Message #54:
From: AzTeC SW Archaeology SIG
To: "'Matthias Giessler'"
Subject: Fossil Act (fwd)
Date: Thu, 8 Feb 1996 22:30:28 -0700 (MST)
Mime-Version: 1.0
From: ROLLA QUEEN
FYI. Attached is the text of the current bill regarding fossils pending in
Congress.
---------- Forwarded message ----------
Date: Thu, 08 Feb 1996 08:06:26 -0700
From: Edward Friedman
To: rqueen@ca1147.cddo.ca.blm.gov
Subject: Fossil Act
Full Text of Most Recent Version:I
104th CONG
2d Session
H. R. 2943
To provide for the collection of fossils on Federal lands, and for other
purposes.
IN THE HOUSE OF REPRESENTATIVES
February 1, 1996
Mr. Johnson of South Dakota (for himself and Mr. Skeen) introduced the
following bill; which was referred to the Committee on Resources, and in
addition to the Committees on Agriculture, and Transportation and
Infrastructure, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall within
the jurisdiction of the committee concerned
A BILL
To provide for the collection of fossils on Federal lands, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE. This Act may be cited as the "Fossil
Preservation Act of 1996".
SECTION 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) paleontology, as distinct from archaeology, is the study
of prehistoric, nonhuman life and is most closely allied with geology and
biology;
(2) the science of paleontology is best served by
unimpeded access to fossils and fossil-bearing rocks in
the field;
(3) fossils have scientific, educational, and commercial
value;
(4) fossils are accessible on Federal lands, but the few
Federal laws or regulations in existence on the date of enactment of this
Act do not provide for uniform regulations for their
collection;
(5) access to fossils on Federal lands should be provided
to research scientists, educators, amateur collectors, and commercial
entities under proper guidelines, but collecting decreases the benefit of
Federal lands for the people of the United States if the collecting--
(A) separates scientifically unique fossils from
their geological and paleontological contexts,
(B) removes scientifically unique fossils from the
realm of public education or scientific study, or
(C) interferes with ongoing excavation by
researchers engaged in permitted studies or excavations.
(6) scientifically unique fossils, as determined by the
Council, must be deposited in institutions where there are established
research, educational, and training programs in paleontology.
(b) Purposes.--The purposes of this Act are--
(1) to secure, for the present and future benefit of the
people of the United States, the protection, including collection and
preservation, of fossils that are on Federal lands;
(2) to provide a uniform national policy on fossil
collecting on Federal lands that--
(A) enables research scientists, educators,
amateur collectors, and commercial entities to collect fossils on Federal
lands; and
(B) facilitates scientific research and education in
paleontology;
(3) encourages the collection and preservation of fossils
from Federal lands in order to reduce the loss of fossils resulting
from erosion and theft; and
(4) encourages the identification, preservation and study
of scientifically unique paleontological specimens and sites on Federal
lands in order to increase our understanding of the history of life on
earth.
SECTION 3. DEFINITIONS. For the purposes of this Act:
(1) Federal lands.
(A) The term "Federal lands" means the lands,
other than wilderness, administered by the Bureau of Land Management,
the Forest Service, the United States Fish and Wildlife Service, the
Bureau of Reclamation, and the United States Army Corps of Engineers.
(B) Such term does not include lands held in trust
for the benefit of an Indian tribe or individual or held by an Indian
tribe or
individual subject to a restriction by the United States against alienation,
lands administered by the National Park Service, lands designated by an
Act of Congress as wilderness, and any other Federal lands not
specifically included by subparagraph (A).
(2) Federal land manager. The term "Federal land
manager" means the Secretary of the department or head of the agency
or instrumentality of the United States.
(3) Fossil. The term "fossil" means any naturally occurring
remains or trace of plant or animal life that;
(A) lived prior to the Holocene epoch; and
(B) is not associated with an archaeological
resource or a cave resource.
(4) Archaeological resource. The term "archaeological
resource" has the meaning given such term in section 3(1) of the
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)).
(5) Cave resource. The term "cave resource" has the
meaning given such term in section 3(5) of the Federal Cave Resources
Protection Act (16 U.S.C. 4302(5)).
(6) Council. The term "Council" means the National Fossil
Council established by section 9.
(7) Director. The term "Director" means the Director of the
United States Geological Survey.
