[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Proposed Rules]
[Pages 30810-30828]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12173]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 261 and 291

RIN 0596-AC95


Paleontological Resources Preservation

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rule; request for comment.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
implement regulations under the Omnibus Public Land Management Act of 
2009 paleontological resources preservation subtitle (the Act). This 
proposed rule would provide for the preservation, management, and 
protection of paleontological resources on Federal lands, and insure 
that these resources are available for current and future generations 
to enjoy as part of America's national heritage. The rule would address 
the management, collection, and curation of paleontological resources 
from Federal 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: Comments must be received in writing by July 22, 2013.

ADDRESSES: Written comments concerning this notice should be addressed 
to USDA Forest Service, Michael Fracasso, M&GM, 740 Simms Street, 
Golden, CO 80401. Comments may also be made by the electronic process 
available at the Federal e-Rulemaking portal at http://www.regulations.gov. All comments, including names and addresses when 
provided, are placed in the record and are available for public 
inspection and copying. The public may inspect comments received at the 
Office of Minerals and Geology Management, Forest Service, MGM, Room 
500-RPC, 1601 N. Kent St., Arlington, Virginia between the hours of 
8:30 a.m. and 4:30 p.m. Visitors are encouraged to call ahead to 703-
605-4545 to facilitate entrance to the building.
    Comments concerning the information collection requirements 
contained in this action should reference OMB No. 0596-0082, the docket 
number, date, and page number of this issue of the Federal Register. 
Comments should be sent to the address listed in the above paragraph.

FOR FURTHER INFORMATION CONTACT: For information on the substance of 
the proposed rule, please contact Michael Fracasso, Forest Service, at 
303-275-5130, or mfracasso@fs.fed.us. 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 and Need for the Proposed Rule

    The Paleontological Resources Preservation subtitle of the Omnibus 
Public Land Management Act, 16 U.S.C.

[[Page 30811]]

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 of the Act, these regulations would 
serve to manage and protect paleontological resources on Federal land 
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 reintroduced 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).

Section by Section Explanation of the Proposed Rule

Part 291--Paleontological Resources Preservation

    This part would contain regulations on the management, protection, 
and preservation of paleontological resources on Forest Service land 
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

    The proposed regulations would provide for the preservation, 
management, and protection of paleontological resources on Forest 
Service 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 would clarify that the Secretary of Agriculture 
(Secretary) will manage and protect paleontological resources on Forest 
Service land using scientific principles and expertise. This section 
would clarify that science, rather than other values, will be the 
primary management tool for paleontological resources on Forest Service 
lands. The regulations would provide for the coordinated management of 
paleontological resources and promote research, public education, and 
public awareness.

Section 291.2 Authorities

    Section 291.2 would cite 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 would address the scope of the regulations, based on 
16 U.S.C. 470aaa-10 of the Act.
    This section would state that the 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 Federal land. 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 
proposed regulations as needed for the protection of paleontological 
resources when planning, managing, regulating, or permitting various 
activities on the Forest Service lands covered by the Act.
    Section 291.3(c) would state that Indian lands, as defined in these 
regulations, are exempt from the scope of the regulations.
    Section 291.3(e) would state that the proposed 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 the proposed 
regulations. Such rocks, minerals, and fossils are covered by other 
laws, regulations, and policies.
    Section 291.3(f) would state that the proposed regulations would 
not affect any land other than Federal land or affect the lawful 
recovery, collection, or sale of paleontological resources from land 
other than Federal land. ``Federal land'' would be defined in the Act 
and the regulations as lands that are controlled or administered by the 
Secretary, except Indian land. In some circumstances, the Secretary may 
administer lands that are not owned by the United States. Such lands 
fall within the definition of Federal land within these regulations, 
and therefore, would be subject to the Act and these regulations.
    Section 291.3(g) would state that members of the general public do 
not obtain any rights or privileges from the Act or the proposed 
regulations and cannot sue the U.S. Government to enforce its 
provisions.

Section 291.4 Preservation of Existing Authorities

    Section 291.4 would be based on 16 U.S.C. 470aaa-10(5) of the Act. 
This section would preserve 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 the 
proposed regulations.

