[Federal Register Volume 81, Number 235 (Wednesday, December 7, 2016)]
[Proposed Rules]
[Pages 88173-88196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29244]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 49
Bureau of Land Management
43 CFR Part 8360
Fish and Wildlife Service
50 CFR Part 27
[Docket NPS-2016-0003; FWS-93261, FXRS12630900000, FF09R81000, 167;
BOR-RR83530000, 178R5065C6, RX.59389832.1009676; BLM-
17X.LLW0240000.L10500000.PC0000.LXSIPALE0000; NPS-GPO Deposit Account
4311H2]
RIN 1093-AA16
Paleontological Resources Preservation
AGENCY: Bureau of Land Management, Bureau of Reclamation, National Park
Service, U.S. Fish and Wildlife Service; Interior.
ACTION: Proposed rule.
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SUMMARY: The Department of the Interior (DOI) proposes to promulgate
regulations under the Paleontological Resources Preservation Act.
Implementation of the proposed rule would preserve, manage, and protect
paleontological resources on lands administered by the Bureau of Land
Management, the Bureau of Reclamation, the National Park Service, and
the U.S. Fish and Wildlife Service and ensure that these federally
owned resources are available for current and future generations to
enjoy as part of America's national heritage. The proposed rule would
address the management, collection, and curation of paleontological
resources from federal lands using scientific principles and expertise,
including collection in accordance with permits; curation in an
approved repository; and maintenance of confidentiality of specific
locality data. The Paleontological Resources Preservation Act
authorizes civil and criminal penalties for illegal collecting,
damaging, otherwise altering or defacing, or for selling
paleontological resources, and the proposed rule further details the
processes related to the civil penalties, including hearing requests
and appeals of the violation or the amount of the civil penalties.
DATES: Comments on the proposed rule must be received by February 6,
2017. Comments on the information collection requirements must be
received by January 6, 2017.
ADDRESSES: You may submit comments, identified by Regulation Identifier
Number (RIN) 1093-AA16, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. NPS-2016-
0003.
Mail to: Julia Brunner, Geologic Resources Division,
National Park Service, P. O. Box 25287 Denver, CO 80225-0287.
Instructions: All submissions received must include the RIN for
this rulemaking. All comments received will be posted without change to
http://www.regulations.gov, including any personal information
provided. For additional information, see the Public Participation
heading of the SUPPLEMENTARY INFORMATION section of this document.
Please make comments on the proposed rule as specific as possible,
confine them to issues pertinent to the proposed rule, and explain the
reason for any recommended changes. Where possible, comments should
reference the specific section or paragraph of the proposed rule that
is being addressed. DOI may not necessarily consider or include in the
administrative record for the final rule comments that are received
after the close of the comment period (see DATES) or comments delivered
to an address other than those listed above (see ADDRESSES).
Comments on the Information Collection Aspects of the Proposed
Rule: You may review the Information Collection Request online at
http://www.reginfo.gov. Follow the instructions to review DOI
collections under review by OMB. Send comments (identified by RIN 1093-
AA16) specific to the information collection aspects of this proposed
rule to:
Desk Officer for the Department of the Interior at OMB-
OIRA at (202) 295-5806 (fax) or [email protected] (email);
and
Jeffrey Parrillo, Office of the Secretary, Departmental
Information Collection Clearance Lead, Department of the Interior, 1849
C Street NW., Mailstop MIB-7056, Washington, DC 20240 (mail); or
[email protected] (email).
[[Page 88174]]
System of Records Notice: The Privacy Act of 1974 (5 U.S.C. 552)
protects the information submitted in accordance with this part. A
System of Records Notice is being developed and will be published in
the Federal Register.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and search for
Docket No. NPS-2016-0003.
FOR FURTHER INFORMATION CONTACT: Julia F. Brunner, Geologic Resources
Division, National Park Service, by telephone: (303) 969-2012 or email:
[email protected]. Persons who use a telecommunications device
for deaf (TDD) may call the Federal Information Relay Service (FIRS) at
1-800-877-8339 to contact the above individual during normal business
hours. FIRS is available 24 hours a day, 7 days a week, to leave a
message or question with the above individuals. You will receive a
reply during normal business hours.
SUPPLEMENTARY INFORMATION:
I. Background
In 1999, the Senate Interior Appropriations Subcommittee requested
that DOI, the U.S. Department of Agriculture (USDA) Forest Service
(FS), and the Smithsonian Institution prepare a report on fossil
resource management on federal lands (see Sen. Rep. 105-227, at 60
(1998)). The request directed these entities 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 federal lands. During the course of preparing the
report, the agencies held a public meeting to gather public input. The
DOI report to Congress, ``Assessment of Fossil Management of Federal
and Indian Lands,'' was published in May 2000.
After the report was released, the Paleontological Resources
Preservation Act (PRPA) was introduced in the 107th Congress. PRPA was
modeled after the Archaeological Resources Protection Act of 1979, as
amended (16 U.S.C. 470aa-470mm), 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 included as a subtitle in the Omnibus Public Land Management
Act, which became law on March 30, 2009. Legislative history \1\
demonstrates that PRPA, which is now codified at 16 U.S.C. 470aaa-aaa-
11, was enacted to preserve paleontological resources for current and
future generations because these resources are non-renewable and are an
irreplaceable part of America's heritage. PRPA requires that
implementation be coordinated between the Secretaries of the Interior
and Agriculture (16 U.S.C. 470aaa-1).
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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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II. Development of the Proposed Rule
PRPA requires DOI and USDA to issue regulations as appropriate to
carry out the law. Accordingly, DOI and USDA formed an interagency
coordination team in April 2009 to draft the proposed regulations. The
interagency coordination team included paleontology and archaeology
program leads and regulatory specialists from the Bureau of Land
Management (BLM), the National Park Service (NPS), the Bureau of
Reclamation (Reclamation), the U.S. Fish and Wildlife Service (FWS)
(the bureaus), and the FS.
On May 23, 2013, the FS published a proposed rule that would
implement PRPA with respect to National Forest System lands (78 FR
30810). On April 17, 2015, the FS published these regulations as final
(80 FR 21588).
III. Section-by-Section Analysis of the Proposed Rule
This proposed rule would address management of paleontological
resources on federal lands under the jurisdiction of the Secretary of
the Interior, and managed by BLM, Reclamation, NPS, and FWS. The
proposed rule would amend title 43 of the Code of Federal Regulations
(CFR) by adding a new part 49 entitled ``Paleontological Resources
Preservation.'' In accordance with 16 U.S.C. 470aaa-1, the proposed
rule would outline how the four bureaus would manage, protect, and
preserve paleontological resources on federal land using scientific
principles and expertise. Most of the proposed rule, specifically
subparts A through H, would apply to all four bureaus. The only
exception is subpart I, which would apply only to BLM and Reclamation,
governing casual collecting (collecting common invertebrate and plant
paleontological resources without a permit) on certain lands
administered by those bureaus. PRPA does not allow casual collecting in
areas administered by NPS or FWS, and therefore subpart I would not
apply to these two bureaus. The following is a section-by-section
analysis of subparts A through I.
Managing, Protecting, and Preserving Paleontological Resources (Subpart
A)
What does this part do (Sec. 49.1)?
Proposed Sec. 49.1 would restate the purposes of PRPA and
summarize the contents of the proposed rule.
What terms are used in this part (Sec. 49.5)?
Proposed Sec. 49.5 would define certain terms used in the proposed
rule. The bureaus believe that most of the terms are readily
understood, but discuss the following in more detail below:
Associated records would mean original records or copies of those
records, in the context of collections. If original records are not
available for some reason, copies of those records are acceptable.
Associated records would include primary, public, and administrative
records.
Authorized officer would mean the bureau director or employees to
whom the Secretary of the Interior has delegated authority to make a
decision or to take action, or both, under PRPA. Bureaus may have
multiple authorized officers. The authorized officer consults as
appropriate with bureau technical specialists, outside experts, bureau
partners, museum curators, or others in making decisions and taking
action.
Collection would mean paleontological resources removed from
geological context or taken from federal lands and any associated
records, consistent with the definition of museum property in Part 411
of the Departmental Manual (411 DM). Because permits may be issued only
to further paleontological knowledge, public education, or management
of paleontological resources, any collections made under those permits
should likewise further these goals. Such collections would be
deposited in an approved repository. Paleontological resources that are
determined by the authorized officer as not furthering or no longer
furthering paleontological knowledge, public education, or management
of paleontological resources (such as resources that lack provenience
or are overly redundant) may, nevertheless, because they are still of
paleontological interest and provide information about the history of
life on earth, be assigned to project or working
[[Page 88175]]
collections, including non-museum collections.
Curatorial services would mean managing and preserving a museum
collection over the long term according to DOI (currently 411 DM) and
bureau museum and archival standards and practices.
Nature would mean physical features, identifications, or attributes
of the paleontological resource. Including this definition in the
proposed regulations would clarify the type of information that PRPA
exempts from disclosure.
Paleontological resources would mean any fossilized remains,
traces, or imprints of organisms preserved in or on the Earth's crust,
except for:
(1) Those that are found in an archaeological context and are an
archaeological resource as defined in section 3(1) of the
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1));
or
(2) Cultural items, as defined in section 2 of the Native American
Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); or
(3) Resources determined in writing by the authorized officer to
lack paleontological interest or not provide information about history
of life on earth, based on scientific and other management
considerations.
Thus, under PRPA and the proposed regulation, fossils are
``paleontological resources'' unless they are found in an
archaeological context and are archaeological resources, or are
cultural items under the Native American Graves Protection and
Repatriation Act, or are determined by an authorized officer to lack
paleontological interest or not provide information about the history
of life on earth.
An example of a fossil that is found in an archaeological context
and is therefore an archaeological resource would be a fossil that was
collected by prehistoric peoples and is now part of an archaeological
site. In this case, the fossil has been removed from its original
geological context and is now important primarily for its
archaeological informational value. A fossil found in an archaeological
context is not a paleontological resource under PRPA or the proposed
rule, but may still have scientific value for paleontological
investigations and be protected under other authorities. Fossils that
are merely in geographical proximity to archaeological resources but
are not necessarily in an archaeological context, are therefore not
necessarily archaeological resources.
Fossils that the authorized officer determines to not have
paleontological interest or not provide information about the history
of life on earth, such as fossil fuel deposits or limestone units,
would not be considered paleontological resources under PRPA or the
proposed rule, although they would remain subject to other laws and
regulations. For example, fossils on NPS-administered lands that are
not considered paleontological resources would still be protected as
natural and cultural resources under the NPS Organic Act of 1916, NPS
regulations, and NPS policies. As another example, fossils on BLM-
administered lands that are not considered paleontological resources
would still be subject to consideration under the Federal Land Policy
and Management Act of 1976 (FLPMA), thus allowing BLM to track and
report scientific activities, such as research on non-vertebrate
microfossils, without requiring that those fossils be managed as
paleontological resources or otherwise be subject to PRPA.
Petrified wood is managed as a paleontological resource when on or
from lands administered by NPS, Reclamation, and FWS. On lands
administered by BLM, petrified wood (defined by the Petrified Wood Act
of 1962, Pub. L. 87-713, 76 Stat. 652, Sept. 28, 1962 as agatized,
opalized, petrified, or silicified wood, or any material formed by the
replacement of wood by silica or other matter, and identified as a
mineral material under the Materials Act of 1947) is subject to
commercial sale at 43 CFR part 3600 and free use regulations at 43 CFR
part 3622. Therefore, on BLM lands, petrified wood may be managed as a
paleontological resource, but the savings provisions in PRPA (16 U.S.C.
470aaa-10) prevent the imposition of additional restrictions on the
sale or free use of petrified wood. When it is not subject to sale or
free use, petrified wood on BLM-administered lands may be managed as a
paleontological resource and/or under the authority of FLPMA.
Geological units including but not limited to limestones,
diatomites, chalk beds, and fossil soils (i.e., paleosols) would not be
considered paleontological resources under the proposed rule. However,
the occurrence of discrete paleontological resources within geological
units would be considered paleontological resources and, therefore,
subject to PRPA and the proposed rule. Determinations about whether a
fossil is or is not a paleontological resource would be committed to
the authorized officer's discretion, based on scientific or other
management considerations. A determination that a fossil is or is not a
paleontological resource may be reversed at a later time, at the
authorized officer's discretion, based on scientific or other
management considerations.
Fossils such as conodonts and nonvertebrate microfossils would be
considered paleontological resources when they, as part of a scientific
research design, provide critical information toward the understanding
of geological units, biological evolution, climate change, and other
scientific questions. However, in accordance with section 6311 of PRPA,
the proposed rule would not require a permit for the collection of
conodonts or nonvertebrate microfossils in association with authorized
oil, gas, geothermal, or other minerals activities that are permitted
under other authorities. Casual collection of conodonts or
nonvertebrate microfossils may be permissible on certain BLM- or
Reclamation-managed lands consistent with the limitations defined in
subpart I of the proposed rule. Bureaus may individually determine that
certain conodonts or nonvertebrate microfossils lack paleontological
interest and therefore are not paleontological resources on all or on
portions of land they administer.
When paleontological resources on certain BLM- and Reclamation-
managed lands are common plant or invertebrate fossils, they may be
casually collected in compliance with subpart I of the proposed rule.
They are still paleontological resources (meaning that they have
paleontological interest and provide information about the history of
life on earth), but PRPA authorizes the limited collection of these
resources on lands administered by BLM and Reclamation where such
collection is consistent with the laws governing the management of
those lands, PRPA, and subpart I of the proposed rule.
Paleontological site would mean a locality, location, or area where
a paleontological resource is found; the site can be relatively small
or large. The definition of paleontological site is never synonymous
with ``archaeological site'' as used in 43 CFR part 7.
Working collection would mean paleontological resource collections
that are not intended for long-term preservation and care as museum
collections. Departmental policy on working collections is expanded in
Section 1.7, 411 DM, Identifying and Managing Museum Property.
Does this part affect existing authorities (Sec. 49.10)?
Proposed Sec. 49.10 would state that the proposed rule preserves
the authority of the Secretary of the Interior under this and other
laws and regulations to manage, protect, and preserve
[[Page 88176]]
paleontological resources on federal land under the jurisdiction of the
Secretary. PRPA and the proposed rule complement the bureaus' other
authorities for paleontological resource management. The proposed rule
would be consistent with existing bureau practices and would clarify
the responsibilities of the bureaus to preserve, protect, and manage
paleontological resources.
When does this part not apply (Sec. 49.15)?
Proposed Sec. 49.15 would state that the proposed rule does not
impose additional requirements on activities permitted under the
general mining or mineral laws, does not apply to Indian land, and does
not apply to land other than federal land as defined in the proposed
rule. This is consistent with the savings provisions of the PRPA. This
section means that the bureaus will not add requirements under PRPA and
the proposed rule to mining- and mineral-related permits. For example,
the bureaus may not cite PRPA or the proposed rule in the list of
mitigation measures that is attached to an approved mining plan of
operations. However, because PRPA and the proposed rule do not limit
the applicability of other legal authorities such as the Mining in the
Parks Act and FLPMA, the bureaus may continue to cite those other
authorities as protection for paleontological resources when
authorizing or conditioning land or resource uses under those
authorities. This section would also clarify that, under PRPA, the word
``reclamation'' means reclamation in the context of mining and mineral
activities and not the broader context of all federal reclamation
activities.
Does this part create new rights or entitlements (Sec. 49.20)?
Proposed Sec. 49.20 would state that the proposed rule would not
create a right or standing to file suit for persons who are not
officers or employees of the United States acting in that capacity. It
would repeat section 6311 of PRPA (16 U.S.C. 470aaa-10) for public
notice and clarity.