(8) Suitable paleontological institution. An institution is a
suitable paleontological institution if the institution is a nonprofit
public or
private organization, including a college, university, Federal or State
repository, or museum;
(A) with a research, educational, or curatorial
program in paleontology; and
(B) with open access to appropriate records for
the specimens collected under these permits for research and education.
SECTION 4. MANAGEMENT OF FOSSILS ON FEDERAL LANDS.
(a) Federal Lands Open to Fossil Collecting. Except as otherwise
provided in this section, all Federal lands shall be open to fossil
collecting, as follows: all Federal lands shall be open to fossil collecting
by reconnaissance without a permit, except for those lands designated
as requiring such a permit pursuant to subsection (c)(1)(B), and all
Federal lands shall be open to fossil collecting by quarrying pursuant to a
permit.
(b) Duty To Manage Separately From Archaeological Resource.
Each Federal land manager, in consultation with the Council, shall
manage fossils separately from archaeological resources, cave
resources, and cultural resources, but in conjunction with the natural
resources within the jurisdiction of the Federal land manager.
(c) Types of Collecting and Whether Notice or a Permit is
Required. Collecting fossils from Federal lands shall be conducted in
accordance with the following:
(1) Reconnaissance.
(A) In general. Except as provided in
subparagraphs (B) and (C), collecting fossils from the surface is not
subject to advance notice to a Federal land manager or the issuance of a
permit. Such collecting is reconnaissance collecting and
(i) results in surface disturbance of less
than two square meters of the earth;
(ii) involves picking up loose specimens on
weathered rock surfaces;
(iii) may involve the use of simple hand tools
(such as hammers, chisels, pry bars, and rakes);
(iv) does not involve the use of power
tools, explosives,or mechanized equipment of any kind; and
(v) does not pose potential for significant
disturbance of sites of ongoing scientific research and other important
resources, including endangered species, cultural resources,
archaeological resources, cave resources, wilderness, or areas of
critical environmental concern.
(B) Exception. A permit is required for
reconnaissance collecting from those Federal lands under the jurisdiction
of the Federal land manager which the Federal land manager may
designate in accordance with the guidelines developed by the Council
under section 9. The Federal land manager shall publish in the Federal
Register notice of each area for which a permit is required for
reconnaissance collecting and shall post in each such area appropriate
notice of reconnaissance collecting permit requirements.
(C) Notice by groups. Advance notice of not less
than seven days is required for reconnaissance collecting by groups
comprised of more than 10 persons.
(2) Quarrying. Fossil collection by quarrying means the
collection of fossils by means other than reconnaissance collecting.
Collecting fossils through quarrying may only be conducted pursuant to a
permit and advance notice.
(d) Determination of Scientifically Unique. The Federal land
manager, in consultation with the Chair of the Council, shall determine
whether a fossil is scientifically unique in accordance with regulations
promulgated under section 10, except with respect to commercial
permits. In the case of a commercial permit, the determination of
scientifically unique shall be made by the Council.
(e) Appeals.
(1) Agency process. Except as provided by paragraph
(2), administrative appeals of a Federal land manager's decision under
this Act shall be made in accordance with the appeals process, if any,
established by the agency concerned.
(2) Council. An appeal of a Federal land manager's
decision under this subsection (d) may be made to the Council in
accordance with regulations promulgated under section 10.
SECTION 5. PERMITS.
(a) General Authority.
(1) Issuance. The Federal land manager shall issue
permits under such terms and conditions as the Federal land manager
may impose
(A) for reconnaissance collecting under section
4(c)(1) from those lands which the Federal land manager designates in
accordance with the guidelines developed by the Council under section
9; and
(B) for the discovery, quarrying, and removal of
fossils under section 4(c)(2) that are located on lands under the
jurisdiction of the Federal land manager, including activity associated
with such quarrying.
(2) Limitation. Commercial permits may not be issued
under this section for the quarrying or removal of a scientifically unique
find, as determined by the Council.
(3) Period to consider application. Permits shall be issued
or denied within a reasonable time, but no later than 90 days after a
permit application is received, unless extended by written notice of the
Federal land manager to allow compliance with this Act.