Section 291.5 Definitions

    Section 291.5 would contain the definitions and terms as defined in 
the Act or used in these proposed regulations. This section would 
include six terms defined by 16 U.S.C. 470aaa of the Act: casual 
collecting, Federal land, Indian land, paleontological resource, 
Secretary, and State. In addition, this section would define the terms 
reasonable amount, common invertebrate and plant paleontological 
resources, and negligible disturbance. 16 U.S.C. 470aaa of the Act 
required the

[[Page 30812]]

Secretary to define those terms in the implementing regulations. 
Lastly, this section would define terms used in the proposed 
regulations that may not be broadly understood or that may be defined 
differently elsewhere, in order to clarify their meaning for these 
proposed 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 would delineate the types of 
information that are required by 16 U.S.C. 470aaa-4 of the Act 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 would restate the definition 
contained in 16 U.S.C. 470aaa of the Act. To be considered casual 
collecting, the activity would mean 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.
    5. The term collection, as used in Sections 291.21 through 291.26 
of the proposed regulations, would mean paleontological resources and 
any associated records resulting from excavation or removal from 
Federal lands under a permit.
    6. The term common invertebrate and plant paleontological resources 
would clarify the types of paleontological resources that may be 
casually collected in accordance with the Act and the proposed 
regulations. The proposed definition would incorporate the plain 
meaning of common, which means plentiful and not rare or unique. The 
proposed definition would also incorporate a geographical factor of 
wide-spread distribution, which means that the resource is distributed 
over a relatively large geographical area. The proposed definition 
would also clarify 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 section 291.9(c).
    7. The term consumptive analysis would mean 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 would specify the 
minimal professional museum and archival standards employed in the 
long-term management and preservation of a collection.
    9. The term Federal land would restate the definition contained in 
16 U.S.C. 470aaa of the Act, would mean land controlled by the 
Secretary except for Indian land as defined in 16 U.S.C. 470aaa.
    10. The term fossil would mean 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 of the Act and these proposed regulations, a fossil 
may not necessarily be a paleontological resource. Remains, traces, or 
imprints of organisms (i.e., fossils) are only considered 
paleontological resources under the Act and the proposed 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 would mean 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 would be 
adapted from the definition of fossilization in the American Geological 
Institute's Glossary of Geology (Fifth Edition, 2005, ISBN 0-922152-76-
4).
    12. The term Indian land would restate the definition contained in 
Section 16 U.S.C. 470aaa of the Act.
    13. The term negligible disturbance as used in the definition of 
casual collecting would clarify 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 would clarify the types of use allowed under 
casual collection, and would mean uses other than for purchase, sale, 
financial gain, or research. 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 Sections 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 proposed regulations.
    15. The term non-powered hand tools as used in the definition of 
casual collecting would clarify the types of tools that can be used for 
the casual collecting of common invertebrate and plant paleontological 
resources, and would mean 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 proposed definition of the terms paleontological locality, 
location, and site would mean 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 would be 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 would restate the definition 
contained in 16 U.S.C. 470aaa of the Act. 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

[[Page 30813]]

earth. The term paleontological resources as used in the Act and the 
proposed 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 would quantify the maximum amount of common invertebrate and 
plant paleontological resources that could be removed from Federal 
lands. A person may remove up to one gallon of material in volume or 25 
pounds in weight, and up to five specimens of each type of fossil per 
calendar year. If the fossil specimens are contained within rock slabs, 
the reasonable amount would be limited to a slab that can be hand-
carried by one person without the aid of mechanical devices. The 
authorized officer may modify the amount that is reasonable in order to 
preserve fossil-bearing locations that may be at risk of being 
depleted, thereby preserving paleontological resources in accordance 
with the Act.
    19. The term repository would identify the types of facilities into 
which collected paleontological resources would be deposited as 
required by 16 U.S.C. 470aaa-4 of the Act.
    20. The term repository agreement would mean 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 would identify 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 proposed regulations and 
defined in 16 U.S.C. 470aaa of the Act would mean the Secretary of 
Agriculture.
    23. The term State would restate the definition contained in 16 
U.S.C. 470aaa of the Act.

Section 291.6 Confidentiality of Information--General

    Paragraph 291.6(a) would implement the confidentiality provision 
contained at 16 U.S.C. 470aaa-8 of the Act. 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 the proposed 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) would clarify 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 such 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.

Section 291.7 Public Awareness and Education

    Section 291.7 would restate the provision in 16 U.S.C. 470aaa-2 of 
the Act for establishing a public awareness and education program about 
the significance of paleontological resources on Federal lands.