What information concerning the nature and specific location of
paleontological resources is confidential (Sec. 49.25)?
Proposed Sec. 49.25 would implement the provision in PRPA that
exempts information about the nature and specific location of a
paleontological resource from disclosure under the Freedom of
Information Act and any other law unless the authorized officer
determines that disclosure would: (1) Further the purposes of PRPA; (2)
not create risk of harm to or theft or destruction of the resource or
site containing the resource; and (3) be in accordance with other
applicable laws. This proposed section would also require a written
agreement between the bureau and the party seeking the disclosure,
which would ensure that the recipient of the disclosure does not
publicly distribute or otherwise release, disclose, or share the
information. For example, a partner repository would not be permitted
to post specific locality information on-line, but if authorized to do
so in a written agreement could still share such information for
educational or scientific uses that would not create harm or risk to
the resource. The agreement to maintain confidentiality of released
information would ensure that the release of confidential information
in one situation would not trigger the requirement of the bureau to
release that same information to other requestors.
How will the bureaus conduct inventory, monitoring, and preservation
activities (Sec. 49.30)?
Proposed Sec. 49.30 would explain that the bureaus will conduct
inventory, monitoring, and preservation activities based upon
scientific and resource management principles and practices, and
clarify that these activities are undertaken by each bureau internally
or may be coordinated with other agencies, non-federal partners,
scientists, and the general public where appropriate and practical.
Such coordination might take place through mechanisms such as
agreements, permits, grants, citizen science efforts, or other
arrangements. For public notice and clarity, Sec. 49.30 would repeat
section 6302 of PRPA, 16 U.S.C. 470aaa-1.
How will the bureaus foster public education and awareness (Sec.
49.35)?
Proposed Sec. 49.35 would explain that the bureaus will establish
a program to increase public awareness, coordinated with other
agencies, non-federal partners, scientists, and the general public
where appropriate and practical. National Fossil Day, an annual multi-
agency and multi-partner event, is a successful example of how the
bureaus are already working to increase public awareness. For public
notice and clarity, Sec. 49.35 would repeat section 6303 of PRPA, 16
U.S.C. 470aaa-2.
When may the bureaus restrict access to an area (Sec. 49.40)?
Proposed Sec. 49.40(a) would state that the authorized officer may
restrict access to or close areas to collection to protect resources or
provide for public safety. For public notice and clarity, paragraph (a)
would repeat section 6304(e) of PRPA, 16 U.S.C. 470aaa-3(e). Proposed
Sec. 49.40(b) would clarify that other authorities may also be used to
restrict access to or close areas in order to preserve or protect
paleontological resources or provide for public safety. This authority
supplements the bureaus' existing authority and procedures for
restricting access to areas or closing areas to collection (see BLM
regulations at 43 CFR 8364.1; Reclamation regulations at 43 CFR 423.29;
FWS regulations at 50 CFR 25.21; and NPS regulations at 36 CFR 1.5).
Paleontological Resources Permitting--Requirements, Modifications, and
Appeals (Subpart B)
Since 1906, the bureaus have permitted the collection of
paleontological resources under various legal and regulatory
authorities. Permitting will continue under PRPA and the proposed
regulations.
When is a permit required on federal land (Sec. 49.50)?
Proposed Sec. 49.50 would clarify when a permit is required and
who must have a permit. A permit would be required for collecting
paleontological resources or disturbing paleontological sites except
for casual collecting on certain lands managed by BLM or Reclamation
where casual collecting is allowed. The conditions for casual
collecting are defined in subpart I of this proposed rule. Proposed
Sec. 49.50(b) states a permit may be required by a bureau for
paleontological investigative activities that do not involve collection
or disturbance in order to track and report on scientific activities or
for other purposes. Proposed Sec. 49.50(c) states a permit would be
required for federal employees to disturb paleontological sites or
collect paleontological resources although bureaus may implement this
requirement on a programmatic basis, consistent with their internal
processes. The bureau personnel so authorized must meet the
professional requirements defined in Sec. 49.60 of the proposed rule,
and have experience appropriate to the planned work. The approval must
be issued by the bureau managing the land. All collected materials are
the property of the Federal Government, and must be managed and curated
consistent with the requirements of subpart C of the proposed rule.
Who can receive a permit (Sec. 49.55)?
Proposed Sec. 49.55 would establish that applicants who meet the
qualification requirements of proposed Sec. 49.60, provide a complete
application, and
[[Page 88177]]
meet the permit issuance criteria may receive a permit. This proposed
section would not affect valid permits issued before the effective date
of the proposed rule.
What criteria must a permit applicant meet (Sec. 49.60)?
Proposed Sec. 49.60(a)(1)-(4) would describe qualifications needed
for an applicant to receive a permit. PRPA requires the bureaus to
ensure that proposed work under a permit will further paleontological
knowledge or public education and that the applicant is qualified to
carry out the permitted activity. In order to accomplish both
requirements, the proposed regulations would require the applicant and
others overseeing work under the permit to have experience and
qualifications in paleontology appropriate to the tasks they are to
perform. For the applicant, an advanced degree in paleontology or
equivalent experience and prior field experience has been the baseline
for this requirement for all of the bureaus for more than 20 years and
is consistent with similar policy for archaeology permits that are
authorized under the Archaeological Resources Protection Act of 1979.
The authorized officer may grant a permit to an applicant who lacks an
advanced degree or specialized experience if the authorized officer is
satisfied that the applicant's education and experience are sufficient
to carry out the work that is proposed. The authorized officer may
grant the permit, grant the permit with limitations, or deny the permit
based on the applicant's education, experience, and past performance,
and qualifications of persons named in the application as overseeing
work.
Proposed Sec. 49.60(b) states that past performance will also be
considered, and includes any aspect that could affect performance under
the permit being applied for. This would include compliance with
previous permits, relevant civil or criminal violations, or relevant
indictments or charges.
Where must a permit application be filed and what information must it
include (Sec. 49.65)?
In order to ensure consistency among bureaus, proposed Sec. 49.65
lists the information that a permit applicant is required to provide
before a bureau can issue a permit under this subpart. Proposed Sec.
49.65(a) would require permit applicants to submit an application to
the bureau that administers the federal land where the proposed
activity would be conducted. For activities on lands administered by
BLM, Reclamation, and FWS, permit applicants would use DI Form 9002
(Paleontological Resource Use Permit Application). For activities on
lands administered by NPS, permit applicants would use NPS's Research
Permit and Reporting System (RPRS). This paragraph would also clarify
that it is the permit applicant's responsibility to determine which
bureau has jurisdiction, use that bureau's permit application form and
process, and respond to that bureau's requests for information in a
timely manner.
Proposed Sec. 49.65(b) would describe the information requirements
that the permit application forms would include.
How will a bureau make a decision about a permit application (Sec.
49.70)?
Proposed Sec. 49.70(a) and (b) would identify how a bureau
evaluates and decides on a permit application. Because permit approval
would be partially based on whether the proposed repository for the
collection under the permit would meet the standards of 411 DM,
proposed Sec. 49.70(c) would require the authorized officer to work
with the permit applicant and proposed repository to decide whether to
approve that repository for the collection. The phrase ``the authorized
officer may'' means that the authorized officer has discretion to
approve or deny a permit based on information provided by the
applicant, past and present performance, management considerations,
bureau policy, and other considerations.
What terms and conditions will a permit contain (Sec. 49.75)?
Proposed Sec. 49.75(a) would specify that a permit would include
but not be limited to certain terms and conditions. Section 6304 of
PRPA lists three required permit terms and conditions. The proposed
rule would require additional terms and conditions in order to enhance
consistency among bureaus as emphasized by section 6302(b) of PRPA. For
approved activities on lands administered by BLM, Reclamation, and FWS,
the authorized officer would issue the permit using DI Form 9003
(Paleontological Resource Use Permit). For approved activities on lands
administered by NPS, the authorized officer would issue the permit
under the NPS RPRS.
Proposed Sec. 49.75(a)(3) would clarify that the permittee is
responsible for ensuring that the resource site or recovered
paleontological materials are not put at risk as a result of work that
is done under the permit. For example, if fossils are exposed by
collection or excavation, they must be protected from damage, theft, or
other harm for the period they are exposed to risk. Additionally, the
permit would not authorize permittees to modify the environment around
an area of work. For example, permittees would not be allowed to cut
trees, create roads, or grade parking areas.
Proposed Sec. 49.75(a)(8) would require a permittee to report
suspected resource damage or theft to the authorized officer after
learning of such damage or theft. Such reporting should be done as soon
as possible, but in all cases must be done within 48 hours. Based on
the bureaus' experience, 48 hours is a reasonable timeframe for such
reporting.
Proposed Sec. 49.75(a)(9) would clarify that collections made
under a permit must be deposited in the approved repository, and that
the permittee must notify the bureau of the deposit. The notification
of deposit is required because the bureau must know the nature,
condition, and location of federally owned paleontological resources in
order to meet PRPA's mandate to manage these resources using scientific
principles and expertise, and to meet Departmental museum management
requirements. Documentation of the transfer of paleontological
resources from the care of the permittee to the care of the approved
repository is necessary so that the bureau, the permittee, and the
approved repository will each know which party is responsible for the
care and management of the paleontological collection.
To avoid a situation where bureaus or repositories could have large
collections of paleontological resources that are costly to maintain or
no longer contribute to science, the proposed rule would allow the
authorized officer to determine that specimens that are found to be
redundant, lack adequate associated data, or otherwise are determined
not to further paleontological knowledge, public education, or
management of paleontological resources may be removed from museum
collections and placed into working collections.
Proposed Sec. 49.75(a)(10) would clarify that all paleontological
resources collected under a permit remain federal property. The
resources that are not collected, but instead are left in situ or
otherwise are left in the field by the permittee, also remain federal
property. Removal of any paleontological resources from federal land
not in accordance with this subpart may constitute theft of federal
property.
Proposed Sec. 49.75(a)(12) would state that the permittee is
responsible for the costs of carrying out the permitted
[[Page 88178]]
activity, including curation costs, consistent with specific or
programmatic direction from the authorized officer.
Proposed Sec. 49.75(a)(13) would require a permittee to provide
reports as required by the bureau in the permit. The permittee will
ensure that reports are submitted in a timely fashion and contain the
information necessary to ensure accountability for federal resources.
For activities that were conducted on lands administered by BLM,
Reclamation, or FWS, reports would be submitted using DI Form 9005
(Paleontological Permit Report Cover Sheet) or DI Form 9006
(Paleontology Consulting Report Summary Sheet). For activities that
were conducted on lands administered by NPS, reports would be submitted
under the NPS RPRS. Proposed Sec. 49.75(a)(16) would state that a
permittee may not transfer the permit to another person.
Proposed Sec. 49.75(b) would authorize the bureau to hold a
permittee responsible for complying with applicable permit terms and
conditions after it has expired or been cancelled, suspended, or
revoked. Like all terms and conditions, this requirement would be
enforceable under the criminal and civil penalties provision of this
part, and would enable bureaus to preserve paleontological resources
and maintain accountability by requiring that affected resource sites
be left in a good condition, collections be transferred to the approved
repository in a timely manner, that associated records be produced, and
that reports be submitted, regardless of the status of the permit.
Proposed Sec. 49.75(c) would provide that the authorized officer
may include in the permit additional terms and conditions necessary to
carry out the purposes of this part.
Proposed Sec. 49.75(d) would provide that for activities approved
on lands administered by BLM or Reclamation, the authorized officer may
provide a permittee with DI Form 9007 (Paleontology Work Notice to
Proceed), which contains site-specific guidance and stipulations for
the permittee. The Notice to Proceed is considered part of or an
addendum to the permit. Proposed Sec. 49.75(e) would provide that
persons who do not comply with the terms of a permit issued under this
part may be subject to civil or criminal penalties.
When and how may a permit be modified, suspended, revoked, or cancelled
(Sec. 49.80)?
Proposed Sec. 49.80 would identify when and how a permit may be
modified, suspended, revoked, or cancelled. The authorized officer
would notify a permittee of such actions verbally or in writing. Any
verbal notification would be confirmed by a written order delivered as
soon as practicable after issuance of the verbal order. The
notification would be immediately effective upon the permittee's
receipt of the verbal or written notification, whichever is received
first.
Proposed Sec. 49.80(a) would identify when a permit may be
modified. Common permit modifications may include changing the duration
of a permit, changing personnel that are named on a permit, changing
the geographic area that is authorized under a permit, making minor
modifications to the stratigraphic context or scope of work, or adding
or altering supplemental terms and conditions to a permit. These
modifications may be requested by the permittee or initiated by the
bureau. The authorized officer may issue a new permit or require the
permittee to submit a new application when a modification would
substantially change the scope of the existing permit.
Proposed Sec. 49.80(b) would identify when activities under a
permit may be suspended. Common reasons for a suspension include the
discovery of potential resource conflicts, failure of the permittee to
follow terms and conditions, resource protection issues, or budget or
staffing concerns. A suspension would last no longer than 45 days, and
may be lifted by the authorized officer when the reasons for suspension
no longer apply, or when conditions for lifting a suspension have been
met. After 45 days, if the circumstances prompting the suspension have
not been resolved, the suspension will end and the authorized officer
may modify, revoke, or cancel the permit, as appropriate to the
specific circumstance.
Proposed Sec. 49.80(c) would identify when a permit may be
revoked. A permit will be revoked when, for example, a permittee fails
to follow the terms and conditions of a permit, is charged with a civil
or criminal violation under PRPA or under other applicable laws, or is
found ineligible to hold a paleontology permit.
Proposed Sec. 49.80(d) would identify when a permit may be
cancelled. Cancellation would differ from revocation in that it would
terminate a permit for reasons that do not relate to improper or poor
performance on the part of the permittee. Cancellation is not a
negative action and should not be cause to deny a future permit to the
applicant. Cancellation may occur when administrative or resource
issues warrant, and may follow a 45-day suspension, or may occur
without a suspension occurring. A permittee may request a permit to be
cancelled for any reason, or the bureau may need to cancel the permit
for administrative or management reasons. Although PRPA does not
specifically reference permit cancellation, the proposed regulations
include this option because permit cancellation is a form of permit
modification (changing the end date of the permit) and is therefore
within the scope of PRPA.
Proposed Sec. 49.80(e) would specify that the authorized officer
will notify a permittee of the modification, suspension, revocation, or
cancellation either verbally or in writing. Proposed Sec. 49.80(f)
would specify that notifications of modification, suspension,
revocation, or cancellation are effective upon the permittee's receipt
of the written notification.
Can a permit-related decision be appealed (Sec. 49.85)?
Authorized officers have discretion to make permit-related
decisions based on information provided by the applicant, past and
present performance, management considerations, bureau policy, and
other considerations. Proposed Sec. 49.85 would state that permit-
related decisions may be appealed.
What is the process for appealing a permit-related decision (Sec.
49.90)?
Proposed Sec. 49.90 would specify the processes for appealing
permit-related decisions. BLM and FWS each have applicable regulations,
and NPS already has a process in place. Reclamation will develop an
appeals process for permit decisions and will document the process in
Reclamation's system of written directives. The appeals process may
include a review by the applicable Reclamation Regional Director,
followed by appeal to Reclamation's Commissioner, similar to the
process in place for land use decisions found at 43 CFR part 429.
Has OMB approved the information collection provisions of this part
(Sec. 49.95)?
Proposed Sec. 49.95 would describe the information collection
status of this part.
Management of Paleontological Resource Collections (Subpart C)
The proposed requirements provided in subpart C are consistent with
requirements provided for
[[Page 88179]]
archaeological collections at 36 CFR part 79.
Where are collections deposited (Sec. 49.200)?