(4) Contents of permit application. An application
for a permit under this section shall contain
(A) a general description of the area in which
collecting activity is to occur and, when applicable, the purpose of the
proposed quarry;
(B) the beginning and ending dates of work and list
of tools for the proposed activity;
(C) the identity and qualifications of the individuals
responsible for carrying out the terms and conditions of the permit;
(D) in the case that the permit is for collecting
fossils for educational purposes, the agreement of the applicant to the
conditions specified in subsection (b);
(E) in the case that the permit is for collecting
fossils for scientific purposes, the agreement of the applicant to the
conditions specified in subsection (c);
(F) in the case that the permit is for collecting
fossils for sale, barter, or exchange, the agreement of the applicant to
the conditions specified in subsection (d); and
(G) the applicant submits in writing qualifications
and relevant proof of experience that are in compliance with the
guidelines established by the Federal land manager and are appropriate
for the type of permit applied for.
(b) Educational Collecting Permits. A permit for collecting fossils
from Federal lands for educational purposes shall be issued pursuant to
an application under subsection (a) if
(1) the applicant agrees to deposit all scientifically unique
fossils, records, and data associated with such collecting in a suitable
paleontological institution and to carry out the permitted activity
primarily
for the purpose of public education;
(2) the applicant has a letter of agreement from a suitable
paleontological institution; and
(3) the Federal land manager determines that the activity is
consistent with any management plan applicable to the Federal lands
concerned.
(c) Scientific Collecting Permits. A permit for collecting fossils
from Federal lands for scientific purposes shall be issued pursuant to an
application under subsection (a) if;
(1) the applicant agrees to deposit all scientifically unique
fossils, records, and data associated with such collecting in a suitable
paleontological institution and to carry out the permitted activity
primarily
for the purpose of scientific research, public education, or public display;
(2) the applicant has a letter of agreement from a suitable
paleontological institution; and
(3) the Federal land manager determines that the activity is
consistent with any management plan applicable to the Federal lands
concerned.
(d) Commercial Collecting Permits. A permit for collecting fossils
from Federal lands for sale, barter, or exchange shall be issued pursuant
to an application under subsection (a) if,
(1) the applicant agrees;
(A) that the fossils to be extracted are for a
commercial purpose;
(B) to pay fees established in accordance with
section 6;
(C) to deposit the paleontological records and data
associated with the commercial quarrying with the United States
Geological Survey;
(D) to report any unanticipated discoveries made
under the commercial permit to the agency issuing the permit and that
scientifically unique finds will be property of the United States and
will be
deposited in a suitable paleontological institution; and
(E) to file a final report with the permit granting
agency describing all quarried materials;
(2) the Federal land manager determines that the activity is
consistent with any management plan applicable to the Federal lands
concerned; and
(3) the permit application has been reviewed by the
Federal land manager in consultation with the Chair of the Council.
(e) Suspension and Revocation of Permits.
(1) Suspension. The Federal land manager may suspend
a permit issued under this section if the Federal land manager determines
that the holder of the permit has intentionally violated any of the terms of
the permit or intentionally engaged in an act for which a civil penalty may
be imposed under section 8.
(2) Revocation. The Federal land manager may revoke a
permit issued under this section if the holder of the permit is assessed a
civil penalty under section 8.
(3) Protection of rights. Before suspending a permit under
paragraph (1) or revoking a permit under paragraph (2), the Federal land
manager shall provide the permittee with notice and an opportunity for a
hearing on the record in accordance with section 554 of title 5, United
States Code.
(f) Permits Issued Under Antiquities Act of 1906.
(1) New permits. No permit or other permission shall be
required under the Act entitled "An Act for the Preservation of American
Antiquities", approved June 8, 1906 (16 U.S.C. 431 et seq.), for any
activity for which a permit is issued under this section.
(2) Previous permits. Any permit issued under such Act
prior to the date of enactment of this Act shall remain in effect according
to the terms and conditions of the permit. No permit under this Act shall
be required to carry out any activity under a permit issued under such
Act prior to the date of enactment of this Act. Nothing in this Act
shall be
construed to modify or affect a permit issued under such Act prior to the
date of enactment of this Act.
SECTION 6. FEES AND ROYALTIES FOR COMMERCIAL COLLECTING.
(a) General Authority. The Federal land manager shall establish
and collect fees relating to the commercial collection of fossils subject to
this Act. The fee shall be determined by the Secretary on a
permit-by-permit basis and shall be sufficient to cover the cost to the
Secretary of issuing a permit under section 5 and shall be based on the
amount of surface disturbance which occurs under the permit and the
location of the collection activity.