Section 291.8 Area Closures

    Section 291.8 would implement 16 U.S.C. 470aaa-3(e) of the Act 
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 291.9 Determination of Paleontological Resources

    Section 291.9 would only apply to National Forest System lands 
administered by the Forest Service. 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.
    Paragraph 291.9(a) would state that all paleontological resources 
from Forest Service administered lands are to be managed, protected, 
and preserved under the proposed regulations, unless a determination is 
made that they are not paleontological resources in accordance with 
paragraph 291.9(b).
    Paragraphs 291.9(b) and 291.9(c) would provide 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 the proposed regulations. Not all fossils are paleontological 
resources, as explained earlier in this preamble in the discussion of 
paragraph 291.5 (10) of these proposed regulations. This determination 
would be based on scientific principles and methods, would be 
documented in writing, be prepared by a qualified paleontologist, 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.
    Paragraph 291.9(d) would affirm that mineral resources on National 
Forest System land, 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 paragraph 
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. Microfossils that occur on National Forest 
System lands, such as conodonts and invertebrates that are individually 
too small to be studied without a microscope, are not considered 
paleontological resources for the purposes of the Act. Vertebrate 
fossils, including microvertebrate fossils, are

[[Page 30814]]

always considered paleontological resources. Geological and soil units, 
including, but not limited to, limestones, diatomite, chalk beds, and 
fossil soils (i.e. paleosols) 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 the proposed 
regulations.

Section 291.10 Collecting

    Section 291.10 would restate Section 16 U.S.C. 470aaa-3(a)(1) and 
(2) of the Act, which directs that a paleontological resource may only 
be collected from lands administered by the Forest Service in 
accordance with a permit issued by the authorized officer under these 
proposed regulations, except for casual collecting.

Section 291.11 Casual Collecting on National Forest System Lands

    Section 291.11 would restate 16 U.S.C. 470aaa-3(a)(2) of the Act 
that allows for casual collecting without a permit on certain Federal 
lands. Casual collecting, as defined in Section 291.5, would be allowed 
on National Forest System lands where such collection is consistent 
with the laws governing the management of those lands and these 
proposed regulations. National Forest System lands would generally be 
considered open to casual collection unless otherwise closed to such 
casual collection as described in Section 291.12. Paragraphs 291.11(d) 
and (e) would state that the authorized officer can use the process in 
paragraph 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. Paragraph 291.11(d) 
would provide the authorized officer with the ability to protect 
invertebrate and plant fossils when they are not common.
    Paragraph 291.11(e) would clarify 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 Section 291.12. 
Information regarding area closures would generally be available from 
the local district office. Paragraph 291.11(f) would clarify that 
paleontological resources collected from Forest Service land in 
accordance with the casual collection provisions of Section 291.11 
cannot be sold.

Section 291.12 National Forest System Lands Closed to Casual Collection

    Paragraphs 291.12(a) and (b) would clarify 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, paragraph 291.12(b) 
clarifies that NFS lands that were closed to casual collecting prior to 
the Act remain closed to casual collecting.

Section 291.13 Permits

    Paragraph 291.13(a) would restate 16 U.S.C. 470aaa-3(b)(1 through 
4) of the Act which are the criteria for issuing permits for the 
collection of paleontological resources from Federal lands.
    Paragraph 291.13(b) would clarify that issuance of a permit is 
within the discretion of the authorized officer.
    At present, Forest Service permits for paleontological resource 
activities such as collection and resource inventory surveys are issued 
as special use authorizations. Current paleontological 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 291.14 Application Process

    Section 291.14 would set 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 291.15 Application Qualifications and Eligibility

    Paragraph 291.15(a) would clarify 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.
    Paragraph 291.15(b) would clarify 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) of the 
Act.

Section 291.16 Terms and Conditions

    Paragraphs 291.16(a), (b) and (c) would restate 16 U.S.C. 470aaa-3 
(c)(1) through (3) of the Act in specifying requirements for the 
issuance of a permit for the collection of paleontological resources. 
The permittee would acknowledge that paleontological resources 
collected from Federal 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.
    Paragraphs 291.16(d) through (r) would establish requirements to 
ensure that all permitted activities would comply with and further the 
purposes of the Act, the proposed regulations, any additional 
stipulations, and other Forest Service contract authorities and 
requirements.
    Paragraph 291.16(r) would provide for the incorporation of 
additional permit stipulations, as may be appropriate, that were not 
otherwise listed in paragraphs 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 291.17 Permit Reports

    Section 291.17 would list the information that will be 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 291.18 Modification of Permits

    Section 291.18 would provide the framework for the modification of 
permits, in accordance with 16 U.S.C. 470aaa-3(d) of the Act. Examples 
of a permittee's request for permit modification would include, but 
would

[[Page 30815]]

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 paragraph 291.13(b)). Notifications regarding 
modifications would be in writing.