Proposed Sec. 49.200 would clarify that collections made under a
permit issued under this part must be deposited in a repository
approved by the authorized officer. Collections made prior to the
effective date of the proposed rule would be subject to the terms and
conditions of the original collection permit or agreement, which is
also consistent with guidance in current DOI museum policy.
How will bureaus approve a repository for a collection made under this
part (Sec. 49.205)?
Proposed Sec. 49.205(a) would grant the authorized officer
discretion to approve a repository for a collection based on several
factors, including appropriate scope of collections, qualified curation
staff, adequate public access, compliance with DOI museum collection
standards, and consistency with bureau management goals. Approval of a
repository is necessary for both federal and non-federal repositories.
Proposed Sec. 49.205(b) would clarify that when the authorized
officer approves a repository for the collection, that repository will
be listed in the approved permit and will remain approved to curate the
collection unless the authorized officer determines that any one of the
considerations in paragraph (a) of this section is no longer met. In
that case, the repository would be notified and would have a reasonable
amount of time to:
(1) Correct the deficiency;
(2) Move the collection to another approved repository; or
(3) Take other actions the authorized officer requests.
In situations involving movement of the collection to another
approved repository, the first repository would likely ship the
collection to the second repository in accordance with the authorized
officer's instructions. The bureau would then close the deposit
agreement with the first repository and enter into a new agreement with
the second repository.
What is the process for depositing the collection at the approved
repository (Sec. 49.210)?
Proposed Sec. 49.210 would clarify the process for depositing
paleontological collections at the approved repository. Under proposed
Sec. 49.210(a), the authorized officer would work with the permittee
and approved repository, using scientific principles and expertise, to
ensure that the collection is complete and that the content of the
collection would further paleontological knowledge, public education,
or management of paleontological resources. In addition, the authorized
officer would review any existing agreement between the bureau and the
approved repository to determine if that agreement adequately addresses
requirements that are specific to the collection and either develop a
new agreement, or amend an existing agreement, if an adequate agreement
does not exist.
Under proposed Sec. 49.210(b), the permittee or the repository
would submit DI Form 9008 (Repository Receipt for Collections
(Paleontology)) to the authorized officer. This form would include but
not be limited to a certification by the permittee that the collection
was deposited at the repository, and a certification by the approved
repository's authorized official that the collection has been received.
For repository managers concerned that the curation requirements of
PRPA and the proposed rule could lead to unrealistic or burdensome
curation requirements, the proposed rule addresses these concerns in
three ways. First, a repository may agree or decline to curate a
collection of paleontological resources. Second, the authorized officer
is ultimately responsible for determining the content of the
collection, with input from the permittee and the repository, and
ensuring that the collection meets bureau management goals. Third, the
proposed rule specifies that the standard for collection under permit
and deposit into an approved repository is that the collection furthers
paleontological knowledge, public education, or management goals for
paleontological resources. If a proposed collection would not meet this
standard, then the collection should not be permitted. If the
authorized officer determines that a collection formerly met this
standard but no longer does, then part or all of the collection may be
removed from the approved repository, transferred to a working
collection, or managed in other ways consistent with DOI standards in
411 DM and bureau museum management procedures. Note that, in such a
circumstance, that collection is still comprised of paleontological
resources. If the specimens in a collection are determined by the
authorized officer to no longer have paleontological interest or
provide information about the history of life on earth, then they are
not paleontological resources as defined in PRPA and the proposed rule.
All of these aspects of the proposed rule should ameliorate the
concerns of repository managers that the requirements in PRPA would be
burdensome.
What terms and conditions must the agreement between the bureau and
approved repository contain (Sec. 49.215)?
Proposed Sec. 49.215 would specify the terms and conditions that
must be included in an agreement between the bureau and the repository.
The terms and conditions provided in this section are consistent with
411 DM. Several of these terms and conditions are addressed below for
further clarification.
First, proposed Sec. 49.215(a)(2) would clarify that the Federal
Government retains ownership of all paleontological resources collected
under a permit, regardless of where the resources reside, who
discovered or collected them, or who assumes administrative
responsibility for their care. Bureaus may transfer all or portions of
collections of paleontological resources to other federal bureaus
(including the Smithsonian) either by loan or by administrative
transfer without changing the fact that they are owned by the Federal
Government.
Proposed Sec. 49.215(a)(6) requires that agreements describe any
special procedures or restrictions for access to controlled property,
consumptive use, reproduction, or curatorial services, including loans.
These terms are all defined in 411 DM.
Proposed Sec. 49.215(a)(11) would clarify that one of the terms
and conditions is a statement that employees cannot take any action
that results in collection encumbrance, seizure, theft, damage, or
other issues, and closely follows 36 CFR part 79 and DOI policy in 411
DM. The prohibition against damaging a collection does not prevent
consumptive use that is approved by the bureau in a permit, agreement,
or other written documentation.
What are the standards for managing the collections (Sec. 49.220)?
Proposed Sec. 49.220 would provide standards for managing
collections made under this part that are consistent with DOI policy
for the management of museum collections found at 411 DM. Particular
provisions of this proposed section are addressed below.
Proposed Sec. 49.220(a)(1) would make collections and locality
data available subject to the confidentiality provisions of the
proposed rule and PRPA.
[[Page 88180]]
Proposed Sec. 49.220(b) would authorize repositories to charge
reasonable fees, consistent with applicable law, to cover their costs
of making federal paleontological resources available to the public.
Prohibited Acts (Subpart D)
What acts are prohibited (Sec. 49.300)?
For public notice and clarity, proposed Sec. 49.300 would restate
the prohibitions contained in section 6306 of PRPA (16 U.S.C. 470aaa-
5). Under PRPA and this section, a person may not:
(a) Excavate, remove, damage, or otherwise alter or deface or
attempt to excavate, remove, damage, or otherwise alter or deface any
paleontological resource located on federal land unless this activity
is conducted in accordance with PRPA and this part. For example, this
would prohibit moving or relocating a paleontological resource from its
in situ geologic context without authorization under the proposed rule.
Such authorization would be in the form of a permit or casual
collection consistent with subpart I of this part.
(b) Exchange, transport, export, receive, or offer to exchange,
transport, export, or receive any paleontological resource if the
person knew or should have known such resource to have been excavated
or removed from federal land in violation of any provision, rule,
regulation, law, ordinance, or permit in effect under federal law,
including PRPA and this part.
(c) 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 federal land.
(d) Make or submit any false record, account, or label for, or any
false identification of, any paleontological resource excavated or
removed from federal land. This provision would apply when a person
knew or should have known that information was false, or when there was
intent to deceive, misrepresent, or mislead.
Criminal Penalties (Subpart E)
What criminal penalties apply to violations of this part (Sec.
49.400)?
Proposed Sec. 49.400 would describe what criminal penalties apply
to persons who commit prohibited acts under this part. Bureaus may
utilize other authorities to issue citations for criminal violations
involving paleontological resources.
Proposed Sec. 49.400(a) would state that criminal penalties would
not apply with respect to paleontological resources in the lawful
possession of a person on or before March 30, 2009, which is the date
that PRPA was enacted.
Proposed Sec. 49.400(b) would authorize penalties upon conviction
for persons who knowingly violate or counsel, procure, solicit, or
employ another person to violate subpart D of this proposed rule. If
the value of the paleontological resources involved (which means the
sum of the commercial and scientific value of the paleontological
resources involved and the cost of response, restoration, and repair of
the resources and sites involved) is more than $500, penalties would be
assessed in accordance with Title 18 of the U.S. Code and/or may
include imprisonment for up to 5 years. If the value of the
paleontological resources involved is less than $500, penalties would
be assessed in accordance with Title 18 of the U.S. Code and/or may
include imprisonment for up to 2 years. A court may award restitution,
which may also be called penalties or damages, to the bureau for
injuries to paleontological resources, in lieu of or in addition to
fines.
Proposed Sec. 49.400(c) would state that the term ``value of the
paleontological resources involved'' would be explained in subpart G of
this proposed rule.
Proposed Sec. 49.400(d) would state that in the case of a second
or subsequent violation by the same person, the amount of the penalties
assessed under this subpart may be doubled.
Proposed Sec. 49.400(e) would authorize law enforcement officers
to issue citations for minor violations under the bureaus' existing
enforcement authorities, such as misdemeanor penalties, rather than
relying solely on the criminal penalties provided by PRPA.
Civil Penalties (Subpart F)
When can the authorized officer assess a civil penalty (Sec. 49.500)?
Proposed Sec. 49.500 would state that the authorized officer may
assess a civil penalty upon any person who violates the provisions of
the proposed rule or a permit issued under the proposed rule, and that
each violation would be considered a separate offense.
How does the authorized officer serve a notice of violation (Sec.
49.505)?
Proposed Sec. 49.505 would state the authorized officer may serve
a notice of violation in person, by certified mail, return receipt
requested, or other verifiable delivery method upon a person that the
authorized officer believes has committed a violation of the proposed
rule.
What is included in the notice of violation (Sec. 49.510)?
Proposed Sec. 49.510 would describe the contents of a notice of
violation.
How is an objection to a notice of violation made and proposed civil
penalty made and resolved (Sec. 49.515)?
Proposed Sec. 49.515 would state that a person who receives a
notice of violation and proposed civil penalty has 30 days from the
date of receipt in which to file a written objection with the
authorized officer. The person must state the reasons for the
objection, provide any supporting documentation, and sign the
objection.
By written notice, the authorized officer would sustain or deny the
objection based on the information in the objection and any information
provided upon request. If the authorized officer concludes there was no
violation, the objection would be sustained, the notice of violation
revoked, and no civil penalty would be assessed. If the authorized
officer finds that a violation occurred, the objection would be denied.
If the authorized officer finds that a violation occurred but the
proposed civil penalty was too high, the objection would be denied in
part and sustained in part.
When will the authorized officer issue a final assessment of civil
penalty (Sec. 49.520)?
Proposed Sec. 49.520 would state that if the person who was served
with a notice of violation and proposed civil penalty does not file a
timely objection, or files a timely objection which is denied, the
authorized officer would issue a final assessment of civil penalty.
How will the authorized officer calculate the amount of a proposed and
final assessment of civil penalty (Sec. 49.525)?
Proposed Sec. 49.525 would explain the factors that the authorized
officer will take into account when calculating a proposed and a final
assessment of civil penalty. For a first violation, the authorized
officer considers the factors listed in Sec. 49.525(a) and (b) and
assesses a penalty. For example, the penalty might be $1,000.
Under proposed Sec. 49.525(c), penalties for subsequent violations
may be doubled. Thus, if a person who has already been assessed a civil
penalty for a particular violation commits another prohibited act, the
authorized officer may double the penalty for that act. For example, if
the penalty for the second prohibited act would be $1,200 under the
factors listed in paragraphs (a) and (b) of this section, the
authorized officer
[[Page 88181]]
would have the discretion to double this penalty and assess the person
$2,400. When doubling penalties for subsequent violations, the
authorized officer must be mindful of Sec. 49.525(d), which caps
penalties at an amount equaling twice the cost of response,
restoration, and repair plus twice the cost of scientific or fair
market value of the resources (whichever is greater).
Proposed Sec. 49.525(d)(2) authorizes civil penalties for damages
to paleontological resources and paleontological sites. If other
resources or sites are damaged, the bureaus can utilize their
authorities under laws such as the Endangered Species Act, the
Archaeological Resources Protection Act, the National Park System
Resources Protection Act, and other statutes to pursue separate legal
or administrative remedies.
Proposed Sec. 49.525(e) would direct the authorized officer to use
proposed subpart G of this proposed rule to determine scientific or
commercial values and the cost of response, restoration, and repair.
Proposed Sec. 49.525(f) would state that the final assessment may
be equal to, less than, or more than the proposed civil penalty.
How will the authorized officer issue the final assessment of civil
penalty (Sec. 49.530)?
Proposed Sec. 49.530 would state that the authorized officer would
serve the final assessment of civil penalty by certified mail, return
receipt requested, or another verifiable delivery method. The proposed
section would also describe the required content of the final
assessment.
What are the options and timeframe to respond to the final assessment
of civil penalty (Sec. 49.535)?
Proposed Sec. 49.535 would provide that a person who receives a
final assessment of civil penalty must exercise one of two options
within 30 days of the date the assessment is received: (1) Accept the
assessment by filing a written notice with the authorized officer or
paying the assessed penalty, or (2) file a request for hearing before
an administrative law judge with the Departmental Case Hearings
Division (DCHD), Office of Hearings and Appeals, DOI in accordance with
Sec. 49.535(b). The request for hearing will be dismissed if it is not
timely filed with DCHD and may be dismissed if it does not contain all
information described in proposed Sec. 49.535(b).
If the person fails to file under either option within 30 days, the
assessment will be deemed accepted. Acceptance of the assessment waives
the right to hearing.
What procedures govern the DCHD hearing process initiated by a request
for hearing on the final assessment (Sec. 49.540)?
If a person files a request for a hearing with an administrative
law judge, proposed Sec. 49.540 would explain the procedures for that
hearing.
What will be included in the administrative law judge's decision (Sec.
49.545)?
Proposed Sec. 49.545 would describe the contents of the
administrative law judge's decision and would state that such decision
would become effective 31 days from the date of the decision absent a
timely appeal of the decision.
How can the administrative law judge's decision be appealed (Sec.
49.550)?
Proposed Sec. 49.550 would provide the person who filed a request
for the hearing with an administrative law judge, as well as the
bureau, with the opportunity to appeal that judge's decision by
submitting a written dated appeal of the decision to the DOI Office of
Hearing and Appeals via certified mail, return receipt requested, or
other verifiable delivery method, and would also describe the contents
of the appeal documents and the mailing addresses where the appeal
documents must be sent.
What procedures govern an appeal of an administrative law judge's
decision to the OHA Director (Sec. 49.555)?
Proposed Sec. 49.555 would state that the appeal to OHA is
governed by 43 CFR part 4, subparts A and G, and other provisions of 43
CFR part 4, where applicable.
When must the civil penalty be paid (Sec. 49.560)?
Proposed Sec. 49.560 would explain decisions that are considered
final administrative decisions. A person has 30 days from the date of
those final decisions to fully pay the final assessment of civil
penalty or agree to a payment schedule.
When may a person assessed a civil penalty seek judicial review (Sec.
49.565)?
Proposed Sec. 49.565 would explain that, within 30 days of the OHA
decision, a person may file a petition for judicial review in the
United States District Court for the District of Columbia or in the
district where the violation occurred, and that the deadline for
payment of the civil penalty will be stayed pending resolution of the
judicial review.
What happens if a civil penalty is not paid on time (Sec. 49.570)?
Proposed Sec. 49.570 would describe the consequences of failing to
fully pay the final assessment of civil penalty by the required
deadlines.
How will collected civil penalties be used (Sec. 49.575)?
Proposed Sec. 49.575 would state that civil penalties collected
under this subpart are available without further appropriation to the
bureau that administers the federal land or paleontological resources
that were the subject of the violation, and may be used by the bureau
for several purposes, including: Protection, restoration, or repair of
the paleontological resources and sites that were the subject of the
action, and protection, monitoring, and study of the resources and
sites; and provision of educational materials to the public about
paleontological resources, paleontological sites, or resource
protection; or payment of rewards.
Determining Values and the Costs of Response, Restoration, and Repair
(Subpart G).
Proposed subpart G would provide direction on determining values
and the cost of response, restoration, and repair under this part. The
authorized officer may consult with subject matter experts, such as
resource specialists, area specialists, and law enforcement
specialists, in determining these values.
What is scientific value (Sec. 49.600)?