(b) Royalty. A permit for commercial collecting shall require
payment of a royalty on the fair market value of each fossil removed
under the permit. The amount of the royalty shall be determined by the
Council as a percentage of the value of the fossil on the basis of what a
willing buyer would pay a willing seller in an arms length transaction.
(c) Use of Amounts Collected. Amounts collected by a Federal
land manager under this section shall be retained by the Federal land
manager and used without further appropriation in the area with respect
to which the amount was generated for the purpose of carrying out the
paleontological program of the Federal land manager.
SECTION 7. OWNERSHIP AND CUSTODY OF FOSSILS.
(a) In General. Except as provided by subsection (b), fossils
collected pursuant to this Act are the property of the collector;
(1) without restriction if collected under the provisions of
this Act where no permit is required; and
(2) are subject to the terms and conditions agreed to by
the collector in connection with the issuance of a permit under this Act if
collected pursuant to the permit.
(b) Exception. Fossils collected pursuant to a commercial
collecting permit under section 5(c) which are scientifically unique, as
determined by the Council, are the property of the United States and shall
be placed into custody with the Director of the United States Geological
Survey. This paragraph applies with respect to a fossil regardless of
when the determination of scientifically unique is made.
(c) Authority of United States To Dispose of Fossils. The Director
of the United States Geological Survey may sell, exchange, loan, or
donate any fossil placed into the custody of the Director under
subsection (b).
d) Modification or Removal of Restrictions.
(1) Application to council. The collector of a fossil
pursuant to a permit issued under this Act may apply to the Council for
the modification or removal of restrictions relating to fossils collected
under this Act.
(2) Standard. The Council may modify or remove the
restrictions, as the Council determines appropriate, if the Council
determines that such modification or removal is necessary to better
achieve an educational or scientific purpose of the collector.
SECTION 8. CIVIL PENALTIES.
(a) Authority. The Federal land manager may assess a civil
penalty of more than $1,000 but not more than $100,000 against any
person who;
(1) willfully violates any provision of this Act, permit
issued under this Act, or rule or regulation promulgated by the Federal
land manager pursuant to this Act, including quarrying, removing,
damaging, or otherwise altering or defacing, or attempting to quarry,
remove, damage, or otherwise alter or deface, a fossil located on
Federal land in violation of this Act or a permit issued under this Act;
(2) knowingly sells, purchases, exchanges, transports, receives,
or offers to sell, purchase, or exchange a fossil if the fossil was
quarried or removed from Federal lands in violation of paragraph (1) or in
violation of a law, ordinance, or permit in effect under any other
provision of Federal law;
(3) submits false, inaccurate, or misleading information on
any application for a permit issued pursuant to this Act; or
(4) fails to make or file any report required by this Act.
(b) Mitigation of Penalty. The Secretary may compromise, modify,
or remit, with or without conditions, any civil penalty which may be
imposed under this subsection.
(c) Interest.
(1) Date accrual begins. Interest shall accrue on a civil
penalty imposed under this section on the later of;
(A) the date on which the order of the Federal land
manager becomes final, unless an action for judicial review is brought in
accordance with chapters 5 and 7 of title 5, United States Code; and
(B) the date on which a final judgment is entered
pursuant to an action referred to in subparagraph (A).
(2) Rate. Interest for a period under paragraph (1) shall
be at the rates specified for underpayments under section 6621 of the
Internal Revenue Code of 1986.
SECTION 9. NATIONAL FOSSIL COUNCIL.
(a) Establishment. The Director of the United States Geological
Survey shall establish a council to be known as the "National Fossil
Council".
(b) Duties. The Council.
(1) during the six-month period beginning on the date of
the appointment of the initial members under subsection (c)(2);
(A) shall develop guidelines and parameters for
determining "scientifically unique";
(B) shall develop procedures for identifying
specimens as scientifically unique, including procedures for cases in
which the determination is made during the collection process or after
the removal of the specimen from Federal lands;
(C) shall develop a procedure for advising the
Federal land manager on scientifically unique fossils upon request of the
Federal land manager;
(D) shall develop guidelines for the Federal land
manager to determine which lands to close for reconnaissance
collecting;
(E) shall develop procedures for processing
appeals of a Federal land manager's decisions with respect to the
determination of scientifically unique;
(F) shall develop guidelines for the minimum
acceptable qualifications of collectors for each type of permit under
section 5;
(G) shall establish the royalty rate required by
section 6; and
(H) may define or provide guidelines for
determining which groups may engage in collecting for educational
purposes without a permit under section 5(b)(2);
(2) provide advice to the Federal land managers in
carrying out this Act;
(3) review permit applications rejected pursuant to section
4(d) on the basis of scientifically unique fossils;
(4) review the procedures by which this Act is enforced
to ensure uniformity of regulation consistent with this Act among Federal
land management agencies; and
(5) carry out the other duties required by this Act.