Section 291.19 Suspension and Revocation of Permits

    Paragraphs 291.19(a) and (b) would provide for the suspension or 
revocation of permits in accordance with 16 U.S.C. 470aaa-3 (d)(1) and 
(2) of the Act. 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 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 would clarify that a permittee may appeal the denial 
or revocation of a permit in accordance with 36 CFR Part 251. 
Procedures for appealing a permit revocation or denial are set forth in 
36 CFR Part 251.

Section 291.21 Curation of Paleontological Resources

    Section 291.21 would clarify that paleontological resources from 
Federal lands collected under a permit issued under these regulations 
must be deposited in an approved repository. Collections made from 
Federal 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 291.22 Becoming an Approved Repository

    Section 291.22 would state the requirements for becoming an 
approved repository. Paragraph 291.22(a) would state that the 
repository must meet the minimum standards in Section 291.23 and agree 
to certain terms and conditions. Paragraph 291.22(b) would state that 
the authorized officer and the repository official may enter into a 
formal curation agreement in accordance with Section 291.26. Paragraph 
291.22 (c) would explain that the repository must agree to periodic 
inventories and inspections as described in Section 291.25. Paragraph 
291.22(d) would clarify that the authorized officer 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. Paragraph 291.22(e) would explain 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 291.23 Minimum requirements of Approval of a Repository

    Section 291.23 would state 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 proposed 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 proposed regulations.

Section 291.24 Standards for Access and Use of Collections

    Section 291.24 of the proposed regulations would provide 
repositories with consistent standards for access to and use of Federal 
collections in accordance with 16 U.S.C. 470aaa-3(c)(2) of the Act, 
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 would also addresses loans 
and reproductions, which increase the use and accessibility of 
paleontological resources consistent with professional and educational 
practices.
    Paragraph 291.24(f) would clarify when repositories must obtain 
approval from the authorized officer before allowing certain uses that 
may subject the specimens to damage. These uses would include 
reproductions and consumptive analysis of specimens. Reproductions 
would include molding and casting, computerized axial tomography (CAT) 
scans, and three-dimensional (3-D) rendering. 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. Paragraph 291.24(f)(2) would clarify 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 specimens 
that are not unique or fragile, or to a sample of specimens drawn from 
a larger collection of similar specimens.

Section 291.25 Conducting Inspections and Inventories of Collections

    Section 291.25 would clarify 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 would be clarified 
by citing these authorities in the proposed regulations. It is 
important for repositories to know that after a

[[Page 30816]]

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 291.26 Repository Agreements

    Paragraph 291.26(a) would clarify 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.
    Paragraph 291.26(b) would specify the terms and conditions that 
would be included in a repository agreement, as appropriate. These 
terms and conditions would be 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 the proposed 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.
    Paragraph 291.26(b)(8) would protect the confidentiality of 
specific paleontological locality data in collections.

Section 291.27 Prohibited Acts

    Paragraph 291.27(a) would restate the prohibited acts contained in 
16 U.S.C. 470aaa-5(a) of the Act.
    Paragraph 291.27(b) would implement the false labeling prohibition 
contained in 16 U.S.C. 470aaa-5 (b) of the Act. 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 291.28 Civil Penalty

    Section 291.28 would provide that a person who violates any 
prohibition contained in these proposed regulations or in a permit 
issued under these proposed 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 proposed regulations, each violation is considered a separate 
offense.
    The civil penalty provisions in the proposed 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

    Paragraph 291.29(a) would set 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 section 291.30. 
Paragraph 291.29(b) would also clarify that repeated violations could 
result in the doubling of the penalties. Such doubling may occur only 
after a conviction or an otherwise proven violation. Paragraph 
291.29(c) would provide 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 (a)(4) of the Act. This paragraph is 
intended to ensure that response costs may be included in the 
determination of penalty amounts. Paragraph 291.29(d) would provide 
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 Sections 291.37, 
291.38, and 291.39.