Proposed Sec. 49.600 would describe scientific value. PRPA uses
the term ``paleontological value'' in the section on prohibited acts
and criminal penalties, and then switches to ``scientific value'' in
the section on civil penalties. The bureaus agree that the two terms
are synonymous and that for purposes of consistency and clarity only
the term ``scientific value'' would be used in the proposed rule.
What is commercial value (Sec. 49.605)?
Proposed Sec. 49.605 would describe commercial value. PRPA uses
the term ``commercial value'' in the section on prohibited acts and
criminal penalties, and then switches to ``fair market value'' in the
section on civil penalties. The bureaus agree that the two terms are
synonymous and for the purposes of consistency and clarity only the
term ``commercial value'' would be used in the proposed rule.
[[Page 88182]]
What is the cost of response, restoration, and repair (Sec. 49.610)?
Proposed Sec. 49.610 would define the cost of response,
restoration, and repair. In some cases, it may be appropriate for the
estimated cost of response, restoration, and repair to be peer
reviewed. The values and costs should be determined by paleontologists
with appropriate expertise.
Forfeiture and Rewards (Subpart H).
Will a violation lead to forfeiture of a paleontological resource
(Sec. 49.700)?
Proposed Sec. 49.700 would explain when a violation will lead to
the forfeiture of paleontological resources. When there are civil or
criminal forfeitures, paleontological resources are either returned to,
or remain in, the administrative authority of the Federal Government.
Where appropriate, the bureau will initiate forfeiture under a
cooperative agreement with agencies that have forfeiture regulations.
What rewards may bureaus pay to those who assisted in enforcing this
part (Sec. 49.705)?
Proposed Sec. 49.705 would describe the rewards that may be paid
for assistance in enforcing the proposed rule. Proposed Sec. 49.705(a)
would establish that the bureau may pay a reward to the person or
persons who assist the bureau by furnishing information that leads to a
finding of a civil or criminal violation. Rewards will not be paid for
the discovery or reporting of a paleontological resource (i.e., there
is no bounty for discovering a fossil).
Casual Collection of Common Invertebrate or Plant Paleontological
Resources on Bureau of Land Management and Bureau of Reclamation
Administered Lands (Subpart I)
Is casual collecting allowed on lands administered by NPS or FWS (Sec.
49.800)?
Proposed Sec. 49.800 would explain that PRPA does not allow casual
collecting in areas managed by NPS or FWS. In those areas, collecting
any paleontological resource must be conducted in accordance with a
permit issued by NPS or FWS under subpart B of this proposed rule.
Is casual collecting allowed on lands administered by BLM or
Reclamation (Sec. 49.805)?
Under proposed Sec. 49.805(a), casual collecting would continue as
currently authorized on lands administered by BLM, except that the PRPA
terms ``negligible disturbance'' and ``reasonable amount'' defined
under Sec. 49.810 must be followed. Casual collecting will not be
allowed on BLM lands that are or become closed to casual collecting,
BLM-administered national monuments, BLM-administered national
conservation areas, outstanding natural areas, forest reserves, or
cooperative management and protection areas, except where the bureau
has specifically determined that casual collection would not impair the
intent of the preservation designation. Because BLM must ``conserve,
protect, and restore [these] nationally significant landscapes that
have outstanding cultural, ecological, and scientific values for the
benefit of current and future generations,'' the bureau must ensure
that these areas would not be negatively affected by casual collecting
(establishment of the National Landscape Conservation System, 16 U.S.C.
7202). Closures or restrictions may be short term, long term, or
permanent. The BLM is requesting public comment regarding the range of
designations listed in Sec. 49.805(a)(2) as prohibiting or restricting
casual collection, including whether and why additional designations
should be included or currently proposed designations excluded from the
list.
Proposed Sec. 49.805(b) would explain that casual collecting of
common invertebrate or plant paleontological resources will be allowed
on land administered by Reclamation only in locations where Reclamation
has established a special use area for casual collecting using
processes defined in Reclamation's regulation at 43 CFR part 423,
Public Conduct on Bureau of Reclamation Facilities, Lands, and
Waterbodies. This proposed paragraph would also state that casual
collecting is prohibited on Reclamation project land that is
administered by NPS or FWS.
Proposed Sec. 49.805(c) would clearly place full responsibility on
persons interested in casual collecting to ascertain which bureau
manages the land where those persons would like to collect
paleontological resources, whether the land is open to casual
collecting, and what may be collected in an area, and to obtain
information about the managing bureau's casual collecting procedures.
What is casual collecting (Sec. 49.810)?
Proposed Sec. 49.810(a) would restate the PRPA definition of
casual collecting. Proposed Sec. 49.810(a)(1) through (a)(5) would
provide specific definitions for the terms used in the PRPA definition.
Under proposed Sec. 49.810(a)(1), only common invertebrate and
common plant paleontological resources may be casually collected.
Common invertebrate and common plant paleontological resources are
invertebrate or plant fossils that have been established by the
bureaus, based on available scientific information and current
professional standards, as having ordinary occurrence and wide-spread
distribution.
Although these particular resources may be common, they are still
paleontological resources as defined in PRPA and the proposed rule.
That is, they have paleontological interest and provide information
about the history of life on earth.
Not all invertebrate or plant paleontological resources are common.
If the resources are not common, they may only be collected under a
permit. It may not always be possible for a collector to identify in
the field whether a fossil is common. When in doubt, collectors should
err on the side of caution and collect only the resources that they
know are common. The bureaus may hold a trained amateur, avocational
paleontologist, or professional to a higher standard of knowledge than
the general public about whether or not a fossil is common.
If a knowledgeable collector makes an unanticipated discovery of an
uncommon paleontological resource while casually collecting, that
collector shall not collect that resource because he or she is not
authorized to do so. Instead, the collector should alert the relevant
bureau. If the collector wishes to pursue collection, he or she must
obtain a permit to collect the uncommon resource. If the collector does
collect the uncommon resource without a permit, that collector may be
subject to penalties.
Proposed Sec. 49.810(a)(2) would establish ``reasonable amount''
for casual collecting as 25 pounds per day per collector, not to exceed
100 pounds per year per collector. This proposed definition would also
clarify that pooling of multiple daily amounts by one or more
collectors to obtain pieces in excess of 25 pounds is not allowed. The
bureaus determined that the 25 pounds per day per collector, and the
100 pounds per year per collector, are reasonable amounts based on
BLM's long experience with the collecting of petrified wood and other
fossils from BLM lands before PRPA was enacted. These amounts represent
a balance between PRPA's mandate to allow casual collecting and other
laws that require the bureaus to protect and manage other natural and
cultural resources.
The proposed prevention of the pooling of multiple daily amounts
[[Page 88183]]
would add clarification and be consistent with existing BLM regulations
at 43 CFR 3622.4 governing the collecting of petrified wood.
The bureaus considered defining ``reasonable amount'' as equaling
two quarts instead of 25 pounds, but decided that the use of a weight
limit, rather than a size limit, is more consistent with existing
collection standards that are already understood by the public and the
bureaus.
Proposed Sec. 49.810(a)(3) would clarify that ``negligible
disturbance'' for casual collecting means little or no change to the
surface of the land, and minimal or no effect to natural and cultural
resources. This proposed definition would specify that in no
circumstance may the surface disturbance exceed 1 square yard (3 feet
by 3 feet) per individual collector; that in cases of multiple
collectors each square yard of surface disturbance must be separated by
at least 10 feet; and that all areas of surface disturbance must be
backfilled with the material that was removed in order to render the
disturbance substantially unnoticeable to the casual observer. The
reason for using the ``1 square yard'' maximum is that this would be
similar to longstanding BLM practice, and such consistency is
encouraged by PRPA. In the context of compliance with the National
Environmental Policy Act (NEPA) in the issuance of research permits for
BLM, for instance, a proposal to engage in surface disturbance of
anything larger than 1 square meter is not usually subject to
categorical exclusion but is subject to further analysis under NEPA.
The fossil-collecting community should, therefore, already be familiar
with this type of threshold. For purposes of managing ``negligible
disturbance,'' 1 square yard is considered to be approximately equal to
1 square meter.
The proposed definition would also specify that collecting areas
need to be separated by at least 10 feet where there is surface
disturbance. The separation would reduce cumulative effects to other
resources. Where there is no surface disturbance, there is no need to
separate collecting areas.
Proposed Sec. 49.810(a)(4) would address the uses to which
casually collected resources can be put. Casually collected resources
may be used only for noncommercial personal use, which means a use
other than purchase, sale, financial gain, or research. The restriction
on any commercial use of casually collected resources is not new. For
instance, rules of conduct applicable to BLM-managed public lands
currently allow casual collecting of paleontological resources only for
``noncommercial purposes'' (43 CFR 8365.1-5(b)).
Proposed Sec. 49.810(a)(5) would define the kinds of tools that
may be used to casually collect these resources. These tools must be
small, such as a geologic hammer, trowel, or sieve; they cannot use or
be operated by a motor, engine, or other mechanized power source; and
they must be light and small enough to be hand-carried by one person. A
tool that exceeds this definition cannot be used to casually collect
these resources.
Proposed Sec. 49.810(b) would enable the authorized officer to
establish limitations on casual collecting, in addition to the
limitations already contained in the proposed rule. Examples of
additional limitations include reducing the maximum weight for
``reasonable amount,'' decreasing the threshold for negligible
disturbance, limiting depth of allowable disturbance, limiting specific
tools that may be used, defining what is common in a specific area,
establishing time or duration limits for collecting, establishing
limits to avoid cumulative effects, and establishing parameters for
safety.
Proposed Sec. 49.810(c) would clarify that casual collecting is
not allowed when any of the parameters that restrict casual collecting
(reasonable amount, common invertebrate and plant paleontological
resources, personal noncommercial use, negligible disturbance and non-
powered hand tools) is exceeded or does not apply. Casual collecting is
a limited exception to the overarching permit requirement of PRPA, and
is allowed under the presumption that the ``commonness'' of these
resources, in combination with limitations on amount, surface
disturbance, tools, and eventual use of the collected resources,
contributes to the underlying objective of protecting paleontological
resources on federal lands. Proposed Sec. 49.810(c) also clarifies
that casual collecting in excess of the specified limitations is
prohibited and subject to civil and criminal penalties.
IV. Proposed Conforming Amendment to 43 CFR part 8360--Visitor
Services; Sections 8360.0-3, Authority, and 8365.1-5, Property and
Resources
PRPA requires the BLM to allow the casual collecting of common
invertebrate and plant paleontological resources, which is consistent
with existing BLM policy. However, this rule would amend the text at
existing 43 CFR 8365.1-5 to conform to the language used by PRPA.
The authority citations for 43 CFR part 8360 and the list of
authorities at Sec. 8360.0-3 would each be amended to add PRPA (16
U.S.C. 470aaa et seq.). PRPA introduces the term ``casual collecting''
to define the noncommercial collection of invertebrate and plant
fossils, which was previously authorized by the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1701 et seq.). PRPA and the proposed
regulations at part 49 use the term ``paleontological resources''
instead of the term ``fossils'' to describe resources that are managed
under PRPA.
The current Sec. 8365.1-5 would be amended to conform to the terms
introduced by PRPA. The specific changes are:
Sec. 8365.1-5(b)(2) would be amended to remove the phrase
``common invertebrate and common plant fossils;''
Sec. 8365.1-5(b)(4) would be amended to remove ``and'' in
order to maintain grammatical structure;
Sec. 8365.1-5(b)(5) would be amended to add ``and'' in
order to maintain grammatical structure; and
A proposed new Sec. 8365.1-5(b)(6) would be added to
include ``common invertebrate and plant paleontological resources'' on
the list of things that may be collected from BLM public lands in
reasonable amounts for noncommercial purposes. The paragraph also
provides a reference to proposed part 49, which would authorize and
provide rules for casual collecting.
V. Proposed Conforming Amendment to 50 CFR Part 27--Prohibited Acts,
Sec. 27.63, Search for and Removal of Other Valued Objects
PRPA states that a paleontological resource may not be collected
from federal land without a permit issued under that authority. The
proposed amendment at Sec. 27.63 would add a paragraph that states
that a permit is required in order to collect paleontological resources
and would provide a reference to proposed part 49, which would
authorize and provide rules for issuing permits under PPRA.
Proposed new Sec. 27.63(c) would state that permits are required
for paleontological studies on national wildlife refuges in accordance
with the provisions at proposed 43 CFR part 49.
VI. Compliance With Other Laws, Executive Orders, and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this proposed
rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866
[[Page 88184]]
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
Regulatory Flexibility Act (RFA)
This proposed rule will not have a significant economic effect on a
substantial number of small entities under the RFA (5 U.S.C. 601 et
seq.). This certification is based on the cost-benefit and regulatory
flexibility analyses found in the report titled ``Proposed
Paleontological Resources Preservation Regulations, 43 CFR part 49:
Economic Analysis In Support Of E.O. 12866 and Regulatory Flexibility
Act Compliance,'' which can be viewed at www.blm.gov/paleontology by
clicking on the link entitled ``Proposed Paleontological Resources
Preservation Regulations, 43 CFR part 49: Economic Analysis In Support
Of E.O. 12866 and Regulatory Flexibility Act Compliance.''
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act (UMRA)
This proposed rule does not impose an unfunded mandate on state,
local, or tribal governments or the private sector of more than $100
million per year. This rule will not have a significant or unique
effect on state, local, or tribal governments or the private sector.
The rule addresses the management of paleontological resources from
lands managed by BLM, Reclamation, FWS, and NPS, and imposes no
requirements on other agencies or governments. A statement containing
information required by the UMRA (2 U.S.C. 1531 et seq.) is not
required.
Takings (Executive Order 12630)
This proposed rule does not affect a taking of private property or
otherwise have taking implications under Executive Order 12630. This
proposed rule is not a government action capable of interfering with
constitutionally protected property rights. It would implement the new
statutory authority for managing, preserving, and protecting
paleontological resources on federal lands and is consistent with prior
policies, procedures, and practices for the collection and curation of
paleontological resources on federal land. Private property is not
affected. A takings implication assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. This
rule addresses the management of paleontological resources on and from
lands managed by the BLM, Reclamation, FWS, and NPS, and imposes no
requirements on other agencies or governments. It does not have a
substantial direct effect on the states, on the relationship between
the Federal Government and the states, or on the distribution of power
and responsibilities among the levels of government. A federalism
summary impact statement is not required.
Civil Justice Reform (Executive Order 12988)
This proposed rule complies with the requirements of Executive
Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175 and Departmental Policy)
DOI strives to strengthen its government-to-government relationship
with Indian tribes through a commitment to consultation with Indian
tribes and recognition of their right to self-governance and tribal
sovereignty. We have evaluated this proposed rule under DOI's
consultation policy and under the criteria in Executive Order 13175 and
have determined that it has no substantial direct effects on federally
recognized Indian tribes and that consultation is not required. This
proposed rule applies to lands managed by BLM, Reclamation, FWS, and
NPS. It does not apply to and has no direct effect on tribal trust
lands or lands subject to a restriction on alienation imposed by the
United States.
DOI is sending a letter to notify the 566 federally recognized
Indian tribes that the proposed rulemaking is being published in the
Federal Register. DOI invites responses to the notification letter.
Paperwork Reduction Act of 1995 (PRA)
This proposed rule contains a collection of information that has
been submitted to OMB for approval under the PRA (44 U.S.C. 3501 et
seq.). DOI and its bureaus may not conduct or sponsor, and no one is
required to respond to, a collection of information unless it displays
a currently valid OMB control number.
OMB has reviewed and approved the information collection
requirements associated with the NPS' application and reports for
paleontological permits (OMB Control Number 1024-0236).
