Paleontological Resources Preservation, 88173-88196 [2016-29244]

Download as PDF asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules other information supporting a claim or defense. (f) Entry, inspection, and samples. The requester must provide DoD a right of entry at reasonable times to any facility, establishment, place, or property under the requester’s control which is the subject of or associated with the requester’s request for indemnification or defense and must allow DoD to inspect or obtain samples from that facility, establishment, place, or property. (g) Additional information. The Deputy General Counsel will advise a requester in writing of any additional information that must be provided to adjudicate the request for indemnification or defense. Failure to provide the additional information in a timely manner may result in denial of the request for indemnification or defense. (h) Adjudication. The Deputy General Counsel will adjudicate a request for indemnification or defense and provide the requester with DoD’s determination of the validity of the request. Such determination will be in writing and sent to the requester by certified or registered mail. (i) Reconsideration. Any such determination will provide that the requester may ask for reconsideration of the determination. Such reconsideration shall be limited to an assertion by the requester of substantial new evidence or errors in calculation. The requester may seek such reconsideration by filing a request to that effect within 30 days of receipt of determination. A request for reconsideration must be received by the Deputy General Counsel within 30 days after receipt of the determination. Such a request must be sent to the same address as provided for in paragraph (a) of this section and provide the substantial new evidence or identify the errors in calculation. Such reconsideration will not extend to determinations concerning the law, except as it may have been applied to the facts. A request for reconsideration will be acted on within 30 days from the time it is received. If a request for reconsideration is made, the six month period referred to in section 330(b)(1) and section 1502(e)(2)(A) will commence from the date the requester receives DoD’s denial of the request for reconsideration. (j) Finality of adjudication. An adjudication of a request for indemnification constitutes final administrative disposition of such a request, except in the case of a request for reconsideration under paragraph (i) of this section, in which case a denial of the request for reconsideration VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 constitutes final administrative disposition of the request. Dated: December 2, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2016–29367 Filed 12–6–16; 8:45 am] BILLING CODE 5001–06–P 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 Bureau of Land Management, Bureau of Reclamation, National Park Service, U.S. Fish and Wildlife Service; Interior. ACTION: Proposed rule. AGENCY: 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 SUMMARY: PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 88173 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 OIRA_Submission@ omb.eop.gov (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 jeffrey_parrillo@ ios.doi.gov (email). E:\FR\FM\07DEP1.SGM 07DEP1 88174 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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: Julia_F_Brunner@nps.gov. 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: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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). 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 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). PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 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 (§ 49.1)? Proposed § 49.1 would restate the purposes of PRPA and summarize the contents of the proposed rule. What terms are used in this part (§ 49.5)? Proposed § 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 E:\FR\FM\07DEP1.SGM 07DEP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 BLMadministered 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 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 88175 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 (§ 49.10)? Proposed § 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 E:\FR\FM\07DEP1.SGM 07DEP1 88176 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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 (§ 49.15)? Proposed § 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 mineralrelated 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. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Does this part create new rights or entitlements (§ 49.20)? Proposed § 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 (§ 49.25)? Proposed § 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 (§ 49.30)? Proposed § 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, § 49.30 would repeat section 6302 of PRPA, 16 U.S.C. 470aaa–1. How will the bureaus foster public education and awareness (§ 49.35)? Proposed § 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 multiagency and multi-partner event, is a successful example of how the bureaus are already working to increase public awareness. For public notice and clarity, § 49.35 would repeat section 6303 of PRPA, 16 U.S.C. 470aaa–2. When may the bureaus restrict access to an area (§ 49.40)? Proposed § 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, PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 paragraph (a) would repeat section 6304(e) of PRPA, 16 U.S.C. 470aaa–3(e). Proposed § 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 (§ 49.50)? Proposed § 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 § 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 § 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 § 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 (§ 49.55)? Proposed § 49.55 would establish that applicants who meet the qualification requirements of proposed § 49.60, provide a complete application, and E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS What criteria must a permit applicant meet (§ 49.60)? Proposed § 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 § 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 (§ 49.65)? In order to ensure consistency among bureaus, proposed § 49.65 lists the information that a permit applicant is required to provide before a bureau can issue a permit under this subpart. Proposed § 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 § 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 (§ 49.70)? Proposed § 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 § 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 (§ 49.75)? Proposed § 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 § 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 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 88177 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 § 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 § 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 § 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 § 49.75(a)(12) would state that the permittee is responsible for the costs of carrying out the permitted E:\FR\FM\07DEP1.SGM 07DEP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 88178 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules activity, including curation costs, consistent with specific or programmatic direction from the authorized officer. Proposed § 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 § 49.75(a)(16) would state that a permittee may not transfer the permit to another person. Proposed § 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 § 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 § 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 § 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 (§ 49.80)? Proposed § 49.80 would identify when and how a permit may be modified, suspended, revoked, or VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 § 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 § 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 § 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 § 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 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 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 § 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 § 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 (§ 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 § 49.85 would state that permit-related decisions may be appealed. What is the process for appealing a permit-related decision (§ 49.90)? Proposed § 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 (§ 49.95)? Proposed § 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 E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules archaeological collections at 36 CFR part 79. Where are collections deposited (§ 49.200)? Proposed § 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. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS How will bureaus approve a repository for a collection made under this part (§ 49.205)? Proposed § 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 § 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 (§ 49.210)? Proposed § 49.210 would clarify the process for depositing paleontological collections at the approved repository. Under proposed § 49.210(a), the authorized officer would work with the permittee and approved repository, VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 § 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 PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 88179 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 (§ 49.215)? Proposed § 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 § 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 § 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 § 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 (§ 49.220)? Proposed § 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 § 49.220(a)(1) would make collections and locality data available subject to the confidentiality provisions of the proposed rule and PRPA. E:\FR\FM\07DEP1.SGM 07DEP1 88180 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules Proposed § 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 (§ 49.300)? For public notice and clarity, proposed § 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. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Criminal Penalties (Subpart E) What criminal penalties apply to violations of this part (§ 49.400)? Proposed § 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 § 49.400(a) would state that criminal penalties would not apply with VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 § 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 § 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 § 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 § 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 (§ 49.500)? Proposed § 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 (§ 49.505)? Proposed § 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. PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 What is included in the notice of violation (§ 49.510)? Proposed § 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 (§ 49.515)? Proposed § 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 (§ 49.520)? Proposed § 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 (§ 49.525)? Proposed § 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 § 49.525(a) and (b) and assesses a penalty. For example, the penalty might be $1,000. Under proposed § 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 E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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 § 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 § 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 § 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 § 49.525(f) would state that the final assessment may be equal to, less than, or more than the proposed civil penalty. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS How will the authorized officer issue the final assessment of civil penalty (§ 49.530)? Proposed § 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 (§ 49.535)? Proposed § 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 § 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 § 49.535(b). If the person fails to file under either option within 30 days, the assessment will be deemed accepted. Acceptance of VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 88181 the assessment waives the right to hearing. stayed pending resolution of the judicial review. What procedures govern the DCHD hearing process initiated by a request for hearing on the final assessment (§ 49.540)? What happens if a civil penalty is not paid on time (§ 49.570)? If a person files a request for a hearing with an administrative law judge, proposed § 49.540 would explain the procedures for that hearing. What will be included in the administrative law judge’s decision (§ 49.545)? Proposed § 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 (§ 49.550)? Proposed § 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 (§ 49.555)? Proposed § 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 (§ 49.560)? Proposed § 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 (§ 49.565)? Proposed § 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 PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 Proposed § 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 (§ 49.575)? Proposed § 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 (§ 49.600)? Proposed § 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 (§ 49.605)? Proposed § 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. E:\FR\FM\07DEP1.SGM 07DEP1 88182 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules What is the cost of response, restoration, and repair (§ 49.610)? Proposed § 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 (§ 49.700)? Proposed § 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 (§ 49.705)? Proposed § 49.705 would describe the rewards that may be paid for assistance in enforcing the proposed rule. Proposed § 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) asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Is casual collecting allowed on lands administered by NPS or FWS (§ 49.800)? Proposed § 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 (§ 49.805)? Under proposed § 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 § 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 § 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 § 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 § 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 (§ 49.810)? Proposed § 49.810(a) would restate the PRPA definition of casual collecting. Proposed § 49.810(a)(1) through (a)(5) would provide specific definitions for the terms used in the PRPA definition. Under proposed § 49.810(a)(1), only common invertebrate and common plant paleontological resources may be casually collected. Common PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 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 widespread 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 § 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 E:\FR\FM\07DEP1.SGM 07DEP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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 § 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 § 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 ‘‘noncommercial purposes’’ (43 CFR 8365.1–5(b)). Proposed § 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 § 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 § 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 § 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 § 8360.0–3 would each be amended to add PRPA (16 U.S.C. 470aaa et seq.). PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 88183 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 § 8365.1–5 would be amended to conform to the terms introduced by PRPA. The specific changes are: • § 8365.1–5(b)(2) would be amended to remove the phrase ‘‘common invertebrate and common plant fossils;’’ • § 8365.1–5(b)(4) would be amended to remove ‘‘and’’ in order to maintain grammatical structure; • § 8365.1–5(b)(5) would be amended to add ‘‘and’’ in order to maintain grammatical structure; and • A proposed new § 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, § 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 § 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 § 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 E:\FR\FM\07DEP1.SGM 07DEP1 88184 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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 costbenefit 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.’’ asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 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 (§ 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. E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules (6) Information about the proposed repository. (7) Information on the applicant’s past performance on previous permits. Change of personnel (§ 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 (§ 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 (§ 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 (§ 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 (§ 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 (§ 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 (§ 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 (§ 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 (§ 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 § 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. Total annual responses Requirement 88185 Completion time per response (hours) Total annual burden hours 440 100 300 50 300 100 374 66 200 10 5 4 1 1 1 1 1 5 5 1 10 10 1,760 100 300 50 300 100 1,870 330 200 100 50 Totals .................................................................................................................................... asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Permit Application—DI Form 9002—§ 49.65; DI Form 9003—§ 49.75(a); DI Form 9007— § 49.75(d) ................................................................................................................................. Report Change of Personnel—§ 49.75(a)(2) ............................................................................... Locality Information—DI Form 9004—§ 49.75(a)(1) & (7) .......................................................... Report Resource Damage or Theft –§ 49.75(a)(8) ..................................................................... Repository Receipt—DI Form 9008–§ 49.75(a)(9)&(10) ............................................................. List and Description of Paleontological Resources—§ 49.75(a)(11) ........................................... Reports—DI Form 9005, Permit Report Cover Sheet—§ 49.75(a)(15) ...................................... Reports—DI Form 9006, Consulting Summary Report—§ 49.75(a)(15) ..................................... Request Amendment to Permit—§ 49.80(a) ................................................................................ Objecting to a Notice of Violation—§ 49.515(a)&(b) ................................................................... Responding to a Civil Penalty—§ 49.535(a) ................................................................................ 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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: PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 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-bycase.’’ The categorical exclusion is appropriate and applicable for the E:\FR\FM\07DEP1.SGM 07DEP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 88186 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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 VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 noncommercial personal use, either by surface collection or the use of nonpowered 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 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 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. E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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: Subpart F—Civil Penalties 1. Add part 49 to title 43 to read as follows: ■ PART 49—PALEONTOLOGICAL RESOURCES PRESERVATION asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 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? Jkt 241001 Subpart A—Managing, Protecting, and Preserving Paleontological Resources What acts are prohibited? 49.400 What criminal penalties apply to violations of this part? Subtitle A—Office of the Secretary of the Interior 17:23 Dec 06, 2016 49.300 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? PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 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 D—Prohibited Acts Subpart E—Criminal Penalties Title 43: Public Lands: Interior VerDate Sep<11>2014 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? 88187 § 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. § 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; E:\FR\FM\07DEP1.SGM 07DEP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 88188 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules (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 § 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 federallyrecognized 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. VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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. § 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. § 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. PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 § 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. § 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. § 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. E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules § 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. § 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 § 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. § 49.55 Who can receive a permit? Applicants who demonstrate that they meet the qualification requirements described in § 49.60, who provide a complete application as described in § 49.65, and whose proposed activity meets the issuance criteria described in § 49.70 may receive a permit. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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; VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 (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. § 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 § 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. PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 88189 (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. § 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 § 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 § 49.205(a), for the collection that would be made under the permit. § 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: E:\FR\FM\07DEP1.SGM 07DEP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 88190 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules (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. VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 (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. § 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 PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules immediately upon the permittee’s receipt of the written notification of the modification, suspension, revocation, or cancellation. § 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. § 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. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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. VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 88191 Subpart C—Management of Paleontological Resource Collections § 49.210 What is the process for depositing the collection at the approved repository? § 49.200 (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. 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 § 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. § 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 § 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. PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 § 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 § 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 E:\FR\FM\07DEP1.SGM 07DEP1 88192 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 49.220 What are the standards for managing the collections? (a) Each approved repository must: (1) Provide curatorial services consistent with § 49.5, and make the collections available for scientific research, public education, and management uses that further the Act, subject to § 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. VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 Subpart D—Prohibited Acts § 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 § 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 PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 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 § 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. § 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. § 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. § 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/ E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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. § 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 § 49.515. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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 § 49.515 or furnished to the authorized officer upon his or her request; and VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 (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. § 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 § 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. PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 88193 § 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 § 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. E:\FR\FM\07DEP1.SGM 07DEP1 88194 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules (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. § 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 § 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 § 49.545 and serve it on the parties. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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 § 49.525 or by any offer of mitigation or remission previously made. VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 (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 § 49.550. § 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 PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 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. § 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 § 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 § 49.550. § 49.560 paid? When must the civil penalty be 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 § 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 § 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 § 49.550(a). § 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. § 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 E:\FR\FM\07DEP1.SGM 07DEP1 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules 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. § 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 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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. § 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, VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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. § 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 § 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. § 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. PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 88195 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? 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. § 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. § 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. E:\FR\FM\07DEP1.SGM 07DEP1 88196 Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS (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 × 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; VerDate Sep<11>2014 17:23 Dec 06, 2016 Jkt 241001 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 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. 3. Revise § 8360.0–3 to read as follows: ■ § 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.). ■ 4. Amend § 8365.1–5 by revising paragraphs (b)(2), (b)(4), and (b)(5) and adding paragraph (b)(6) to read as follows: PO 00000 Frm 00061 Fmt 4702 Sfmt 9990 § 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 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. 6. Amend § 27.63 by adding paragraph (c) to read as follows: ■ § 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 E:\FR\FM\07DEP1.SGM 07DEP1

Agencies

[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 OIRA_Submission@omb.eop.gov (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 
jeffrey_parrillo@ios.doi.gov (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: 
Julia_F_Brunner@nps.gov. 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