Section 291.30 Civil Penalty Process

    16 U.S.C. 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. Paragraph 291.30(a) would describe 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 would require 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. 
Paragraph 291.30(b) would explain that the recipient of the notice of 
violation has 45 calendar days to respond in accordance with this 
section. Paragraph 291.30(c) would describe the procedures which the 
authorized officer would use to assess the final amount of the penalty. 
Paragraph 291.30(d) would describe the factors that the authorized 
officer may consider in offering to modify or remit a penalty. 
Paragraph 291.30(e) would explain 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. Paragraph 291.30(f) would explain 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. Paragraph 291.30(g) would explain 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. Paragraph 291.30(h) would explain 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 
section 291.32. Paragraph 291.30(i) would explain 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.

[[Page 30817]]

Section 291.31 Civil Penalties Hearing Procedures

    Title 16 U.S.C. 470aaa-6(c) of the Act 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.
    Paragraph 291.31(a) would explain 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. 
Paragraph 291.31(b) would explain 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. Paragraph 291.31(c) would contain the 
procedures for appearances and practice before the administrative law 
judge. This paragraph would address 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. Paragraph 291.31(d) would provide the details of the 
administration and the outcome of the hearing. This paragraph would 
declare 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 would explain 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, 
would declare that the administrative law judge's decision is the final 
administrative decision of the agency, and would be effective 30 
calendar days after the date of the decision.

Section 291.32 Petition for Judicial Review; Collection of Unpaid 
Assessments

    16 U.S.C. 470aaa-6(b)(1) of the Act provides for petitions to the 
U.S. District Court for judicial review of decisions of a final 
assessment of civil penalties. Paragraph 291.32(a) would provide 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 Sections 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. Paragraph 291.32(b) would clarify the provisions in 
16 U.S.C. 470aaa-6(b)(2) of the Act that address the failure to pay a 
penalty assessed under sections 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 bureau 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 would implement the authority conveyed in 16 U.S.C. 
470aaa-6(d) of the Act for the agencies to use collected penalties or 
restitution for certain purposes without further authorization or 
appropriations. The proposed regulation would allow 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 291.34 Criminal Penalties

    Paragraph 291.34(a) would restate the penalties provided for by 16 
U.S.C. 470aaa-5(c) of the Act. This section would 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.
    Paragraph 291.34(b) would clarify that the determination of the 
values and the cost of response, restoration, and repair would be 
determined in accordance with Sections 291.37, 291.38, and 291.39.

Section 291.35 Multiple Offenses

    Section 291.35 would restate the penalties for multiple offenses 
provided for by 16 U.S.C. 470aaa-5(d) of the Act. This section would 
clarify 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 291.36 General Exception

    Section 291.36 would restate the exemption of 16 U.S.C. 470aaa-5(e) 
of the Act 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 would specify the factors and costs that may be 
considered in determining the scientific value of a paleontological 
resource, and would clarify that the terms scientific value as used in 
16 U.S.C. 470aaa-6(a)(2) of the Act and paleontological value as used 
in 16 U.S.C. 470aaa-5(c) of the Act are the same value and are 
interchangeable for the purposes of these proposed 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 stratigraphy 
and geology of the paleontological resource while it was still in-situ.

Section 291.38 Fair Market or Commercial Value

    Section 291.38 would specify 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) of the Act and commercial value as used in 16 U.S.C. 
470aaa-5(c) of the Act are the same value and are interchangeable

[[Page 30818]]

for the purposes of these proposed 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, or other information, regardless of whether or 
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 291.39 Cost of Response, Restoration and Repair

    Section 291.39 would clarify 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 291.40 Rewards

    Section 291.40 would provide 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 291.41 Forfeiture

    16 U.S.C. 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 of the Act. 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.
    Paragraph 291.41(a) would explain that all paleontological 
resources found in possession of a person with respect to a violation 
of Sections 291.28 through 291.36 of these proposed regulations would 
be subject to forfeiture proceedings in accordance with the Civil Asset 
Forfeiture Reform Act or other applicable forfeiture regulations. The 
Department would be authorized to enter into cooperative agreements 
with other agencies that have forfeiture regulations in place for the 
initiation of forfeiture actions.
    Paragraph 291.41(b) would explain 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 
paragraph 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) of the Act. 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 Section 
261.2 would be removed because it is inconsistent with the term 
paleontological resource as defined in 16 U.S.C. 470aaa of the Act and 
in Section 291.5 of the proposed regulations.
    Paragraph 261.9(i) would be removed because it is inconsistent with 
16 U.S.C. 470aaa-5 of the Act and Section 291.27(a)(3) of the proposed 
regulations, which prohibit the sale or purchase of paleontological 
resources from Federal land.