DOI proposes to collect the following information associated with
paleontological permits for work on lands administered by the BLM,
Reclamation, and FWS:
Permit application (Sec. 49.65). Permit applicants proposing to
work in areas administered by BLM, Reclamation, or FWS must provide the
information requested by DI Form 9002 (Paleontological Resource Use
Permit Application). Such information includes:
(1) Applicant's name, affiliation, and contact information.
(2) Current resume for the applicant and all other persons who will
oversee fieldwork and other work.
(3) Description, estimated start and end dates of proposed work,
and maps and other location information.
(4) Purpose and methodology of proposed work, including a detailed
scope of work or research plan for the proposed activity, logistical
information, methods that will be employed to explore for or remove the
paleontological resources, proposed content and nature of any
collection to be made under the permit.
(5) Bonding information.
[[Page 88185]]
(6) Information about the proposed repository.
(7) Information on the applicant's past performance on previous
permits.
Change of personnel (Sec. 49.75(a)(2)). Permittee must report
changes in the persons who are conducting activities under the permit,
and submit the credentials of any new persons to the authorized officer
for approval.
Locality information (Sec. 49.75(a)(1) & (7)). Permittee will
record locality information on DI Form 9004 (Paleontological Locality
Form), or in another format approved by the bureau in the permit that
captures the same information.
Resource damage or theft (Sec. 49.75(a)(8)). Permittee must report
suspected resource damage or theft of paleontological or other
resources to the authorized officer as soon as possible, but not to
exceed 48 hours after learning of such damage or theft.
Repository receipt (Sec. 49.75(a)(9) & (10)). Permittee must
deposit the collection in the approved repository and provide the
bureau with DI Form 9008 (Repository Receipt for Collections
(Paleontology)), which includes a certification by the permittee that
the collection was transferred to the repository and a certification by
the approved repository's authorized official that the collection was
received.
List and description of paleontological resources (Sec.
49.75(a)(11)). If the permittee has not transferred the collection to
the approved repository by the due date of the annual report or other
schedule approved for the permit, the permittee must provide the
authorized officer a complete list and description of all
paleontological resources collected and the current location of the
paleontological resources.
Reports (Sec. 49.75(a)(15)). Permittees conducting activities on
lands administered by BLM, Reclamation, or FWS must submit reports to
the bureaus using DI Form 9005 (Paleontological Permit Report Cover
Sheet), or DI Form 9006 (Paleontology Consulting Report Summary Sheet).
Amendments to permits (Sec. 49.80(a)). Permittees may request a
modification to a permit. Modification requests will include permittee
name, permit number, and the reason(s) for the modification request.
Objecting to a Notice of Violation (Sec. 49.515(a) & (b)). When a
person receives a notice of violation, the person has 30 days from the
date the notice was received to object by submitting to the authorized
officer documentation to support the position that the person did not
commit a violation or that the proposed penalty should be reduced or
eliminated.
Responding to a civil penalty (Sec. 49.535(a)). A person may
request a hearing on the authorized officer's final assessment of a
civil penalty by filing a request for hearing via certified mail
(return receipt requested or other verifiable delivery method) to the
Departmental Cases Hearings Division, Office of Hearings and Appeals,
Department of the Interior, 351 S. West Temple, Room 6.300, Salt Lake
City, Utah 84101. The request for hearing must include the following
information:
(1) The reasons for challenging the final assessment;
(2) The relief sought and the basis for the relief;
(3) A copy of the original notice of civil violation and proposed
civil penalty assessment;
(4) A copy of any objection and supporting documentation filed
under Sec. 49.515(a);
(5) A copy of the final assessment of civil penalty; and
(6) A certificate of service acknowledging service of the request
for hearing with the accompanying documentation on the Office of the
Solicitor.
OMB Control No.: 1093-NEW.
Title: Application and Reports for Paleontological Permits, 43 CFR
part 49.
Form Number(s): DI Forms 9002, 9004, 9005, 9006, and 9008.
Description of Respondents: Individuals; organizations; businesses
(museums and universities); state, tribal, or local governments that
collect paleontological resources or disturb paleontological sites on
DOI lands.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
----------------------------------------------------------------------------------------------------------------
Completion
Total annual time per Total annual
Requirement responses response burden hours
(hours)
----------------------------------------------------------------------------------------------------------------
Permit Application--DI Form 9002--Sec. 49.65; DI Form 9003-- 440 4 1,760
Sec. 49.75(a); DI Form 9007--Sec. 49.75(d).................
Report Change of Personnel--Sec. 49.75(a)(2).................. 100 1 100
Locality Information--DI Form 9004--Sec. 49.75(a)(1) & (7).... 300 1 300
Report Resource Damage or Theft -Sec. 49.75(a)(8)............. 50 1 50
Repository Receipt--DI Form 9008-Sec. 49.75(a)(9)&(10)........ 300 1 300
List and Description of Paleontological Resources--Sec. 100 1 100
49.75(a)(11)...................................................
Reports--DI Form 9005, Permit Report Cover Sheet--Sec. 374 5 1,870
49.75(a)(15)...................................................
Reports--DI Form 9006, Consulting Summary Report--Sec. 66 5 330
49.75(a)(15)...................................................
Request Amendment to Permit--Sec. 49.80(a).................... 200 1 200
Objecting to a Notice of Violation--Sec. 49.515(a)&(b)........ 10 10 100
Responding to a Civil Penalty--Sec. 49.535(a)................. 5 10 50
-----------------------------------------------
Totals...................................................... 1,945 .............. 5,160
----------------------------------------------------------------------------------------------------------------
Estimated Nonhour Cost Burden: None.
Send comments specific to the information collection aspects of
this proposed rule to the Desk Officer for the Department of the
Interior with a copy to the Office of the Secretary Information
Collection Clearance Officer, Department of the Interior. See the DATES
and ADDRESSES sections for specific instructions.
National Environmental Policy Act
This proposed rule is anticipated to be categorically excluded from
National Environmental Policy Act analysis under DOI categorical
exclusion, 43 CFR 46.210(i), which covers ``Policies, directives,
regulations, and guidelines: that are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process,
either collectively, or case-by-case.''
The categorical exclusion is appropriate and applicable for the
[[Page 88186]]
following reasons. Several of the provisions of this proposed rule are
specifically administrative, financial, legal or procedural in nature,
and therefore are subject to the first part of the categorical
exclusion. For instance, the provisions for permit modification,
suspension, revocation, or cancellation are all administrative or
procedural in character, as are the rule's provisions establishing
procedures to challenge any of these decisions. Similarly, the proposed
rule sets forth specifics of the administration of civil and criminal
penalties associated with violation of the provisions of the rule and
of PRPA.
Both the establishment of the permit system, and future decisions
to close lands to casual collecting (and, conversely, to open lands to
casual collecting where that use is not already authorized) are subject
to the second part of the categorical exclusion. Issuance of a permit
(whether programmatic or individual in scope) for the collection of
paleontological resources itself requires agency compliance with NEPA.
Moreover, a permit must contain permit conditions, supported by
appropriate NEPA analysis, that ensure the underlying project or action
will continue to meet regulatory requirements throughout the entire
duration of the permit. Likewise, any decision to close or open lands
to casual collecting also requires agency compliance with NEPA and may
contain conditions, supported by appropriate NEPA analysis, that ensure
the appropriate management of these resources. Because the
environmental effects of this proposed rule are too speculative to lend
themselves to meaningful analysis, and the environmental consequences
of any of these decisions will be analyzed in detail at the time the
permit application or proposed opening or closing to casual collecting
is evaluated and before a decision is made, the rule is subject to the
second part of DOI categorical exclusion, 43 CFR 46.210(i).
Pursuant to 43 CFR 46.205(c), DOI has reviewed its reliance upon
this categorical exclusion against the list of extraordinary
circumstances, at 43 CFR 46.215, and has found that none applies to
this rule. Therefore, neither an environmental assessment (EA) nor an
environmental impact statement (EIS) is required for this rulemaking.
Even though neither an EA nor an EIS must be prepared for this
rule, the BLM has elected to prepare an EA to inform decision makers
regarding the possible effects of two specific provisions as applied to
the public lands BLM manages, as allowed under DOI's regulations
implementing NEPA, 43 CFR 46.300(b)(1). BLM-administered lands are open
to casual collection of paleontological resources unless specifically
closed by a site-specific decision. As such, casual collection has been
and will continue to occur on certain public lands.
PRPA provides specific authority and limits under which this
activity can take place. In particular, PRPA allows for ``casual
collecting,'' which is defined as ``the collecting of a reasonable
amount of common invertebrates 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'' (Pub. L. 111-11, section 6301(1),
123 Stat. 1172), and specifies that the Secretary of the Interior is to
determine how these terms are to be defined. The rule's proposed
definitions for ``negligible disturbance'' and ``reasonable amount''
describe the conditions limiting any casual collection activities on
certain public lands managed by the BLM. The BLM is preparing an EA for
these proposed definitions, which will immediately apply to casual
collection on BLM public lands when this rule is finalized. The EA is
under development and may be found at www.blm.gov/paleontology. The BLM
welcomes input from the public on the EA, which may be revised in
response to public input as well as further agency review. It is
expected that analysis will be qualitative and descriptive in
character, and consist largely of presenting the possible negative
consequences that might result from not defining these terms carefully,
as well as describing the considerations that informed the proposed
definitions and the alternatives considered.
Effects on the Energy Supply (Executive Order 13211)
This proposed rule is not a significant energy action under the
definition in Executive Order 13211. DOI has determined that this
proposed rule will not have substantial direct effects on energy
supply, distribution, or use, including a shortfall in supply or price
increase. The rule has no bearing on energy development and will have
no effect on the volume or consumption of energy supplies. A Statement
of Energy Effects is not required.
Clarity of This Regulation
DOI is required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you believe the DOI has not met these requirements, send
comments by one of the methods listed in the ADDRESSES section. To
better help us to revise the rule, please make comments as specific as
possible. For example, tell us the numbers of the sections or
paragraphs that you find unclear, which sections or sentences are too
long, the sections where you believe lists or tables would be useful,
etc.
Drafting Information
This proposed rule reflects the efforts of staff in BLM,
Reclamation, FWS, and NPS.
Public Participation
DOI, whenever practicable, affords the public an opportunity to
participate in the rulemaking process. Accordingly, interested persons
may submit written comments regarding this proposed rule by one of the
methods listed in the ADDRESSES section. All comments must be received
by midnight of the close of the comment period. We will not accept bulk
comments in any format (hard copy or electronic) submitted on behalf of
others.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, please know
that we may make your entire comment--including your personal
identifying information--publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects
43 CFR Part 49
Casual collecting, Civil penalties, Collecting, Commercial value,
Confidentiality, Criminal penalties, Curation, Museums, Natural
resources, Paleontological resources, Paleontology, Permits, Prohibited
acts, Prohibitions, Public awareness, Public education, Recreation,
Reporting and record keeping requirements, Repository, Research,
Scientific principles, Scientific value.
[[Page 88187]]
43 CFR Part 8360
Penalties, Public lands, Recreation activities, Recreation and
recreation areas.
50 CFR Part 27
Wildlife refuges.
For reasons stated in the preamble, the Department of the Interior
proposes to amend title 43 of the CFR by adding part 49 and amending
part 8360 and to amend part 27 of title 50, as set forth below:
Title 43: Public Lands: Interior
Subtitle A--Office of the Secretary of the Interior
0
1. Add part 49 to title 43 to read as follows:
PART 49--PALEONTOLOGICAL RESOURCES PRESERVATION
Subpart A--Managing, Protecting, and Preserving Paleontological
Resources
Sec.
49.1 What does this part do?
49.5 What terms are used in this part?
49.10 Does this part affect existing authorities?
49.15 When does this part not apply?
49.20 Does this part create new rights or entitlements?
49.25 What information concerning the nature and specific location
of paleontological resources is confidential?
49.30 How will the bureaus conduct inventory, monitoring, and
preservation activities?
49.35 How will the bureaus foster public education and awareness?
49.40 When may the bureaus restrict access to an area?
Subpart B--Paleontological Resources Permitting--Requirements,
Modifications, and Appeals
49.50 When is a permit required on federal land?
49.55 Who can receive a permit?
49.60 What criteria must a permit applicant meet?
49.65 Where must a permit application be filed and what information
must it include?
49.70 How will a bureau make a decision about a permit application?
49.75 What terms and conditions will a permit contain?
49.80 When and how may a permit be modified, suspended, revoked, or
cancelled?
49.85 Can a permit-related decision be appealed?
49.90 What is the process for appealing a permit-related decision?
49.95 Has OMB approved the information collection provisions of this
part?
Subpart C--Management of Paleontological Resource Collections
49.200 Where are collections deposited?
49.205 How will bureaus approve a repository for a collection made
under this part?
49.210 What is the process for depositing the collection at the
approved repository?
49.215 What terms and conditions must the agreement between the
bureau and approved repository contain?
49.220 What are the standards for managing the collections?
Subpart D--Prohibited Acts
49.300 What acts are prohibited?
Subpart E--Criminal Penalties
49.400 What criminal penalties apply to violations of this part?
Subpart F--Civil Penalties
49.500 When can the authorized officer assess a civil penalty?
49.505 How does the authorized officer serve a notice of violation?
49.510 What is included in the notice of violation?
49.515 How is an objection to a notice of violation and proposed
civil penalty made and resolved?
49.520 When will the authorized officer issue a final assessment of
civil penalty?
49.525 How will the authorized officer calculate the amount of a
proposed and final assessment of civil penalty?
49.530 How will the authorized officer issue the final assessment of
civil penalty?
49.535 What are the options and timeframe to respond to the final
assessment of civil penalty?
49.540 What procedures govern the DCHD hearing process initiated by
a request for hearing on the final assessment?
49.545 What will be included in the administrative law judge's
decision?
49.550 How can the administrative law judge's decision be appealed?
49.555 What procedures govern an appeal of an administrative law
judge's decision to the OHA Director?
49.560 When must the civil penalty be paid?
49.565 When may a person assessed a civil penalty seek judicial
review?
49.570 What happens if a civil penalty is not paid on time?
49.575 How will collected civil penalties be used?
Subpart G--Determining Values and the Costs of Response, Restoration,
and Repair
49.600 What is scientific value?
49.605 What is commercial value?
49.610 What is the cost of response, restoration, and repair?
Subpart H--Forfeiture and Rewards
49.700 Will a violation lead to forfeiture of a paleontological
resource?
49.705 What rewards may bureaus pay to those who assisted in
enforcing this part?
Subpart I--Casual Collection of Common Invertebrate or Plant
Paleontological Resources on Bureau of Land Management and Bureau of
Reclamation Administered Lands
49.800 Is casual collecting allowed on lands administered by NPS or
FWS?
49.805 Is casual collecting allowed on lands administered by BLM or
Reclamation?
49.810 What is casual collecting?
Authority: 16 U.S.C. 470aaa-aaa-11.
Subpart A--Managing, Protecting, and Preserving Paleontological
Resources
Sec. 49.1 What does this part do?
This part:
(a) Directs the Bureau of Land Management (BLM), Bureau of
Reclamation (Reclamation), U.S. Fish and Wildlife Service (FWS), and
National Park Service (NPS) (collectively referred to as ``the
bureaus'') to manage, protect, and preserve paleontological resources
on federal land using scientific principles and expertise;
(b) Coordinates paleontological resources management among the
bureaus;
(c) Promotes public awareness; provides for collection under
permit; clarifies that paleontological resources cannot be collected
from federal land for sale or purchase; establishes civil and criminal
penalties; sets curation standards; and
(d) Authorizes casual collecting of common invertebrate and plant
fossils from certain BLM-administered land and certain Reclamation-
administered land.
Sec. 49.5 What terms are used in this part?
The terms used in this part have the following definitions.
