[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Proposed Rules]
[Pages 30810-30828]
From the Federal Register Online via the Government Publishing 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 [email protected]. Individuals who use
telecommunications devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background 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