Regulatory Certifications

Regulatory Planning and Review

    This proposed 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 proposed 
rule is not significant for purposes of E.O. 12866. This proposed 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 proposed rule would not interfere with any action taken or planned 
by another agency, nor would it raise new legal or policy issues. 
Finally, this proposed 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 
proposed rule is not subject to OMB review under E.O. 12866.

Proper Consideration of Small Entities

    The proposed 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 proposed 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 the SBREFA, based on the 
following considerations:
    The proposed 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 NFS lands 
as permitted under applicable laws other than the Act. The proposed 
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 Forests and Grasslands 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 proposed 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 
proposed rule would continue to allow this activity as

[[Page 30819]]

long as the activity is consistent with the conditions for casual 
collection as set forth in the proposed rule. The proposed 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 NFS lands. The proposed 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 proposed 
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 proposed 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 proposed 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 proposed 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 proposed rule 
on State, local, and Tribal governments and the private sector. This 
proposed 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 proposed 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 proposes to implement 
new regulations that would reflect the new statutory authority for 
managing, preserving, and protecting paleontological resources on 
Federal lands and that reflect prior policies, procedures, and 
practices for the collection and curation of paleontological resources 
on Federal land.

Federalism

    The Forest Service has considered this proposed rule under the 
requirements of Executive Order 13132, Federalism, and has determined 
that the proposed rule conforms with the federalism principles set out 
in this E.O. The proposed 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 
proposed 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. Based on comments received on 
this proposed rule, the Forest Service will consider if any additional 
consultations will be needed with the State and local governments prior 
to adopting a final rule.

Civil Justice Reform

    This proposed 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 proposed 
rule or that would impede full implementation of this proposed 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 proposed 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 proposed 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 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. 
Consultation will continue during the 60-day public comment period.

Energy Effects

    This proposed 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 
proposed 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 is requesting an approval of a new 
information collection. Upon approval, this information will be 
incorporated into 0596-0082, Special Uses Administration. The proposed 
information collection has been published at 77 FR 31298, May 25, 2012.
    Title: Paleontological Resources Preservation.
    OMB Number: 0596--NEW.
    Expiration Date of Approval: 3 years from approval date.

[[Page 30820]]

    Type of Request: New information collection.
    Abstract: The purpose of the Paleontological Resources Preservation 
proposed rule is to establish regulations to implement a 
paleontological resources preservation program on Forest Service 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 proposed 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 proposed 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 paleontologists 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 proposed rule 
will be 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 are invited on:
    (1) Whether the proposed 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 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 proposes to amend part 261 and part 291 of Title 36 of the Code 
of Federal Regulations as follows:

PART 261--PROHIBITIONS

0
1. The authority citation for part 261 continues to read as follows:

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


Sec.  261.2  [Amended]

0
2. Remove the definition for paleontological resource in Sec.  261.2.


Sec.  261.9  [Amended]

0
3. Remove current paragraph 261.9(i) and redesignate paragraph 261.9 
(j) as 261.9(i)
0
4. 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 Content of paleontological reports and/or museum agreements.
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 16 U.S.C. 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

[[Page 30821]]

management and protection of paleontological resources on Federal 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 Federal land 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 
Federal 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 subtitle.


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:
    (a) Primary records relating to the identification, evaluation, 
documentation, study, preservation, context, or recovery of a 
paleontological resource, regardless of format;
    (b) Public records including, but not limited to, land status 
records, agency reports, publications, court documents, agreements; and
    (c) 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 to the 
Earth's surface and other resources.
    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.
    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 Federal 
lands under a permit.
    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:
    (a) Accessioning, cataloging, labeling, and inventorying a 
collection;
    (b) Identifying, evaluating, and documenting a collection;
    (c) Storing and maintaining a collection using appropriate methods 
and containers, and under appropriate environmental conditions and 
physical security controls;
    (d) Periodically inspecting a collection and taking such actions as 
may be necessary to preserve it;
    (e) Providing access and facilities to study a collection;
    (f) Handling, cleaning, sorting, and stabilizing a collection in 
such a manner as to preserve it, and
    (g) 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.