Act means title VI, subtitle D of the Omnibus Public Land
Management Act on Paleontological Resources Preservation (16 U.S.C.
470aaa-470aaa-11).
Ad Hoc Board means an Ad Hoc Board of Appeals appointed by the
Director, Office of Hearings and Appeals, Department of the Interior.
Approved repository means a federal or non-federal facility that
provides curatorial services and that is approved by the authorized
officer to receive collections made under this part.
Associated records means original records or copies thereof,
regardless of format, that include but are not limited to:
(1) Primary records relating to identification, evaluation,
documentation, study, preservation, context, or recovery of a
paleontological resource;
[[Page 88188]]
(2) Public records including, but not limited to, land status
records, bureau reports, publications, court documents, and agreements;
and
(3) Administrative records and reports generated during the
permitting process that pertain to survey, excavation, or study of the
paleontological resource.
Authorized officer means the bureau director or employee to whom
the Secretary of the Interior has delegated authority to take action
under the Act. Delegation will follow applicable Department and bureau
procedures.
Bureau means Bureau of Land Management (BLM), Bureau of Reclamation
(Reclamation), U.S. Fish and Wildlife Service (FWS), or National Park
Service (NPS).
Collection means paleontological resources removed from geological
context or taken from federal land, and associated records or replicas.
Consumptive use means the alteration or destruction of a
paleontological specimen or portion of a specimen for scientific
research.
Cost of response, restoration, and repair means the costs to
respond to a violation of the provisions of this part or a permit
issued under this part and the costs of restoration and repair of the
paleontological resources or paleontological sites damaged as a result
of the violation. Those costs are described in greater detail in Sec.
49.610.
Curatorial services means managing and preserving a museum
collection over the long term according to Department and bureau museum
and archival standards and practices.
Day means a calendar day.
DCHD means the Departmental Cases Hearings Division, Office of
Hearings and Appeals, Department of the Interior.
Department or DOI means the Department of the Interior.
Federal land means land controlled or administered by the Secretary
of the Interior, except for Indian land.
Fossilized means preserved by natural processes, such as burial in
accumulated sediments, preservation in ice or amber, or replacement by
minerals, which may or may not alter the original organic content.
Indian land means land of federally-recognized Indian tribes or
Indian individuals which is either held in trust by the United States
or subject to a restriction against alienation imposed by the United
States.
Nature means physical features, identifications, or attributes of
the paleontological resource.
OHA means the Office of Hearings and Appeals, DOI.
OHA Director means the Director, Office of Hearings and Appeals,
DOI.
Paleontological resource means any fossilized remains, traces, or
imprints of organisms preserved in or on the Earth's crust, except for:
(1) Those that are found in an archaeological context and are an
archaeological resource as defined in section 3(1) of the
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1));
or
(2) ``Cultural items,'' as defined in section 2 of the Native
American Graves Protection and Repatriation Act (25 U.S.C. 3001 et
seq.); or
(3) Resources determined in writing by the authorized officer to
lack paleontological interest or not provide information about history
of life on earth, based on scientific and other management
considerations.
Paleontological site means a locality, location, or area where a
paleontological resource is found; the site can be relatively small or
large.
Specific location means any description or depiction of a place in
such detail that it would allow a person to find a paleontological
resource or the site from which it was collected.
State means one of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, or any other territory or possession of
the United States.
Working collections means paleontological resource collections that
are not intended for long-term preservation and care as museum
collections.
Sec. 49.10 Does this part affect existing authorities?
No. This part preserves the authority of the Secretary of the
Interior and the bureaus under this and other laws and regulations to
manage, protect, and preserve paleontological resources on federal
land.
Sec. 49.15 When does this part not apply?
(a) The regulations in this part do not invalidate, modify, or
impose additional restrictions or permitting requirements on mineral,
reclamation, or related multiple use activities for which authorization
exists or permits are issued under the general mining, mineral leasing,
geothermal leasing, or mineral materials disposal laws.
(b) The regulations in this part do not apply to Indian land.
(c) The regulations in this part do not apply to any land other
than federal land as defined in this part, or resources other than
paleontological resources as defined in this part.
Sec. 49.20 Does this part create new rights or entitlements?
(a) This part does not 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.
(b) Only an officer or employee of the United States acting in that
capacity has standing to file a civil action in a court of the United
States to enforce this part.
Sec. 49.25 What information concerning the nature and specific
location of paleontological resources is confidential?
(a) In keeping with section 6309 of the Act, information concerning
the nature and specific location of a paleontological resource is
exempt from disclosure under the Freedom of Information Act and any
other law unless the authorized officer determines that disclosure
would:
(1) Further the purposes of the Act;
(2) Not create risk of harm to or theft or destruction of the
resource or site containing the resource; and
(3) Be in accordance with other applicable laws.
(b) If the authorized officer determines that a proposed disclosure
would meet the requirements of paragraphs (a)(1)-(a)(3) of this
section, then the authorized officer will, prior to disclosing the
information, enter into a written agreement with the party seeking the
disclosure. Such agreement will provide stipulations focused on
ensuring that the recipient of the disclosure does not publicly
distribute or otherwise release, disclose, or share the information.
(c) No disclosure complying with paragraph (b) of this section will
be considered an official public disclosure for purposes of the Freedom
of Information Act.
Sec. 49.30 How will the bureaus conduct inventory, monitoring, and
preservation activities?
(a) The bureaus will develop plans and procedures for the inventory
and monitoring of paleontological resources on and from federal land in
accordance with applicable laws and regulations.
(b) The bureaus will manage, protect, and preserve paleontological
resources on and from federal land using scientific principles and
expertise.
(c) Activities under paragraphs (a) and (b) of this section will be
coordinated with other agencies, non-federal partners, the scientific
community, and the general public where appropriate and practicable.
[[Page 88189]]
Sec. 49.35 How will the bureaus foster public education and
awareness?
The bureaus will establish a program to increase public awareness
about the significance of paleontological resources on or from federal
land. This effort will be coordinated with other agencies, non-federal
partners, the scientific community, and the general public where
appropriate and practicable.
Sec. 49.40 When may the bureaus restrict access to an area?
(a) The authorized officer may restrict access to an area or close
areas to collection of paleontological resources to protect
paleontological or other resources or to provide for public safety.
(b) The regulations in this part do not preclude the use of other
authorities that provide for area restrictions or closures on federal
land.
Subpart B--PALEONTOLOGICAL RESOURCES PERMITTING--REQUIREMENTS,
MODIFICATIONS, AND APPEALS
Sec. 49.50 When is a permit required on federal land?
(a) A permit is required for any person to collect paleontological
resources or disturb paleontological sites, except for casual
collecting on certain lands managed by the BLM or Reclamation, which is
defined and addressed in subpart I of this part.
(b) A permit may be required by a bureau for activities that do not
involve collection or disturbance.
(c) A permit is required for Federal Government personnel to
collect paleontological resources or disturb paleontological sites
unless the bureau authorizes the action by programmatic or other means.
Sec. 49.55 Who can receive a permit?
Applicants who demonstrate that they meet the qualification
requirements described in Sec. 49.60, who provide a complete
application as described in Sec. 49.65, and whose proposed activity
meets the issuance criteria described in Sec. 49.70 may receive a
permit.
Sec. 49.60 What criteria must a permit applicant meet?
(a) Permit applicant qualification requirements include:
(1) A graduate degree from an accredited institution in
paleontology or related field of study with a major emphasis in
paleontology or equivalent academic training to undertake the proposed
activity;
(2) Experience in collecting, analyzing, summarizing, and reporting
paleontological data, and preparing collections for long-term care;
(3) 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
(4) Other expertise, knowledge, or experience required by the
bureau in policies or procedures.
(b) Past performance by the applicant will also be considered. Past
performance includes compliance with previous permits, relevant civil
or criminal violations, or current indictments or charges.
Sec. 49.65 Where must a permit application be filed and what
information must it include?
(a) A permit applicant must submit an application to the bureau
that administers the federal land where the proposed activity would be
conducted. It is the permit applicant's responsibility to determine
which bureau has jurisdiction, use that bureau's permit application
form and process, and respond to that bureau's requests for information
in a timely manner.
(b) A permit applicant proposing to work in areas administered by
BLM, Reclamation, or FWS must provide the information requested by DI
Form 9002 (Paleontological Resource Use Permit Application). A permit
applicant proposing to work in areas administered by NPS must provide
the information requested by the NPS's Research Permit and Reporting
System. Such information, for purpose of both DI Form 9002 and the NPS
System, includes:
(1) The applicant's name, affiliation, and contact information.
(2) A current resume for the applicant and all other persons who
oversee work under the permit, and any additional information
demonstrating that the applicant possesses the qualifications required
by Sec. 49.60.
(3) A description, estimated start and end dates, and maps and
other location information for the proposed work.
(4) Purpose and methodology of proposed work, including a detailed
scope of work or research plan for the proposed activity, logistical
information, methods that will be employed to explore for or remove the
paleontological resources, proposed content and nature of any
collection to be made under the permit, collection management
processes, timetable for transfer to the proposed repository, and any
additional information that will help the authorized officer identify
the extent, nature, and impacts of the proposal.
(5) Bonding information, if required by the bureau.
(6) Information about the proposed repository for any collection
that would be made under the permit, including:
(i) Name, location, and contact information for the proposed
repository;
(ii) Written verification from the proposed repository confirming
that it will agree to receive the collection; and
(iii) Names of organizations responsible for costs of curatorial
services.
(7) Information on the applicant's past performance on previous
permits.
(c) Because of the span of activities covered by paleontological
permits and the different management needs and resources of each
bureau, applicants may not be required to provide all of the
information listed in paragraph (b) of this section. Each bureau will
have the discretion to ask for less information.
Sec. 49.70 How will a bureau make a decision about a permit
application?
(a) The authorized officer will assess whether the permit
application complies with other applicable authorities.
(b) The authorized officer may issue a permit upon determining
that:
(1) The applicant possesses the qualifications required by Sec.
49.60;
(2) The permitted activity and any collection that would be made
under the proposed permit would further paleontological knowledge,
public education, or management of paleontological resources;
(3) The permitted activity would be consistent with the purpose and
management objectives defined for the federal land; and
(4) The permitted activity would be conducted in a manner that
would avoid or reduce adverse effects to significant natural or
cultural resources.
(c) The authorized officer will work with the permit applicant and
proposed repository to decide whether to approve the proposed
repository, based on the criteria described in Sec. 49.205(a), for the
collection that would be made under the permit.
Sec. 49.75 What terms and conditions will a permit contain?
(a) The authorized officer will use DI Form 9003 (Paleontological
Resource Use Permit) when issuing permits for activities on lands
administered by BLM, Reclamation, and FWS. The authorized officer will
use the NPS Research Permit and Reporting System when issuing a permit
for activities on lands administered by NPS. Permit terms and
conditions will include but are not limited to:
[[Page 88190]]
(1) Permittee must not release, disclose, or share information
about the specific location of paleontological resources without the
prior written permission of the authorized officer.
(2) Permittee must report in writing to the authorized officer any
change in the persons who are conducting activities under the permit,
and submit the credentials of any new persons for approval.
(3) Permittee must protect paleontological sites and associated
resources from harm resulting from the work under the permit, and is
responsible for the actions of all persons working under the permit.
(4) Permittee, or a designee approved by the authorized officer and
named on the permit, must be on site at all times when fieldwork is in
progress and have a copy of the signed permit on hand.
(5) Permittee must comply with all vehicle or access restrictions,
safety or environmental restrictions, local safety conditions or
restrictions, and applicable federal, state, and local laws.
(6) Permittee acknowledges that the geographic area within the
scope of the permit may be subject to other uses, and will take steps
to avoid or minimize potential conflicts with such uses.
(7) Permittee will record locality information on DI Form 9004
(Paleontological Locality Form), or in another format approved for use
under the permit that captures the same information.
(8) Permittee must report suspected resource damage or theft of
paleontological or other resources to the authorized officer as soon as
possible, but not to exceed 48 hours after learning of such damage or
theft.
(9) A copy of the permit must be kept with the collection during
transport and shared with the approved repository.
(10) Permittee must deposit the collection in the approved
repository and provide the bureau with DI Form 9008 (Repository Receipt
for Collections (Paleontology)), which includes but is not limited to a
certification by the permittee that the collection was transferred to
the repository and a certification by the approved repository's
authorized official that the collection was received.
(11) If the permittee has not transferred the collection to the
approved repository by the due date of the annual report or other
schedule approved for the permit, the permittee must provide the
authorized officer a complete list and description of all
paleontological resources collected and the current location of the
paleontological resources.
(12) Permittee acknowledges that all paleontological resources
collected under the permit will remain federal property, and that he or
she will not sell, trade, exchange, or keep for personal use the
paleontological resources collected under the permit.
(13) Permittee must acknowledge the permitting bureau in any
report, publication, paper, news article, film, television program, or
other media resulting from the work performed under the permit.
(14) Permittee is responsible for the costs, monetary and
otherwise, of the permitted activity, including fieldwork, data
analysis, report preparation, curation of the collection and its
associated records consistent with subpart C of this part.
(15) Permittees conducting activities on lands administered by BLM,
Reclamation, or FWS must submit reports to the bureaus using DI Form
9005 (Paleontological Permit Report Cover Sheet), or DI Form 9006
(Paleontology Consulting Report Summary Sheet). Permittees conducting
activities on lands administered by NPS must submit reports to the NPS
under the NPS Research Permit and Reporting System.
(16) Permittee must comply with timelines established by the
permit.
(17) Permittee must conduct the work consistent with the permit.
(18) Permittee must not transfer the permit.
(b) A permittee must continue to comply with applicable terms and
conditions in the event of permit expiration, suspension, cancellation,
or revocation unless specified otherwise by the authorized officer.
(c) The authorized officer may include in the permit additional
terms and conditions necessary to carry out the purposes of this part,
including a bond where warranted.
(d) For activities approved on lands administered by BLM or
Reclamation, the authorized officer may provide permittees with DI Form
9007 (Paleontology Work Notice to Proceed), which contains site-
specific guidance and stipulations for the permittee. The Notice to
Proceed is part of the permit.
(e) Persons who do not comply with the terms of a permit issued
under this part may be subject to civil or criminal penalties.
Sec. 49.80 When and how may a permit be modified, suspended,
revoked, or cancelled?
(a) Modification. The authorized officer may modify a permit at the
permittee's request; or when resource, safety, or other administrative
or management reasons make permit modification appropriate; or when
there is a violation of a term or condition of a permit issued under
this part.
(b) Suspension. The authorized officer may suspend for up to 45
days activities under the permit when resource, safety, or other
administrative or management reasons make permit suspension
appropriate, or when the permittee violates a term or condition of the
permit. If the issue prompting suspension is not resolved within the
45-day period, the authorized officer may modify, revoke, or cancel the
permit as appropriate to the specific circumstance.
(c) Revocation. The authorized officer may revoke a permit when the
permittee violates a term or condition of a permit, is found to be
ineligible for a permit, or when the permittee fails to take the
actions necessary for ending a suspension. The authorized officer will
revoke a permit immediately if any person working under the authority
of the permit is convicted of a criminal offense or assessed a civil
penalty under this part.
(d) Cancellation. The authorized officer may cancel a permit when
the permittee requests cancellation, or when resource, safety, or other
administrative or management reasons make permit cancellation
appropriate. Cancellation of a permit does not imply fault on the part
of the permittee.
(e) Notification of modification, suspension, revocation, or
cancellation.
(1) The authorized officer will notify the permittee of the
modification, suspension, revocation, or cancellation verbally or in
writing. The authorized officer will, as soon as practicable, confirm a
verbal notification with a written notification. A written notification
will be served on the permittee by certified mail, return receipt
requested, or another verifiable delivery method. The notification will
explain the reason for the modification, suspension, revocation, or
cancellation.
