions for curatorial services 
and collection management, including loans;
    (7) Provisions for consumptive analyses of paleontological 
specimens;
    (8) Any special procedures and/or restrictions on the disclosure of 
specific locality data;
    (9) A statement that all proceeds derived from any use of the 
collections will be used for their support;
    (10) A statement that all exhibits, publications, and studies of 
Federal specimens by repository staff and/or repository research 
affiliates will credit the Agency that administers the collection;
    (11) Specification of the frequency and methods for periodic 
inventories;
    (12) A statement that accession, catalog, and inventory information 
will be made available to the Authorized Officer or their staff
    (13) A statement that no employee of the repository will sell or 
financially encumber the collection;
    (14) A statement that, in the event the repository can no longer 
provide care for a collection under the terms of the agreement, the 
repository official will notify the Authorized Officer in writing;
    (15) A statement that the terminating party is responsible for the 
transfer of collections to another approved repository, including 
costs;
    (16) The term of the repository agreement and procedures for 
modification, cancellation, suspension, extension, and termination of 
the agreement; and
    (17) Any additional terms and conditions as needed.


Sec.  291.27  Prohibited acts.

    (a) 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 National Forest System lands 
unless such activity is conducted in accordance with the Act and this 
part;
    (2) Exchange, transport, export, receive, or offer to exchange, 
transport, export, or receive any paleontological resource if the 
person knew or should have known such resource to have been excavated 
or removed from National Forest System lands in violation of any 
provisions, rule, regulation, law, ordinance, or permit in effect under 
Federal law, including the Act and this part; or
    (3) Sell or purchase or offer to sell or purchase any 
paleontological resource if the person knew or should have known such 
resource to have been excavated, removed, sold, purchased, exchanged, 
transported, or received from National Forest System lands.
    (b) 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 National Forest System lands.


Sec.  291.28  Civil penalty.

    (a) A person who violates any prohibition contained in this Part or 
permit issued under this Part may be assessed a penalty by the 
Authorized Officer after the person is given notice and opportunity for 
a hearing with respect to the violation, as provided in Sec. Sec.  
291.30 and 291.31.
    (b) Each violation is considered a separate offense.


Sec.  291.29  Amount of civil penalty.

    (a) Determination of civil penalty amount. The amount of such 
penalty assessed under Sec.  291.28 shall be determined by taking into 
account:
    (1) The scientific or fair market value, whichever is greater, of 
the paleontological resource involved, as determined by the Authorized 
Officer, and
    (2) The cost of response to and restoration and repair of the 
resource and the paleontological site involved, and
    (3) Any other factors under Sec. Sec.  291.37 through 291.39 
considered relevant by the Authorized Officer in assessing the penalty.
    (b) Multiple offenses. In the case of subsequent or repeated 
violations by the same person, the amount of a penalty assessed under 
Sec.  291.28(a) may be doubled.
    (c) Maximum amount of penalty. The amount of any penalty assessed 
for any one violation shall not exceed an amount equal to double the 
cost of response to, and restoration and repair of resources and 
paleontological site damage plus double the scientific or fair market 
value of resources destroyed or not recovered.
    (d) Determination of scientific and fair market values and cost of 
response to, and restoration and repair. Scientific and fair market 
values and the cost of response to, and restoration and repair are 
determined as described in Sec. Sec.  291.37 through 291.39.


Sec.  291.30  Civil penalty process.

    (a) Notice of violation. The Authorized Officer shall serve a 
notice of violation by certified mail (return receipt requested) or 
other type of verifiable delivery upon any person believed to be 
subject to a civil penalty. The Authorized Officer shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the section(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The penalty proposed;
    (4) Notification of the right to request a hearing in accordance 
with paragraph (f) of this section. The notice shall also inform the 
person of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (b) Response to notice of violation. The person served with a 
notice of violation shall have 45 calendar days from the date of 
mailing in which to respond. During this time the person may:
    (1) Accept the proposed penalty, either in writing or by payment. 
Acceptance of the proposed penalty will be deemed a waiver of the right 
to request a hearing as described in paragraph (f) in this section.
    (2) Seek informal discussions with the Authorized Officer;
    (3) File a written response. This written response must be filed 
with the Authorized Officer within 45 calendar days of the date of 
mailing of the notice of violation, and must be signed by the person 
served with the notice of violation. If the person is a corporation, 
the written response must be signed by an officer authorized to sign 
such documents. The written response will set forth in full the legal 
or factual basis for the requested relief.
    (4) Request a hearing in accordance with paragraph (f) of this 
section.
    (c) Assessment of penalty. (1) The Authorized Officer shall assess 
a civil penalty upon completion of the 45 calendar day response period, 
informal