[[Page 30822]]

    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.
    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.
    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 (a) any materials 
associated with an archaeological resource (as defined in Sec.  3(1) of 
the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470bb(1)); or (b) any cultural item (as defined in Sec.  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 gallon 
by volume or 25 pounds by weight, and generally includes not more than 
five specimens of any one fossil kind. For rock slabs containing 
fossils, the amount is limited to a slab that can be hand-carried by 
one person with minimal effort without the aid of mechanical devices. 
The authorized officer may modify the amount that is reasonable or 
establish a period of time for collection as needed on a case-by-case 
basis to preserve fossil-bearing locations.
    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, 
but only after the recipient of the information signs a confidentiality 
agreement in which the recipient agrees not to share the information 
with anyone not authorized to receive the information.


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 above 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;

[[Page 30823]]

    (2) Petrified wood as defined at 30 U.S.C. 611 and managed under 36 
CFR 228.62 unless determined under (b) of this subsection to be a 
paleontological resource;
    (3) Microfossils, including conodonts and invertebrate fossils, but 
not including vertebrate fossils, that are individually too small to be 
studied without a microscope;
    (4) Geological and soil units, including, but not limited to, 
limestones, diatomites, chalk beds, and fossil soils (i.e. paleosols).


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 Forest Service 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) of 
the Act and Paragraph 291.27(a)(3) of these regulations 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 statues, 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 
Sec. 6304(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 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 experience 
necessary to undertake 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 similar to the type, nature and scope of work proposed in 
the application; and
    (3) The applicant meets any additional qualifications required by 
the authorized officer.
    (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)(2-4).


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

[[Page 30824]]

unless authorized in accordance with Subpart A Sec.  291.6 of this 
Part.
    (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 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 will be responsible for all costs for the 
proposed activity, including fieldwork, preparation, identification, 
cataloging, and storage of collections, unless otherwise arranged 
through a specific agreement.
    (q) The permittee will comply with the tasks required 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  Content of paleontological reports and/or museum 
agreements.

    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 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.


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 Sec. 6306 or is assessed a civil penalty under 16 U.S.C. 
470aaa Sec. 6307.
    (c) Suspensions, modifications, and revocations shall be 
administered in accordance with the procedures set forth in 36 CFR part 
251.


Sec.  291.20  Appeals.

    A permittee may appeal the denial or revocation of a permit in 
accordance with 36 CFR part 251. Pending the appeal, the decision of 
the authorized officer remains in effect unless determined otherwise in 
accordance with 36 CFR Part 251 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 
Federal land 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

[[Page 30825]]

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, the authorized officer 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 Section 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.


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 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, 
computerized axial tomography (CAT) scans, and three-dimensional (3-D) 
rendering.
    (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 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 will credit the agency that administers the 
collection;
    (11) A statement that copies of any publications or reports 
resulting from study of the collection are to be provided to the 
agency;
    (12) Specification of the frequency and methods for periodic 
inventories;
    (13) A statement that accession, catalog, and inventory information 
will be made available to the authorized officer or their staff
    (14) A statement that no employee of the repository will sell or 
financially encumber the collection;
    (15) 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;
    (16) A statement that the terminating party is responsible for the 
transfer of collections to another approved repository, including 
costs;
    (17) The term of the repository agreement and procedures for 
modification, cancellation, suspension, extension, and termination of 
the agreement; and
    (18) 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,

[[Page 30826]]

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 this 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.  291.30 
and Sec.  291.31.
    (b) Each violation is considered a separate offense.


Sec.  291.29  Amount of civil penalty.

    (a) 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 Subpart G Sec. Sec.  291.37 through 39 
considered relevant by the authorized officer in assessing the penalty.
    (b) Multiple Offenses.
    (1) 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) 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 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 
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

[[Page 30827]]

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 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. 554-557.
    (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 
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 (i) after the final administrative decision and the 
person has not filed a petition for judicial review of the decision in 
accordance with paragraph (a); or (ii) after a court in an action 
brought in Sec.  291.32(a) 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.

[[Page 30828]]

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 
39 of this Part.


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 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, 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.


Sec.  291.40  Rewards.

    (a) The authorized officer may, at his or her discretion, pay from 
penalties collected under Sec. Sec.  291.28 through 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 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: May 15, 2013.
Mary Wagner,
Associate Chief, Forest Service.
[FR Doc. 2013-12173; Filed 5-22-13; 8:45 am]
BILLING CODE 3410-11-P