(2) In the case of a suspension, the written notification will also
include the conditions or actions necessary for ending the suspension;
the anticipated duration of the suspension or schedule for resolution
of the conditions that led to the suspension; and a statement that the
permit will be modified, revoked, or cancelled if the conditions that
led to the suspension are not resolved.
(3) The notification will inform the permittee how to appeal the
modification, revocation, suspension, or cancellation.
(f) Immediately effective. A modification, suspension, revocation,
or cancellation is in full force and effective
[[Page 88191]]
immediately upon the permittee's receipt of the written notification of
the modification, suspension, revocation, or cancellation.
Sec. 49.85 Can a permit-related decision be appealed?
Permit applicants and permittees may appeal the denial of a permit
application, and the modification, suspension, revocation, or
cancellation of an issued permit.
Sec. 49.90 What is the process for appealing a permit-related
decision?
A permit-related decision may be appealed using processes defined
by the issuing bureau.
(a) Permit-related decisions by BLM may be appealed under the
process explained at 43 CFR part 4, subpart E.
(b) Permit-related decisions by FWS may be appealed under the
process explained at 50 CFR 36.41(i).
(c) Permit-related decisions by Reclamation may be appealed under
the process used for other types of scientific research and collecting
permits issued by Reclamation, which will be specified in writing in
the permit-related decision.
(d) Permit-related decisions by NPS may be appealed under the
process used for other types of scientific research and collecting
permits issued by NPS, which will be specified in writing in the
permit-related decision.
Sec. 49.95 Has OMB approved the information collection provisions of
this part?
BLM, Reclamation, NPS, and FWS use the information collected under
this part to manage, protect, and preserve paleontological resources on
and from federal land. The Office of Management and Budget (OMB)
reviewed and approved the information collection requirements contained
in this part and assigned OMB Control No. 1093-XXXX. OMB has approved
the information collection requirements for NPS Research Permit and
Reporting System, which includes paleontological permits, and assigned
OMB Control No. 1024-0236. A federal agency may not conduct or sponsor
and you are not required to respond to a collection of information
unless it displays a currently valid OMB control number. You may send
comments on the information collection requirements to the Office of
the Secretary, Departmental Information Collection Clearance Lead,
Department of the Interior, 1849 C Street NW., Mailstop MIB-7056,
Washington, DC 20240.
Subpart C--Management of Paleontological Resource Collections
Sec. 49.200 Where are collections deposited?
(a) A collection from federal land made under a permit issued under
this part will be deposited in the repository approved by the
authorized officer under Sec. 49.205.
(b) The curation of paleontological resources collected from
federal land before January 6, 2017 is governed by the terms and
conditions of the original collection permit or agreement.
Sec. 49.205 How will bureaus approve a repository for a collection
made under this part?
(a) During the permit application process under subpart B of this
part, the authorized officer will decide whether or not to approve a
repository for the deposit of the collection that will be made under
the permit, based on whether the:
(1) Repository has facilities and staff that provide curatorial
services as defined in this part;
(2) Repository has a scope of collections statement or similar
policy document that identifies paleontological resources as part of
the repository's acquisition policy;
(3) Repository has access to paleontological and curatorial staff
trained and experienced in managing and preserving paleontological
resource collections;
(4) Repository's past and current performance meets applicable
Departmental standards;
(5) Deposit would meet the bureau's management goals for the
collection; and
(6) Repository will not release specific location data to the
public except as consistent with Sec. 49.25 or as provided in an
agreement between the repository and the bureau.
(b) When the authorized officer approves a repository for the
collection, that repository will be listed in the approved permit, and
will remain approved to curate the collection unless the authorized
officer determines that any one of the considerations in paragraph (a)
of this section is no longer met. In that case, the authorized officer
will notify the repository in writing and provide a reasonable time for
the repository to:
(1) Correct the deficiency;
(2) Move the collection to another approved repository; or
(3) Take other actions the authorized officer requests.
Sec. 49.210 What is the process for depositing the collection at the
approved repository?
(a) The authorized officer will take the following actions before
the collection is deposited at the approved repository:
(1) Work with the permittee and approved repository, using
scientific principles and expertise, to ensure that the collection is
complete and that the content of the collection will further
paleontological knowledge, public education, or management of
paleontological resources;
(2) Review any existing agreement between the bureau and the
approved repository to determine if that agreement adequately addresses
requirements that are specific to the collection; and
(3) Develop a new agreement, if an adequate agreement does not
exist between the repository and the bureau.
(b) After the collection is deposited at the approved repository,
the permittee or the repository will submit DI Form 9008 (Repository
Receipt for Collections (Paleontology)), to the authorized officer.
This form includes but is not limited to a certification by the
permittee that the collection was deposited at the repository, and a
certification by the approved repository's authorized official that the
collection has been received.
Sec. 49.215 What terms and conditions must the agreement between the
bureau and approved repository contain?
(a) Agreements between the bureau and approved repository will
contain the following information as deemed appropriate by the
authorized officer:
(1) Statement (updated as necessary) that identifies the collection
or group of collections at the approved repository.
(2) Statement that asserts federal ownership of the collection.
(3) Statement of work to be performed by the approved repository.
(4) Statement of the responsibilities of the bureau and of the
approved repository for the long-term care of the collection.
(5) Statement that collections are available for scientific and
educational uses and that the specific location data may be shared
consistent with Sec. 49.25.
(6) Description of any special procedures or restrictions for
access to controlled property, consumptive use, reproductions, or
curatorial services, including loans.
(7) Statement describing the frequency, methods, and reporting
process for inventories.
(8) Statement that all exhibits, publications, and studies of
paleontological resources will
[[Page 88192]]
acknowledge the bureau that administers the collection.
(9) Statement that copies of any publications or reports resulting
from study of the collection will be made available to the bureau.
(10) Statement describing how collection management records will be
made available to the bureau that administers the collection.
(11) Statement that employees of the repository will take no
actions whereby any of the collection shall or may be encumbered,
seized, taken, sold, attached, lost, stolen, destroyed or damaged.
(12) Effective term of the agreement and procedures for
modification, cancellation, suspension, extension, and termination of
the agreement, including costs.
(13) Additional terms and conditions as needed to manage the
collection.
(b) The agreement must be signed by an authorized representative of
the approved repository and the authorized officer.
Sec. 49.220 What are the standards for managing the collections?
(a) Each approved repository must:
(1) Provide curatorial services consistent with Sec. 49.5, and
make the collections available for scientific research, public
education, and management uses that further the Act, subject to Sec.
49.25;
(2) Ensure that use of the collections is consistent with
Departmental and bureau museum management standards and the terms of
the agreement between the bureau and the approved repository;
(3) Obtain approval of the authorized officer on a case-by-case
basis before conducting or allowing reproduction or consumptive use of
part or all of the collection, unless another procedure for obtaining
such approval is defined in the agreement between the bureau and the
approved repository;
(4) Obtain approval of the authorized officer and follow
Departmental and bureau policy when moving part or all of the
collection from museum to working collections; and
(5) Conduct inventories consistent with Departmental and bureau
museum management standards, and report the results to the bureau.
(b) The approved repository may charge reasonable fees, consistent
with applicable law, to persons who use, or institutions that borrow,
part or all of a collection. Fees may cover costs for handling,
packing, shipping, and insuring the collection, photocopying associated
records, and other costs associated with that use.
Subpart D--Prohibited Acts
Sec. 49.300 What acts are prohibited?
A person may not:
(a) Excavate, remove, damage, or otherwise alter or deface or
attempt to excavate, remove, damage, or otherwise alter or deface any
paleontological resource located on federal land unless this activity
is conducted in accordance with the Act and this part.
(b) Exchange, transport, export, receive, or offer to exchange,
transport, export, or receive any paleontological resource if the
person knew or should have known such resource to have been excavated
or removed from federal land in violation of any provision, rule,
regulation, law, ordinance, or permit in effect under federal law,
including the Act and this part.
(c) 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 federal land.
(d) Make or submit any false record, account, or label for, or any
false identification of, any paleontological resource excavated or
removed from federal land.
Subpart E--Criminal Penalties
Sec. 49.400 What criminal penalties apply to violations of this part?
(a) The penalties in this section do not apply with respect to
paleontological resources in the lawful possession of a person on or
before March 30, 2009.
(b) Anyone who knowingly violates or counsels, procures, solicits,
or employs another person to commit a prohibited act identified in
subpart D of this part will, upon conviction, be assessed:
(1) Fines in accordance with 18 U.S.C., or imprisonment of up to 5
years, or both, if the sum of the commercial and scientific value of
the paleontological resources involved and the cost of response,
restoration, and repair of the resources and sites involved is more
than $500; or
(2) Fines in accordance with 18 U.S.C., or imprisonment of up to 2
years, or both, if the sum of the commercial and scientific value of
the paleontological resources involved and the cost of response,
restoration, and repair of the resources and sites involved is $500 or
less.
(c) Commercial and scientific values and the cost of response,
restoration, and repair are determined under subpart G of this part.
(d) In the case of a second or subsequent violation by the same
person, the amount of the penalties assessed under this subpart may be
doubled.
(e) To the extent that a prohibited act under this subpart involves
a violation of other applicable law, the violator may be subject to
other criminal penalties.
Subpart F--Civil Penalties
Sec. 49.500 When can the authorized officer assess a civil penalty?
(a) The authorized officer may assess a civil penalty upon any
person who violates the provisions of this part or a permit issued
under this part, in accordance with the process explained in this
subpart.
(b) For purposes of this subpart, each violation is considered a
separate offense.
Sec. 49.505 How does the authorized officer serve a notice of
violation?
The authorized officer may serve a notice of violation in person,
by certified mail, return receipt requested, or other verifiable
delivery method upon a person that the authorized officer believes has
committed a violation of this part.
Sec. 49.510 What is included in the notice of violation?
A notice of violation will include:
(a) A concise statement of the facts believed to show a violation
has occurred;
(b) A citation of the provisions of this part or a permit issued
under this part alleged to have been violated;
(c) The amount of civil penalty proposed;
(d) Notification of the right to await the final assessment of
civil penalty or to object to the notice of violation and proposed
civil penalty, and the right to file a request for hearing of the final
assessment of civil penalty. The notice shall also inform the person of
the right to seek judicial review upon the issuance of the final
administrative order under this subpart; and
(e) The name and contact information of the authorized officer who
is serving the notice of violation.
Sec. 49.515 How is an objection to a notice of violation and
proposed civil penalty made and resolved?
(a) Filing Objection. A person served with a notice of violation
and proposed civil penalty may file a written objection with the
authorized officer within 30 days of the date the notice was received.
(b) Content of Objection. The objection must:
(1) Clearly and concisely state the reasons why the person believes
that the person did not commit a violation and/
[[Page 88193]]
or that the proposed civil penalty should be reduced or eliminated;
(2) Be accompanied by any documentation supporting the person's
reasons for objecting; and
(3) Be signed by the person or the person's authorized
representative.
(c) Issuing Determination. The authorized officer will issue a
determination, served on the person by a verifiable delivery method,
sustaining or denying the objection to the notice of violation and/or
proposed civil penalty based on the information contained in the
written objection or furnished to the authorized officer upon further
request.
(d) Content of Determination. In the determination, the authorized
officer will:
(1) Sustain the objection and revoke the notice of violation and
proposed civil penalty, if the authorized officer determines that the
information warrants a conclusion that no violation occurred;
(2) Deny the objection, if the authorized officer determines that
the information warrants a conclusion that a violation occurred and
that the proposed civil penalty is not too high; or
(3) Deny the objection in part and sustain it in part, if the
authorized officer determines that the information warrants a
conclusion that a violation has occurred, but the amount of the civil
penalty too high.
Sec. 49.520 When will the authorized officer issue a final
assessment of civil penalty?
The authorized officer will issue a final assessment of civil
penalty:
(a) If the person served with a notice of violation and proposed
civil penalty does not file a timely objection; or
(b) If the person does file a timely objection that is denied in
whole or in part under Sec. 49.515.
Sec. 49.525 How will the authorized officer calculate the amount of
a proposed and final assessment of civil penalty?
(a) The authorized officer will determine the amount of the civil
penalty by taking into account:
(1) The scientific or commercial value, whichever is greater as
determined by the authorized officer, of the paleontological resource
involved;
(2) The cost of response, restoration, and repair of the
paleontological resource and the paleontological site involved;
(3) Other factors that the authorized officer considers relevant,
such as prior violations or warnings or evidence of malicious intent;
(4) Information provided under Sec. 49.515 or furnished to the
authorized officer upon his or her request; and
(5) Mitigating factors, which may include return of paleontological
resources and whether the person will provide information that may
assist the bureau.
(b) Scientific and commercial values and the cost of response,
restoration, and repair are determined under subpart G of this part.
(c) In the case of any subsequent violation by the same person, the
authorized officer may calculate a penalty in accordance with paragraph
(a) of this section and double it for that subsequent violation.
(d) The maximum penalty assessed under paragraph (c) of this
section for any one violation may not exceed the sum of:
(1) Two times the cost of response, restoration, and repair of
paleontological resources and paleontological site damage; plus
(2) Two times the scientific or commercial value, whichever is
greater as determined by the authorized officer, of the paleontological
resources and paleontological sites destroyed or not recovered.
(e) The authorized officer will use subpart G of this part to
determine scientific or commercial values and the cost of response,
restoration, and repair.
(f) The final assessment may be equal to, less than, or more than
the proposed civil penalty.
Sec. 49.530 How will the authorized officer issue the final
assessment of civil penalty?
(a) The authorized officer will serve the final assessment of civil
penalty by certified mail, return receipt requested, or other
verifiable delivery method.
(b) The final assessment of civil penalty will include:
(1) The facts and conclusions that are the bases for the authorized
officer's determination that a violation occurred;
(2) The basis for the authorized officer's determination of the
amount of civil penalty assessed;
(3) Notification of the rights to accept the final assessment of
civil penalty or, alternatively, to file a request for hearing on the
final assessment with a DCHD administrative law judge under Sec.
49.535(a)(2).
(4) A statement that the civil penalty must be paid within 30 days
of the date that the final assessment of civil penalty is received,
unless the person served with the final assessment of civil penalty
files a request for hearing in accordance with this subpart and the
procedures specified in the notice.
Sec. 49.535 What are the options and timeframe to respond to the
final assessment of civil penalty?
(a) Response Options. A person who receives a final assessment of
civil penalty may, within 30 days of the date the assessment is
received, do one of the following:
(1) Accept the final assessment, either in writing, by payment of
the proposed penalty, or by failing to timely file a request for
hearing under paragraph (a)(2) of this section; or
(2) File a request for a hearing on the final assessment before a
DCHD administrative law judge via certified mail, return receipt
requested, or other verifiable delivery method with the Departmental
Cases Hearings Division, Office of Hearings and Appeals, Department of
the Interior, 351 S. West Temple, Room 6.300, Salt Lake City, Utah
84101.
(b) Content of Request for Hearing. A request for hearing must:
(1) Be signed by the person who receives the final assessment of
civil penalty or a representative qualified to represent that person
under 43 CFR 1.3;
(2) Identify the final assessment of civil penalty being
challenged;
(3) State clearly and concisely the reasons for challenging the
final assessment, including the reasons why the person believes that he
or she did not commit a violation and/or that the proposed civil
penalty should be reduced or eliminated;
(4) State the relief sought and the basis for that relief;
(5) Be accompanied by the following documentation:
(i) A copy of the notice of violation and proposed civil penalty;
(ii) A copy of any objection and supporting documentation filed
under Sec. 49.515(a); and
(iii) A copy of the final assessment of civil penalty; and
(6) Contain a certificate acknowledging service of the request for
hearing with the documentation listed in paragraph (b)(5) of this
section on the Office of the Solicitor at the address identified in
paragraph (c) of this section.