[[Page 21636]]

discussions, or review of the written response, whichever is later.
    (2) The Authorized Officer shall take into consideration all 
available information, including information provided under paragraph 
(b) of this section or furnished upon further request by the Authorized 
Officer.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Authorized Officer shall notify the person served with 
the notice of violation that no violation has occurred and no penalty 
will be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Authorized Officer shall determine a penalty amount in 
accordance with Sec.  291.29.
    (d) Penalty modification and remittance. The Authorized Officer may 
offer to modify or remit the penalty. Modification or remittance may be 
based upon any or all of the following factors:
    (1) Agreement by the person being assessed a civil penalty to 
return to the Authorized Officer paleontological resources removed from 
National Forest System lands;
    (2) Agreement by the person being assessed a civil penalty to 
assist the Authorized Officer in activity to preserve, restore, or 
otherwise contribute to the protection and study of paleontological 
resources on National Forest System lands;
    (3) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (4) Determination that the person being assessed a civil penalty 
did not willfully commit the violation;
    (5) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (e) Notice of assessment. The Authorized Officer shall serve a 
written notice of assessment upon the person served with a notice of 
violation. The notice of assessment establishes the penalty amount 
assessed by the Authorized Officer and is served by certified mail 
(return receipt requested), or other type of verifiable delivery. The 
Authorized Officer shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis for determining the penalty amount assessed and/or 
any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (f) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (b)(1) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the hearing office specified in the 
notice. The person shall enclose with the request for hearing a copy of 
the notice of assessment, and shall deliver the request for hearing by 
certified mail (return receipt requested), as specified in the notice 
of assessment.
    (2) Failure to deliver a written request for a hearing within 45 
calendar days of the date of mailing of the notice of assessment shall 
be deemed a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with Sec. Sec.  
291.28 through 291.33, and shall not be limited by the amount assessed 
by the Authorized Officer under Sec.  291.29(a) or any offer of 
mitigation or remission made by the Authorized Officer.
    (g) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(b)(1) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
requested a hearing within 45 calendar days of the date of mailing of 
the notice of assessment, the notice of assessment shall constitute the 
final administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing, the decision resulting from the hearing 
shall constitute the final administrative decision.
    (h) Payment of penalty. The person assessed a civil penalty shall 
have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in Sec.  291.32.
    (i) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.


Sec.  291.31  Civil penalties hearing procedures.

    (a) Requests for hearings. Any person wishing to request a hearing 
on a notice of assessment of civil penalty may file a written dated 
request for a hearing with the hearing office specified in the notice. 
The person shall enclose a copy of the notice of violation and the 
notice of assessment. The request shall state the relief sought, the 
basis for challenging the facts used for assessing the penalty, and the 
person's preference as to the place and date for a hearing. A copy of 
the request shall be served upon the USDA Office of the General Counsel 
by certified mail, at the addresses specified in the notice of 
assessment. Hearings shall be conducted in accordance with 5 U.S.C. 
554.
    (b) Commencement of hearing procedures. Upon receipt of a request 
for a hearing, the hearing office shall assign an administrative law 
judge to the case. Notice of assignment shall be given promptly to the 
parties, and thereafter, all pleadings, papers, and other documents in 
the proceeding shall be filed directly with the administrative law 
judge, with copies served on the opposing party.
    (c) Appearance and practice. (1) The respondent may appear in 
person, by representative, or by counsel, and may participate fully in 
the proceedings. If respondent fails to appear and the administrative 
law judge determines such failure is without good cause, the 
administrative law judge may, in his/her discretion, determine that 
such failure shall constitute a waiver of the right to a hearing and 
consent to the making of a decision on the record made at the hearing.
    (2) Departmental counsel shall represent the Agency in the 
proceedings. Upon notice to the Authorized Officer of the assignment of 
an administrative law judge to the case, said counsel shall enter his/
her appearance on behalf of the Agency and shall file all petitions and 
correspondence exchanges by the Agency and the respondent which shall 
become part of the hearing record. Thereafter, service upon the Agency 
shall be made to Departmental counsel.
    (d) Hearing administration. (1) The administrative law judge shall 
have all powers accorded by law and necessary to preside over the 
parties and the proceedings and to make decisions in accordance with 5 
U.S.C. 554 through 557.
    (2) The transcript of testimony; the exhibits; and all papers, 
documents and requests filed in the proceedings shall constitute the 
record for decision. The administrative law judge shall render a

[[Page 21637]]

written decision upon the record, which shall set forth his/her 
findings of fact and conclusions of law, and the reasons and basis 
therefore, and an assessment of a penalty, if any.
    (3) The administrative law judge's decision shall become effective 
30 calendar days from the date of this decision.


Sec.  291.32  Petition for judicial review; collection of unpaid 
assessments.

    (a) Judicial review. Any person against whom a final administrative 
decision is issued assessing a penalty may file a petition for judicial 
review of the decision in the U.S. District Court for the District of 
Columbia or in the district in which the violation is alleged to have 
occurred within the 30 calendar day period beginning on the date the 
decision was issued. Upon notice of such filing, the Secretary shall 
promptly file such a certified copy of the record on which the decision 
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. Judicial 
review is limited by the requirement to exhaust administrative remedies 
under 7 U.S.C. 6912(e).
    (b) Failure to pay. Failure to pay a penalty assessed is a debt to 
the U.S. Government. If any person fails to pay a penalty within 30 
calendar days after the final administrative decision and the person 
has not filed a petition for judicial review of the decision in 
accordance with paragraph (a) of this section; or after a court in an 
action brought in paragraph (a) of this section 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 
decision 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 
shall be required to pay, in addition to such amount and interest, 
attorney's fees and costs for collection proceedings. This section does 
not preclude the use of other collection methods such as Treasury 
offset, where appropriate.