(c) Membership.
(1) In general. The Council shall be composed of seven
members, as follows:
(A) The Director of the Geological Survey (or
designee), ex officio, who shall serve as the chair of the Council.
(B) One individual appointed by the Director, after
considering recommendations made by the United States National
Museum.
(C) One individual appointed by the Director, after
considering recommendations made by the Society of Vertebrate
Paleontology.
(D) One individual appointed by the Director, after
considering recommendations made by the Paleontological Society.
(E) One individual who shall be representative of
the Federal land managers, appointed by the Director after considering
recommendations made by the Secretary of the Interior and the
Secretary of Agriculture.
(F) One individual appointed by the Director, after
considering recommendations made by the American Association of
Paleontological Suppliers.
(G) One individual appointed by the Director, after
considering recommendations made by the Mid America Paleontological
Societies and the American Federation of Mineralogical Societies.
(2) Initial appointments. The Director shall make the
appointments of the initial members within 60 days after the date of
enactment of this Act.
(d) Terms.
(1) In general. Each member appointed under subsection
(c) shall be appointed for a term of five years, except as provided in
paragraphs (2) and (3).
(2) Terms of initial appointees. As designated by the
Director at the time of appointment, of the members first appointed;
(A) two shall be appointed for terms of three
years; and
(B) two shall be appointed for terms of four years.
(3) Vacancies. Any member appointed to fill a vacancy
occurring before the expiration of the term for which the member's
predecessor was appointed shall be appointed only for the remainder of
that term. A member may serve after the expiration of that member's
term until a successor has taken office. A vacancy in the Council shall
be filled in the manner in which the original appointment was made.
(e) Basic Pay. Members shall serve without pay, and members
who are full-time officers or employees of the United States may not
receive additional pay, allowances, or benefits by reason of their service
on the Council.
(f) Quorum and Vote Required.
(1) In general. Five members of the Council shall
constitute a quorum but a lesser number may hold hearings. Except as
provided by paragraph (2), actions may be taken upon affirmative vote
by a majority decision, a quorum being
present.
(2) Designation of scientifically unique.
(A) Designating a fossil as scientifically unique in
connection with a commercial permit requires an affirmative vote of five
members of the Council.
(B) In an appeal of a decision of a Federal land
manager under section 4(d)(2), an affirmative vote of five members of
the Council is required to modify or reverse the decision.
(g) Meetings. The Council shall meet at the call of the Chair or as
otherwise provided by this section.
(h) Staff of Federal Agencies. Upon request of the Chair, the
head of any Federal department or agency may detail, on a reimbursable
basis, any of the personnel of that department or agency to the Council
to assist it in carrying out its duties under this Act.
(i) Mails. The Council may use the United States mails in the same
manner and under the same conditions as other departments and
agencies of the United States.
SECTION 10. REGULATIONS.
(a) General Regulations.
(1) Issuance. Not later than one year after the date of the
enactment of this Act, the Secretary of the Interior, the Secretary of
Agriculture, and the Secretary of the Army, after consultation with other
Federal land managers and representatives of concerned State
agencies, after review and comment by the Council, and after public
notice and hearings, shall each issue as soon as practicable, such
regulations as are appropriate to carry out this Act. Such regulations
shall be as uniform as possible and where not possible, shall include a
list of all instances in which such regulations are not uniform and the
reasons therefor.
(2) Submission to congress. The regulations issued under
this Act shall be submitted to the Committee on Resources of the House
of Representatives and the Committee on Energy and Natural Resources
of the Senate and may not take effect before the expiration of the
90-date period following the date of submission.
(b) Land Management Plans. Each Federal land manager shall
amend management plans as necessary to conform to this Act and the
regulations issued under subsection (a).