(c) Service. The person filing a request for hearing must
simultaneously send a copy of the request and the accompanying
documentation to the Office of the Solicitor, Department of the
Interior, 1849 C Street NW., Washington, DC 20240.
(d) Dismissal of Hearing Request.
(1) If the request for hearing is not received by DCHD within 30
days of the date of receipt of the final assessment, the request for
hearing will not be considered and the hearing will be dismissed.
[[Page 88194]]
(2) The request for hearing may be dismissed for failing to meet
any of the requirements of paragraph (c) of this section.
(e) Waiver of Hearing Right. A person who accepts the final
assessment under paragraph (a)(1) of this section waives the right to a
hearing.
Sec. 49.540 What procedures govern the DCHD hearing process
initiated by a request for hearing on the final assessment?
(a) Upon receipt of a request for hearing under Sec. 49.535(a)(2),
DCHD will assign an administrative law judge to preside over the
hearing process and issue a decision. DCHD will promptly notify the
parties of the assignment. Thereafter, all pleadings, papers, and other
documents in the hearing process must be filed directly with that
judge, with copies served on the other party.
(b) An attorney from the Office of the Solicitor, DOI, will
represent the bureau. The attorney will enter his or her appearance on
behalf of the bureau and file all motions and correspondence between
the bureau and the person who filed the request for hearing.
Subsequently, any service upon the bureau must be made to the attorney.
(c) To the extent not inconsistent with the provisions of this
subpart, the rules in 43 CFR part 4, subparts A and B, and in 43 CFR
4.422 through 4.437 will apply to the hearing process under this
subpart.
(d) The hearing will be conducted in accordance with 5 U.S.C. 554.
The bureau will have the burden of proving by a preponderance of the
evidence the fact of the violation and the basis for the amount of the
civil penalty. Upon completion of the hearing and incorporation of the
hearing transcript in the record, the administrative law judge will
issue a written decision in accordance with Sec. 49.545 and serve it
on the parties.
Sec. 49.545 What will be included in the administrative law judge's
decision?
(a) The administrative law judge's written decision will set forth:
(1) The findings of fact and conclusions of law;
(2) The reasons and bases for the findings; and
(3) An assessment of the penalty, if any.
(b) The amount of any penalty assessed will:
(1) Be determined in accordance with this subpart; and
(2) Not be limited by the amount assessed by the authorized officer
under Sec. 49.525 or by any offer of mitigation or remission
previously made.
(c) The administrative law judge's decision will become effective
31 days from the date of the written decision unless a timely appeal of
the decision is filed under Sec. 49.550.
Sec. 49.550 How can the administrative law judge's decision be
appealed?
(a) Filing appeal. Within 30 days of the date of the administrative
law judge's decision, either party to the hearing process (the person
who filed the request for hearing or the bureau) may appeal the
administrative law judge's decision to the OHA Director by filing a
notice of appeal via certified mail, return receipt requested, or other
verifiable delivery method to the Director, Office of Hearings and
Appeals, Department of the Interior, 801 North Quincy Street,
Arlington, Virginia 22203.
(b) Content of notice of appeal. The notice of appeal must:
(1) Be signed by the person filing the appeal or a representative
qualified to represent that person under 43 CFR 1.3;
(2) Identify the administrative law judge's decision being
appealed, including the DCHD docket number;
(3) State clearly and concisely the reasons for challenging the
decision, including:
(i) The reasons why the person believes that he or she did not
commit a violation and/or that the proposed civil penalty should be
reduced or eliminated; and
(ii) A concise but complete statement of the facts relied upon to
challenge the decision;
(4) State the relief sought and the basis for that relief;
(5) Be accompanied by the following documentation:
(i) A copy of the notice of violation and proposed civil penalty;
(ii) A copy of the final assessment of civil penalty; and
(iii) A copy of the administrative law judge's decision; and
(6) Contain a certificate acknowledging service of the notice with
the documentation listed in paragraph (b)(5) of this section on the
other party to the hearing process at the address listed on the
administrative law judge's decision.
(c) Service. The person filing a notice of appeal must
simultaneously send a copy of the notice and the accompanying
documentation to each of the following entities at the address listed
on the administrative law judge's decision:
(1) The other party to the hearing process; and
(2) DCHD.
(d) Dismissal of appeal. If the notice of appeal is not received by
the OHA Director within 30 days of the date of the administrative law
judge's decision, the notice of appeal will not be considered and the
appeal will be dismissed.
(e) Stay of payment deadline. If the administrative law judge's
decision is appealed to the OHA Director, the deadline for payment of
the penalty will be stayed pending resolution of the appeal.
Sec. 49.555 What procedures govern an appeal of an administrative
law judge's decision to the OHA Director?
(a) Upon receipt of a notice of appeal filed under Sec. 49.550(a),
the OHA Director will appoint an Ad Hoc Board to consider the appeal
and issue a decision thereon.
(b) To the extent not inconsistent with the provisions of this
subpart, the rules in 43 CFR part 4, subparts A, B, and G, will apply
to the appeal proceedings under Sec. 49.550.
Sec. 49.560 When must the civil penalty be paid?
A person assessed a civil penalty has 30 days from the date of the
final administrative decision in which to make full payment of the
final assessment of the civil penalty, or agree to a payment schedule.
For the purposes of this subpart, the final administrative decision is:
(a) The final assessment of civil penalty if the person served with
the final assessment does not file a timely request for hearing under
Sec. 49.535(a)(2).
(b) The administrative law judge's decision on the request for
hearing if a timely appeal to the OHA Director is not filed under Sec.
49.550(a); or
(c) The decision of the Ad Hoc Board of Appeals appointed by the
OHA Director if a timely appeal of the administrative law judge's
decision was filed under Sec. 49.550(a).
Sec. 49.565 When may a person assessed a civil penalty seek judicial
review?
A person may file a petition for judicial review in the United
States District Court for the District of Columbia or in the district
where the violation occurred, within 30 days of the decision of the Ad
Hoc Board of Appeals appointed by the OHA Director. For purposes of the
Act and this part, that decision will be considered a final
administrative order. The deadline for payment of the civil penalty
will be stayed pending resolution of the judicial review.
Sec. 49.570 What happens if a civil penalty is not paid on time?
(a) If the civil penalty is not paid by the required deadlines, the
United
[[Page 88195]]
States may take action to collect the penalty assessed plus interest,
attorneys' fees, and collection costs.
(b) Failure to pay a civil penalty assessed under this subpart is a
debt to the United States.
(c) Failure to pay a civil penalty assessed under this subpart may
prevent a person from obtaining a future authorization for activities
related to paleontological resources on federal land as well as
receiving other future federal funding or assistance.
(d) By assessing a civil penalty under this subpart, the United
States does not waive the right to pursue other legal or administrative
remedies.
Sec. 49.575 How will collected civil penalties be used?
Civil penalties collected under this subpart are available without
further appropriation to the bureau that administers the federal land
or paleontological resources that were the subject of the violation,
and may be used only to:
(a) 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;
(b) Provide educational materials to the public about
paleontological resources, paleontological sites, or resource
protection; or
(c) Pay rewards under subpart H of this part.
Subpart G--Determining Values and the Costs of Response,
Restoration, and Repair
Sec. 49.600 What is scientific value?
The scientific value of a paleontological resource is the value of
the scientific and educational information associated with the
resource. It is determined by the authorized officer based upon the
estimated costs of obtaining the scientific and educational information
from the disturbed paleontological site if the prohibited act had not
occurred. These costs may include, but are not limited to:
(a) Research design development;
(b) Fieldwork;
(c) Laboratory analysis;
(d) Curation;
(e) Reports or educational materials; and
(f) Lost visitor services or experience.
Sec. 49.605 What is commercial value?
The commercial value of a paleontological resource is the monetary
value of that resource, and is determined by the authorized officer
using comparable sales information, appraisals, market value, or other
information for comparable resources. If there is no comparable sales
information, appraisal, market value, or other information, the
authorized officer will determine the commercial value of the
paleontological resource using other methods such as scientific value
or the cost of response, restoration, and repair.
Sec. 49.610 What is the cost of response, restoration, and repair?
The cost of response, restoration, and repair of a paleontological
resource or paleontological site is determined by the authorized
officer, and includes but is not limited to the costs of:
(a) Law enforcement investigations;
(b) Immediate stabilization;
(c) Longer term response, restoration, and repair, including but
not limited to reconstructing or stabilizing the resource or site,
salvaging the resource or site, erecting physical barriers or other
protective devices or signs to protect the site, and monitoring the
site;
(d) Fossil preparation, stabilization, and conservation;
(e) Storage and curation of the resources; and
(f) Reporting upon the above activities.
Subpart H--Forfeiture and Rewards
Sec. 49.700 Will a violation lead to forfeiture of a paleontological
resource?
(a) A paleontological resource with respect to which a violation
under this part occurred is stolen federal property and is subject to
forfeiture.
(b) The bureau may either deposit forfeited resources into an
approved repository, or transfer or assign administration of the
forfeited resources to federal or non-federal institutions to be used
for scientific or educational purposes.
Sec. 49.705 What rewards may bureaus pay to those who assisted in
enforcing this part?
(a) The bureau may pay a reward to the person or persons furnishing
information leading to a finding of civil violation or criminal
conviction.
(b) The reward may be no more than half of the penalties collected.
If several persons provide the information, the bureau may divide the
reward among them.
(c) The funds for the reward may come from the penalties collected
or from appropriated funds.
(d) An officer or employee of federal, state, or local government
who furnishes information or renders service in the performance of
official duties is not eligible for a reward under this section.
Subpart I--Casual Collection of Common Invertebrate or Plant
Paleontological Resources on Bureau of Land Management and Bureau
of Reclamation Administered Lands
Sec. 49.800 Is casual collecting allowed on lands administered by
NPS or FWS?
Casual collecting of paleontological resources is not allowed on
lands administered by NPS or FWS. On those lands, collecting any
paleontological resource must be conducted in accordance with a permit
as described in subpart B of this part.
Sec. 49.805 Is casual collecting allowed on lands administered by
BLM or Reclamation?
(a) Casual collecting of common invertebrate or plant
paleontological resources is allowed on lands administered by BLM in
accordance with this subpart, except:
(1) On any BLM-administered land that is closed to casual
collecting in accordance with this part, other statutes, executive
orders, regulations, or land use plans; or
(2) On BLM-administered national monuments, national conservation
areas, outstanding natural areas, forest reserves, or cooperative
management and protection areas, except where allowed by other
statutes, executive orders, regulations, or land use plans.
(b) Casual collecting of common invertebrate or plant
paleontological resources is allowed on land administered by
Reclamation only in locations where Reclamation has established a
special use area for casual collecting using processes defined in 43
CFR part 423, Public Conduct on Bureau of Reclamation Facilities,
Lands, and Waterbodies. Casual collecting is prohibited on Reclamation
project land that is administered by NPS or FWS.
(c) Persons interested in casual collecting are responsible for
learning which bureau manages the land where they would like to collect
paleontological resources, learning if the land is open to casual
collecting, learning what may be collected in an area, and obtaining
information about the managing bureau's casual collecting procedures.
Sec. 49.810 What is casual collecting?
(a) Casual collecting means the collecting without a permit 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 or paleontological or other
resources.
[[Page 88196]]
(1) Common invertebrate or plant paleontological resources are
invertebrate or plant fossils that have been established as having
ordinary occurrence and wide-spread distribution. Not all invertebrate
or plant paleontological resources are common.
(2) Reasonable amount means a maximum of 25 pounds per day per
person, not to exceed 100 pounds per year per person. Pooling of
individuals' daily amounts to obtain pieces in excess of 25 pounds is
not allowed.
(3) Negligible disturbance means little or no change to the surface
of the land and minimal or no effect to natural and cultural resources,
specifically:
(i) In no circumstance may the surface disturbance exceed 1 square
yard (3 feet x 3 feet) per individual collector;
(ii) For multiple collectors, each square yard of surface
disturbance must be separated by at least 10 feet;
(iii) All areas of surface disturbance must be backfilled with the
material that was removed so as to render the disturbance substantially
unnoticeable to the casual observer.
(4) Non-commercial personal use means a use other than for
purchase, sale, financial gain, or research.
(5) Non-powered hand tool means a small tool, such as a geologic
hammer, trowel, or sieve, that does not use or is not operated by a
motor, engine, or other mechanized power source, and that can be hand-
carried by one person.
(b) In order to preserve paleontological or other resources, or for
other management reasons, the authorized officer may establish
limitations on casual collecting, including but not limited to reducing
the weight of common invertebrate or plant paleontological resources
below the amount specified in this subpart; limiting the depth of
disturbance; establishing site-specific dates or locations for
collecting; or establishing what is common in a specific area.
(c) Collecting common invertebrate or plant paleontological
resources inconsistent with any of the limitations in paragraphs (a) or
(b) of this section is not casual collecting, and must be immediately
discontinued.
(d) Collecting common invertebrate or plant paleontological
resources inconsistent with this subpart is a prohibited act and may
result in civil or criminal penalties.
Subtitle B--Regulations Relating to Public Lands
Subchapter A--General Management
PART 8360--VISITOR SERVICES
0
2. Revise the authority citation for part 8360 to read as follows:
Authority: 16 U.S.C. 470aaa et seq., 670 et seq., 877 et seq.,
1241 et seq., and 1281c; and 43 U.S.C. 315a and 1701 et seq.
0
3. Revise Sec. 8360.0-3 to read as follows:
Sec. 8365.0-3 Authority.
The regulations of this part are issued under the provisions of the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et
seq.), the Sikes Act (16 U.S.C. 670g), the Taylor Grazing Act (43
U.S.C. 315a), the Wild and Scenic Rivers Act (16 U.S.C. 1281c), the Act
of September 18, 1960, as amended, (16 U.S.C. 877 et seq.), the
National Trails System Act (16 U.S.C. 1241 et seq.), and the
Paleontological Resources Preservation Act (16 U.S.C. 470aaa et seq.).
0
4. Amend Sec. 8365.1-5 by revising paragraphs (b)(2), (b)(4), and
(b)(5) and adding paragraph (b)(6) to read as follows:
Sec. 8365.1-5 Property and resources.
* * * * *
(b) * * *
(2) Nonrenewable resources such as rocks, mineral specimens, and
semiprecious gemstones;
* * * * *
(4) Mineral materials as provided under subpart 3604;
(5) Forest products for use in campfires on the public lands. Other
collection of forest products shall be in accordance with the
provisions of Group 5500 of this title; and
(6) Common invertebrate and plant paleontological resources as
provided under subpart 49 of this title.
* * * * *
Title 50: Wildlife and Fisheries
PART 27--PROHIBITED ACTS
0
5. The authority citation for part 27 continues to read as follows:
Authority: 5 U.S.C. 685, 752, 690d; 16 U.S.C. 460k, 460l-6d,
664, 668dd, 685, 690d, 715i, 715s, 725; 43 U.S.C. 315a.
0
6. Amend Sec. 27.63 by adding paragraph (c) to read as follows:
Sec. 27.63 Search for and removal of other valued objects.
* * * * *
(c) Permits are required for the collection of paleontological
resources on national wildlife refuges in accordance with the
provisions of 43 CFR part 49.
Elizabeth Klein,
Principal Deputy Assistant Secretary, Policy Management and Budget.
[FR Doc. 2016-29244 Filed 12-6-16; 8:45 am]
BILLING CODE 4333-15-P; 4310-84-P; 4312-52-P; 4332-90-P