[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]
[[Page 21587]]
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
[[Page 21591]]
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.
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\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