Sec.  291.33  Use of recovered amounts.

    Penalties and/or restitution collected shall be available to the 
Authorized Officer and without further appropriation may be used only 
as follows:
    (a) To protect, restore, or repair the paleontological resources 
and sites which were the subject of the action, and to protect, 
monitor, and study the resources and sites; and/or
    (b) To provide educational materials to the public about 
paleontological resources, sites, and their protection; and/or
    (c) To provide for the payment of rewards as provided in Sec.  
291.40.


Sec.  291.34  Criminal penalties.

    (a) A person who knowingly violates or counsels, procures, 
solicits, or employs another person to violate Sec.  291.27 shall, upon 
conviction, be fined in accordance with Title 18, United States Code, 
or imprisoned not more than 5 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 2 years, or both.
    (b) Paleontological and commercial values and the cost of 
restoration and repair are determined under Sec. Sec.  291.37 through 
291.39.


Sec.  291.35  Multiple offenses.

    In the case of subsequent or repeat violations by the same person, 
the amount of the monetary penalty assessed may be doubled.


Sec.  291.36  General exception.

    The provisions in Sec. Sec.  291.28 through 291.35 do not apply to 
any person with respect to any paleontological resource which was in 
the lawful possession of such person prior to the date of enactment of 
the Act.


Sec.  291.37  Scientific or paleontological value.

    The scientific value of any paleontological resource involved in a 
violation of the prohibitions contained in this part or conditions of a 
permit issued pursuant to this Part shall be the value of the 
information associated with the paleontological resource. The term 
``scientific value'' can be used interchangeably with the term 
``paleontological value.'' This value shall be determined in terms of 
the costs of the retrieval of the scientific and educational 
information which would have been obtainable prior to the violation. 
These costs may include, but need not be limited to, the cost of 
preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports or educational materials or 
displays as would be necessary to realize the information potential.


Sec.  291.38  Fair market or commercial value.

    The fair market value of any paleontological resource involved in a 
violation of the prohibitions contained in this part or conditions of a 
permit issued pursuant to this part shall be the commercial value of 
the resources, determined using the condition of the paleontological 
resource prior to the violation, to the extent that its prior condition 
can be ascertained. The term ``fair market value'' can be used 
interchangeably with the term ``commercial value.'' Fair market value 
of paleontological resources can be established through the use of 
comparable sales or pricing information, advertisements for comparable 
resources, appraisals, and/or other information on legal or illegal 
markets.


Sec.  291.39  Cost of response, restoration, and repair.

    The cost of response, restoration, and repair of paleontological 
resources involved in a violation of prohibitions contained in this 
part or conditions of a permit issued pursuant to this part, shall be 
the sum of the costs incurred for response, investigation, assessment, 
emergency restoration, or repair work, plus those costs projected to be 
necessary to complete restoration and repair, which may include but 
need not be limited to the costs of:
    (a) Reconstruction of the paleontological resource;
    (b) Stabilization and/or salvage of the paleontological resource;
    (c) Ground contour reconstruction and surface stabilization;
    (d) Research necessary to carry out reconstruction or 
stabilization;
    (e) Physical barriers or other protective devices or signs, 
necessitated by the disturbance of the paleontological resource, to 
protect it from further disturbance;
    (f) Examination and analysis of the paleontological resource 
including recording remaining paleontological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (g) Storage, preparation, and curation;
    (h) Site monitoring; and
    (i) Preparation of reports relating to any of the above activities.

[[Page 21638]]

Sec.  291.40  Rewards.

    (a) The Authorized Officer may, at his or her discretion, pay from 
penalties collected under Sec. Sec.  291.28 through 291.36, or from 
appropriated funds, an amount up to half of the penalties collected to 
any person who furnishes information which leads to a finding of the 
civil violation(s) or to the criminal conviction(s).
    (b) If several persons provided the information, the amount may be 
divided at the discretion of the Authorized Officer among the persons.
    (c) 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 their official duties shall be eligible for payment.


Sec.  291.41  Forfeiture.

    (a) Forfeiture. All paleontological resources with respect to which 
a violation under Sec. Sec.  291.28 through 291.36 occurred and which 
are in the possession of any person, are subject to forfeiture 
proceedings. All forfeitures will be initiated pursuant to cooperative 
agreements with agencies having law enforcement authority and 
forfeiture regulations in place.
    (b) Transfer of administration of forfeited resources. The 
administration of forfeited resources may be transferred to Federal or 
non-Federal institutions to be used for scientific or educational 
purposes, in furtherance of the purposes of the Act.

    Dated: March 11, 2015.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2015-08483 Filed 4-16-15; 8:45 am]
 BILLING CODE 3411-15-P